Pastor, et al v. Bank Of America

Filing 84

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT #81 AND AWARDING ATTORNEYS' FEES #58 , #81 . Signed by Judge Vince Chhabria on August 16, 2018. (vclc2S, COURT STAFF) (Filed on 8/16/2018)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

ROBERT A. PASTOR, ET AL.,

Case No. 15-cv-03831-VC

Plaintiffs,
v.
BANK OF AMERICA,
Defendant.

ORDER GRANTING FINAL
APPROVAL OF CLASS ACTION
SETTLEMENT AND AWARDING
ATTORNEYS' FEES
Re: Dkt. No. 58, 80, 81

On July 26, 2016, after extensive arms-length negotiations, and private
mediation conducted before Honorable Edward Infante (ret.), Plaintiff and
Defendant (herein jointly referred to as the "Parties") entered in to a Class Action
Settlement Agreement (hereinafter referred to as the "Agreement"), which is
subject to review under Fed. R. Civ. P. 23, for monetary damages as set forth in the
Agreement.
On April 13, 2017, the parties jointly filed a Motion for Preliminary
Approval of Class Action Settlement and Certification of Settlement Class
("Preliminary Approval Motion") [Dkt No. 46].1
On July 7, 2017, upon consideration of the Agreement, Preliminary
Approval Motion, and the record, the Court entered an Order of Preliminary
Approval of Class Action Settlement (see Order granting Motion for Preliminary
Approval of Class action Settlement and Certification of Settlement Class
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Supplemental briefing was filed on June 07, 2017 (Dkt. No. 52) and on June 23,
2017 (Dkt. No. 54).

("Preliminary Approval Order") [Dkt. No. 55]). Pursuant to the Preliminary
Approval Order, the Court, among other things, (i) preliminarily approved the
proposed settlement; (ii) approved the Notice and instructed its mailing; and
(iii) set the date and time of the Final Approval Hearing.
After BANA complied with the Preliminary Approval Order and provided
notice of the Settlement to approximately 526,627 Group 1 Original Settlement
Class Members, in December 2017, BANA discovered that, due to an inadvertent
error in retrieving names and addresses of class members from BANA's electronic
consumer records, the Class Settlement Notice was not mailed to all borrowers on
accounts with multiple borrowers. Due to a retrieval error, only the primary
borrower listed on the account was included in the mailing list of Settlement Class
Members created by BANA. As a result, additional or secondary borrowers'
names were not included in the mailing list and therefore were not separately
named on the Class Settlement Notice KCC mailed to their properties. BANA
identified approximately 61,410 secondary or additional borrowers (the "Affected
Settlement Class Members") in Group 2.
On February 2, 2018, the parties filed a Joint Motion to Request
Supplemental Preliminary Approval of Addendum to Revised Class Action
Settlement Agreement (the "Supplemental Preliminary Approval Motion"). Dkt.
No. 68. The motion sought the Court's approval of the Supplemental Class
Settlement Notice.
On March 16, 2018 the Court granted the Supplemental Preliminary
Approval Motion. Dkt. No. 79.
On July 20, 2018, the Parties filed their Motion for Final Approval of Class
Action Settlement Agreement (hereinafter referred to as the "Final Approval
Motion"). Pursuant to their Final Approval Motion, the Parties requested final
approval of the proposed Class Action Settlement.
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The Court has read and considered the Agreement, Final Approval Motion,
and the record. All capitalized terms used herein have the meanings defined herein
and/or in the Agreement.
NOW, THEREFORE IT IS HEREBY ORDERED:
1.

JURISDICTION: The Court has jurisdiction over the subject

matter of the Lawsuit and over all settling parties hereto.
2.

NOTICE AND CLAIMS PROCESS: Pursuant to the Court's

orders, the Claims Administrator has complied with the approved notice
process as confirmed in its declaration filed with the Court. The form and
method for notifying the Settlement Class members of the settlement and its
terms and conditions was in conformity with this Court's Preliminary
Approval Order and Supplemental Preliminary Order and satisfied the
requirements of Fed. R. Civ. P. 23(c)(2)(B) and due process, and constituted
the best notice practicable under the circumstances. The Court finds that the
notice process was clearly designed to advise the Settlement Class members
of their rights. Further, the Court finds that the claim process set forth in the
Agreement was followed and that the process was the best practicable
procedure under the circumstances.
3.

