Farrell v. Bank of America, N.A.

Filing 72

ORDER Conditionally granting 69 MOTION for Preliminary Approval of Class Action Settlement. Signed by Judge M. James Lorenz on 12/11/2017. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOANNE FARRELL,

Case No.: 3:16-cv-00492-L-WVG
Plaintiff,

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v.

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ORDER CONDITIONALLY
GRANTING PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT

BANK OF AMERICA, N.A.,
Defendant.

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This case comes before the Court on the motion of Plaintiff, Joanne Farrell, and

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putative plaintiffs, Ronald Dinkins, Larice Addamo, and Tia Little (“Plaintiffs”), on behalf

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of themselves and the Settlement Class they seek to represent, for an order granting

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Preliminary Approval of the class action Settlement between Plaintiffs and Defendant Bank

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of America, N.A. (“BANA”). The definitions and capitalized terms in the Settlement

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Agreement (“Agreement”) and Memorandum in Support of Plaintiff’s Unopposed Motion

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for Preliminary Approval of Class Settlement and for Certification of Settlement Class are

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hereby incorporated as though fully set forth in this Order, and shall have the same

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meanings attributed to them in those documents.

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Having considered the matter, Plaintiffs’ motion, the proposed Agreement and the

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Joint Declaration of Class Counsel for the proposed Settlement Class and good cause

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appearing therefore,
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IT IS HEREBY ORDERED THAT:
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The Agreement is preliminarily approved as fair, reasonable, and adequate.

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Plaintiffs and the Settlement Class, by and through their counsel, have investigated the

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facts and law relating to the matters alleged in the Complaint, including through dispositive

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motion practice, legal research as to the sufficiency of the claims, an evaluation of the risks

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associated with continued litigation, trial, and/or appeal, including risks associated with the

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currently pending interlocutory appeal, and confirmatory discovery. The Settlement

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appears to be the product of arm’s length negotiations between Class Counsel and counsel

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for BANA, which occurred following mediation before the Honorable Layn R. Phillips

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(Ret.). The Settlement confers substantial benefits upon the Settlement Class, without the

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costs, uncertainties, delays, and other risks associated with continued litigation, trial, and/or

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appeal and is fair, adequate, and reasonable.

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2.

The Court conditionally certifies, for settlement purposes only, the

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following Settlement Class:
All holders of BANA consumer checking accounts who, during

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the period between February 25, 2014 and December 30, 2017,

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were assessed at least one Extended Overdrawn Balance Charge

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that was not refunded.

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3.

The Court finds, for settlement purposes only, that the prerequisites for a

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class action under Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure

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have been satisfied in that: (a) the number of Settlement Class members is so numerous

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that joinder of all members thereof is impracticable; (b) there are questions of law and fact

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common to the Settlement Class; (c) the claims of the Plaintiffs are typical of the claims of

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the Settlement Class they seek to represent for purposes of settlement; (d) Plaintiffs have

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fairly and adequately represented the interests of the Settlement Class and will continue to

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do so, and Plaintiffs have retained experienced counsel to represent them; (e) for purposes

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of settlement, the questions of law and fact common to the Settlement Class members

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predominate over any questions affecting any individual Settlement Class member; and (f)
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for purposes of settlement, a class action is superior to the other available methods for the

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fair and efficient adjudication of the controversy. The Court also concludes that, because

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this Action is being settled rather than litigated, the Court need not consider manageability

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issues that might be presented by the trial of a nationwide class action involving the issues

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in this case. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). Additionally,

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for purposes of settlement only, the Court finds that BANA has acted on grounds that apply

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generally to the Settlement Class, so that the final injunctive relief to which the Parties

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have agreed is appropriate respecting the Settlement Class as a whole.

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4.

