Alfredo M. Lopez et al v. American Express Bank FSB et al

Filing 147

FINAL APPROVAL ORDER AND JUDGMENT by Judge S. James Otero. See order for details. (Made JS-6. Case closed.) (Attachments: # 1 Exhibit A) (jy)

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October 17, 2016.

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VC
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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ALFREDO M. LOPEZ, et al.,

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Plaintiffs,
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v.
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AMERICAN EXPRESS BANK, FSB, et )
al.,
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Defendants.
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LA 51947711v1

Case No. CV09-7335 SJO (MANx)
The Honorable S. James Otero
FINAL APPROVAL ORDER AND
JUDGMENT

Upon review and consideration of the Settlement Agreement by and between

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plaintiffs Alfredo M. Lopez and Lauren R. Greene (together, “Plaintiffs”) and

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defendants American Express Bank, FSB and American Express Centurion Bank

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(together, “American Express”) and the memoranda and arguments of counsel,

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IT IS HEREBY ORDERED, ADJUDGED and DECREED as follows:

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1.

Pursuant to Federal Rule of Civil Procedure 23(e), the settlement of this

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Action, as embodied in the terms of the Settlement Agreement, is hereby finally

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approved as a fair, reasonable and adequate settlement of this case in light of the

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factual, legal, practical and procedural considerations raised. The definitions and

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provisions of the Settlement Agreement are hereby incorporated as though fully set

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forth herein. For purposes of this Order and Judgment, capitalized terms shall have

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the meaning ascribed to them in the Settlement Agreement.
2.

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This Court has jurisdiction over the subject matter of the Settlement

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Agreement with respect to and over all parties to the Settlement Agreement,

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including all members of the Settlement Class.
3.

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The Court hereby approves the settlement, including the plan of

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distribution of the settlement relief, and finds that the settlement is, in all respects,

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fair, reasonable and adequate to the Settlement Class Members, within the authority

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of the parties and the result of extensive arm’s-length negotiations.
4.

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Pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(3), 23(c) and

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23(e), the Court certifies, for settlement purposes only, the following Settlement

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Class:

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All persons or entities in the United States who: (a) had a consumer or

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small-business American Express credit card or charge card account

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with American Express Centurion Bank or American Express Bank,

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FSB; and (b) had a fixed annual percentage rate for purchases on the

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account that was increased or changed to a variable rate at any time

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between October 1, 2005 and December 31, 2010; or (c) had a fixed

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annual percentage rate for purchases on the account and were provided

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notice of an increase in the fixed rate or a change from the fixed rate to a

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variable rate at any time between October 1, 2005 and December 31,

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2010.

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5.

This Order and Judgment does not constitute an expression by the Court

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of any opinion, position or determination as to the merit or lack of merit of any of the

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claims or defenses of Plaintiffs, the Settlement Class Members or American Express.

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Neither this Order and Judgment nor the Settlement Agreement is an admission or

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indication by American Express of the validity of any claims in this Action or of any

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liability or wrongdoing or of any violation of law. This Order and Judgment and the

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Settlement Agreement do not constitute a concession and shall not be used as an

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admission or indication of any wrongdoing, fault or omission by American Express

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or any other person in connection with any transaction, event or occurrence, and

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neither this Order and Judgment nor the Settlement Agreement nor any related

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documents in this proceeding nor any reports or accounts thereof shall be offered or

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received in evidence in any civil, criminal or administrative action or proceeding,

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other than such proceedings as may be necessary to consummate or enforce this

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Order and Judgment, the Settlement Agreement and all releases given thereunder, or

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to establish the affirmative defenses of res judicata or collateral estoppel.

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The Court hereby dismisses this Action with prejudice as to Plaintiffs

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and all Settlement Class Members except those who have timely and properly

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excluded themselves from the Settlement Class. Exhibit A, attached hereto, sets

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forth the names of those individuals who have timely and properly excluded

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themselves from the Settlement Class.

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7.

Each Class Member shall be bound by the Settlement Agreement,

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including the releases in the Settlement Agreement, which is hereby incorporated by

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reference and becomes part of the final judgment in this Action.

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8.

(a)

Upon the date that this Order and Judgment becomes Final, each

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Settlement Class Member (except those who have obtained proper and timely

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exclusion from the Settlement Class), their respective heirs, executors,

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administrators, representatives, agents, attorneys, partners, successors, predecessors

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in interest, assigns and any authorized users of their accounts will be deemed to have

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fully released and forever discharged Defendants and each and all of their present,

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former and future direct and indirect parent companies, affiliates, subsidiaries,

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agents, successors, predecessors in interest and/or any financial institutions,

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corporations, trusts, or other entities that may hold or have held any interest in any

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account or any receivables relating to any account, or any receivables or group of

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receivables, or any interest in the operation or ownership of Defendants, and all of

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the aforementioneds’ respective officers, directors, employees, attorneys,

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shareholders, agents, vendors (including processing facilities) and assigns, from any

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and all rights, duties, obligations, claims, actions, causes of action or liabilities,

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whether arising under local, state or federal law (including without limitation under

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any state consumer-protection and/or unfair and deceptive practices acts, the Truth in

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Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z, 12 C.F.R. pt. 1026),

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whether by Constitution, statute, contract, common law or equity, whether known or

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unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen,

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actual or contingent, liquidated or unliquidated, as of the date of Final Judgment in

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the Action: (1) that arise out of or relate to the allegations, causes of actions and facts

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that were asserted in the Action; or (2) that arise out of or relate in any way to the

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administration of the settlement. The foregoing release does not waive rights of any

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Settlement Class Members to dispute amounts owed on individual accounts or to

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seek legal recourse for any other matters related to their accounts other than those

