Connor v. JPMorgan Chase Bank et al, No. 3:2010cv01284 - Document 113 (S.D. Cal. 2014)
Court Description: ORDER Granting 100 Unopposed Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class for Settlement Class Members in Group 2. Signed by Judge Gonzalo P. Curiel on 5/30/2014. (srm)
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Connor v. JPMorgan Chase Bank et al Doc. 113 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 PATRICIA CONNOR, Individually and on Behalf of All Others Similarly Situated, Case No. 3:10-cv-1284-GPC-BGS ORDER GRANTING UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS FOR SETTLEMENT CLASS MEMBERS IN GROUP 2 13 Plaintiff, 14 15 16 17 18 v. JPMORGAN CHASE BANK and FEDERAL NATIONAL MORTGAGE ASSOCIATION a/k/a FANNIE MAE, (ECF NO. 100) 19 20 Defendants. 21 22 23 24 25 WHEREAS, the instant putative class action (“Action”) was commenced on June 16, 2010, (ECF No. 1); 26 WHEREAS, a putative class action in the United States District Court for the 27 Northern District of California, San Francisco/Oakland Division, entitled Bywater 28 vs. JPMorgan Chase Bank, N.A., case no. CV 11 2257, was voluntarily dismissed 1 10cv1284 Dockets.Justia.com 1 in favor of the plaintiff in that action joining as a plaintiff in this Action; 2 WHEREAS, Plaintiff filed an Unopposed Motion for Settlement and 3 Approval of Class Action Settlement and Conditional Class Certification on 4 January 17, 2012, (ECF No. 50); 5 WHEREAS, pursuant to a class action settlement agreement, dated January 6 13, 2012, (“Agreement”), the Court entered an order certifying a conditional 7 Settlement Class and preliminarily approving the Agreement on March 13, 2012, 8 (“First Preliminary Approval Order”), (ECF No. 55); 9 10 WHEREAS, notice was sent to the then-identified Settlement Class Members pursuant to the First Preliminary Approval Order; 11 WHEREAS, the final approval hearing set by the First Preliminary Approval 12 Order for August 3, 2012, was continued to allow the parties to determine whether 13 Defendants failed to identify all potential members of the Settlement Class; 14 WHEREAS, through further investigation, additional Class Members were 15 identified, as addressed in the Amendment to Settlement Agreement and Release 16 (“Amendment”), attached to the instant Motion for Preliminary Approval of 17 Amendment to Class Action Settlement (“Motion”), (ECF No. 100), and 18 collectively referred to as the “Group 2 Settlement Class Members” or “Newly 19 Identified Settlement Class Members” in the papers filed in support of the Motion; 20 21 WHEREAS, the Court’s First Preliminary Approval Order, (ECF No. 55), remains in effect; 22 NOW, THEREFORE, based on this Court’s review of the Amendment, the 23 Motion, and all of the files, records, and proceedings herein, the Court concludes, 24 upon preliminary examination, that the Amendment appears fair, reasonable, 25 adequate, and within the range of reasonableness for preliminary settlement 26 approval, and notice should be sent to the Group 2 Settlement Class Members and a 27 final approval hearing held to confirm that the initial Settlement and Amendment 28 reflected in the Agreement (together, “Settlement”) are fair, reasonable, and 2 10cv1284 1 adequate and to determine whether the Settlement should be finally approved and 2 final judgment entered in the Action. NOW, THEREFORE IT IS HEREBY ORDERED: 3 4 1. Preliminary Approval of Proposed Settlement Amendment 5 The Amendment, including all corresponding documents thereto, is 6 preliminarily approved as fair, reasonable, adequate, and within the range of 7 reasonableness for preliminary approval. The Court finds that: (a) the Amendment 8 resulted from extensive arm’s length negotiations; and (b) the Amendment is 9 sufficient to warrant notice to the persons identified in the Amendment as the 10 Group 2 Settlement Class Members and a full hearing on the approval of the 11 Settlement. 12 2. Class to Remain Certified for Settlement Purposes Only 13 The Class, as conditionally certified on March 12, 2012, pursuant to Federal 14 Rule of Civil Procedure 23(c), shall remain conditionally certified for settlement 15 purposes only. The Settlement Class shall remain defined as follows: 16 17 18 19 20 21 22 23 24 25 26 27 All present or former borrowers or co-borrowers as identified in JPMCB’s records whose residential mortgage loan or home equity line of credit is or was serviced by JPMCB or Chase Home Finance LLC and either the borrower, co-borrower or both, were contacted on their cellular telephone(s) by JPMCB through the use of an automated dialer system and/or an artificial or pre-recorded voice during the Class Period. Subclass A of the Settlement Class consists of those persons whose cell phones were actually called by JPMCB or Chase Home Finance LLC during the Class Period, and are thus entitled to a monetary payment. Excluded from the Settlement Class are Defendants, their parent companies, affiliates or subsidiaries, or any employees thereof, and any entities in which any of such companies has a controlling interest, the Judge or Magistrate Judge to whom the Action is assigned and any members of those Judges’ staffs and immediate families, as well as all persons who validly request exclusion from the 28 3 10cv1284 Settlement Class. 