Messineo v. Ocwen Loan Servicing, LLC

Filing 40

ORDER PRELIMINARILY CERTIFYING A CLASS FOR SETTLEMENT PURPOSES, GRANTING 35 , 38 PRELIMINARY APPROVAL OF CLASS SETTLEMENT, AND DIRECTING 36 , 39 THE ISSUANCE OF NOTICE TO THE SETTLEMENT CLASS. Signed by Judge Beth Labson Freeman on 9/6/2016. (blflc4S, COURT STAFF) (Filed on 9/6/2016)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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JOSEPH C. MESSINEO, individually
and on behalf of all others similarly
situated,

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Plaintiff,

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v.

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OCWEN LOAN SERVICING, LLC,

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Defendant.

Case No.: 5:15-cv-02076-BLF
[PROPOSED] ORDER PRELIMINARILY
CERTIFYING A CLASS FOR
SETTLEMENT PURPOSES, GRANTING
PRELIMINARY APPROVAL
OF CLASS SETTLEMENT, AND
DIRECTING THE ISSUANCE OF NOTICE
TO THE SETTLEMENT CLASS
Judge: Hon. Beth Labson Freeman
Action Filed: April 8, 2015
Case Removed: May 8, 2015

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The Parties and their respective counsel have entered into a settlement to settle and

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dismiss the above-captioned litigation on a class-action basis, subject to the Court’s approval.

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On August 5, 2016, Plaintiff Messineo moved the Court to preliminarily approve that settlement

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(Doc.35). The Court held a hearing on August 17, 2016 to determine whether the proposed

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Settlement Class should be certified for settlement purposes only, and whether the settlement

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should be given preliminary approval (Doc. 37). During that hearing, the Court and the Parties

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discussed the possibility of certain procedural and technical revisions to the Parties’ original

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Stipulation of Settlement and Release and its accompanying exhibits. The Parties then entered
[PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND PRELIMINARILY APPROVING C LASS SETTLEMENT
(CASE NO. 5:15-cv-02076-BLF) — PAGE 1

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into an Amended Stipulation of Settlement and Release, which Plaintiff Messineo filed with the

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Court on August 30, 2016 (Doc. 38). Contemporaneously, Ocwen filed unopposed motions on

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August 13, 2016 (Doc. 36) and August 31, 2016 (Doc. 39) for entry of an order finding that it

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had complied with the notice requirements of the Class Action Fairness Act of 2005, 28 U.S.C.

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§§ 1711, et seq. (“CAFA”), codified at 28 U.S.C. § 1715 (Doc. 36), with respect to the Parties’

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original settlement, as well as with respect to their amendment of that settlement. Having fully

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considered the Parties’ motions, and the exhibits thereto (including the Stipulation of Settlement

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and Release and its own exhibits), and the evidence and argument offered by the Parties in

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support of the Settlement, and based upon the totality of the information before the Court,

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IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS:

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1.

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Settlement (Doc. 35), as amended by the Parties (Doc. 38), is GRANTED.
2.

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Plaintiff Messineo’s unopposed Motion for Preliminary Approval of Class Action

Ocwen’s motions for a finding that it has complied with the requirements of

CAFA (Docs. 36, 39) are also GRANTED.
3.

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Use of Defined Terms. For purposes of clarity and consistency, the Court hereby

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adopts the definitions set forth in Section 2 of the Parties’ Amended Stipulation of Settlement

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and Release (hereinafter, the “Settlement” or “Agreement”). According, unless otherwise

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defined herein, all capitalized terms and phrases used in this order shall have the same meanings

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as given them in that Settlement.
4.

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Partial Stay of this Action. All non-settlement-related proceedings in the Action

are hereby stayed and suspended until further Order of the Court.
5.

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Jurisdiction. The Court finds that it has subject matter jurisdiction over this

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Action pursuant to 28 U.S.C. § 1331, including jurisdiction to approve and enforce the

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Agreement, all of its exhibits, and all Orders and Decrees that have been entered or which may

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be entered pursuant thereto. The Court also finds that it has personal jurisdiction over the Parties

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and, for purposes of consideration of the proposed Settlement, over each of the members of the

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Settlement Class defined below, and that venue is proper in this District pursuant to 28 U.S.C. §

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1391.
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6.

