Noel Frederick et al v. FIA Card Services, N.A. et al, No. 2:2009cv03419 - Document 100 (C.D. Cal. 2011)
Court Description: FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE by Judge Andrew J. Guilford, it is hereby ORDERED, ADJUDGED, AND DECREED as follows: 1. The definitions and provisions of the Settlement Agreement are hereby incorporated as though fully set forth herein. For purposes of this Order, capitalized terms shall have the meaning ascribed to them in the Settlement Agreement. (See document for further details.) 13. In the event that the Settlement Agreement does not become effective in accordance with its terms, then this Final Judgment and Order of Dismissal with Prejudice shall be vacated, the Settlement Class shall be decertified (without affecting Plaintiffs right subsequently to seek certification and FIA's right to oppose any such certification), and the Settlement Agreement and all orders entered in connection therewith shall become null and void and of no further force and effect. (rla)
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Noel Frederick et al v. FIA Card Services, N.A. et al Doc. 100 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NOEL FREDERICK, MICHELLE 12 PINGOL, and KEN ADLER, on behalf of themselves and all others similarly 13 situated, 14 15 Plaintiffs, vs. 16 FIA CARD SERVICES, N.A., and 17 DOES 1 through 10 inclusive, 18 inclusive, 19 20 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-03419 AG (RNBx) FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 21 22 23 24 25 26 27 28 -1FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE Dockets.Justia.com 1 THIS MATTER came before the Court for final approval of the proposed 2 class settlement. The Court has considered all papers filed and proceedings in this 3 matter and held a hearing on June 6, 2011, at which time the parties and all other 4 interested persons were afforded the opportunity to be heard in support of and in 5 opposition to the proposed Settlement. Due and adequate notice having been given 6 to the Settlement Class as required by the Court’s October 18, 2010, Preliminary 7 Approval Order, and based on the papers filed with the Court and presentations 8 made to the Court at the final approval hearing, and good cause appearing therefor, 9 it is hereby ORDERED, ADJUDGED, AND DECREED as follows: 10 1. The definitions and provisions of the Settlement Agreement are 11 hereby incorporated as though fully set forth herein. For purposes of this Order, 12 capitalized terms shall have the meaning ascribed to them in the Settlement 13 Agreement. 14 2. This Court has jurisdiction over the subject matter of the Settlement 15 Agreement, and personal jurisdiction over all parties to the Settlement Agreement, 16 including all members of the Settlement Class. 17 3. Pursuant to Federal Rule of Civil Procedure 23(e), the Court hereby 18 approves the Settlement, including, without limitation, the plan of distribution of 19 the settlement relief and the proposed recipients of the Cy Pres Fund, and finds that 20 the Settlement is, in all respects, fair, reasonable and adequate to the Settlement 21 Class Members, within the authority of the parties and the result of extensive arm’s 22 length negotiations. 23 4. Pursuant to Federal Rule of Civil Procedure 23(c), the Court certifies, 24 for purposes of effectuating the Settlement, the following Settlement Class: 25 All persons who, between July 27, 2002 and October 18, 2010, 26 had a credit card account with FIA Card Services, N.A. or its 27 predecessors Bank of America, N.A. (USA) and MBNA 28 America Bank, N.A., and who, after a default or delinquency, -2FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 were assessed and paid a higher rate of interest on their credit 2 card account, which higher rate of interest was calculated as of 3 the beginning of the billing cycle in which the default or 4 delinquency occurred. 5 The definition of the proposed class in paragraph 24 of the Second Amended 6 Complaint in this Action was previously amended by the Preliminary Approval 7 Order to conform to the Settlement Class defined above. The Court finds and 8 concludes that: (a) the Settlement Class is so numerous that joinder of all 9 Settlement Class Members in the Action is impracticable; (b) questions of law and 10 fact common to the Settlement Class predominate over questions affecting only 11 individual Settlement Class Members; (c) the claims of Plaintiffs are typical of the 12 claims of the Settlement Class; (d) Plaintiffs and Class Counsel have fairly and 13 adequately represented and protected the interests of the Settlement Class; and (e) a 14 class action is superior to other available methods for a fair and efficient 15 adjudication of the controversy. 