Hawthorne v. Umpqua Bank, No. 3:2011cv06700 - Document 106 (N.D. Cal. 2014)
Court Description: ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND FOR CERTIFICATION OF SETTLEMENT CLASS by Judge Jon S. Tigar granting 103 Motion for Settlement. (wsn, COURT STAFF) (Filed on 9/15/2014)
Download PDF
<![CDATA[
Hawthorne v. Umpqua Bank Doc. 106 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AMBER HAWTHORNE, et al., Case No. 11-cv-06700-JST Plaintiffs, 8 v. 9 10 UMPQUA BANK, Defendant. 11 ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND FOR CERTIFICATION OF SETTLEMENT CLASS United States District Court Northern District of California Re: ECF No. 103 12 Before the Court is Plaintiffs’ unopposed motion for preliminary approval of the settlement 13 and for certification of the settlement class. ECF No. 103. For the reasons discussed below, the 14 Court will GRANT the motion, with some modifications, conditionally certify the settlement 15 class, appoint class counsel and class representatives, direct the distribution of class notice, and 16 make a preliminary determination that the settlement is “fair, reasonable, and adequate” under 17 Rule 23(e)(2) of the Federal Rules of Civil Procedure. 18 I. BACKGROUND 19 This is a putative class action against Umpqua Bank, brought on behalf of debit card 20 account holders who incurred overdraft fees on their Umpqua bank accounts. ECF No. 1. 21 Generally, Plaintiffs allege that Umpqua uses a practice of re-ordering debit card transactions, so 22 that higher dollar amount transactions are assessed against Plaintiffs’ accounts first, even if they 23 occurred later in time than lower dollar amount transactions. Id. This has the effect of 24 maximizing the number of overdraft fees, imposing more fees than Plaintiffs would otherwise pay, 25 and depleting Plaintiffs’ accounts more quickly than would otherwise be the case. Id.; see also 26 ECF No. 58 at 2 (summarizing allegations). Plaintiffs seek restitution, damages, and declaratory 27 relief. ECF No. 1. 28 Dockets.Justia.com 1 Plaintiffs amended their complaint in February 2012, ECF No. 15, and Defendant filed a 2 motion to dismiss the complaint in March 2013, ECF No. 18. The Court dismissed Plaintiffs’ 3 unconscionability claim, but otherwise denied the motion. ECF No 32. 4 Shortly after the Court’s ruling on the motion to dismiss, in May 2012, the parties began 5 preliminary settlement discussions. ECF No. 104, Ex. B, ¶ 9. Defendant then provided 6 information regarding its overdraft fee revenue to Plaintiffs for review by Plaintiffs’ counsel and 7 expert. Id. Thereafter, in August 2012, the parties participated in mediation, but did not reach a 8 settlement. Id. ¶ 11. 9 The parties then proceeded to litigate the action by engaging in discovery. ECF No. 104 at 3. They served written discovery requests, interrogatories, and requests for admission, and 11 United States District Court Northern District of California 10 Umpqua turned over more than 64,000 pages of documents and electronically stored information, 12 which Plaintiffs’ counsel reviewed and analyzed. Id. Plaintiffs’ counsel took two depositions 13 pursuant to Federal Rule of Civil Procedure 30(b)(6). Id. at 3-4. 14 On May 7, 2013, Umpqua filed a motion for judgment on the pleadings, ECF No. 40, 15 which the Court granted in part and denied in part in October 2013, ECF No. 58. The Court 16 granted the motion as to Plaintiffs’ claims for violation of one prong of California’s Unfair 17 Competition Law, breach of the implied covenant of good faith and fair dealing, breach of 18 contract, and unjust enrichment. Id. Plaintiffs’ claim for conversion and claim under another 19 prong of the Unfair Competition Law survived. Id. In the meantime, Plaintiffs filed a second 20 amended complaint. ECF No. 56. 21 22 Plaintiffs then sought leave to file a third amended complaint, which the Court granted. ECF No. 81. 23 In April 2014, the parties agreed on the material terms of a settlement and signed a 24 summary agreement memorializing the results of their negotiations, including Defendant’s 25 agreement to pay $2.9 million as a common-fund class settlement, subject to this Court’s approval. 26 ECF No. 104 at 4-5. After three additional months of negotiation, in June 2014, the parties signed 27 the settlement agreement at issue here. Id. at 5. 