Preliminary Class Certification for Settlement Purposes Only. Where, as

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here, the Court is presented with a proposed settlement prior to a decision on class certification,

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the Court must determine whether the proposed settlement class satisfies the requirements for

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class certification under Federal Rule of Civil Procedure 23, albeit for purposes of settlement.

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See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620-21 (1997); Staton v. Boeing Co.,

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327 F.3d 938, 952-53 (9th Cir. 2003). The requirements that must be met under Rule 23(a) are:

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(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. In addition,

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the proposed settlement class must satisfy one of the subsections of Rule 23(b). The Court

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preliminarily finds and concludes, for settlement purposes only, that:

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a.

The Settlement Class, as defined below, satisfies the numerosity

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requirement of Rule 23(a)(1) because it is comprised of 9,374 primary, joint and co-borrowers on

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the 7,030 residential home loans potentially impacted by the allegations raised in this Action, and

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the individual joinder of that many persons would be impracticable.

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b.

The commonality requirement of Rule 23(a)(2) is satisfied because the

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claims of Plaintiff Messineo and the Settlement Class Members present common issues of law

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and fact as to whether Ocwen’s loan servicing platform contained a flaw during the class period

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at issue, a flaw that failed to properly apply suspense amounts and excess monthly payment

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amounts on loans in interest-only payment status on and after November 1, 2013, potentially

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resulting in violation of the prompt crediting requirements of 15 U.S.C. § 1639f and 12 C.F.R. §

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1026.36 under certain payment and account status scenarios. Plaintiff Messineo contends that

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investigation has revealed that the cause of such errors was software coding “bugs” inadvertently

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introduced into Ocwen’s loan servicing platform through a vendor’s October 2013 software

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update. The Court finds that resolution of these questions are “apt to drive the resolution of the

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litigation” because they are not only common to the claims of Plaintiff Messineo and all

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Settlement Class Members, but are also “of a nature that is capable of classwide resolution”

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given their susceptibility to resolution principally through common, classwide proof. Wal-Mart

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Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (“Commonality requires the plaintiff to

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demonstrate that the class members have suffered the same injury, … not … that they have all
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suffered a violation of the same provision of law:” what must be shown is that the claims of a

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class “depend upon a common contention … that is capable of classwide resolution … [and that

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is] apt to drive the resolution of the litigation.”).

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c.

The Settlement Class also satisfies the typicality requirement of Rule

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23(a)(3). “The test of typicality is whether other members [of the class] have the same or similar

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injury, whether the action is based on conduct which is not unique to the named plaintiffs, and

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whether other class members have been injured by the same course of conduct.” Parsons v.

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Ryan, 754 F.3d 657, 685 (9th Cir. 2014), reh’g denied 784 F.3d 571 (2015). Here, Plaintiff

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Messineo alleges that he and the Settlement Class were subjected to a common course of

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conduct—payment crediting by Ocwen’s loan servicing platform, as affected by software coding

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“bugs” inadvertently introduced into that loan servicing platform through a vendor’s October

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2013 software update and whose potential adverse impact was limited to 7,030 loans which were

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in interest-only payment status on or after November 1, 2013—thus creating uncertainty as to

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whether payments made on such loans November 1, 2013 have been properly credited by the

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loan servicing platform as required by the Truth In Lending Act and Regulation Z.

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d.

Plaintiff Messineo and Class Counsel are adequate representatives of the

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Settlement Class under Rule 23(a)(4). Plaintiff Messineo is a member of the class he seeks to

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represent, the Court is aware of no antagonistic interests that exist between him and the

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Settlement Class Members, and the Court is satisfied that Class Counsel have the competence to

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undertake this litigation.

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e.