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that arise out of or relate to the allegations, causes of actions and facts that were

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asserted in the Action or that arise out of or relate in any way to the administration of

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the settlement.
(b)

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Upon the date that this Order and Judgment becomes Final,

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Plaintiffs and their respective heirs, executors, administrators, representatives,

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agents, attorneys, partners, successors, predecessors in interest, assigns and any

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authorized users of their account will fully release and forever discharge Defendants

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and each and all of their present, former and future direct and indirect parent

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companies, affiliates, subsidiaries, agents, successors, predecessors in interest and/or

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any financial institutions, corporations, trusts, or other entities that may hold or have

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held any interest in any account or any receivables relating to any account, or any

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receivables or group of receivables, or any interest in the operation or ownership of

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Defendants, and all of the aforementioneds’ respective officers, directors, employees,

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attorneys, shareholders, agents, vendors (including processing facilities) and assigns,

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from any and all rights, duties, obligations, claims, actions, causes of action or

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liabilities, whether arising under local, state or federal law (including without

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limitation under any state consumer-protection and/or unfair and deceptive practices

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acts, the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z, 12 C.F.R.

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pt. 1026), whether by Constitution, statute, contract, common law or equity, whether

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known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or

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unforeseen, actual or contingent, liquidated or unliquidated, as of the date of Final

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Judgment in the Action, without limitation.
(c)

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Without limiting the foregoing, the Released Claims specifically

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extend to claims that Plaintiffs and the Settlement Class Members do not know or

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suspect to exist in their favor at the time that the settlement, and the releases

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contained therein, becomes effective. This paragraph constitutes a waiver of all

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provisions, rights, and benefits of all state or common-law rules limiting the release

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of known or unknown claims, including without limitation as to any other applicable

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law, section 1542 of the California Civil Code, which provides:

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A general release does not extend to claims which the creditor does not know

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or suspect to exist in his or her favor at the time of executing the release,

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which if known by him or her must have materially affected his or her

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settlement with the debtor.

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Plaintiffs understand and acknowledge, and each member of the Settlement Class

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shall be deemed to understand and acknowledge, the significance of the waiver of

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California Civil Code section 1542 and/or of any other applicable law relating to

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limitations on releases. In connection with such waiver and relinquishment,

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Plaintiffs acknowledge, and all members of the Settlement Class shall be deemed to

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acknowledge, that they are aware that they may hereafter discover facts in addition

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to, or different from, those facts which they now know or believe to be true with

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respect to the subject matter of the settlement, but that it is their intention to release

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fully, finally and forever all Released Claims, and in furtherance of such intention,

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the release of the Released Claims will be and remain in effect notwithstanding the

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discovery or existence of any such additional or different facts.

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9.

The Court finds that the program of Class Notice set forth in the

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Settlement Agreement and preliminarily approved by the Court was the best notice

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practicable under the circumstances and was directed to Settlement Class Members

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in accordance with the Court’s Order Preliminarily Approving Settlement. The Class

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Notice provided due and adequate notice of these proceedings and of the matters set

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forth therein, including the Settlement Agreement, to all Settlement Class Members

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entitled to such notice and satisfied the requirements of Federal Rule of Civil

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Procedure 23 and the requirements of constitutional due process.

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10.

The Court appoints Alfredo M. Lopez and Lauren R. Greene as class

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representatives of the Settlement Class and finds that they each meet the

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requirements of Federal Rule of Civil Procedure 23.

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The Court appoints Marc R. Stanley, Martin Woodward, and Matthew J.

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Zevin, Stanley Law Group, Michael D. Braun, Braun Law Group PC, Andrew S.

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Kierstead, Law Office of Andrew Kierstead, Peter N. Wasylyk, Law Offices of Peter

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N. Wasylyk, and John Koenig, Law Office of John Koenig, as counsel for the

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Settlement Class. The Court appoints Marc R. Stanley and Matthew J. Zevin, Stanley

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Law Group, and Michael D. Braun, Braun Law Group PC, as Lead Class Counsel.

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The Court finds that counsel are competent and capable of exercising all

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responsibilities as Class Counsel and Lead Class Counsel, and that these attorneys

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meet the requirements of Federal Rule of Civil Procedure 23(g).

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12.

The Court hereby approves Consumer Federation of America (America

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Saves Campaign) to receive the Cy Pres Distribution in accordance with the terms

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set forth in the Settlement Agreement.

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13.

In aid of this Court’s jurisdiction to implement and enforce the

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settlement, Plaintiffs and all Settlement Class Members and all persons purporting to

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act on behalf of Settlement Class Members are enjoined, directly, on a representative

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basis or in any other capacity, from asserting, commencing, prosecuting or

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continuing any of the Released Claims against American Express or any of the other

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Released Parties in any action, arbitration or proceeding in any court, arbitral forum

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or tribunal.

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14.

Without affecting the finality of this Order and Judgment in any way,

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the Court retains continuing jurisdiction over: (a) implementation of the Settlement

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Agreement and distribution of the settlement payments contemplated by the

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Settlement Agreement, until all acts agreed to be performed pursuant to the

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Settlement Agreement have been performed; and (b) all parties to this Action and

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members of the Settlement Class for the purpose of enforcing and administering the

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Settlement Agreement.

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15.

The Court approves Class Counsel’s application for $1,531,136.08 in

attorneys’ fees and costs.
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The Court approves incentive awards for Alfredo M. Lopez in the

amount of $5,000 and Lauren R. Greene in the amount of $5,000.
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The Parties shall carry out their respective obligations under the

Settlement Agreement.
IT IS SO ORDERED.

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Dated: October __, 2016.

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____________________________________
The Honorable S. James Otero
United States District Judge

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