28 2 1 2 II. CONDITIONAL CLASS CERTIFICATION Class certification under Rule 23 is a two-step process. First, a plaintiff must demonstrate 3 that the four requirements of Rule 23(a) are met: numerosity, commonality, typicality, and 4 adequacy. “Class certification is proper only if the trial court has concluded, after a ‘rigorous 5 analysis,’ that Rule 23(a) has been satisfied.” Wang v. Chinese Daily News, Inc., 709 F.3d 829, 6 833 (9th Cir. 2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)). 7 Second, a plaintiff must establish that one of the bases for certification in Rule 23(b) is 8 met. Here, by invoking Rule 23(b)(3), Plaintiff must establish that “questions of law or fact 9 common to class members predominate over any questions affecting only individual members, and . . . [that] a class action is superior to other available methods for fairly and efficiently 11 United States District Court Northern District of California 10 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 12 The party seeking class certification bears the burden of demonstrating by a preponderance 13 of the evidence that all four requirements of Rule 23(a) and at least one of the three requirements 14 under Rule 23(b) are met. See Wal–Mart, 131 S. Ct. at 2551. 15 A. 16 Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is Rule 23(a)(1)—Numerosity 17 impracticable.” Numerosity is satisfied here because the proposed settlement class includes 18 approximately 48,500 members. ECF No. 104 at 17. 19 In addition, while not enumerated in Rule 23, “courts have recognized that ‘in order to 20 maintain a class action, the class sought to be represented must be adequately defined and clearly 21 ascertainable.’” Vietnam Veterans of Am. v. C.I.A., 288 F.R.D. 192, 211 (N.D. Cal. 2012) 22 (quoting DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970)). “[A] class definition is 23 sufficient if the description of the class is ‘definite enough so that it is administratively feasible for 24 the court to ascertain whether an individual is a member.’” Id. (quoting O’Connor v. Boeing N. 25 Am., Inc., 184 F.R.D. 311, 319 (C.D. Cal. 1998)). 26 27 The Court finds that the class definition contained in the settlement agreement satisfies this requirement. 28 3 1 2 B. Rule 23(a)(2)—Commonality A Rule 23 class is certifiable only if “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). For the purposes of Rule 23(a)(2), even a single common 3 question is sufficient. Wal-Mart, 131 S. Ct. at 2556 (internal quotations omitted). The common 4 contention, however, “must be of such a nature that it is capable of classwide resolution—which 5 means that determination of its truth or falsity will resolve an issue that is central to the validity of 6 7 8 each one of the claims in one stroke.” Id. at 2551. “What matters to class certification . . . is not the raising of common ‘questions’ even in droves but rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. 9 (quotation omitted). 10 The Court finds that the proposed class satisfies the commonality requirement because, at a 11 United States District Court Northern District of California minimum, the issue of the order in which Defendant assessed overdraft fees, as well as 12 Defendant’s defenses, apply to the class as a whole. 13 14 15 C. Rule 23(a)(3)—Typicality In certifying a class, courts must find that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed R. Civ. P. 23(a)(3). “The purpose 16 of the typicality requirement is to assure that the interest of the named representative aligns with 17 18 the interests of the class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). “The test of typicality ‘is whether other members have the same or similar injury, whether the action is 19 based on conduct which is not unique to the named plaintiffs, and whether other class members 20 have been injured by the same course of conduct.’” Id. (quoting Schwartz v. Harp, 108 F.R.D. 21 279, 282 (C.D. Cal. 1985)). 22 The Court finds that the proposed class representatives, Plaintiffs Amber Hawthorne, and 23 Christopher and Victoria Kneer, are typical of the class they seek to represent. They allege they 24 suffered the same injury, in the same manner, as the proposed class. Moreover, the claims of the 25 entire class are based on Defendant’s uniform conduct in assessing overdraft fees. 26 27 D. Rule 23(a)(4)—Adequacy of Representation “The adequacy of representation requirement . . . requires that two questions be addressed: 28 4 (a) do the named plaintiffs and their counsel have any conflicts of interest with other class 2 members and (b) will the named plaintiffs and their counsel prosecute the action vigorously on 3 behalf of the class?” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000). The 4 requirement “‘tend[s] to merge’ with the commonality and typicality criteria of Rule 23(a).” 5 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (quoting Gen. Tel. Co. of Sw. v. 6 Falcon, 457 U.S. 147, 158 n.13 (1982)). Among other functions, these requirements serve to 7 determine whether “the named plaintiff’s claim and the class claims are so interrelated that the 8 interests of the class members will be fairly and adequately protected in their absence.” Falcon, 9 457 U.S. at 158 n.13. Adequacy of representation requires two legal determinations: “(1) do the 10 named plaintiffs and their counsel have any conflicts of interest with other class members and (2) 11 United States District Court Northern District of California 1 will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” 12 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). 13 No evidence in the record suggests the proposed class representatives or proposed class 14 counsel have a conflict of interest with other class members. Plaintiffs’ counsel are qualified and 15 competent, and have had extensive experience prosecuting complex class actions, including 16 consumer actions similar to the present case. The Court finds that proposed class counsel and the 17 named Plaintiffs have and will continue to prosecute this action vigorously on behalf of the class. 18 The adequacy requirement is therefore satisfied. 19 E. 20 To certify a Rule 23 damages class, the Court must find that “questions of law or fact Rule 23(b)(3)—Predominance and Superiority 21 common to class members predominate over any questions affecting only individual members, 22 and . . . [that] a class action is superior to other available methods for fairly and efficiently 23 adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The predominance inquiry “tests whether 24 proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem, 25 521 U.S. at 623. “‘When common questions present a significant aspect of the case and they can 26 be resolved for all members of the class in a single adjudication, there is clear justification for 27 handling the dispute on a representative rather than on an individual basis.’” Hanlon, 150 F.3d at 28 1022 (quotation omitted). 5 Here, the Court finds that the common questions raised by Plaintiffs’ claims predominate 1 2 over any questions affecting only individual members of the proposed class. In particular, 3 Plaintiffs allege that Defendant improperly assessed overdraft fees to its customers’ debit accounts 4 in highest to lowest order, in a manner that resulted in customers being charged excessive 5 overdraft fees. All class members are alleged to have been subject to the same practice of 6 assessing fees. The predominance requirement is therefore satisfied. Next, “[t]he superiority inquiry under Rule 23(b)(3) requires determination of whether the 7 8 objectives of the particular class action procedure will be achieved in the particular case.” Id. at 9 1023. Here, because common legal and factual questions predominate over individual ones, the Court finds that the judicial economy achieved through common adjudication makes a class action 11 United States District Court Northern District of California 10 superior to the alternative procedures for adjudicating the claims of the members of the proposed 12 class. * 13 14 15 * Because each element of Rules 23(a) and 23(b)(3) are satisfied, the Court finds that conditional certification of the proposed settlement class defined below is appropriate: 16 All Umpqua Bank customers in the United States who, within the Class Period [January 1, 2006 through October 15, 2010], incurred an overdraft fee as a result of Umpqua’s practice of sequencing Debit Card Transactions in highest to lowest dollar amount order. 17 18 19 * F. Appointment of Class Representatives and Class Counsel Because the Court finds that Plaintiffs Amber Hawthorne, and Victoria and Christopher 20 Kneer meet the commonality, typicality, and adequacy requirements of Rule 23(a), the Court 21 appoints Plaintiffs as class representatives. 22 In addition, when a court certifies a class, the court must appoint class counsel and must 23 consider: 24 25 26 27 28 (i) (ii) (iii) (iv) the work counsel has done in identifying or investigating potential claims in the action; counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; counsel’s knowledge of the applicable law; and the resources that counsel will commit to representing the class. 