The requirements of Rule 23(b)(3) are satisfied for purposes of

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certification of the Settlement Class because the core common issues of law and fact that

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surround the claims of the Settlement Class—the nature and effect of the software coding “bugs”

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introduced through the October 2013 software update—predominates for purposes of settlement

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over any individual questions associated with the resolution of those claims, and certification of

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a Rule 23(b)(3) opt-out settlement class action for purposes of settlement is superior to other

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available means of adjudicating this dispute. And because Plaintiff Messineo seeks class

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certification for settlement purposes, the Court need not inquire into whether the case, if tried,
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would present intractable management problems. Amchem Prods., 521 U.S. at 620.
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Accordingly, for purposes of considering, approving and effectuating the

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Agreement and to fairly and adequately protect the interests of all concerned, the following class

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(the “Settlement Class”) is preliminarily certified for settlement purposes only, pursuant to Rules

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23(a) and 23(b)(3) of the Federal Rules of Civil Procedure: “All persons who are obligors on a

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loan serviced by Ocwen that is secured by the person’s principal dwelling located in the United

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States or its territories, and which was in an interest-only payment status at any time on or after

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November 1, 2013, and on which a payment did not result in principal curtailment in the month

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the payment was made even though (a) the payment equaled or exceeded the contractual amount

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of interest due that month and was made while there was a pre-existing amount being held in

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suspense by Ocwen with regard to the loan; or (b) the payment exceeded the contractual amount

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of interest due that month.” Excluded from the Settlement Class are: (a) Ocwen’s board

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members and executive level officers; (b) persons who timely and properly exclude themselves

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from the Settlement Class as provided in the Agreement and as set forth in this Order; and (c) all

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federal judges, their spouses, and persons within the third degree of relationship to them.

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Appointment of Class Representative and Class Counsel. The Court hereby

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appoints Plaintiff Messineo as the representative of the Settlement Class. The Court further

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designates and appoints Anthony F. Ventura, Daniel J. Muller, and Sarah E. Hammerstad of the

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law firm of Ventura Rossi Hersey & Muller LLP, who the Court finds are experienced and

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adequate counsel, as the legal counsel for the Settlement Class (“Class Counsel”). Class Counsel

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are authorized to represent Plaintiff Messineo and the Settlement Class Members, to enter into

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and seek approval of the Agreement on behalf of the Settlement Class, and to bind Plaintiff

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Messineo, all other Settlement Class Members and themselves to the duties and obligations

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contained in the Agreement, subject to the final approval of the Agreement by the Court.

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Preliminary Settlement Approval. The Court finds that, subject to the Fairness

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Hearing, the Settlement is sufficiently fair, reasonable, adequate such that it falls within the

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range of possible approval, and that it is in the best interests of the Settlement Class that they be

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given the opportunity to be heard regarding the Settlement and the opportunity to exclude
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themselves from the proposed Settlement Class. The Court further finds that the Settlement

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substantially fulfills the purposes and objectives of the Action, and offers beneficial relief to the

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Settlement Class that falls within the range of potential recovery in successful litigation of the

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claims asserted. The Court also finds that the Settlement (a) is the result of serious, informed,

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non-collusive arm’s length negotiations involving experienced counsel informed and familiar

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with the legal and factual issues of the Action and reached through the assistance of the

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Honorable Ronald Shaw (Ret.) of JAMS; (b) is sufficient to warrant notice of the Settlement and

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the Fairness Hearing to the Settlement Class Members; (c) meets all applicable requirements of

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law, including Federal Rule of Civil Procedure 23, and the Class Action Fairness Act (“CAFA”),

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28 U.S.C. § 1715; and (d) is not a finding or admission of liability by Ocwen. Accordingly, the

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Court grants preliminary approval to the Agreement under Federal Rule of Civil Procedure 23(e),

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subject to further consideration at the Fairness Hearing after notice to the Settlement Class

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Members.

