Baker v. GE Retail Sales Finance, Inc. et al

Filing 114

FINAL ORDER AND JUDGMENT by Judge by Judge Saundra Brown Armstrong GRANTING 102 Motion for Attorney Fees; GRANTING 109 Motion for Settlement. Signed by Judge Saundra Brown Armstrong, on 12/20/12 (lrc, COURT STAFF) (Filed on 12/20/2012) Modified on 12/21/2012 (jlm, COURT STAFF).

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KEMNITZER, BARRON, & KRIEG, LLP
BRYAN KEMNITZER
Bar No. 066401
NANCY BARRON
Bar No. 099278
AMY TAY
Bar No. 252600
445 Bush St., 6th Floor
San Francisco, CA 94108
Telephone: [phone]
Facsimile: [phone]

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TRUEBLOOD LAW FIRM
ALEXANDER B. TRUEBLOOD Bar No. 150897
10940 Wilshire Blvd., Ste. 1600
Los Angeles, CA 90024
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff Robert Baker and the potential class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ROBERT BAKER, individually and on
behalf of others similarly situated,

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Case No. C10-05261 SBA
CLASS ACTION

Plaintiff,
FINAL ORDER AND JUDGMENT

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vs.
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GEMB LENDING INC.; THOR CC, INC.,
THOR CREDIT CORPORATION,
E*TRADE FINANCIAL CORPORATION
WHICH WILL DO BUSINESS IN
CALIFORNIA AS E-TRADE
FINANCIAL CORPORATION; CCB
CREDIT SERVICES, INC.; and DOES 1
through 50, inclusive,

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Defendants.

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THIS MATTER came before the Court for a hearing on December 19, 2012, pursuant to

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Plaintiff Robert Baker’s Motion for Final Approval of the Class Action Settlement and Motion

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for an Award of Attorneys’ Fees, Costs, and Expenses, at which time the Parties, and any other

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interested persons present at the hearing and entitled to be heard, were afforded the opportunity to
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be heard in support of and in opposition to the proposed Settlement Agreement by and among the

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named Plaintiff ROBERT BAKER, individually and on behalf of the proposed Settlement Class,

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and Defendants GEMB LENDING INC.; E*TRADE FINANCIAL CORPORATION; and CCB

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CREDIT SERVICES, INC.

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There was no opposition to the Motions. By Order filed on July 25, 2012, this Court

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preliminarily approved the settlement, conditionally certified a class for settlement purposes only,

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approved the proposed form of notice, and ordered that notice be given. Notice of the Settlement

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has been given to all Identified Settlement Class Members by first-class mail as set forth in the

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Settlement Agreement and this Court’s Preliminary Approval Order, Proof of Notice has been

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filed with the Court, and the deadline for Settlement Class Members to opt out or object to the

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settlement has passed. Having read and considered all papers and documents presented, all

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exhibits and affidavits filed, all arguments of counsel, and the law,

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IT IS ORDERED, ADJUDGED AND DECREED on this day of December 19, 2012,
that:
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This Final Judgment incorporates the Settlement Agreement, and the capitalized

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terms used in this Final Judgment shall have the meanings and/or definitions given to them in the

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Settlement Agreement, as submitted to the Court with the Motion for Preliminary Approval of

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Class Action Settlement Agreement, unless otherwise defined herein.

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2.

This Court has jurisdiction over the subject matter of this Action and over all

parties to this Action, including all members of the Settlement Class.

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3.

This Court certifies this Action, for settlement purposes only, as a class action.

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4.

The following Settlement Class, conditionally certified by the Court in its Order

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filed on July 25, 2012, is hereby certified under Federal Rule of Civil Procedure 23 for settlement

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purposes only, and is hereinafter referred to as the “Class”:

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All California citizens:

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a) who entered into a Conditional Sale Contract in California for the purchase of

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a Motor Vehicle;

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b) whose Motor Vehicle was repossessed or voluntarily surrendered;

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c) who were issued a written post repossession notice by GEMB and/or Thor at

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any time from four years preceding the filing of this Action (October 12, 2006)

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through February 1, 2012;

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d) whose Conditional Sale Contract was owned by GEMB, Thor and/or E*Trade

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at the time the notice was sent; and
e) who were assessed a Deficiency Balance following the disposition of the

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Motor Vehicle.
Excluded from the Settlement Class are:
a) persons from whom GEMB, E*Trade and/or CCB obtained judgments prior to

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filing of the complaint on October 12, 2010; and/or

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b) persons who made a payment on or toward their deficiency balance after the

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written post repossession notice was sent and who also filed for bankruptcy.