6 1 2 Fed. R. Civ. P. 23(g)(1)(A). Additionally, a court “may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 3 23(g)(1)(B). 4 5 Plaintiffs’ counsel have thus far vigorously prosecuted this action by: (1) filing and amending Plaintiffs’ complaint three times; (2) defending against a motion to dismiss and motion 6 for judgment on the pleadings, and partially succeeding in both instances; (3) investigating class 7 members’ potential claims; (4) propounding and reviewing discovery; (5) analyzing, with the help 8 of an expert, data Defendant provided in discovery; (6) taking two Rule 30(b)(6) depositions of 9 Defendant; (7) participating in a mediation session; (8) negotiating a summary settlement 10 agreement and then negotiating for a further three months to come to a final settlement agreement; 11 United States District Court Northern District of California and (9) briefing the instant motion for preliminary approval. In addition, Plaintiffs’ counsel has 12 significant prior experience prosecuting overdraft-fee class actions. For these reasons, the Court 13 will appoint Jeffrey M. Ostrow as lead class counsel and the remaining Plaintiffs’ counsel as class 14 counsel pursuant to Federal Rule of Civil Procedure 23(g). 15 III. 16 PRELIMINARY APPROVAL OF CLASS SETTLEMENT The Ninth Circuit maintains a “strong judicial policy” that favors the settlement of class 17 actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). Courts generally 18 employ a two-step process in evaluating a class action settlement. First, courts make a 19 “preliminary determination” concerning the merits of the settlement and, if the class action has 20 settled prior to class certification, the propriety of certifying the class. See Manual for Complex 21 22 Litigation, Fourth (“MCL, 4th”) § 21.632 (FJC 2004). “The initial decision to approve or reject a settlement proposal is committed to the sound discretion of the trial judge.” City of Seattle, 955 23 F.2d at 1276. Where the parties reach a class action settlement prior to class certification, courts 24 25 26 apply “a higher standard of fairness and a more probing inquiry than may normally be required under Rule 23(e).” Dennis v. Kellogg Co., 697 F.3d 858, 864 (9th Cir. 2012) (citation and internal quotations omitted). Courts “must be particularly vigilant not only for explicit collusion, but also 27 for more subtle signs that class counsel have allowed pursuit of their own self-interests and that of 28 7 1 certain class members to infect the negotiations.” In re Bluetooth Headset Prods. Liab. Litig., 654 2 F.3d 935, 947 (9th Cir. 2011). 3 The Court’s task at the preliminary approval stage is to determine whether the settlement falls “within the range of possible approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d 5 1078, 1080 (N.D. Cal. 2007) (quotation omitted); see also MCL, 4th § 21.632 (explaining that 6 courts “must make a preliminary determination on the fairness, reasonableness, and adequacy of 7 the settlement terms and must direct the preparation of notice of the certification, proposed 8 settlement, and date of the final fairness hearing.”). Second, courts must hold a hearing pursuant 9 to Rule 23(e)(2) to make a final determination of whether the settlement is “fair, reasonable, and 10 adequate.” Here, Plaintiffs ask the Court to take the first step in granting preliminary approval to 11 United States District Court Northern District of California 4 the proposed settlement. 12 Preliminary approval of a settlement is appropriate if “the proposed settlement appears to 13 be the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does 14 not improperly grant preferential treatment to class representatives or segments of the class, and 15 falls within the range of possible approval.” In re Tableware, 484 F. Supp. 2d at 1079 (quotation 16 omitted). The proposed settlement need not be ideal, but it must be fair and free of collusion, 17 consistent with counsel’s fiduciary obligations to the class. Hanlon, 150 F.3d at 1027 (“Settlement 18 is the offspring of compromise; the question we address is not whether the final product could be 19 prettier, smarter or snazzier, but whether it is fair, adequate and free from collusion.”). To assess a 20 settlement proposal, courts must balance a number of factors: 24 the strength of the plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed and the state of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. 