1 2 Because the Group 2 Settlement Class merely expands, and does not 3 substantively change, the already conditionally certified class, the Court continues 4 to find, as set forth in the First Preliminary Approval Order, that the Group 2 5 Settlement Class meets the requirements for conditional certification under Federal 6 Rules of Civil Procedure 23(a) and 23(b)(3). 7 3. Class Representatives 8 Plaintiffs Patricia Connor and Sheri L. Bywater were previously designated 9 as class representatives, (ECF No. 55), and shall remain class representatives for the 10 Settlement Class. 11 4. Class Counsel 12 The Court previously appointed Hyde & Swigart; The Kazerouni Law 13 Group, APC; the Law Offices of Douglas J. Campion; Lieff Cabraser Heimann & 14 Bernstein, LLP; and David P. Meyer & Associates Co., LPA, as Class Counsel. 15 (ECF No. 55.) Previously appointed Class Counsel shall remain as Class Counsel 16 for the Settlement Class. 17 competent and capable of exercising all responsibilities as Class Counsel for the 18 Settlement Class. 19 5. The Court continues to find that Class Counsel is Settlement Hearing 20 A final approval hearing (the “Settlement Hearing”) shall be held before the 21 Honorable Gonzalo P. Curiel, at the U.S. District Court, 221 West Broadway, 22 Courtroom 2D, San Diego, CA 92101, on Friday, November 14, 2014, at 1:30 23 p.m., and notice of such hearing will be included in any future notice being 24 provided to the Settlement Class, to determine whether the Settlement should be 25 finally approved as fair, reasonable, and adequate. Papers in support of final 26 approval of the Settlement, including the Amendment, the incentive award to 27 Plaintiffs and Class Counsel’s application for an award of attorneys’ fees, costs and 28 expenses (the “Fee Application”) shall be filed with the Court at least forty-five 4 10cv1284 1 (45) days prior to the Settlement Hearing. The Settlement Hearing may be 2 postponed, adjourned, or continued by order of the Court without further notice to 3 the Settlement Class. After the Settlement Hearing, the Court may enter a final 4 approval order and final judgment in accordance with the Settlement that will 5 adjudicate the rights of the Settlement Class Members with respect to the Released 6 Claims being settled. 7 6. Additional Class Notice 8 Additional Class Notice shall be sent to the Group 2 Settlement Class 9 Members, as specified in the Amendment, within thirty (30) days following entry 10 of this Order. The Court approves and renews the form and substance of the 11 proposed notice procedure set forth in the Agreement. Defendant JPMorgan Chase 12 Bank, N.A. (“JPMCB”) will provide the list of Group 2 Settlement Class Members 13 to the Claims Administrator selected by the parties, Gilardi & Co. LLC. The Claims 14 Administrator shall mail a Postcard Notice (as set forth at ECF No. 108-1 at 2-41) to 15 each Group 2 Settlement Class Member at his or her last known address as provided 16 on the list of Group 2 Settlement Class Members. The Claims Administrator will 17 check each address against the United States Post Office National Change of 18 Address Database, will conduct reasonable research to locate valid address 19 information for Group 2 Settlement Class Members whose Notices are returned as 20 undeliverable, will update addresses based on forwarding information received from 21 the United States Post Office, and will update addresses based on any requests to do 22 so by Group 2 Settlement Class Members. The mailed notice will reference the 23 dedicated settlement website (www.connorTCPAsettlement.com) containing the full 24 details of the Settlement and allowing claim submission. The Settlement website 25 will be updated to reflect the Amendment before the additional Class Notice is 26 27 1 28 abbreviated Latin phrase, “et al.” The Court notes a typographical error at the top of page 1 of the Postcard Notice, to wit, in the use of the 5 10cv1284 1 mailed and shall remain active at least thirty (30) days after the Effective Date of 2 the Final Approval Order. Additional Class Notice need not be provided to any 3 Settlement Class Member previously identified and provided notice as part of the 4 Group 1 Notice process. 