Davis v. Visa, Inc., No. 3:2013cv05125 - Document 58 (N.D. Cal. 2014)
Court Description: ORDER granting 53 MOTION for Settlement Motion for Preliminary Approval of Class Action Settlement Agreement filed by Ron Davis. Fairness Hearing set for 3/20/2015 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Signed by Judge Charles R. Breyer on 12/12/2014. (beS, COURT STAFF) (Filed on 12/15/2014)
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Davis v. Visa, Inc. Doc. 58 Charles D. Marshall (State Bar No. 236444) 1 MARSHALL LAW FIRM 2 2121 N. California Blvd., Suite 290 Walnut Creek, CA 92596 3 Telephone: (925) 575-7105 Facsimile: (855) 575-7105 4 cdm@marshall-law-firm.com 5 Attorney for Plaintiff RON DAVIS 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 RON DAVIS, an individual, on behalf of himself and all others similarly situated, 11 Plaintiff, 12 vs. 13 VISA, Inc., a Delaware corporation, 14 Defendant. 15 Case No. 3:13-cv-5125-CRB CLASS ACTION ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT, CONDITIONALLY CERTIFYING THE SETTLEMENT CLASS, PROVIDING FOR NOTICE AND SCHEDULING ORDER 16 17 18 19 20 21 22 23 24 25 26 27 28 3:13-cv5125-CRB [PROPOSED] ORDER Dockets.Justia.com WHEREAS, Plaintiff 1 and Defendant in the Action entitled Davis v. VISA Inc., No. 3:13- 1 2 cv-5125-CRB (N.D. California) and have entered into a Settlement Agreement, filed October 27, 3 2014, after arms-length settlement discussions; 4 AND, WHEREAS, the Court has received and considered the Settlement Agreement, 5 including the accompanying exhibits; 6 AND, WHEREAS, Plaintiff has made an application for an order preliminarily approving 7 the settlement of this Action, and for its dismissal with prejudice upon the terms and conditions set 8 9 forth in the Settlement Agreement; AND, WHEREAS, the Court has reviewed the application for such order, and has found 10 11 good cause for same. 12 NOW, THEREFORE, IT IS HEREBY ORDERED: 13 A. 1. 14 The Settlement Class is Conditionally Certified Pursuant to Federal Rule of Civil Procedure 23, and for settlement purposes only, 15 16 the Court hereby certifies the following Class: All Persons in the United States who (1) maintain a VISA standard, VISA Rewards, or VISA premium branded credit card offering an automobile rental collision damage waiver benefit, (2) who, prior to November 6, 2014, made a claim to VISA for such benefit based on an incident involving a Zipcar (the “Claim”), and (3) whose claims were denied because the vehicle involved was a Zipcar. 17 18 19 20 21 Attached to the Settlement Agreement as Exhibit C is a list of all Persons who (based on a review 22 of records maintained by Defendant) qualify as potential members of the Settlement Class under 23 the definition set forth above. Excluded from the Settlement Class are the following: (a) all 24 Persons who file timely Requests for Exclusion, (b) all Persons who had their claims discharged in 25 bankruptcy, finally adjudicated on the merits or otherwise released against Defendant, (c) the 26 27 28 1 All capitalized terms herein have the same meanings as set forth in the Parties’ Settlement Agreement unless otherwise specifically defined. 1 3:13-cv5125 [PROPOSED] ORDER 1 Defendant, IINA, and any respective parent, subsidiary, affiliate, or control person of either, as 2 well as their officers, directors, agents, servants, or employees, (d) any judge presiding over this 3 Action, and (e) the immediate family members of any such Person(s). 4 2. With respect to the Class and for settlement purposes only, the Court preliminarily 5 finds the prerequisites for a class action under Federal Rules of Civil Procedure 23(a) and (b)(3) 6 have been met, including: (a) numerosity; (b) commonality; (c) typicality; (d) adequacy of the 7 class representative and Class Counsel; (e) predominance of common questions of fact and law 8 among the Class for purposes of settlement; and (f) superiority. 9 10 3. Pursuant to Federal Rule of Civil Procedure 23, the Court hereby appoints Plaintiff 11 Ron Davis as the class representative. 12 13 4. Having considered the factors set forth in Federal Rule of Civil Procedure 23(g)(1), the Court hereby appoints the Marshall Law Firm as Class Counsel. 14 B. The Settlement Agreement is Preliminarily Approved and Final Approval Schedule Set 5. The Court hereby preliminarily approves the Settlement Agreement and the terms 15 16 17 and conditions of settlement set forth therein, subject to further consideration at the Fairness 18 Hearing (or “Final Approval Hearing”) described below. 19 20 6. The Court has concluded a preliminary assessment of the fairness, reasonableness, 21 and adequacy of the Settlement Agreement, and hereby finds that the settlement falls within the 22 range of reasonableness meriting possible final approval. The Court therefore preliminarily 23 approves the proposed settlement as set forth in the Settlement Agreement. 