Nguyen v. Vantiv LLC et al

Filing 47

ORDER by Judge Laurel Beeler granting 41 Motion for Preliminary Approval of Class-Action Settlement. The court: 1) conditionally certifies the class for settlement purposes only; 2) preliminarily approves the settlement, authorizes notice a s set forth in this order, and gives leave to file the FAC for settlement purposes only; 3) approves the notice plan; 4) appoints the class representative, class counsel, and claims administrator; 5) orders the procedures in this order (including all dates in the chart); and 6) orders the parties and the claims administrator to carry out their obligations in the settlement agreement. The court approves the Settlement Class Notice, Email Settlement Class Notice, and Claim Form, which are at EC F Nos. 41-4 at 10-15, 41-4 at 17-18, and 41-4 at 20-21, and are attached to the filed order as Exhibits 1, 2, and 3. (Attachments: # 1 Exhibit class notice, # 2 Exhibit email class notice, # 3 Exhibit claim form)(lblc3S, COURT STAFF) (Filed on 5/19/2016)

Case 3:15-cv-02436-LB Document 41-4 Filed 04/06/16 Page 9 of 21

EXHIBIT 1

Case 3:15-cv-02436-LB Document 41-4 Filed 04/06/16 Page 10 of 21

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT
Nguyen v. Vantiv, Inc., et al.
United States District Court for the Northern District of California
Case No. 3:15-cv-02436-LB
READ THIS NOTICE CAREFULLY
YOUR LEGAL RIGHTS MAY BE AFFECTED

All natural persons who were California residents and who, while physically located in
California, placed a call to certain toll-free telephone numbers operated by Defendants (“Vantiv”)
during the period January 24, 2014 and May 1, 2015, inclusive, and spoke with a representative, may be
entitled to money from a class action settlement. Vantiv, as part of its services, operates a 24-hour
contact center that handles toll-free calls from bank customers, credit union members, and other
cardholders. During the period from January 24, 2014 through May 1, 2015, 28 toll-free telephone
numbers handled by the Vanitv contact center were affected by a software error that caused undisclosed
recording of calls to those numbers. This settlement covers those calls. Please read the rest of this
Notice to find out more.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
Participate in the Settlement

If you wish to receive a Settlement Payment, read
this Notice for information on how to file a claim.
If you do not file a Claim Form by [insert claim
deadline], you will not receive a Settlement
Payment.

Exclude Yourself from the Settlement

If you do not want to participate in the settlement,
you must send a letter requesting exclusion
postmarked no later than [insert deadline] or else
you will be bound by the settlement.

Object to the Settlement

If you wish to object to the settlement, you must
follow the directions in this Notice.

Participate in the Hearing

If you submit a timely objection to the settlement,
you may also indicate in the objection whether you
wish to appear in court and be heard at the time of
the final fairness hearing.

Do Nothing

If you do nothing with respect to this Notice, you
will not receive any Settlement Payment and you
will be bound by the terms of the settlement
including the release of claims described below.

THESE RIGHTS AND OPTIONS, INCLUDING THE DEADLINES BY WHICH TO EXERCISE
THEM, ARE EXPLAINED BELOW
Questions? Call 1-8XX-XXX-XXXX or visit www.CardServicesSettlement.com