5 7. Declaration to be Filed Regarding Notice 6 At least fifteen (15) days prior to the Settlement Hearing, the Claims 7 Administrator shall file a declaration of compliance with the notice procedures set 8 forth in the Agreement and this Court’s orders. 9 8. Findings Concerning Class Notice 10 The Court finds the foregoing program of additional Class Notice, directed to 11 the Group 2 Settlement Class Members, and the manner of its dissemination is the 12 best practicable notice under the circumstances and is reasonably calculated to 13 apprise the Newly Identified Settlement Class Members of the pendency of this 14 Action and their right to object to the Settlement or exclude themselves from the 15 Settlement Class. The Court further finds the additional Class Notice program set 16 forth herein is reasonable; that it constitutes due, adequate, and sufficient notice to 17 all persons entitled to receive notice; and that it meets the requirements of due 18 process and Federal Rule of Civil Procedure 23. 19 9. Approval Of Claims Process 20 The claims submission process described in the Agreement, as modified by 21 the Amendment as to Group 2 Settlement Class Members, is hereby approved. The 22 Court previously approved the claims process set forth in the Agreement and 23 hereby adopts the same procedure as it relates to claims submitted by Group 2 24 Settlement Class Members. 25 approval of the Settlement, the maximum total Settlement Costs are increased from 26 $9,000,000 to $11,268,058. Claims by Group 2 Settlement Class Members are 27 capped at $69.97. Because the Settlement contemplates a finite fund, the total 28 amount that Group 1 and Group 2 Settlement Class Members will be paid may be As set forth in the Amendment, subject to final 6 10cv1284 1 reduced on a pro rata basis if the Group 2 claim rate is higher than anticipated. Any 2 reduction will apply equally to Group 1 and Group 2 Settlement Class Members, 3 such that members from both groups will receive the same amount. 4 10. 5 Exclusion From The Settlement Class (a) Group 2 Settlement Class Members may opt out of the Settlement Class 6 by sending a written request to the address designated in the approved 7 Class Notice forms within ninety (90) days after entry of this Order. 8 All Group 2 Settlement Class Members who do not opt out in accordance 9 with the terms set forth herein will be bound by all determinations and judgments in the Action. 10 11 (b) Exclusion requests must: (i) be signed; (ii) include the full name, address 12 and cell phone number of the person(s) requesting exclusion; and (iii) 13 include a statement to the effect that the person(s) requesting exclusion 14 wish to be excluded from the Settlement. No request for exclusion will be 15 valid unless all of the information described above is included. No Group 16 2 Settlement Class Member, or any person acting on behalf of or in 17 concert or participation with that Group 2 Settlement Class Member, may 18 exclude any other Group 2 Settlement Class Member from the Settlement 19 Class. 20 (c) The Claims Administrator will retain a copy of all requests for exclusion. 21 Not later than fifteen (15) days before the Final Approval Hearing, the 22 Claims Administrator shall file with the Court a declaration that lists all of 23 the opt-outs received. The list shall be publicly filed with any redactions 24 required by Federal Rule of Civil Procedure 5.2. The list shall also be 25 lodged with the Court in either Word or WordPerfect format via the 26 Court’s email address (efile_curiel@casd.uscourts.gov) so that it may be 27 appended to any final approval order. 28 /// 7 10cv1284 1 (d) If ten percent (10%) or more persons in the Group 2 Settlement Class opt 2 out of the Settlement, then JPMCB, in its sole discretion, will have the 3 right to terminate the Amendment. 4 pursuant to this paragraph, the parties will be returned to the status quo 5 ante pursuant to the terms of the Agreement. 6 (e) If the Amendment is terminated Settlement Class Members previously provided notice as part of the 7 Group 1 Settlement Class Member Notice program and an opportunity to 8 opt out shall not be provided an additional opportunity to opt out. 9 10 9. Objections and Appearances (a) Any Group 2 Settlement Class Member who has not timely submitted a 11 valid request for exclusion from the Settlement may appear at the 12 Settlement Hearing to argue that the proposed Settlement should not be 13 approved and/or to oppose the application of Class Counsel for an award 14 of attorneys’ fees and the incentive awards to Plaintiffs. 15 (b) To be heard at the Settlement Hearing, a Group 2 Settlement Class 16 Member must make any objection in writing and file it with the Court no 17 later than thirty (30) days before the Settlement Hearing. 