Kardonick v. JP Morgan Chase & Co. et al

Filing 195

RESPONSE in Opposition re 30 MOTION to Intervene, 31 MOTION to Intervene Memorandum of Law in Support of filed by David Kardonick. (Attachments: # 1 Exhibit, # 2 Exhibit Declaration Ronald A. Bertino)(Ku, Brian)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 1:10-cv-23235/HOEVELER

DAVID KARDONICK, individually and on behalf
of all others similarly situated and the general public,
Plaintiff,
v.
JPMORGAN CHASE & CO. and CHASE BANK
USA, N.A.
Defendants.

PLAINTIFFS’ SUPPLEMENTAL SUBMISSION REGARDING
MOTION TO INTERVENE
Plaintiffs are constrained to file this supplemental submission in order to clarify certain
inaccuracies and misrepresentations contained within Movants’ (Corrected) Reply in Support of
Motion to Intervene. Without a doubt, and as evidenced by the briefing on this matter, Plaintiffs
take issue with virtually all of the arguments advanced by the attempted intervenors. Most of
those disagreements, however, are best left for elaboration during the hearing scheduled for April
25, 2011.

Nonetheless, the most brazen mischaracterizations in Movants’ Reply demand

immediate, albeit brief, attention.
One distortion meeting this description is Movants’ repeated suggestion that the notice of
settlement sent to members of the Plaintiff class was in some way “rushed” as a result of the

pending Motion to Intervene. ((Corrected) Reply Supp. Mot. Intervene 2, 14 n.16.) This is
demonstrably false, as revealed by the Declaration signed by the responsible representative of the
settlement administrator appointed by this Court. As the Court will recall, the February 2, 2011
Order preliminarily approving the underlying settlement directed that notice be delivered to the
approximately 15 million class members no later than April 11, 2011. Buttressing notions of
basic common sense, the Declaration of Mr. Ronald Bertino, the partner at settlement
administrator Heffler, Radetich & Saitta LLP (“Heffler”) in charge of this project, confirms that
coordinating the dispatch of 15 million pieces of mail is no small undertaking,1 and employees of
Saitta turned to this mammoth task soon after issuance of the Preliminary Approval Order. (See
Bertino Decl. ¶ 4.)

Stated differently, the notice administration process was already well

underway – with only one month remaining before this Court’s deadline – by the time Movants
filed their belated Motion to Intervene on March 9, 2011.2 Even so, Heffler did not finalize the
provision of notices until April 8, 2011, or the last business day before the applicable deadline.
(Bertino Decl. ¶¶ 4, 5.) It is plain, then, that to say the Motion to Intervene somehow affected
the rapidity of notice – as Movants unabashedly do – is just not true.3
Equally unfounded is Movants depiction of Plaintiffs’ counsel as “inadequate.”
((Corrected) Reply Supp. Mot. Intervene 14-15.) In large measure, Plaintiffs’ Response in
Opposition to the Motion to Intervene sufficiently rebuts this baseless and inflammatory charge
1

In addition to this enormous mailing, it was also necessary for Heffler by April 11, 2011 to
establish a telephone system and create a website so as to provide inquisitive class members
more information about the settlement. (Bertino Decl. ¶ 6.)
2

The settlement administrator’s “timeline was driven by the Court’s notice deadline, the
printer’s schedule, and the requirements of the U.S. Postal Service.” (Bertino Decl. ¶ 5.)
3

Indeed, Mr. Bertino substantiates that he was never “asked to accelerate the notice process by
counsel.” (Bertino Decl. ¶ 7.) What is more, he “was not even aware that anyone had objected
to the settlement until . . . mid-March.” (Id.)

2

(see Resp. Opp’n Mot. Intervene 3-6, 16-19, 20-22), though one additional point does deserve
mention. Namely, it is of significant moment that in other class action litigation involving a
similar Payment Protection product offered by a different credit card issuer, Movants’ lawyers
have affirmatively supported the efforts of Plaintiffs’ attorneys to serve as Class Counsel. See
Mem. Law Supp. Mot. Appoint Class Counsel at 2 n.2, Walker v. Discover Fin. Servs., Inc., No.
1:10-cv-06994 (N.D. Ill. Apr. 4, 2011) (submitted as Exhibit 1 to this Submission). It is, to put it
mildly, simply incongruous for Movants’ lawyers – on the one hand – to decry Plaintiffs’
attorneys as inadequate, yet – on the other – actively advocate their application to be Lead
Counsel in parallel litigation.

Truth be told, the undersigned attorneys are anything but

inadequate, and Movants know it.
Consequently, for the reasons stated in Plaintiffs’ Response in Opposition to Motion to
Intervene and this Supplemental Submission, Movants’ Motion to Intervene should be denied.

Dated: April 22, 2011

Respectfully submitted,
Ku & Mussman, P.A.

_/s/ Brian Ku____________________
Brian Ku (FL Bar # 610461)
Louis Mussman (FL Bar # 597155)
12550 Biscayne Blvd. #406
Miami, Florida 33181
Tel: [phone]
CARNEY WILLIAMS BATES BOZEMAN
& PULLIAM, PLLC
Allen Carney
Randall K. Pulliam
Marcus Neil Bozeman
11311 Arcade Drive, Suite 200
Little Rock, AR 72212
Tel: [phone]

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GOLOMB & HONIK, P.C.
Richard Golomb
Ruben Honik
Kenneth Grunfeld
1515 Market Street, Suite 1100
Philadelphia, PA 19102
Tel: [phone]
KANNER & WHITELEY, LLC
Allan Kanner
Conlee S. Whiteley
M. Ryan Casey
701 Camp Street
New Orleans, LA 70130
Tel: [phone]
Plaintiffs’ Counsel

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 22th day of April, 2011, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record or pro se parties in the manner specified, either
via transmission of Notices of Electronic Filing generated by CM/ECF or in some other
authorized manner for those counsel or parties who are not authorized to receive electronically
Notices of Electronic Filing.
/s/ Brian Ku
Brian Ku (FL Bar # 610461)

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