BRIAN PERRYMAN V. PROVIDE COMMERCE, No. 13-55373 (9th Cir. 2015)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 19 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT In re: EASYSAVER REWARDS LITIGATION, JOSUE ROMERO; DEANNA HUNT; KIMBERLY KENYON; GINA BAILEY; ALISSA HERBST; GRANT JENKINS; BRADLEY BERENTSON; JENNIFER LAWLER; DANIEL COX; JONATHAN WALTER; CHRISTOPHER DICKEY, No. 13-55373 D.C. No. 3:09-cv-02094-AJBWVG ORDER AND MEMORANDUM* Plaintiffs - Appellees, v. BRIAN PERRYMAN, Objector - Appellant, v. PROVIDE COMMERCE, INC.; REGENT GROUP, INC., a California corporation, DBA Encore Marketing International; ENCORE MARKETING INTERNATIONAL, INC., a Delaware corporation, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants - Appellees. Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding Submitted March 19, 2015** Pasadena California Before: REINHARDT and GOULD, Circuit Judges and MOTZ,*** Senior District Judge. This case is resubmitted as of the date of this order. Objector-Appellant Brian Perryman appeals the district court’s approval of the class settlement agreement reached by Defendant-Appellee Provide Commerce, Inc., Defendant-Appellee Regent Group, Inc., d/b/a Encore Marketing International, and Plaintiffs-Appellees. Perryman contends that the district court abused its discretion in approving the settlement agreement and the attorney’s fee award, because the $20 credit offered to the class was a coupon subject to the Class Action Fairness Act, 28 U.S.C. § 1712. Perryman further contends that the district court abused its discretion in approving the cy pres distribution. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable J. Frederick Motz, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation. 2 This case was originally set for argument on February 2, 2015. That argument date was vacated, and submission was deferred pending resolution of Frank v. Netflix, No. 12-15705+. On February 27, 2015, we decided Frank v. Netflix (In re Online DVD-Rental Antitrust Litig.), No. 12-15705, __F.3d __, 2015 WL 846008 (9th Cir. Feb. 27, 2015). Having reviewed the parties’ submissions, we vacate the district court’s judgment and remand for further proceedings consistent with Frank. Because class settlement is a package deal that must “stand or fall in its entirety,” we need not now address whether the district court abused its discretion in approving the cy pres distribution. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). Pursuant to General Order 4.5(e), each party shall bear its own costs on appeal. VACATED AND REMANDED. 3

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