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Fairness Hearing. In compliance with 28 U.S.C. § 1715(d), and with due regard

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to the deadlines contemplated by the Agreement for the distribution of notice to, and the

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submission of exclusion requests or objections by, the Settlement Class Members, the Court

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hereby sets this case for a settlement Fairness Hearing to take place on January 27, 2017,

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beginning at 1:30 p.m., in Courtroom 3 on the 5th Floor of the Robert F. Peckham Federal

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Building, 280 South 1st Street, San Jose, California 95113. During the Fairness Hearing the

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Court will consider whether: (a) the proposed Settlement of the Action on the terms and

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conditions provided for in the Agreement is fair, adequate and reasonable as to the Settlement

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Class, such that the Agreement should be granted final approval by the Court pursuant to Federal

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Rule of Civil Procedure 23(e); (b) the certification of the Settlement Class should be made final

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for settlement purposes, pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil

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Procedure; (c) whether Attorneys’ Fees and Expenses should be awarded by the Court to Class

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Counsel from the Settlement Fund, and in what amount, pursuant to Federal Rule of Civil

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Procedure 23(h); (d) whether a Service Award should be approved by the Court to Plaintiff

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Messineo from the Settlement Fund, and in what amount; and (e) whether a Final Order and
[PROPOSED] ORDER CERTIFYING SETTLEMENT CLASS AND PRELIMINARILY APPROVING C LASS SETTLEMENT
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Judgment should be entered, and this Action thereby dismissed with prejudice, pursuant to the

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terms of the Agreement. The Court may adjourn the Fairness Hearing without further notice to

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the Settlement Class Members.

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Further Submissions by the Parties. Any application by Class Counsel for

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Attorneys’ Fees and Expenses and for an Service Award shall be filed with the Court no later

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than fourteen (14) days prior to the Objection/Exclusion Deadline (i.e., by December 9, 2016),

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which the Parties must promptly cause the Settlement Administrator to post to the settlement

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website. All other submissions of the Parties in support of the proposed settlement, or in

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response to any objections submitted by Settlement Class Members, shall be filed no later than

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ten (10) days before the Fairness Hearing (i.e., by January 17, 2017). The Settlement

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Administrator is directed to file a list reflecting all requests for exclusion it has received from

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Settlement Class Members with the Court no later than ten (10) days before the Fairness Hearing

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(i.e., by January 17, 2017).

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12.

Administration. In consultation with and with the approval of Class Counsel,

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Ocwen is hereby authorized and directed to establish the means necessary to administer the

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proposed Settlement, and implement the class notification process, in accordance with the terms

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of the Agreement. The Court hereby authorizes the Parties to retain Class-settlement.com to

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serve as the Settlement Administrator, at Ocwen’s expense, to aid in implementing the terms of

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the Agreement.

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13.

The Court also approves the plan for claims administration and processing

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proposed by the Settlement, including the Claim Form attached as Exhibit A to the Agreement.

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Settlement Class Members who wish to apply for an Account Adjustment must complete and

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submit a Claim Form. The Court further approves the procedure for resolution of any disputes as

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to Account Adjustments by a neutral, specifically the Honorable Robert A. Baines (Ret.) of

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JAMS, without hearings and based on written submissions only, without the right of appeal. To

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be valid, all Claim Forms must be submitted sufficiently in advance that they are received by the

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Settlement Administrator on or before the Claim Form Deadline of December 23, 2016.

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14.

Notice to Federal and State Regulators. The Court has reviewed Ocwen’s

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motions for entry of an order finding that it has complied with the notice requirements of CAFA,

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as codified at 28 U.S.C. § 1715, and those motions’ accompanying exhibits. The Court finds and

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concludes that the form and contents of, and information provided by, the notices given by

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Ocwen to federal and state regulatory officials, as well as the identity of the officials to whom

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those notices were sent, to be reasonable, proper, and in full compliance with the requirements of

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28 U.S.C. § 1715. As such, the Court finds that Ocwen need not provide any further or

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supplemental notices under CAFA.

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Notice to the Settlement Class. The Court approves, as to both form and

content, the Class Notice which is attached as Exhibit “B” to the Agreement, as well as the

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methodology for distributing that notice to the Settlement Class Members as set forth in Section

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5 of the Agreement. As a result,

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a.