25 Id. at 1026 (citations omitted). The proposed settlement must be “taken as a whole, rather than the 26 individual component parts” in the examination for overall fairness. Id. Courts do not have the 27 ability to “delete, modify, or substitute certain provisions”; the settlement “must stand or fall in its 28 entirety.” Id. 21 22 23 8 1 Here, the Court finds that the settlement is “the product of serious, informed, non- 2 collusive negotiations, has no obvious deficiencies, does not improperly grant preferential 3 treatment to class representatives or segments of the class, and falls within the range of possible 4 approval.” In re Tableware, 484 F. Supp. 2d at 1079. 5 First, nothing in the record suggests the settlement negotiation process was collusive. The 6 settlement was reached at arms-length with the use of a professional mediator and over the course 7 of months of effort by both parties. 8 Second, the settlement amount is adequate when compared to the total potential damages in the case. Plaintiffs estimate that class members will receive 37.6% of the total damages they 10 would receive at trial should they prevail. The Court finds that a net recovery of 37.6% is fair, 11 United States District Court Northern District of California 9 adequate, and reasonable in light of the strength of Plaintiffs’ case, and the risk, expense, 12 complexity, and likely duration of this litigation. 13 Third, the stage of the proceedings weighs in favor of approval. Though the settlement 14 was reached prior to class certification, the parties engaged in adequate discovery: Plaintiffs took 15 two Rule 30(b)(6) depositions of Defendant, Defendant provided Plaintiffs 64,000 pages of 16 documents, which Plaintiffs’ counsel reviewed with the help of an expert, and the parties 17 exchanged written discovery requests, interrogatories and requests for admissions. Moreover, the 18 parties actively litigated this case for more than two years before they agreed to this settlement. 19 Plaintiffs have amended their complaint three times, and the action has proceeded through a 20 motion to dismiss, a motion for judgment on the pleadings, and a mediation session. 21 22 23 24 25 26 27 28 Fourth, Plaintiffs’ counsel is experienced in overdraft-fee litigation, has actively participated in the litigation of this action, and endorses the settlement. ECF No. 104 at 1, 19-20. Fifth, no governmental actor is relevant to this action, rendering the factor immaterial to the settlement approval process. Sixth, the Court must wait until the final approval hearing to assess class members’ reaction to the settlement. Finally, the Court finds the parties’ agreement with respect to attorneys’ fees and service enhancement awards for named Plaintiffs Amber Hawthorne, and Christopher and Victoria Kneer 9 1 falls “within the range of possible approval.” The Court will evaluate the requests for fees and 2 service enhancement awards at the final approval hearing, after Plaintiffs’ counsel file their motion 3 for fees and costs, and the class has an opportunity to object.1 For the foregoing reasons, the Court will preliminarily approve the class action settlement. 4 5 IV. CONDITIONAL APPROVAL OF NOTICE PLAN The class notice in a Rule 23(b)(3) class action must comport with the requirements of due 6 process. “[T]he plaintiff must receive notice plus an opportunity to be heard and participate in 8 litigation, whether in person or through counsel.” The notice must be “the best practicable,” 9 “reasonably calculated, under all circumstances, to apprise interested parties of the pendency of 10 the action and afford them an opportunity to present their objections.” Philips Petroleum Co. v. 11 United States District Court Northern District of California 7 Shutts, 472 U.S. 797, 812 (1985) (citations omitted). “The notice should describe the action and 12 the plaintiffs’ rights in it.” Id. Rule 23(c)(2)(B) provides, in relevant part: 13 17 The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 18 Additionally, “an absent plaintiff [must] be provided with an opportunity to remove 14 15 16 19 himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion’ form to 20 the court.” Id. 21 The parties propose to use Epiq Systems, Inc. as the claims administrator for the class. 