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5.

The Court finds that the Settlement Class meets the requirements necessary for

class certification under Fed. R. Civ. P. 23(a):
(a)

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The Settlement Class includes over 2,400 individuals and is so numerous that
joinder of all members is impracticable;

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(b)

There are questions of law and fact common to the Settlement Class;

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(c)

The claims of Class Representative Robert Baker are typical of the claims of the

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Settlement Class; and
(d)

The Class Representative, together with Class Counsel, has fairly and adequately

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represented and protected, and will continue to fairly and adequately represent and

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protect, the interests of the Settlement Class.

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6.

The Court finds that the Settlement Class, at least for the purposes of settlement,

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meets the requirements necessary for class certification under Fed. R. Civ. P. 23(b)(3), in that

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questions of law and fact common to the Settlement Class members predominate over any

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questions affecting only individual members, and that a class action is superior to other available

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methods for fairly and efficiently adjudicating this controversy. Manageability issues do not
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prevent certification in this controversy because there will be no trial.
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The members of the Settlement Class have been provided with adequate notice of

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the settlement terms. The Class Notice, sent via first-class mail to each Identified Settlement

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Class Member, constitutes the best notice practicable under the circumstances, was reasonably

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calculated to communicate actual notice of the litigation and the proposed settlement to

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Settlement Class members, and is in full compliance with the requirements of Federal Rules of

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Civil Procedure and due process of law.

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The members of the Settlement Class were given an adequate opportunity to opt

out of the settlement. Attached to this Final Judgment as Exhibit 1 is a true and correct list of all

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Settlement Class members who timely submitted Requests for Exclusion. No Settlement Class

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members, other than those listed in Exhibit 1, are excluded from the Settlement Class or from the

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effect of this Final Judgment.

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9.

The Settlement Agreement is the product of extensive arm’s length negotiation

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between the Parties, as well as two judicial settlement conferences before Magistrate Judge

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Laurel Beeler.

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10.

The Settlement Agreement executed by the Parties provides substantial benefits to

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the Settlement Class members. The terms thereof are fair, reasonable, adequate, and in the best

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interests of the Settlement Class, and are therefore finally approved and incorporated herein by

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the Court.

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11.

The settlement and Settlement Agreement should be implemented and

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consummated in accordance with the terms of the Settlement Agreement. To the extent already

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implemented by the parties, such implementation is hereby approved and ratified by the Court.

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12.

Upon the Effective Date of the Settlement Agreement, Plaintiff and all Settlement

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Class members, and their heirs, executors, estates, predecessors, successors, assigns, agents and

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representatives, shall be deemed to have jointly and severally released and forever discharged

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GEMB LENDING INC.; E*TRADE FINANCIAL CORPORATION; and CCB CREDIT

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SERVICES, INC., and any of their present and former officers, directors, attorneys, accountants,

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assigns, representatives, employees, heirs, insurance carriers, executors, estates, predecessors,
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affiliates, parents, subsidiaries, agents, and successors in interest, from any and all Released

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Claims as that term is defined in section 2.28 of the Settlement Agreement.

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Plaintiff, Defendants and all Participating Settlement Class Members expressly

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waive and relinquish any and all rights and benefits which they may have under, or which may be

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conferred upon them by, the provisions of California Civil Code section 1542, as set forth in the

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Settlement Agreement.

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14.

This Action is hereby dismissed, on the merits, with prejudice, on the terms set

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forth in the Settlement Agreement, and without any award of attorneys’ fees or costs except as

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expressly provided in the Settlement Agreement and in this Final Order and Judgment.

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The terms of the Settlement Agreement and this Final Judgment shall be forever

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binding on all Participating Settlement Class Members, including the Class Representative, and

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shall have res judicata effect in any pending or future lawsuits or proceedings that may be

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brought or maintained by or on behalf of any Participating Settlement Class Members. This

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Court hereby bars and enjoins: (i) all Participating Settlement Class Members, including the Class

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Representative, and all persons acting on behalf of, or in concert or participation with, such

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Participating Settlement Class Members, from filing, commencing, prosecuting, intervening in, or

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participating in, any lawsuit in any jurisdiction on behalf of any Participating Settlement Class

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Member, based upon or asserting any of the Released Claims as that term is defined in the

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Settlement Agreement; and (ii) all Participating Settlement Class Members, including the Class

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Representative, and all persons acting on behalf of or in concert or participation with such

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Participating Settlement Class Members, from bringing a class action on behalf of Participating

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Settlement Class Members or seeking to certify a class which includes such Participating

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Settlement Class Members, in any lawsuit based upon or asserting any of the Released Claims as

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that term is defined in the Settlement Agreement.