The Court orders the Settlement Administrator, beginning not later than

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fourteen (14) days after entry of this Order and to be substantially completed no later than

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ninety-five (95) days before the Fairness Hearing (i.e., by October 24, 2016), and subject to the

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requirements of this Order and the Agreement, to cause the Class Notice to be mailed, by First-

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Class U.S. Mail, proper postage prepaid, to each Settlement Class Member using the borrower

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mailing addresses for the relevant mortgaged properties as reflected in Ocwen’s business

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records. The distribution of the Class Notice shall otherwise comply with Federal Rule of Civil

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Procedure 23 and any other applicable statute, law, or rule, including, but not limited to, the Due

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Process Clause of the United States Constitution.

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b.

The Court further orders the Settlement Administrator to: (a) promptly re-

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mail any Class Notices returned by the United States Postal Service with a forwarding address

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that are received by the Settlement Administrator at least forty-two (42) days before the Fairness

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Hearing (i.e., by December 16, 2016); and (b) determine, as soon as practicable, whether a valid

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address can be located through use of the United States Postal Service’s National Change of

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Address database and/or use of other reasonable means and without undue cost or delay, for

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those Class Notices that are returned without a new or forwarding address, and promptly re-mail

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copies of the Class Notice to any Settlement Class Members for whom the Settlement
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Administrator is reasonably able to locate valid addresses in accordance herewith, so long as the

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valid addresses are obtained at least forty-two (42) days before the Fairness Hearing (i.e., by

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December 16, 2016).
c.

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Following the entry of this Order, the Parties, working with the Settlement

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Administrator, are permitted by mutual agreement to make changes in the font, format and

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content of the Class Notice (or the exhibits thereto) that do not materially alter the substance of

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that notice. Such changes can only be made before the Class Notice is first mailed to Settlement

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Class Members. Any material substantive changes to the Class Notice must be approved by the

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Court.
d.

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The Settlement Administrator is further ordered to establish an internet

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website which will inform Settlement Class Members of the terms of the Agreement, their rights,

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dates and deadlines, and related information. The website shall include, in .pdf format, materials

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agreed upon by the Parties and/or required by the Court, and should be operational and live by

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the date of the mailing of the Class Notice. At this time, the Court orders that the website

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include the following: (1) the Operative Complaint; (2) the Agreement, and its exhibits; (3) this

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Order; (4) the Class Notice; (5) the Claim Form; and (6) a disclosure, on the website’s “home

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page,” of the deadlines for Settlement Class Members to seek exclusion from the Settlement

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Class, or to object to the Agreement, or to submit a Claim Form, as well as the date, time and

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location of the Fairness Hearing, as set forth in Paragraph 10 of this Order.
e.

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No later than ten (10) days before the date of the Fairness Hearing (i.e., by

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January 17, 2017), the Settlement Administrator, and to the extent applicable, Ocwen, shall file

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with the Court a declaration or declarations, verifying compliance with the aforementioned

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classwide notice procedures.

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Findings Concerning The Notice Program. The Court finds and concludes that

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the form, content and method of giving notice to the Settlement Class as described in this Order:

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(a) will constitute the best practicable notice under the circumstances; (b) is reasonably

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calculated, under the circumstances, to apprise Settlement Class Members of the pendency of

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this Action, the terms of the proposed Settlement, and of their rights under and with respect to
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the proposed Settlement (including, without limitation, their right to object to or seek exclusion

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from, the proposed settlement); (c) is reasonable and constitutes due, adequate and sufficient

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notice to all Settlement Class Members and other persons entitled to receive notice; and (d)

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satisfies all applicable requirements of law, including, but not limited to, 28 U.S.C. § 1715,

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Federal Rule of Civil Procedure 23(c), and the United States Constitution (including the Due

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Process Clause). The Court further finds that the Class Notice is written in simple terminology,

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readily understandable by Settlement Class Members.

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17.