Case 3:15-cv-02436-LB Document 41-4 Filed 04/06/16 Page 11 of 21

What is the Case About?
This class action case (“the Action”) alleges that Vantiv, Inc., Vantiv Holding, LLC and Vantiv, LLC
(“Defendants”) violated California laws that prohibit the recording of telephone calls without notice to or
consent of callers. The case covers calls made by natural persons who were California residents and
who, while physically located in California, placed a call to one or more of 28 specific toll-free
telephone numbers operated by Defendants during the period from January 24, 2014 through May 1,
2015, inclusive, and spoke with a representative. A list of the 28 toll-free numbers affected by a
software error that caused undisclosed recording of calls to those numbers during the Class Period can be
found at the settlement website, www.CardServicesSettlement.com.
What is a Class Action?
In a class action, one or more people called Class Representatives (in this case, Tuan Nguyen) sue
on behalf of people who have similar claims.
Am I a Class Member?
You are a Class Member if you are a natural person who was a California resident and who, while
physically located in California, called one or more of 28 specific toll-free telephone numbers operated
by Defendants during the period from January 24, 2014 through May 1, 2015, inclusive, and spoke with a
representative. A list of the 28 toll-free numbers affected by a software error that caused undisclosed
recording of calls to those numbers during the Class Period can be found at the settlement
website, www.CardServicesSettlement.com.
Defendants have a record of every telephone number that called the 28 toll-free numbers affected
by the software error that caused undisclosed call recording during the Class Period. If you
received notice of this proposed settlement by U.S. mail, email or direct telephone call, there are
records indicating that you might be a member of the Class entitled to submit a Claim Form. You
may be a Class Member even if you did not receive notice by U.S. mail, email or direct telephone
call. If you are not sure whether you qualify, you can contact the Claims Administrator by calling
1-8xx-xxx-xxxx or by email at [insert email address] to ask whether your telephone number or
numbers appear on the list of calls routed through the call recording software during the Class
Period.
Why is There a Settlement?
Both sides agreed to a settlement to avoid the uncertainty and cost of class certification and a trial, and to
provide benefits to Class Members promptly. The Court did not decide in favor of the Class
Representative, Class Members or Defendants, and Defendants deny any liability or wrongdoing of any
kind associated with the claims in this class action.
What Can I Get From The Settlement?
Defendants have agreed to create a settlement fund of $2,000,000. After class action notice and
administration fees and costs, a service payment to the class representative, and Class Counsel’s
attorneys’ fees and costs are deducted, the entire remaining amount will be divided up amongst all Class
Members based on the number of qualified calls made by Class Members who submit timely and valid
Claim Forms. Although the actual amount paid out to individual Class Members will depend on the
number of Class Members who submit timely and valid Claims Forms, based on claims rates in similar
cases, it is estimated that each Class Member who submits a timely and valid Claim Form will receive at
least $250 per qualified call, but not more than $5,000 per call, although the actual amount may be more
or less than this.

Questions? Call 1-8XX-XXX-XXXX or visit www.CardServicesSettlement.com

Case 3:15-cv-02436-LB Document 41-4 Filed 04/06/16 Page 12 of 21

What Do I Need to Do To Receive a Settlement Payment?
You must complete a Claim Form and return it to the Claims Administrator on time. You may
obtain a hard copy Claim Form from the Settlement Website, www.CardServicesSettlement.com, by
calling 1-8XX-XXX-XXXX, or by writing to the Claims Administrator at [address]. You also may
submit a completed Claim Form online at the Settlement Website, www.CardServicesSettlement.com. A
Claim Form will not be considered timely unless it is returned to the Claims Administrator online or sent
by mail postmarked no later than [date].
What Am I Giving Up to Get Settlement Benefits or Stay In the Class?
Unless you exclude yourself, as described below, you will remain in the Class and be bound by the terms
of the settlement and all of the Court’s orders regardless of whether you submit a claim form. This means
that you can’t sue or be part of any other lawsuit against Defendants or other Released Parties (defined
below) about the issues in this case. Staying in the Class also means that you agree to the following
release of claims, which describes the legal claims that you give up:
Release by the Settlement Class. Upon entry of the Final Approval Order and Judgment, the
Settlement Class Representative and each Settlement Class Member, and their respective heirs, assigns,
successors, agents, attorneys, executors, and representatives, shall be deemed to have and by operation of
this Agreement and the Final Approval Order and Judgment shall have fully, finally, irrevocably, and
forever released Vantiv, Inc., Vantiv Holding, LLC and Vantiv, LLC and, for each, its past or present
direct and indirect parents, affiliates and subsidiaries (whether or not wholly owned) and their respective
directors, officers, employees, agents, insurers, shareholders, members, attorneys, advisors, consultants,
representatives, partners, affiliates, related companies, parents, subsidiaries (whether or not wholly
owned), joint ventures, divisions, predecessors, successors, and assigns and each of them (collectively,
the “Released Parties”) from any and all liabilities, claims, causes of action, damages (whether actual,
compensatory, statutory, punitive or of any other type), penalties, costs, attorneys’ fees, losses, or
demands, whether known or unknown, existing or suspected or unsuspected, that were or reasonably
could have been asserted based on the factual allegations contained in the First Amended Complaint in
the matter of Nguyen v. Vantiv, Inc., et al, USDC ND CA Case No. 3:15-cv-02436-LB, or relate to or
arise out of the alleged recording, monitoring, or eavesdropping upon telephone calls made to Defendants
or any of the other Released Parties before May 1, 2015 (collectively, the “Released Claims”). The
Released Claims include, but are not limited to, claims that were or reasonably could have been asserted
based on the factual allegations contained in the First Amended Complaint alleging violation of any law
prohibiting or regulating the monitoring, recording or eavesdropping on telephone calls without the
consent of all parties, including but not limited to any claims under California Penal Code §§ 631, 632,
632.7 and 637.2. The Released Claims also include but are not limited to claims under any other
California or federal statute, code, rule or regulation that regulates or restricts the monitoring, recording or
eavesdropping on telephone calls. The Released Claims do not cover any telephone calls made by
Settlement Class Members to Defendants’ clients that were not routed to Defendants’ contact center.

