Kardonick v. JP Morgan Chase & Co. et al

Filing 378

MEMORANDUM in Support re 351 Response/Reply (Other) Objections by William H. McWhorter. (Bacharach, N.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA (MIAMI)

David Kardonick, John David, and Michael
Clemins, individual and on behalf of all
others similarly situated and the general public

Case No. 10-CV-23235 (S.D. Florida)

CLASS ACTION
Plaintiffs,
v.

Assigned to: Senior Judge William M.
Hoeveler

JP Morgan Chase & Co., and Chase Bank USA,
N.A.
Defendants.

MEMORANDUM IN SUPPORT OF WILLIAM MCWHORTER’S
DUE PROCESS OBJECTION TO THE CLASS NOTICE

Objector McWhorter raised five violations of constitutional due process on the face of
the class notice regarding non-named class members right to notice and an opportunity to be
heard. The constitutional due process violations were: The notice subsection on page 1 “Your
Legal Rights and Options” is deficient as class members have four, not three, options regarding
the proposed settlement; i.e. in addition to “Submit a Claim”’ Do Nothing”and “Exclude
Yourself From the Case” class members should have been informed “You Can Object to the
Proposed Settlement”; The notice fails to inform class members of their right to retain counsel,
at their own expense, to review the Proposed settlement and appear at the Fairness Hearing on
behalf of the class member; The notice fails to inform class Members that the hearing scheduled
for September 9, 2011 is a Fairness Hearing and that the Honorable William M. Hoeveler, Senior
U.S. District Judge will be conducting the hearing; The notice fails to inform class members
that the Hearing will be at the C. Clyde Adkins, United States Courthouse, 301 North Miami

Avenue, Miami, Florida at 10:30 a.m.; The notice fails to inform class members that based on
the evidence presented at the, September 9, 2011 hearing the Court will determine if the
proposed settlement is fair, adequate and reasonable.
Non-named class members have a due process right to contest a settlement that may
affect their interests. In Phillips Petroleum Co. v. Shutts 472 U.S. 797, 811-12 (1985), the
Supreme Court held that the Fourteenth Amendment’s Due Process Clause guarantees all class
members the right to “receive notice plus an opportunity to be heard and participate in the
litigation, whether in person or through counsel.” And due process also requires that "the named
plaintiff at all times adequately represent the interests of the absent class. In this matter that
would include assuring that non-named class members get adequate notice.
In Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314 (1950), the
Supreme Court said the right to be heard ensured by the guarantee of due process "has little
reality or worth unless one is informed that the matter is pending and can choose for himself
whether to appear or default, acquiesce or contest."and that (class action must “afford [nonnamed, absent class members] an opportunity to present their objections”). See also, Schroeder
v. City of New York, 371 U. S. 208, 212-213 (1962).
Based on the forgoing it is clear that a Notice that fails to inform class members of the
name of the presiding judge, fails to inform class members of the name or address of the U.S.
District Courthouse, fails to inform class members of the courtroom number or even floor where
they might find Judge Hoeveler’s courtroom, and fails to inform class members of time of the
“hearing” does not provide sufficient notice and an opportunity to be heard to non-named class
members to meet constitutional muster.
To correct the open and obvious constitutional deficiencies of the Notice in this matter
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the class must be renoticed and the Fairness Hearing rescheduled.
Respectfully submitted,
/s/ N. Albert Bacharach, Jr.
N. Albert Bacharach, Jr.
Florida Bar No. 209783
Attorney for Objector William McWhorter
N. Albert Bacharach, Jr. P.A.
115 Northeast 6th Avenue
Gainesville, Florida 32601
Telephone: [phone]
Facsimile: [phone]
[e-mail]

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 8th day of September 2011, the foregoing was filed
electronically with the Clerk of the Court using the CM/ECF filing system and that all other
counsel of record will automatically be notified by the CM/ECF electronic mail system.

/s/ N. Albert Bacharach, Jr.
N. Albert Bacharach, Jr.

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