18 objection must also be mailed to each of the following, postmarked no 19 later than thirty (30) days before the Settlement Hearing: (i) Connor 20 Counsel: Douglas J. Campion, 409 Camino Del Rio South, Suite 303, 21 San Diego, CA 92108; (ii) Bywater Counsel: Daniel M. Hutchinson, 22 Lieff, Cabraser, Heimann & Bernstein, LLP, 275 Battery Street, 29th 23 Floor, San Francisco, CA 94111; (iii) JPMCB Counsel: Julia B. 24 Strickland, Stroock & Stroock & Lavan LLP, 2029 Century Park East, 25 Los Angeles, CA 90067; and (iv) Fannie Mae Counsel: Christopher 26 Yoo, AlvaradoSmith, 1 MacArthur Place, Suite 200, Santa Ana, CA 27 92707. The 28 8 10cv1284 1 (c) A Group 2 Settlement Class Member or his or her attorney intending to 2 make an appearance at the Settlement Hearing must: (i) file a notice of 3 appearance with the Court no later than fifteen (15) days prior to the 4 Settlement Hearing or as the Court may otherwise direct and (ii) within 5 the same time period, serve a copy of such notice of appearance by mail 6 on both Counsel for Defendants and Class Counsel at the addresses set 7 forth directly above. Except as described in the following sentence, any 8 Group 2 Settlement Class Member who fails to comply with these 9 provisions shall waive and forfeit any and all rights he or she may have to 10 appear separately and/or to object to the Settlement, and shall be bound by 11 all the terms of the Settlement, and by all proceedings, orders, and 12 judgments in the Action. Any objections that are not timely filed and 13 served shall be barred, except for good cause shown as determined by the 14 Court. 15 (d) Any response to any objections to the Settlement, including the 16 Amendment, shall be filed with the Court no later than ten (10) days 17 before the Settlement Hearing. 18 10. Effect of Failure to Approve the Agreement 19 In the event the Settlement is not approved by the Court, or for any reason 20 the parties fail to obtain a Final Judgment as contemplated in the Agreement or 21 Amendment, or the Settlement is terminated pursuant to its terms for any reason, 22 then the following shall apply: 23 (a) All orders and findings entered in connection with the Settlement shall 24 become null and void and have no further force and effect except as to 25 payment of notice and claims administration costs to date, shall not be 26 used or referred to for any purposes whatsoever in the Action, and shall 27 not be admissible or discoverable in any other proceeding; 28 9 10cv1284 1 (b) The conditional certification of the Settlement Class pursuant to this 2 Order and the First Preliminary Approval Order, (ECF No. 55), shall 3 automatically be vacated and deemed void; no doctrine of waiver, 4 estoppel, or preclusion shall be asserted in any litigated certification 5 proceedings in the Action; and the Agreement, including the Amendment, 6 and its existence shall be inadmissible to establish any fact relevant to 7 class certification or any alleged liability of Defendants for the matters 8 alleged in the Action or for any other purpose; 9 (c) Nothing contained in this Order is, or may be construed as, any admission or concession by or against the Parties on any point or fact of law; and 10 11 (d) Neither the Settlement terms nor any publicly disseminated information 12 regarding the Settlement, including, without limitation, the Class Notices, 13 court filings, orders and public statements, may be used as evidence for 14 any purpose whatsoever. 15 documents relating to JPMCB or Fannie Mae’s withdrawal from the 16 Settlement, any failure of the Court to approve the Settlement and/or any 17 objections or interventions may be used as evidence for any purpose 18 whatsoever. 19 11. In addition, neither the fact of, nor any Stay/Bar Of Other Proceedings 20 All proceedings in this Action are stayed until further order of the Court, 21 except as may be necessary to implement the terms of the settlement. Pending final 22 determination of whether the Settlement should be approved, Plaintiffs, all persons 23 in the Settlement Class (inclusive of Class Members identified in the Agreement, 24 including the Amendment) and persons purporting to act on their behalf are 25 enjoined from commencing or prosecuting (either directly, representatively, or in 26 any other capacity) against any of the Released Parties any action, arbitration or 27 proceeding in any court, arbitration forum or tribunal asserting any of the Released 28 Claims. 10 10cv1284 1 12. Continuing Jurisdiction 2 The Court retains continuing and exclusive jurisdiction over the Action to 3 consider all further matters arising out of or connected with the Settlement, 4 including the administration and enforcement of the Agreement, including the 5 Amendment. 6 IT IS SO ORDERED. DATED: May 30, 2014 7 ___________________________ HON. GONZALO P. CURIEL United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 10cv1284
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