22 Epiq will provide notice; establish and maintain a post office box, a website, and a toll-free 23 telephone line in order to communicate with class members; calculate awards; process requests for 24 exclusion; process and transmit distributions to settlement class members; perform certain tax- 25 related services; verify that Defendant has correctly made distributions to settlement class 26 27 28 The Court notes, however, that Plaintiffs’ counsel’s request for attorneys’ fees totaling 33% of the settlement fund is above the “benchmark” the Ninth Circuit has established for class action attorneys’ fee awards. See In re Bluetooth, 654 F.3d at 942. 10 1 1 members who currently have accounts with Defendant; and provide weekly reports and a final 2 report to counsel for the parties. ECF No. 104-1 at 10-11. 3 The parties’ proposed notice plan has three parts: mailed notice via a direct-mail postcard, 4 publication notice via newspaper, and a long-form notice posted to the settlement website (and 5 which the parties will provide by U.S. mail upon request). Id. at 8. 6 The postcard notice briefly explains that a settlement has been reached, who is included in 7 the settlement, the gross settlement terms, and that class members may opt-out or object to the 8 settlement. See ECF No. 104-1, Ex. 1. It also contains the settlement website address, and the 9 settlement administrator’s toll-free telephone number. Id. To effect notice by mail, the settlement administrator will use known addresses of members of the settlement class (i.e., those who 11 United States District Court Northern District of California 10 currently have Umpqua Bank accounts), and will run the last known addresses of other class 12 members through the National Change of Address Database to ascertain current addresses. ECF 13 No. 104-1 at 14. For mailed notices that are returned as undeliverable, the settlement 14 administrator will perform address traces and re-mail the notices. Id. Mailed notice will be 15 completed no later than sixty days before the final approval hearing. Id. 16 Publication notice will involve a one-time 3-column-by-10.5” advertisement placed in one 17 weekday edition each of the following newspapers, which cover the major markets in which 18 Defendant operated bank branches during the class period: The Eugene Register-Guard, Medford 19 Mail Tribune, Sacramento Bee, San Francisco Chronicle, Seattle Times, and the Oregonian. Id. at 20 15. This notice contains much of the same information that the postcard does, but in more detail, 21 and will be completed no later than twenty-eight days after the date of this order. 22 The long-form notice, which will be available on the settlement website, 23 www.umpquabankoverdraftsettlement.com, contains more information than the postcard and 24 publication notices do. ECF No. 104 at 9. For example, it contains specific opt-out and objection 25 instructions. See ECF No. 104-1, Ex. 3. The settlement website will also contain links to the 26 settlement agreement and this order, along with any documents the parties’ counsel agree to post. 27 ECF No. 104 at 9. The website will be established after this order is entered. Id. 28 To opt-out of the settlement, putative class members must send a letter containing certain 11 1 information to the settlement administrator. ECF No. 104-1, Ex. 3 at 5. The letter must be 2 postmarked no later than the last day of the opt-out period. ECF No. 104 at 9. 3 To object to the settlement or to class counsel’s application for attorneys’ fees, costs, 4 expenses, and service awards, class members must send a letter to the Clerk of the Court, class 5 counsel, and Umpqua Bank’s counsel. ECF No. 104-1 at 12. As proposed, any objection must 6 contain fairly detailed information about the objector (e.g., a description of the number of times 7 the objector or objector’s counsel has objected to a class settlement in the last five years, and any 8 agreement related to the settlement between the objector or the objector’s counsel and any third 9 person or entity). Id. at 12-14. All objections must be postmarked by the last day of the opt-out 10 United States District Court Northern District of California 11 12 13 period. Id. at 12. Umpqua Bank will serve CAFA notice within 10 days of the date of this order. ECF No. 104 at 25. The Court finds the parties’ notice plan comports with due process requirements. In 14 addition, the Court will approve the form of the proposed notices, subject to the following 15 alterations: 16 1. All forms of notice—the