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It is expressly determined that there is no just reason for delay and the entry of this

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Final Judgment is hereby directed. In the event that this Final Judgment is appealed, its mandate

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will automatically be stayed until and unless the Final Judgment is affirmed in its entirety by the

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court of last resort to which such appeal(s) has (have) been taken and such affirmance is no longer
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subject to further appeal or review.
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This Final Judgment is final for purposes of appeal and may be appealed, and the

Clerk is hereby directed to enter Judgment thereon.
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Class Representative Robert Baker is granted a service award in the amount of

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$10,000, to be paid by Defendants in accordance with the terms of the Settlement Agreement.

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Defendants shall pay this amount by check made payable to Robert Baker and delivered to Class

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Counsel’s office: Kemnitzer, Barron & Krieg, LLP at 445 Bush Street, Floor 6, San Francisco,

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CA 94108 on or before the Distribution Date under the terms of the Settlement Agreement, so

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long as a W-9 is provided for him to Defendants. The service award shall be paid by Defendants

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separate from and in addition to the payments to the Settlement Class and shall not reduce the

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amounts of those payments.

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Plaintiff is entitled to an award of attorneys’ fees, costs and expenses. The Parties

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have negotiated a total award of $435,000 for attorneys’ fees, costs and expenses. The Court

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finds that such an award is reasonable and appropriate under all of the circumstances presented.

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The amount of the award was negotiated at arms-length among experienced counsel, and is

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reasonable compared to the benefits conferred, representing a fraction of the approximately $44.7

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million in Deficiency Balances which Defendants have agreed not to collect. Accordingly, Class

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Counsel is awarded reasonable attorneys’ fees, costs and expenses totaling $435,000. Defendants

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shall pay this amount by check made payable to Kemnitzer, Barron, & Krieg, LLP and delivered

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to Class Counsel’s office located at Kemnitzer, Barron & Krieg, LLP 445 Bush Street, Floor 6,

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San Francisco, CA 94108 within ten (10) business days of the Effective Date under the terms of

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the Settlement Agreement. Such payment of attorneys’ fees, costs and expenses shall be separate

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from and in addition to the payments to the Settlement Class and shall not reduce the amount of

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those payments.

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Counsel pursuant to their separate agreement.

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Kemnitzer, Barron & Krieg, LLP shall distribute the award among Class

In the event that the settlement does not become effective in accordance with the

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terms of the Settlement Agreement, then this Final Judgment shall be rendered null and void and

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shall be vacated, and the Settlement Agreement and all orders entered in connection therewith
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shall be rendered null and void.
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Neither this Final Judgment nor the Settlement Agreement on which it is based is

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an admission or concession by any of the Defendants of any fault, omission, liability, or

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wrongdoing. This Settlement Approval Order and Final Judgment is not a finding of the validity

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or invalidity of any claims in this Action or a determination of any wrongdoing by GEMB

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LENDING INC.; E*TRADE FINANCIAL CORPORATION; CCB CREDIT SERVICES, INC;

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or THOR CREDIT CORPORATION. The Court’s final approval of this Agreement and the

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Parties’ settlement, if it occurs, will not constitute any opinion, position, or determination of this

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Court as to the merits of the claims and defenses of any Party.

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The Parties are directed to carry out their obligations under the terms of the

Settlement Agreement.
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Jurisdiction is hereby reserved by this Court to assure compliance with all terms of

this settlement, in accordance with the Settlement Agreement and this Final Judgment.
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Class Counsel shall serve a copy of this Final Judgment on all Parties or their

counsel within seven (7) days of receipt.

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IT IS SO ORDERED

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This Order terminates Docket 102 and Docket 109. The Clerk shall close the file.

Dated: 12/20/12
SAUNDRA BROWN ARMSTRONG
United States District Judge

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EXHIBIT 1

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LIST OF SETTLEMENT CLASS MEMBERS WHO TIMELY REQUESTED EXCLUSION

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1.

Stella Kotyuk

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2.

Facundo Torres M

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