Cost Obligations For The Notice Program. All Costs of Administration,

including those associated with providing notice to the Settlement Class as well as in

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administering the terms of the Settlement, shall be paid by Ocwen as set forth in the Agreement.

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In the event the Agreement is not approved by the Court, or otherwise fails to become effective,

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neither Plaintiff Messineo, nor Class Counsel, nor the Settlement Class Members shall have any

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obligation to Ocwen for such costs and expenses.

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18.

Communications With Settlement Class Members. The Court authorizes

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Ocwen to communicate with Settlement Class Members, potential Settlement Class Members,

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and to otherwise engage in any other communications within the normal course of Ocwen’s

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business. However, Ocwen is ordered to refer any inquiries by Settlement Class Members or

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potential Settlement Class Members about the Settlement to the Settlement Administrator or

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Class Counsel.

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19.

Exclusion (“Opting Out”) from the Settlement Class. Any Settlement Class

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Member who wishes to be excluded from the Settlement Class must submit a written request for

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exclusion to the Settlement Administrator, mailed sufficiently in advance to be received by the

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Settlement Administrator by the Objection/Exclusion Deadline of December 23, 2016. A request

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for exclusion must comply with the requirements set forth in Section 6 of the Agreement and

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include the Settlement Class Member’s name, mailing and email addresses, contact phone

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number, the Settlement Class Member’s loan number(s), a statement that he or she wishes to be

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excluded from the Settlement Class, contain a caption or title that identifies it as “Request for

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Exclusion in Messineo v. Ocwen Loan Servicing, LLC (case number 5:15-cv-02076-BLF),” and
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include the Settlement Class Member’s personal signature. A request for exclusion may not

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request the exclusion of more than one member of the Settlement Class.

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20.

Any Settlement Class Member who timely requests exclusion consistent with

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these procedures shall not: (a) be bound by a final judgment approving the Settlement; (b) be

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entitled to any relief under the Settlement; (c) gain any rights by virtue of the Settlement; or (d)

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be entitled to object to any aspect of the Settlement. However, Settlement Class Members who

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do not exclude themselves from the Settlement Class in full compliance with the requirements

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and deadlines of this Order shall be deemed to have forever consented to the exercise of personal

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jurisdiction by this Court and shall have waived their right to be excluded from the Settlement

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Class and from the Settlement, and shall thereafter be bound by all subsequent proceedings,

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orders and judgments in this Action, including but not limited to the Release contained in the

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Settlement, regardless of whether they have requested exclusion from the Settlement Class and

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even if they initiate litigation against any or all of the Released Parties relating to the Released

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Claims.

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21.

Objections and Appearances. Any Settlement Class Member (or counsel hired

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at any Settlement Class Member’s own expense) who does not properly and timely exclude

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himself or herself from the Settlement Class, and who complies with the requirements of this

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paragraph and the procedures specified in the Class Notice, may object to any aspect or effect of

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the proposed Settlement.

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a.

Any Settlement Class Member who has not filed a timely and proper

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written request for exclusion and who wishes to object to the fairness, reasonableness, or

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adequacy of the Settlement, or to the certification of the Settlement Class, or to the award of

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Attorneys’ Fees and Expenses, or to the Service Award, or to any other aspect or effect of the

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Settlement, or to the Court’s jurisdiction, must file a written statement of objection with the

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Court no later than the Objection/Exclusion Deadline of December 23, 2016.

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b.

An objection must be in writing, and must include: (1) the Settlement

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Class Member’s name, mailing and email addresses, contact phone number, and loan number(s);

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(2) a caption or title that identifies it as “Objection to Class Settlement in Messineo v. Ocwen
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Loan Servicing, LLC (case number 5:15-cv-02076-BLF);” (3) an explanation of the basis upon

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which the objector claims to be a member of the Settlement Class; (4) all grounds for the

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objection, including any legal and evidence the objector wishes to introduce in support of the

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objection; (5) the name and contact information of any and all attorneys representing, advising,

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or in any way assisting the objector in connection with the preparation or submission of the

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objection; (6) a statement indicating whether the objector intends to appear and argue at the

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Fairness Hearing (either personally or through counsel who files an appearance with the Court in

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accordance with the Local Rules); and (7) the personal signature of the objecting Settlement

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Class Member.
c.