24 25 26 27 28 2 3:13-cv5125 [PROPOSED] ORDER 1 7. Pursuant to Federal Rule of Civil Procedure 23(e), the Court will hold a Fairness 2 Hearing on March 20, 2015 at 10:00 a.m., in the Courtroom of the Honorable Charles R. Breyer, 3 United States District Court for the Northern District of California, 450 Golden Gate Avenue, 4 Courtroom 6 – 17th floor, San Francisco, CA 94102 for the following purposes: 5 6 a. finally determining whether the Class meets all applicable requirements of Federal Rules of Civil Procedure 23, and this the Class should be certified for the purposes of 7 effectuating the settlement; 8 b. 9 determining whether the proposed settlement of the Action on the terms and 10 conditions provided for in the Settlement Agreement is fair, reasonable and adequate and should 11 be approved by the Court; 12 13 c. considering the application of Class Counsel for an award of attorney’s fees and reimbursement of expenses, as provided for under the Settlement Agreement; 14 d. considering the application of Plaintiff for a class representative incentive 15 16 award, as provided for under the Settlement Agreement; e. considering whether the Court should enter a Final Settlement Order and f. 17 considering whether the release of the Released Claims as set forth in the 18 Judgment; 19 20 Settlement Agreement should be provided; 21 g. ruling upon other matters as the Court may deem just and appropriate. 22 8. The Court may adjourn the Fairness Hearing and later reconvene such hearing 23 24 without further notice to Class Members. 25 26 27 28 3 3:13-cv5125 [PROPOSED] ORDER 1 9. The Parties may further modify the Settlement Agreement prior to the Fairness 2 Hearing so long as such modifications do not materially change the terms of the settlement 3 provided thereunder. The Court may approve the Settlement Agreement with such modifications 4 as may be agreed to by the Parties, if appropriate, without further notice to Class Members. 5 6 10. All papers in support of the final approval of the settlement must be filed with the Court and served at least 14 days prior to the Fairness Hearing. All papers in support of any 7 8 9 application for an award of attorneys’ fees and expenses and/or class representative incentive awards must be filed with the Court and served at least 14 days prior to the deadline for objecting 10 to the settlement. 11 C. The Court Approves the Form and Method of Class Notice 12 11. The Court approves, as to form and content, the proposed Claim Form (which is 13 14 attached as Exhibit A to the Settlement Agreement) and the proposed Notices (which are attached as Exhibit B to the Settlement Agreement). The Parties may further modify the Claim Form and 15 16 the Notices without prior Court approval so long as such modifications do not materially change 17 their content, format, or terms. 18 12. The Court finds that the distribution of the Notices substantially in the manner and 19 form set forth in the Settlement Agreement meets the requirements of Federal Rule of Civil 20 Procedure 23 and due process, is the best notice practicable under the circumstances, and shall 21 constitute due and sufficient notice to all persons entitled thereto. 22 13. The Court approves the designation of Defendant, through IINA and Allianz 23 24 Global Assistance, as the Court appointed Claims Administrator for the settlement. The Claims 25 Administrator and/or Plaintiff’s Counsel (as the Parties deem appropriate) shall disseminate Class 26 Notice and supervise and carry out the notice procedure, the processing of claims, and other 27 28 4 3:13-cv5125 [PROPOSED] ORDER 1 administrative functions, and shall respond to Class Member inquiries, as set forth in the 2 Settlement Agreement and this Order under the direction and supervision of the Court. 3 14. The Court directs Plaintiff’s counsel to establish a Settlement Website in 4 accordance with the applicable provisions of the Settlement Agreement, making available copies 5 of this Order, Class Notice, Claims Forms that may be downloaded and submitted by email or 6 mail, the Settlement Agreement and all Exhibits thereto and such other information as may be of 7 assistance to Class Members or required under the Settlement Agreement. The Class Notice and 8 Claims Forms shall be made available to Class Members through the Settlement Website on the 9 10 date notice is first published and continuously thereafter through the Effective Date. 11 15. The costs of Notice, processing of claims of Class Members, creating and 12 maintaining the Settlement Website, and all other Claim Administrator and Notice expenses shall 13 be paid by Defendant in accordance with the applicable provisions of the Settlement Agreement. 14 D. Procedure for Class Member Participation in the Settlement 16. The Court approves the Parties’ proposed Claim Form. Any Class Member who 15 16 17 wishes to participate in the settlement shall complete a Claim Form in accordance with the 18 instructions contained therein and submit it to the Claims Administrator no later than 90 days after 19 the Fairness Hearing, which date will be specifically identified in the Claim Form. Such deadline 20 may be further extended without notice to the Class by written agreement of the Parties. 21 17. The Claims Administrator shall have authority to accept or reject claims in 22 accordance with the Settlement Agreement. 23 24 18. Any Class Member may enter an appearance in the Action, at his, her or its, own 25 expense, individually or through counsel who is qualified to appear in the jurisdiction. All Class 26 Members who do not enter an appearance will be represented by Class Counsel. 