Questions? Call 1-8XX-XXX-XXXX or visit www.CardServicesSettlement.com

Case 3:15-cv-02436-LB Document 41-4 Filed 04/06/16 Page 13 of 21

When Can I Expect To Receive My Settlement Payment?
The Court will hold a hearing on [date], to decide whether to give final approval to the settlement. If the
settlement is finally approved, payments may be made as soon as 60 days after this date but, depending
on what happens in the case, payments may be delayed. You will be kept informed of the progress of
the settlement through the dedicated settlement website at www.CardServicesSettlement.com. Please be
patient.
Can I Exclude Myself From the Settlement?
If you don’t want to receive benefits from this settlement, but you want to keep the right to sue
Defendants or any of the Released Parties on your own at your own expense about the issues in this
case, then you must take steps to exclude yourself from the settlement. This is also called “opting out”
of the settlement. To exclude yourself from the settlement, you must send a letter by first class United
States mail to the Claims Administrator, containing: (1) the title of the Action; (2) the full name,
address, and telephone number of the person requesting exclusion; (3) a statement that you request to be
excluded from the Settlement Class. Also, you are requested but not required to provide: (4) a short
statement of the reasons for the request; and (5) the telephone number(s) that you claim to have used in
making a call covered by this class action settlement. Be sure to include your name, address, telephone
number, and signature. Your letter requesting exclusion from the settlement must be postmarked no
later than [date] and mailed to:
Call Recording Settlement Exclusions
c/o A.B. Data Ltd.
P.O. Box XXXX
City / State, XXXXX
If you request exclusion from the settlement, you will not get any settlement benefits, and you cannot
object to the terms of the settlement. You will not be legally bound by anything that happens in this
lawsuit.
If I Don’t Exclude Myself, Can I Sue the Defendants for the Same Thing Later?
No. Unless you exclude yourself, you give up any right to sue Defendants and any of the Released Parties
for the claims that this settlement resolves. If you have a pending lawsuit covering these same claims,
speak to your lawyer in that case immediately. You must exclude yourself from this settlement to
continue your own lawsuit.
Do I Have a Lawyer in the Case?
The Court has appointed Eric A. Grover of Keller Grover LLP and Scot Bernstein of the Law Offices of
Scot D. Bernstein, A Professional Corporation to represent you and other class members as Class
Counsel. They will be paid from the settlement fund and you will not be charged for this. If you want to
be represented by your own lawyer, you may hire one at your own expense.
How Will the Lawyers and the Class Representatives Be Paid?
Class Counsel will ask the Court to approve payment of up to $500,000 (25% of the $2,000,000
settlement fund) in attorneys’ fees and an additional amount for out-of-pocket costs, which is estimated
not to exceed $25,000. The fees would pay Class Counsel for investigating the facts, litigating the case,
negotiating the settlement, and following through to make sure that its terms are carried out. Class
Counsel also will ask the Court to approve a payment of $10,000 to Tuan Nguyen for his service as Class
Representative. The Court may award less than these amounts. These amounts, along with the costs of
settlement notice and administration, which are estimated not to exceed $85,000, will be paid out of the
$2,000,000 settlement fund. Class Counsel will file with the Court their motion for award of attorneys’
Questions? Call 1-8XX-XXX-XXXX or visit www.CardServicesSettlement.com