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To file a written statement of objection, an objector must mail it to the

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Court’s Class Action Clerk sufficiently in advance that it is received by the Class Action Clerk

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on or before the Objection/Exclusion Deadline of December 23, 2016, or the objector may file it

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in person on or before the Objection/Exclusion Deadline of December 23, 2016 at any location

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of the United States District Court for the Northern District of California, except that any

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objection made by a Settlement Class Member represented by his or her own counsel must be

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filed through the Court’s Case Management/Electronic Case Filing (CM/ECF) system.
d.

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Any Settlement Class Member who fails to comply with the provisions in

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this Order for the submission of written statements of objection shall thereby forever waive and

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forfeit any and all rights he or she may have to appear separately and/or to object, and will be

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deemed to have consented to the exercise of personal jurisdiction by the Court, consented to the

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Settlement, consented to be part of the Settlement Class, and consented to be bound by all the

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terms of the Agreement, this Order, and by all proceedings, orders, and judgments that have been

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entered or may be entered in the Action, including, but not limited to, the Release described in

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the Agreement. However, any Settlement Class Member who submits a timely and valid written

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statement of objection shall, unless he or she is subsequently excluded from the Settlement Class

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by Order of the Court, remain a Settlement Class Member and be entitled to all of the benefits of

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the Settlement in the event the Agreement is given final approval and the Final Settlement Date

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is reached.
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22.

Termination of Settlement. The class certification contained in this Order shall

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become null and void and shall be without prejudice to the rights of the Parties or Settlement

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Class Members, all of whom shall be restored to their respective positions existing immediately

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before this Court entered this Order, if the Settlement: (a) is not finally approved by the Court,

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(b) does not become final pursuant to the terms of the Agreement; (c) is terminated in

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accordance with the Agreement; or (d) does not become effective for any other reason.

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23.

In the event the Settlement does not reach the Final Settlement Date or is

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terminated in accordance with the Agreement, then: (a) the Settlement and the Agreement, and

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the Court’s Orders, including this Order, relating to the Settlement shall be vacated and shall be

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null and void, shall have no further force or effect with respect to with respect to any Party in this

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Action, and shall not be used or referred to in any other proceeding by any person for any

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purpose whatsoever; (b) the certification of the Settlement Class pursuant to this Order shall be

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vacated automatically, without prejudice to any Party or Settlement Class Member to any legal

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argument that any of them might have asserted but for the Agreement, and this Action will revert

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to the status that existed before the Agreement’s execution date; (c) this Action shall proceed

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pursuant to further Orders of this Court; and (d) nothing contained in the Agreement, or in the

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Parties’ settlement discussions, negotiations or submissions (including any declaration or brief

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filed in support of the preliminary or final approval of the Settlement), or in this Order or in any

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other rulings regarding class certification for settlement purposes, shall be construed or used as

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an admission, concession, or declaration by or against any Party of any fault, wrongdoing, breach

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or liability in this Action or in any other lawsuit or proceeding, or be admissible into evidence for

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any purpose in the Action or any other proceeding by any person for any purpose whatsoever.

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This paragraph shall survive termination of the Settlement and shall remain applicable to the

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Parties and the Settlement Class Members whether or not they submit a written request for

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exclusion.

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24.

Continuing Jurisdiction. This Court shall maintain continuing exclusive

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jurisdiction over these settlement proceedings to consider all further applications arising out of or

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connected with the Settlement or this Order, and to assure the effectuation of the Settlement for
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the benefit of the Settlement Class.
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Continuance of Fairness Hearing. The Court reserves the right to adjourn or

continue the Fairness Hearing without further written notice to the Settlement Class Members.
IT IS SO ORDERED.

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DATED: September 6, 2016

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THE HON. BETH LABSON FREEMAN
UNITED STATES DISTRICT COURT JUDGE

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