postcard notice, the publication notice, and the long-form notice—shall provide class members a phone number with which they can directly reach class counsel; 2. All forms of notice shall provide class members instructions as to how to access the case docket via PACER or in person at any of the locations of the District Court for the Northern District of California; 3. Both the postcard and the publication notice shall indicate that the hearing date for final approval of the settlement may change without further notice to the class (only the long-form notice currently contains this information); 4. For a class member to request exclusion from the settlement, the only information the class member must provide in a letter to the settlement administrator is: (1) the class member’s name, (2) a statement that he or she wishes to be excluded from the settlement class in Hawthorne v. Umpqua Bank, Case No. 3:11-cv-06700-JST, and (3) his or her signature. Class members’ telephone numbers and addresses are not required, as is currently indicated in the long-form notice; 5. Any objections to the settlement should only be mailed to the Court. Once received by the Court, the Clerk of the Court will file the objections on the Court’s 17 18 19 20 21 22 23 24 25 26 27 28 12 electronic filing system. As currently worded, the notices require objections to be sent to Plaintiffs’ and Defendant’s counsel, which is unnecessary, as electronic filing of an objection on the case docket constitutes service on the parties; and 1 2 3 6. 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 Objectors will not be required to provide all of the detailed information that is requested in the long-form notice. See ECF No. 104-1, Ex. 3 at 6-7. Instead, objectors must only provide the information requested in the following proposed language: You may object to the proposed settlement in writing by providing your full name, the basis for your belief that you are a member of the settlement class, the basis of your objection, and your signature. You may not ask the Court to order a larger settlement; the Court can only approve or deny the settlement. You may also appear at the Final Approval Hearing, either in person or through your own attorney. If you appear through your own attorney, you are responsible for paying that attorney. All written objections and supporting papers must: (a) clearly identify the case name and number (Hawthorne v. Umpqua Bank, Case No. 3:11-cv-06700-JST); (b) be submitted to the Court either by mailing them to Clerk of the Court for the United States District Court for the Northern District of California, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102, or by filing them in person at any location of the United States District Court for the Northern District of California; and (c) be filed or postmarked on or before December 12, 2014. 15 The parties may elect to use this format, or adopt a different format requesting the same, but not 16 more, information. 17 CONCLUSION 18 19 20 21 22 23 24 25 26 27 28 For the foregoing reasons, the Court hereby: 1. GRANTS preliminary approval of the settlement, 2. CERTIFIES for settlement purposes the proposed settlement class, 3. APPOINTS Amber Hawthorne, and Victoria and Christopher Kneer as class representatives, 4. APPROVES the proposed notice program, and the content of the notices with the modifications discussed above, 5. APPROVES and ORDERS that the proposed opt-out and objection procedures be undertaken, with the modifications discussed above, 6. STAYS the action against Umpqua Bank pending final approval of the settlement, 13 1 2 and 7. SETS the final approval hearing for February 19, 2014. On or before October 13, 3 2014, the settlement administrator shall complete the initial mailing of postcard notices. The opt- 4 out period shall last for at least sixty days, beginning on the date that the settlement administrator 5 completes the initial mailed notice and ending not sooner than December 19, 2014. All mailed 6 notice shall be completed on or before December 12, 2014. Plaintiffs shall file their motion for 7 final approval of the settlement, and their application for attorneys’ fees, costs, expenses, and 8 service awards no later than January 5, 2015. 9 10 United States District Court Northern District of California 11 12 IT IS SO ORDERED. Dated: September 15, 2014 ______________________________________ JON S. TIGAR United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