FINAL CLASS CERTIFICATION: The Court again finds that

the Lawsuit satisfies the applicable prerequisites for class action treatment
under Fed. R. Civ. P. 23, namely:
A. The Settlement Class members are so numerous that joinder
of all of them in the Lawsuit would be impracticable;
B. There are questions of law and fact common to the
Settlement Class members, which predominate over any individual
questions;
C. The claims of Plaintiff are typical of the claims of the
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Settlement Class members;
D. The Plaintiff and Class Counsel have fairly and adequately
represented and protected the interests of all the Settlement Class
members; and
E. Class treatment of these claims will be efficient and
manageable, thereby achieving an appreciable measure of judicial
economy, and a class action is superior to other available methods for
a fair and efficient adjudication of this controversy.
4.

The Court finds that the settlement of the Lawsuit, on the terms

and conditions set forth in the Agreement, is in all respects fair, reasonable,
adequate, and in the best interests of the Settlement Class members,
especially in light of the benefits to the Settlement Class members, the
strength of the Plaintiffs' case, the complexity, expense and probable duration
of further litigation, the risk and delay inherent in possible appeals, and the
risk of collecting any judgment obtained on behalf of the class.
5.

SETTLEMEMT TERMS: The Agreement, which has been

filed with the Court and shall be deemed incorporated herein, and the
proposed settlement are finally approved and shall be consummated in
accordance with the terms and provisions thereof, except as amended by any
order issued by this Court. The material terms of the Agreement include, but
are not limited to, the following:
A. Defendant shall pay each of the 114,512 claimants that
made a timely and valid claim $4.06;
B. Defendant shall pay to Class Counsel the sum of $431,250
in attorneys' fees and $19,023.42 for costs incurred in litigating this
action.

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6.

EXCLUSIONS: A total of 33 exclusions were received. Those

persons requesting exclusion are named on Exhibit A to this Order. The
Court hereby excludes these individuals from the class and settlement.
7.

OBJECTIONS: The Settlement Class members were given an

opportunity to object to the settlement. No Settlement Class members filed
objections.
8.

This Order is binding on all Settlement Class members, except

those individuals named on Exhibit A, who validly and timely excluded
themselves from the Class.
9.

RELEASE OF CLAIMS AND DISMISSAL OF LAWSUIT:

The Class Representative, Settlement Class members, and their successors
and assigns are permanently barred and enjoined from instituting or
prosecuting, either individually or as a class, or in any other capacity, any of
the Released Claims against any of the Released Parties, as set forth in the
Agreement. Pursuant to the release contained in the Agreement, the
Released Claims are compromised, discharged, and dismissed with prejudice
by virtue of these proceedings and this Order.
10.

The Lawsuit is hereby dismissed with prejudice in all respects.

11.

This Order is not, and shall not be construed as, an admission

by Defendant of any liability or wrongdoing in this or in any other
proceeding.
The motion for attorneys' fees and costs is also granted. The plaintiffs are
awarded $431,250 in fees and $19,023.42 in costs. Ten percent of the fee award
must be withheld by the settlement administrator until the Court approves its
release, which will be after plaintiffs' counsel files a notice of completion of duties
(discussed further below).
The requested $5,000 incentive fee for each named plaintiff is approved.
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Without affecting the finality of this Final Judgment and Order of Dismissal
With Prejudice, the Court hereby retains continuing and exclusive jurisdiction over
the Parties and all matters relating to the Lawsuit and/or Agreement, including the
administration, interpretation, construction, effectuation, enforcement, and
consummation of the settlement and this order. No later than 120 days after
settlement checks are distributed, plaintiffs' counsel must file a notice of
completion of duties which certifies that the settlement administration process is
complete, explains how many checks were distributed and cashed, explains how
much money is left in the settlement fund, describes any problems that occurred
during the settlement administration process and explains how they were
addressed, and seeks approval of distribution to a cy-pres beneficiary. The notice
of completion of duties should be accompanied by a proposed order releasing the
remainder of attorneys' fees, and may be submitted as an administrative motion
under Civil Local Rule 7-11.

IT IS SO ORDERED.
Dated: August 16, 2018
______________________________________
VINCE CHHABRIA
United States District Judge

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