The Court conditionally approves, as to form and content, the Class

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Notices attached to the Agreement as Exhibits B, C, and D. The conditions for approval

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are as follows:

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a. The long form notice, currently lodged as Exhibit C, requires an overly

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complex and onerous procedure for filing objections. See 4 Newberg

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on Class Actions §13:30 (5th ed.) (stating objection procedures such as

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the ones proposed here can have the effect of unduly chilling

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objections). The parties shall modify the long form notice to include

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only the following requirements:

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i. Inclusion of the case name and case number; the objector’s name,
address, telephone number, and signature.
ii. Explanation of the nature of the objection and citation to any
relevant legal authority.

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iii. The number of times the objector has objected to a class action

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settlement in the past five years and the caption for any such

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case(s).

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iv. The identity of any counsel representing the objector.

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v. Indication as to whether the objector (whether pro se or through

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representation) intends to testify at the final approval hearing.

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vi. Submission of objections, by first class mail postmarked no later

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than the objection deadline, to the Clerk of Court, class counsel,

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and defense counsel. The notice shall designate service of only

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one address for class counsel and one address for defense

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counsel, such that an objector needs to send a total of only three

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envelopes.

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b. In section 5 of the long form notice, include an estimate as to the size
of the Settlement Class.
c. In section 8, line 8 of the long form notice, insert the word “or” between
the words “acting” and “purporting.”
d. In section 9 of the long form notice:

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i. Delete the first use of the word “receive” from bullet 2, line 3.

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ii. Omit the requirement that a class member provide the last four

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digits of their social security number.

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e. Section 18 of the long form notice shall consist of only the following

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sentence: “You may speak at the Final Approval Hearing if you have

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filed and served a timely objection to the Settlement according to the

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procedures set out in Section 14 above.”

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f. Plaintiffs shall format the email notice, currently lodged as Exhibit D,

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in a manner designed to escape email inbox spam filters. Plaintiffs shall

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file a declaration explaining what steps they took to this end. If the

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email notice is already thus formatted, the parties need only file the

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above described declaration.

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g. The words “and speak” shall be added to the second to last sentence of
the email notice after the word “appear.”

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h. The words “and speak” shall be added to the second to last sentence of

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the postcard notice, currently lodged as Exhibit B, after the word

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“appear.”
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i. In both the email and postcard notices, indicate the Administrator will

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mail paper copies of the long form notice to any class member who

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requests a copy.

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j. Section 2.4(c) of the Agreement incorrectly indicates that the email

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notice is appended as Exhibit B (actually D), the postcard notice as

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Exhibit C (actually B), and the long form notice as Exhibit D (actually

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C).

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referenced in the Agreement that posts to the settlement website.

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5.

Plaintiffs shall ensure that the various notices are properly

The parties shall file a motion for approval of amended notices compliant

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with paragraph 4 above within ten days of the entry of this order. The Court will provide

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expedited review of the revised notice forms. Failure to comply with this paragraph will

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result in denial of preliminary approval.

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6.

As soon as possible after the entry of this order, but not later than 70 days

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after the entry of this Order, the Administrator will complete notice to the Settlement Class

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as provided in the Agreement. The Court finds that the Settlement Class Notice Program,

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modified in accordance with this order, is reasonable, that it constitutes due, adequate, and

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sufficient notice to all persons entitled to receive notice, and that it meets the requirements

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of due process and Rule 23 of the Federal Rules of Civil Procedure. Specifically, the Court

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finds that the modified Notice Program complies with Rule 23(e) of the Federal Rules of

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Civil Procedure as it is a reasonable manner of providing notice to those Settlement Class

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members who would be bound by the Agreement. The Court also finds that the manner of

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dissemination of notice complies with Rule 23(c)(2), as it is also the most practicable notice

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under the circumstances, provides individual notice to all Settlement Class members who

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can be identified through a reasonable effort, and is reasonably calculated, under all the

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circumstances, to apprise Settlement Class members of the pendency of this Action, the

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terms of the Settlement, and their right to object to the Settlement or exclude themselves

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from the Settlement Class.

