Kardonick v. JP Morgan Chase & Co. et al

Filing 298

Plaintiff's MOTION for Attorney Fees and Reimbursement of Litigation Expenses by David Kardonick. Responses due by 8/15/2011 (Attachments: # 1 Exhibit Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Text of Proposed Order)(Ku, Brian)

EXHIBIT 6

)

MICHAEL CLEMINS, individually and on behalf )

of others similarly situated, )
)
JOHN DAVID, individually and on behalf )

of others similarly situated, )
)

DA VID KARDONICK, individually and on behalf )
of others similarly situated, ) Case No.1-10-cv-23235/Hoeveler

Plaintiffs, )

vs. )

)

)
)

JPMORGAN CHASE & CO. and )

CHASE BANK USA, N.A. )

Defendants. )
)

)

DECLARATION OF JONATHAN B. MARKS
1. I am Jonathan B. Marks, a Mediator and Arbitrator at MARKsADR, LLC, in

Bethesda, Maryland.
2. I received my B.A. Cum Laude from Harvard College in 1966 and my J.D. Cum

Laude from Harvard Law School in 1972. At Harvard Law School, I was an editor and then
President of the Harvard Law Review.

3. I began my legal career as an Assistat United States Attorney for the District of
Columbia. Following this, I was an Associate and Parner at Munger, Tolles & Olson in Los

Angeles. My practice primarily involved corporate and commercial litigation. I left private
practice in 1979 to serve as Counsel and Associate Director for Planning and Evaluation for the

Peace Corps, and then as General Counsel of the United States International Development

Cooperation Agency.

4. In 1981, I co-founded and served as Chairman of Endispute, which provided

mediation, arbitration and other dispute resolution services. In August, 1994, Endispute merged

with Judicial Arbitration and Mediation Services to form JA'M'S/Endispute. I served as ViceChairman of the Board of Directors of lAo M'S/Endispute and Chairman of the firm's Executive
Committee, which oversaw professional practice issues, until September, 1999, when I formed
MARKSADR, LLC. I devote all my professional time to serving as a mediator and arbitrator.
S. I have extensive experience in mediation, arbitration and other dispute resolution

assistance in litigation or pre-litigation disputes arising out of, for example, disputes involving
the sale and acquisition of businesses; commercial activities; all aspects of construction;
professional malpractice; securities disputes; consumer class actions; ERISA-related disputes;

claims against officers and directors of financial institutions and other corporations; insurance

coverage; environmental claims; government contract claims; and high stakes personal injury
and product liability claims and lawsuits.
6. The Partes retained me in October, 2010, to mediate the above-referenced case.

7. The mediation process was confidential, but both Parties have authorized me to

inform the Court of the matters presented in this declaration. I make this declaration based on
personal knowledge and am competent to testify to the matters set out herein.
8. The purpose of the mediation was to work with the Parties to explore whether

they could reach a settlement of this matter, based on a joint and separate evaluation of the risks
and costs each side faced in continued litigation.
9. On October 28, 2010, I had a joint telephone conference with counsel in order to
understand the nature and status of the case. Based on these discussions, I proposed, and the

Parties agreed to, a mediation process aimed at allowing me and each Party to better understand

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the strengths and weaknesses of each side's case and the risks attendant to trial and appeal, as
well as to explore appropriate monetary and non-monetary relief.

10. On November 2, 2010, the Parties provided me with a copy of Defendants'
Motion to Dismiss and Supporting Memorandum of Law.

1 i. On November 8, 2010, the Parties exchanged and provided me with extensive
mediation submissions, including exhibits and case law.

12. On November 9, 2010, I conducted ex parte pre-mediation telephone conferences
with each side.

13. Before and after these ex parte discussions, I spent a considerable amount of time
reviewing the substantive materials that each of the Parties had provided me, in preparation for a
scheduled mediation session.
14. I convened a two-day mediation session in Washington, D.C., on November 10-

11,2010. In attendance were class counsel, Chase counsel and Chase business representatives.

15. During the mediation session, we focused on key issues that each side contended
would be relevant to the likely outcome of the case if settlement were not reached.

16. During multiple ex parte and joint meetings, proposals and counter-proposals for

settlement were exchanged and discussed, touching both on monetary relief and on specific
issues relating to charged off accounts, current account holders, notice and confirmatory

discovery.

17. Towards the end of a second full day of mediation, after having reached an
agreement in principle and key issues, the Parties drafted and signed a term sheet. Thereafter, the

Parties worked together without my involvement to prepare appropriate papers to begin the
process of seeking court approval.

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18. Throughout the entire mediation process, it was clear to me that each of the
Parties was represented by experienced and competent counsel, wiHíng, if necessary, to litigate
the matter to conclusion.

19. The settlement effort at the mediation session included extensive exchanges of
view on the merits and difficult, anus-length negotiations, in which each side worked to persuade
the other to modify positions based on reevaluation of risks faced if the case did not settle.

20. In my view, counsel for each Party were effective advocates for their clients and
effective participants in the effort to reach a settlement that fairly valued the risks and

opportunities of each Party in the litigation.
21. I observed nothing that suggested any collusion or other untoward behavior on the

part of counsel for any Party. In fact, it was apparent that this was not the case.

22. The ultimate terms of the settlement represented a compromise of the Parties'
initial positions, but in my view these compromises were the product of the Parties' assessment

of the perceived relative strengths and weaknesses of their positions, and the risks inherent in
continued litigation.

23. Based on my extensive review of case exhibits, the Parties' mediation
submissions, and the Parties' merits-related dialogue at the mediation, the settlement reached by

the Parties is consistent with the judgments I reached about the strengths and weaknesses of the
Parties' cases.

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Dated: March 28,2011

~

JONATHAN B. MARKS

Stateof ~(~

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Countyof ~S~'1
On this the 1£~ay of

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w\eucL

, before me, iJau-e ~. ~t-';; tro-

the undersigned Notary Public, personally appeared

6o~ ~, ~.f, personally

known to me to be the person whose name is subscribed to the within instrument, and
acknowledged to me that he executed the same for the purposes therein stated.

WITNESS my hand and official seal.

~~~tSignature of Notary Public

-

..

MAUREEN R. HAMILTON

Notary Public
Montgomery County
Maryland
My Commssion Expires Mar 15. 2014c\

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