Case 3:15-cv-02436-LB Document 41-4 Filed 04/06/16 Page 14 of 21

fees, litigation costs, administration costs and Class Representative’s service payment no later than [date].
After that date, you may view the motion on the settlement website.
How Do I Tell the Court That I Don’t Like the Settlement?
You can ask the Court to deny approval by filing an objection. You can’t ask the Court to order a larger
settlement; the Court can only approve or deny the settlement. If the Court denies approval, no settlement
payments will be sent out and the lawsuit will continue.
You must object to the proposed settlement in writing. All written objections and supporting papers must
include: (1) the name and case number of the lawsuit (Nguyen v. Vantiv, Inc., et al., USDC ND CA
Case No. 3:15-cv-02436-LB); (2) the objector’s full name and postal address; (3) proof of the
objector’s membership in the Class; (4) all grounds for the objection including, if available, the
factual and legal bases for the objection known to the objector or his or her counsel and the relief
the objector is seeking; (5) the identity, postal address, and telephone number for all counsel who
represent the objector, if any; and (6) a statement confirming whether the objector or the objector’s
counsel intends to appear personally at the final fairness hearing.
Objections must be submitted to the Court by mailing them to the Class Action Clerk, United States
District Court for the Northern District of California, 450 Golden Gate Avenue, Box 36060, San
Francisco, California 94012 or by filing them in person at any location of the United States District Court
for the Northern District of California. Objections must be postmarked or submitted in person by [insert
date] to be considered timely.
What’s the Difference Between Objecting and Excluding?
Objecting is telling the Court that you don’t like something about the settlement. You can object
only if you stay in the Class. If you object, you may still submit a Claim Form to receive the
benefits of the settlement in the event the objection is overruled and the settlement is approved.
Excluding yourself is telling the Court that you don’t want to be part of the Class. If you exclude
yourself, you have no basis to object because the case no longer affects you. You cannot both
object to and exclude yourself from the settlement. Any persons who attempt both to object to and
exclude themselves from the settlement will be deemed to have excluded themselves and will forfeit
the right to object to or participate in the settlement or any of its terms.
When and Where Will the Court Decide Whether to Approve the Settlement?
The Court will hold a final fairness hearing regarding the settlement at [time] on [date] at San
Francisco Courthouse, Courtroom C – 15th Floor, 450 Golden Gate Avenue, San Francisco,
California. At that hearing, the Court will consider whether the settlement is fair, reasonable, and
adequate. If there are objections, the Court will consider them. The Court will listen to people
who have asked to speak at the hearing. The Court also will decide how much to pay to Class
Counsel and the Class Representative. After the hearing, the Court will decide whether to
approve the settlement. Class Counsel do not know how long those decisions will take.
The final fairness hearing date or time may be changed without further notice. Any change to the
final
fairness
hearing
date
or
time
will
be
posted
on
the
Settlement
Website, www.CardServicesSettlement.com, and on the Court’s Public Access to Court Electronic
Records (PACER) system at https://ecf.cand.uscourts.gov.

Questions? Call 1-8XX-XXX-XXXX or visit www.CardServicesSettlement.com

Case 3:15-cv-02436-LB Document 41-4 Filed 04/06/16 Page 15 of 21

Do I Have to Come to the Hearing?
No. Class Counsel will answer questions the Court may have. But you are welcome to come at
your own expense. If you submit an objection, you don’t have to come to Court to talk about it.
As long as you submit your written objection on time, the Court will consider it. You also may
have your own lawyer attend at your own expense, but doing so is not necessary.
You may ask the Court for permission to speak at the final fairness hearing. To do so, you must
submit an objection and include a statement that you intend to appear in the objection. You cannot
speak at the hearing if you excluded yourself from the settlement.
What Happens if I Do Nothing At All?
If you do nothing, you will remain in the Settlement Class and will be bound by the terms of the
settlement and all of the Court’s orders including the Release. This also means that you will not receive
any settlement benefits and can’t sue or be part of any other lawsuit against Defendants or the Released
Parties about the issues in this case.
Are There More Details About the Settlement?
This notice summarizes the proposed settlement. For the precise terms and conditions of the
settlement, please see the Settlement Agreement and Release. You can get a copy of the
Settlement Agreement and Release and other case documents through the settlement
website, www.CardServicesSettlement.com, by calling 1-8XX-XXX-XXXX, by writing to the Claims
Administrator at [address], by accessing the Court docket in this case through the Court’s Public Access
to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of
the Clerk of the Court for the United States District Court for the Northern District of California, 450
Golden Gate Avenue, 16th Floor, San Francisco, California, between 9:00 a.m. and 1:00 p.m., Monday
through Friday, excluding Court holidays. You also can contact Class Counsel:
Eric A. Grover, Esq.
KELLER GROVER LLP
1965 Market Street
San Francisco, California 94103
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Scot Bernstein, Esq.
LAW OFFICES OF SCOT D. BERNSTEIN,
A PROFESSIONAL CORPORATION
101 Parkshore Drive, Suite 100
Folsom, California 95630
Telephone: [phone]
Facsimile: [phone]
[e-mail]

PLEASE DO NOT CALL THE COURT, THE COURT CLERK’S OFFICE, DEFENDANTS OR
DEFENDANTS’ COUNSEL WITH ANY QUESTIONS RELATED TO THE SETTLEMENT.

Questions? Call 1-8XX-XXX-XXXX or visit www.CardServicesSettlement.com