Kardonick v. JP Morgan Chase & Co. et al

Filing 464

REPLY to Response to Motion re 456 Defendant's MOTION for Order to Show Cause and Supporting Memorandum of Law filed by Chase Bank USA, N.A.. (Attachments: # 1 Exhibit Declaration of R. Wick, # 2 Exhibit Responses & Objections to Request for Production, # 3 Exhibit Responses & Objections to Interrogatories, # 4 Exhibit Correspondence to counsel, # 5 Exhibit Correspondence to counsel, # 6 Exhibit E-mail between counsel, # 7 Exhibit Transcript of hearing)(Campbell, Dennis)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No. 1:iO-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, NA.
Defendants.

SECOND DECLARATION OF ROBERT D. WICK

Robert D. Wick hereby declares as follows:
I.

I am a partner at Covington & Burling LLP, counsel for Chase Bank USA,

NA. (“Chase”). I submit this second declaration in support of Chase’s Motion For Show Cause
Order.
The West Virginia Attorney General Action
2.

In August 2011, Respondents filed a Complaint in State of West Virginia

cx ccl. McGraw v. JPMorgan Chase & Co.

CI

al.. Civil Action No. 11 -C-94-N (W. Va. Cir. Ct.

filed Aug. 16. 2011). Chase was served with the Complaint on September 1,2011. On
September 30, 2011, Chase filed a Notice of Removal to remove the case to the U.S. District
Court for the Southern District of West Virginia. On October 27, 2011, the West Virginia
Attorney General filed a Motion to Remand the case to the Circuit Court of Mason County, West
Virginia. On December 2, 2011, Chase filed an opposition to the West Virginia Attorney
General’s Motion to Remand.

3.

On February 10, 2012, the U.S. District Court for the Southern District of

West Virginia granted the West Virginia Attorney General’s Motion to Remand. See West

Virginia cx ccl. McGraw v. JPMorgan Chase & Co., 842 F. Supp. 2d 984 (S.D. W. Va. 2012).
Following the court’s decision, on April 17, 2012, the West Virginia Attorney General, through
his outside counsel, served interrogatories and requests tbr production of documents on Chase.

4.

On May 21, 2012. Chase served responses and objections to the West

Virginia Attorney General’s interrogatories and requests for production. A true and correct copy
of Chase’s responses and objections to the West Virginia Attorney General’s requests for
production is attached hereto as Exhibit G and a true and correct copy of Chase’s responses and
objections to the West Virginia Attorney General’s interrogatories is attached hereto as Exhibit

H, Chase’s objections stated that this Court’s anti-suit injunction prohibits
the West Virginia
Attorney General and his counsel from litigating released claims, including
discovery with
respect to those claims. See Exhibit Oat 6, 10, 19, and 21; Exhibit H at 12.
13.
5.

On September 11, 2011, at the final approval hearing that this Court

conducted on the settlement in the above-captioned action (the Kardonick action), Richard
Golomb of Golomb & Honik orally informed me that his firm would be withdrawing from
the
West Virginia action.
The Hawaii Attorney General Action
6.

In April 2012, Respondents filed a Complaint in Slate ofHawaii cx rd.

Louie v. JPi’iorgan Chase & Co. el al., Civil Action No. 12-10985-04 (Haw. Cir. Ct. filed April
12, 2012), On May 17, 2012, Chase filed a Notice of Removal to remove the case to the U.S.
District Court for the District of Hawaii. On June 15, 2012, the Hawaii Attorney General tiled a
Motion to Remand the case to the First Circuit Court of Hawaii.
7.

As of the execution of this declaration, briefing is not yet complete on the

Hawaii Attorney General’s Motion to Remand.
8.

As of the execution of this declaration, the Hawaii Attorney General has

not served discovery requests on Chase.
The Mississippi Attorney General Action
9.

In June 2012. Respondents tiled a Complaint in State of Mississippi ex rd.

Hood v. JP4Ioran Chase & Co. ci a!,, Civil Action No. 02012-1085 T/l (Miss. Chan, Ct. filed
June 28. 2012). On August 7.2012. Chase filed a Notice of Removal to remove the case to the
U.S. District Court i’or the Southern District of Mississippi. On September 6,2012, the
Mississippi Attorney General

filed a Motion to Remand the case to the Chancery Court of the

First Judicial District of Hinds County, Mississippi. Briefing on this

Motion

has been stayed

pending the outcome of the decision of the U.S. Court of Appeals for the Fifth Circuit in
1ississippi exrel. Hoodv. AUOptronics Corp.. No. 12-60704 (5th Cir.).
10.

Accordingly, as of the execution of this declaration, briefing is not yet

complete on the Mississippi Attorney General’s Motion to Remand.
11.

As of the execution of this declaration, the Mississippi Attorney General

has not servcd discovery requests on Chase.

Chase’s Requested Stipulation
12.

On April 17, 2012, counsel for Chase wrote to counsel for the West

Virginia Attorney General. The letter is attached hereto as Exhibit I. It asked the West Virginia
Attorney General to enter into an appropriate stipulation confirming that he will comply with the
injunction contained in the Kardonick final approval order and attached a proposed stipulation.
On May 30, 2012, counsel for the West Virginia Attorney General responded with a
counterproposal and a letter stating that in the Attorney General’s view the injunction does not
apply to claims brought by states. A copy of the letter is attached hereto as Exhibit J. The letter
was copied by email to Respondent Baron & Budd.
13. Later that same day (May 30. 2012), counsel for Chase wrote an email asking
whether the West Virginia Attorney General was willing to disclaim any intent to seek a
monetary recovery payable to consumers who were members of the settlement class. A copy of
Chase’s email is attached hereto as Exhibit K. Chase received no response from the West
Virginia Attorney General or Respondent Baron & Budd.
The Attorneys General’s Objection to the Ess1in.er Final Approval Order

4

___________

__________

14. In July and August 2012, the attorneys general of West Virginia, Hawaii, and
Mississippi filed objections to a proposed order granting final approval of a class action
settlement in Esslinger v. HSBC Bank Nevada, iVA., No. 10-cv-23 13-BMS (ED. Pa.) (Dkts. #
84, 93. 94). The attorneys general objected to the proposed order granting final approval on the
grounds that the settlement release and injunction allegedly could not apply to claims pending in
the attorneys generals’ pending actions against the settling defendant, HSBC. The Complaints
in those actions arc virtually identical to the Complaints that the same state attorneys general
have filed against Chase.
15. Upon reviewing the positions that the attorneys general had taken in the
Esslinger litigation, Chase drafted and filed its Motion For Show Cause Order.
16. A true and correct copy of the Transcript of Fairness Hearing in the Esslinger
litigation is attached hereto as Exhibit L.

Pursuant to 28 U.S.C.

§ 1746, I declare under penalty of perjury that the foregoing is true

and correct to the best of my knowledge and belief.

Dated:

October

26,

2012

Robert D. Wick