27 28 5 3:13-cv5125 [PROPOSED] ORDER 1 2 E. Procedure for Requesting Exclusion from the Class 19. All Class Members who do not timely exclude themselves from the Class shall be 3 bound by all determinations and judgments in the Action concerning the settlement, whether 4 favorable or unfavorable to the Class. 5 6 20. Any person or entity falling within the definition of the Class may request to be excluded from the Class. Any such person or entity must submit a timely request for exclusion in 7 8 9 accordance with the directions set out in the Notices, postmarked or delivered no later than 45 days after the Notice Date, the date for which will be specifically identified in the Notice. 10 Requests for exclusion purportedly filed on behalf of groups of persons/entities are prohibited and 11 will be deemed to be void. The written request for exclusion must include (1) the potential Class 12 Member’s name and address, (2) a statement to the effect that the person or entity understands that 13 they are a potential Class Member, (3) unambiguously request to be excluded from the class, and 14 (4) be signed by the potential Class Member. 15 16 21. Any Class Member who does not send a timely, signed request for exclusion will 17 be deemed to be a Class Member for all purposes and will be bound by all judgments and further 18 orders of this Court related to the settlement of this Action and by the terms of the Settlement 19 Agreement, if finally approved by the Court. All persons or entities who submit valid and timely 20 requests for exclusion in the manner set forth in the Settlement Agreement shall have no rights 21 under the Settlement Agreement and shall not be bound by the Settlement Agreement or the Final 22 Judgment and Order. 23 24 22. A list reflecting all requests for exclusions shall be filed with the Court by the 25 Parties at or before the Fairness Hearing. 26 27 28 6 3:13-cv5125 [PROPOSED] ORDER 1 2 F. Procedure for Objecting to the Settlement 23. Any Class Member who desires to object to either the settlement, the application 3 for attorney’ fees and expenses, or the application for a class representative incentive award must 4 file with the Clerk of this Court, as provided in the Notice, a notice of the objection(s) and the 5 6 grounds for such objections, together with all materials that the Class Member requests that the Court consider in connection with their objection, no later than 45 days after the Notice Date, the 7 8 9 10 date for which will be specifically identified in the Notices. 24. All objections must include a reference to Davis v. VISA Inc., No. 3:13-cv-5125- CRB; the Class Member’s full name and current address; a statement explaining why he or she 11 12 13 believes himself or herself to be a Class Member; the specific grounds for the objection; all documents or writings that the Class Member requests that the Court consider in connection with 14 the objection; the name and contact information of any and all attorneys representing, advising, or 15 in any way assisting the objector in connection with the preparation or submission of the objection 16 or who may profit from the pursuit of the objection (the “Objecting Attorneys”); and a statement 17 indicating whether the objector intends to appear at the Fairness Hearing (either personally or 18 through counsel). If a Class Member or any Objecting Attorneys has objected to any other class 19 20 action settlement where the objecting Class Member or the Objecting Attorneys asked for or 21 received any payment in exchange for dismissal of the objection, or any related appeal, without 22 any modification to the settlement, then the objection must include a statement identifying each 23 such case by full case caption. 24 25 25. Attendance at the Fairness Hearing is not necessary; however, any Class Member wishing to be heard orally with respect to approval of the Settlement Agreement, the applications 26 for attorney’s fees and reimbursement of expenses, or the application for the class representative 27 28 7 3:13-cv5125 [PROPOSED] ORDER 1 incentive award must provide written notice of their intention to appear at the Fairness Hearing no 2 later than 45 days after the Notice Date, the date for which will be specifically identified in the 3 Notices. Class Members who do not oppose the settlement, the application for attorney’s fees and 4 reimbursement of expenses, or class representative incentive awards, need not take any action. A 5 Class Member’s failure to submit a timely written objection in accordance with the procedures set 6 out in this order and in the Notices waives any right the Class Member may have to object to the 7 settlement, attorney’s fees and expenses, or the class representative incentive award, to appear at 8 the Fairness Hearing, or to seek other review of the Final Judgment and Order. 9 10 IT IS SO ORDERED. 11 12 DATED: December 12, 2014 ____________________________________ THE HONORABLE CHARLES R. BREYER UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3:13-cv5125 [PROPOSED] ORDER
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