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7. The Class Notices will identify the opt-out and objection deadline of 130 days
after the entry of this Order.
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Event

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The Court hereby sets the following schedule of events:
Calendar Days After Entry of this
Order

Notice Complete
Motion for Class
Representatives’ Service
Awards and Attorneys’ Fee
and Expense Awards

70 Days

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Opt-Out Deadline

130 Days

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Objection Deadline

130 Days

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Motion for Final Approval

170 Days

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9.

70 Days

Any person falling within the definition of the Settlement Class may, upon

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request, be excluded from the Settlement by submitting to the Administrator at the physical

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address listed in the Class Notices, a written, signed, and dated statement that he or she is

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opting-out of the Settlement Class and understands that he or she will receive no money

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from the Settlement of this Action. To be effective, this opt-out statement (i) must be

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postmarked no later than the opt-out deadline; (ii) include the Settlement Class member’s

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name address, telephone number, and BANA checking account number(s); and (iii) be

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personally signed and dated by the Settlement Class member. All persons who timely

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submit properly completed requests for exclusion shall have no rights under the Agreement

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and shall not share in the benefits of the Settlement Agreement and shall not be bound by

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the Settlement Agreement.

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Any person falling within the definition of the Settlement Class, and who

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does not opt-out from the Settlement, may object to the terms of the proposed Settlement

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as reflected in the Agreement, the certification of the Settlement Class, the entry of the

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Final Approval Order, the amount of attorneys’ fees and expenses requested by Class

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Counsel, and/or the amount of the Service Awards requested by the named Plaintiffs. To
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be valid and considered by the Court, an objection must include the information listed in

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paragraph 4(a) of this order.

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Plaintiffs and BANA may file responses to any objections that are

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submitted. Any Settlement Class Member who timely files and serves an objection in

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accordance with this order may appear at the Final Approval Hearing, either in person or

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through an attorney.

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12.

The Court designates Joanne Farrell, Ronald Dinkins, Larice Addamo, and

Tia Little as the Class Representatives of the Settlement Class.

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13.

The Court designates Epiq Systems as Administrator.

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The Court appoints Jeffrey Kaliel, Jeff Ostrow, Bryan Gowdy, and

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Christina M. Pierson as Class Counsel.
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Papers in support of Final Approval of the Agreement, in response to

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objections to the Agreement, Class Representative Service Awards, and/or Class Counsel’s

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Fee & Expense Award shall be filed with the Court on or before 170 days after the entry

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of this Order.

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16.

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The dates of performance contained herein may be extended by order of

the Court, for good cause shown, without further notice to the Settlement Class.
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The Settlement will not become effective unless the Court enters an order

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finally approving the Settlement.

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accordance with the terms of the Agreement, or if the Agreement is not finally approved,

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then the Agreement shall become null and void, and this Order shall be null and void and

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shall be vacated.

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If the Agreement does not become effective in

Plaintiffs’ motion for final approval of the settlement must include the

required and customary filings. In addition, the motion papers shall include

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a. An affidavit evidencing Defendant’s compliance with the Class Action

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Fairness Act notice requirement under 28 U.S.C. § 1715, including

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responses from any government officials to the notice.

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b. An affidavit from the claims administrator regarding compliance with

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its duties under the settlement and this order, a copy of the actual

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notices (email, postcard, and long form) sent to the class, a report on

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(1) the number of class members to whom email notice was sent, (2)

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the number of returned undelivered email notices, (3) the number of

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postcard notices sent, (4) an explanation of efforts to locate correct

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addresses for returned undelivered postcard notices after the first

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mailing, (5) the number of notices sent to the updated addresses in a

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second mailing, and (6) the number of such notices returned

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undelivered.

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c. An explanation of how class counsel calculated the most likely

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recoverable damages at $756 million.

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d. If continued jurisdiction is desired, an executed form consenting to

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magistrate judge jurisdiction over settlement implementation.
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The Final Approval Hearing will be conducted in Courtroom 5B, Suite

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5145, of the U.S. District Court for the Southern District of California, located at 221 West

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Broadway, San Diego, CA 92101 on Monday, June 18, 2018 at 11:00 a.m.

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Dated: December 11, 2017

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