16 5. This Final Judgment and Order of Dismissal with Prejudice does not 17 constitute an expression by the Court of any opinion, position or determination as 18 to the merit or lack of merit of any of the claims or defenses of plaintiffs Noel 19 Frederick, Michelle Pingol, and Ken Adler in this Action or Plaintiff-Appellant 20 Mary Jane Augustine (in Ninth Circuit Case No. 07-16751) (collectively, 21 “Plaintiffs”), the Settlement Class Members, or defendant FIA Card Services, N.A. 22 (successor by merger and/or change of name to MBNA America Bank, N.A. and 23 Bank of America, N.A. (USA)) (“FIA”). Neither this Final Judgment and Order of 24 Dismissal with Prejudice nor the Settlement Agreement is an admission or 25 indication by FIA of the validity of any claims in this action or of any liability or 26 wrongdoing or of any violation of law. This Final Judgment and Order of 27 Dismissal with Prejudice and the Settlement Agreement do not constitute a 28 concession and shall not be used as an admission or indication of any wrongdoing, -3FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 fault or omission by FIA or any other person in connection with any transaction, 2 event or occurrence, and neither this Final Judgment and Order of Dismissal with 3 Prejudice nor the Settlement Agreement nor any related documents in this 4 proceeding, nor any reports or accounts thereof, shall be offered or received in 5 evidence in any civil, criminal or administrative action or proceeding, other than 6 such proceedings as may be necessary to consummate or enforce this Final 7 Judgment and Order of Dismissal with Prejudice, the Settlement Agreement and all 8 releases given thereunder, or to establish any affirmative defenses based upon this 9 Final Judgment and Order of Dismissal with Prejudice or the Settlement 10 Agreement and releases, including, without limitation, affirmative defenses of res 11 judicata or collateral estoppel. 12 6. This Court hereby dismisses this action with prejudice as to Plaintiffs 13 and all Settlement Class Members except those who have timely and properly 14 excluded themselves from the Settlement Class. Exhibit A, attached hereto, sets 15 forth the names of those individuals who have timely and properly excluded 16 themselves from the Settlement Class. The Parties will bear their own fees and 17 costs, except as otherwise expressly provided in the Settlement Agreement. 18 7. (a) Upon the date that this Final Judgment and Order of Dismissal 19 with Prejudice becomes Final, Plaintiffs, for themselves and on behalf of their 20 heirs, executors, administrators, representatives, agents, attorneys, insurers, 21 partners, successors, predecessors in interest, assigns and any authorized users of 22 their accounts will fully release and forever discharge FIA (including, without 23 limitation, Bank of America, N.A. (USA) and MBNA America Bank, N.A.) and 24 each and all of its present, former and future direct and indirect parent companies, 25 affiliates, subsidiaries, agents, successors, predecessors in interest, and/or any 26 financial institutions, corporations, trusts, or other entities that may hold or have 27 held any interest in any account or any receivables relating to any account, or any 28 receivables or group of receivables, or any interest in the operation or ownership of -4FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE 1 FIA, and all of the aforementioneds’ respective officers, directors, employees, 2 attorneys, shareholders, agents, vendors (including, without limitation, processing 3 facilities), attorneys, insurers and assigns, from any and all rights, duties, debts, 4 obligations, claims, actions, causes of action, remedies or liabilities, whether 5 arising under local, state or federal law (including, without limitation, under any 6 state consumer-protection and/or unfair and deceptive practices acts, the Truth in 7 Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z, 12 C.F.R. pt. 226), 8 whether by Constitution, statute, contract, common law or equity, whether known 9 or unknown, suspected or unsuspected, asserted or unasserted, foreseen or 10 unforeseen, actual or contingent, liquidated or unliquidated, that they have or may 11 have as of the date of entry of the Final Judgment in this Action, including, without 12 limitation, any claims relating to, re
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