UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 7th day of March, two thousand and five.

PRESENT:

Hon. John M. Walker, Jr., Chief Judge, Hon. Richard J. Cardamone, Hon. Barrington D. Parker, Circuit Judges.

KIM SEVIER, individually and on behalf of all others similarly situated, HEIDI D. KNIGHT, individually and on behalf of all others similarly situated and ERIC M. PAYNE, Plaintiffs-Appellees, - v. -

No. 04-2651(L)

TIME WARNER, INC. and TIME WARNER CABLE, INC., Defendants-Appellants.

APPEARING FOR APPELLANT JAY COHEN (Stacey A. Shortall, on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY APPEARING FOR APPELLEE BRIAN MURRAY, Murray, Frank &

Sailer LLP, New York, NY (Eric J.

Belfi and Gregory B. Linkh, Murray, Frank & Sailer, LLP, New York, NY; Roy A. Katriel, The Katriel Law Firm, Washington, DC; Mark Reinhardt, Reinhardt, Wendorf & Blanchfield, St. Paul, MN, on the brief)

Appeal from the United States District Court for the Southern District of New York (John E. Sprizzo, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the case is REMANDED to the district court in order for the parties to pursue a classwide settlement.

Defendants-appellants Time Warner Inc. and Time Warner Cable Inc. initially appealed from the April 23, 2004 order of the United States District Court for the Southern District of New York (John E. Sprizzo, Judge) denying appellants' motion to compel arbitration. Familiarity with the facts and procedural background is assumed.

Shortly before oral argument, the parties tentatively agreed to a classwide settlement, for which they seek district court approval, pursuant to Fed. R. Civ. P. 23(e). Pursuant to the procedure outlined in United States v. Jacobson, 15 F.3d 19, 22

(2d Cir. 1994), we remand this case to the district court so that the parties may seek approval of a classwide settlement. After the district court has ruled on the Rule 23(e) settlement, either party may restore jurisdiction to this panel within 30 days of that order by letter to the Clerk's Office seeking review.

Accordingly, the case is REMANDED.

FOR THE COURT:

Roseann B. MacKechnie, Clerk By:

Lucille Carr, Deputy Clerk