Kardonick v. JP Morgan Chase & Co. et al

Filing 468

MOTION for an Order Authorizing Distribution of Settlement Funds by David Kardonick. (Attachments: # 1 Memorandum, # 2 Text of Proposed Order)(Ku, Brian)

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

DAVID KARDONICK, JOHN DAVID and
MICHAEL CLEMINS, 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.

[PROPOSED] SETTLEMENT DISTRIBUTION ORDER
WHEREAS, the above-captioned class action (the “Action”) was
settled pursuant to the terms and conditions of the Stipulation and
Agreement of Settlement dated December 20, 2010 (the “Settlement”); and
WHEREAS, this Court held a hearing on the fairness of the terms and
conditions of the Settlement on September 11, 2011, at which time all Class
members were provided with an opportunity to be heard; and
WHEREAS, the Court entered an order on September 16, 2011 (the
“Final Approval Order”), wherein the Court approved the Settlement,

finding, inter alia, that the Settlement was fair, reasonable and adequate to
the Settlement Class and its members and that the notice to the Settlement
Class satisfied the requirements of Rule 23 of the Federal Rules of Civil
Procedure and due process; and
WHEREAS, in this same order, the Court awarded counsel for Lead
Plaintiffs (“Lead Counsel”) attorneys’ fees in the amount of $3.5 million and
reimbursement of litigation expenses in the amount of $62,676.54. At this
time, the Court also awarded each of the three Settlement Class
Representatives a service fee in the amount of $2,500;
WHEREAS, the claims administrator, Heffler, Radetich & Saitta LLP
(“Heffler” or the “Claims Administrator”), has incurred administration fees
and expenses of $224,346.88, which remains to be paid.
WHEREAS, after the deduction of fees and expenses, there remains
approximately $11,853,347.99 in the Settlement Fund (the “Net Settlement
Fund”) ready for distribution; and
WHEREAS, Lead Counsel and Heffler have now completed all steps
required for the administration, review, processing and validation of claims
set forth in the Settlement, and have calculated, pursuant to the terms of the
plan of allocation set forth in the Notice of Pendency and Settlement of
Class Action (the “Notice”) and approved by this Court, the number of valid

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and complete Proof of Claim forms submitted, and the total Recognized
Loss for each Authorized Claimant; and
WHEREAS, Lead Counsel and Heffler have reported to this Court in
the Declaration of Ronald A. Bertino, C.P.A. (the “Heffler Report”), dated
November 28, 2012, on the administration, review, processing, validation
and calculation of claims, and have provided a final report listing all valid
and complete claims and all rejected claims, with the reason for each
rejection; and
WHEREAS, Lead Plaintiffs have applied to this Court for approval of
the distribution of the Net Settlement Fund pursuant to the terms and
conditions of the Settlement; and
WHEREAS, Lead Plaintiffs have applied to this Court for approval of
payment to Heffler from the Net Settlement Fund for fees and expenses
incurred in connection with settlement administration; and
WHEREAS, this Court has duly considered all the submissions
presented with respect to the foregoing,
GOOD CAUSE APPEARING, THE COURT HEREBY ORDERS,
FINDS, CONCLUDES, ADJUDGES AND DECREES AS FOLLOWS:
1.

The Court finds that the procedures and methods utilized in the

administration of the Settlement and the review, processing, validation and

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calculation of claims submitted by Claimants fully complied with the notice
and administration provisions and the Plan of Administration and
Distribution set forth in the Notice and as approved by this Court in the Final
Approval Order.
2.

The Court directs Lead Counsel to pay all taxes owed by the

Net Settlement Fund from the Net Settlement Fund.
3.

The Court approves payment of the outstanding balance owed

to Heffler in the amount of $224,346.88 for fees and expenses incurred in
the administration process. Lead Counsel is directed to pay such amount to
Heffler from the Net Settlement Fund.
4.

The Court allows all complete and valid claims that are

referenced in the Heffler Report, and directs payment from the proceeds of
the Net Settlement Fund, after payment of all administrative fees and
expenses allowed herein and taxes due or owing, to such Authorized
Claimants as provided in the Heffler Report.
5.

The checks for distribution to the Authorized Claimants shall

bear the notation “CASH PROMPTLY. VOID 180 DAYS AFTER ISSUE
DATE,” or words of similar import.
6.

The Court finds that the claims of the Class members addressed

in the Heffler Report that were determined to be invalid have been given a

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fair and reasonable opportunity to object to and/or appeal the rejection of all
or part of their claims, and directs that all claims determined to be invalid are
rejected. Such Class members were previously advised of the rejection of
their claims, and no further notice is required.
7.

The Court directs Lead Counsel, together with Heffler, to

continue administration of the settlement pursuant to the Settlement, the
Final Approval Order, and this Order.
8.

The Court directs Lead Counsel to attempt to locate Authorized

Claimants whose distribution checks are returned or remain uncashed by
telephoning Authorized Claimants at the numbers provided in the
Authorized Claimants’ original claim forms, if any, and, if such calls are
unsuccessful in locating Authorized Claimants, to use other ordinary and
reasonable means to attempt to locate Authorized Claimants, and, to the
extent Authorized Claimants are located, Lead Counsel shall distribute to
those Authorized Claimants where possible and appropriate.
9.

The Court directs Lead Counsel to retain the balance of any

undistributed funds in the Settlement Fund, the proceeds of any returned or
uncashed checks or any tax refunds that may be obtained, and any interest
thereon, in an account or fund as provided in the Settlement until distribution
is authorized pursuant to this order and/or further order of this Court.

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10.

Six (6) months after the initial distribution of the Net

Settlement Fund, Heffler is directed, after payment of any unpaid costs or
fees incurred in administering the Net Settlement Fund, to reallocate such
balance among Authorized Claimants on a pro rata basis.

Should any

balance remain six (6) months after any such redistribution, or six months
after the initial distribution if no secondary distribution occurs, Heffler is
directed to donate such remaining funds to a charitable or educational entity
to be designated by Lead Counsel and approved by counsel for Defendants.
11.

All persons involved in the review, validation, calculation or

any other aspect of the processing of the claims filed in the Action, or
otherwise involved in the administration of the Net Settlement Fund, are
released and discharged from any and all claims arising out of such
involvement. All Class members, whether or not they have submitted claims
or are to receive payment from the Net Settlement Fund are barred from
making any further claim against the Net Settlement Fund or the released
persons beyond the amount allocated to them pursuant to this Order.
12.

Lead Counsel and Heffler are authorized to discard paper or

hard copies of the Proof of Claim forms and other materials one year after
the initial distribution of the Net Settlement Fund to eligible claimants, and
electronic or magnetic media data three years after the initial distribution of

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the Net Settlement Fund to eligible claimants.
13.

This Order is final for purposes of appeal and may be appealed

notwithstanding other matters presently pending, and the Clerk is hereby
directed to enter judgment thereon. Certification under Rule 54(b) of the
Federal Rules of Civil Procedure will not result in unnecessary appellate
review nor will review of the adjudicated claims moot any further
developments in this Action. Even if subsequent appeals are filed, the nature
of those claims is such that the appellate court would not have to decide the
same issues more than once. The reservation of jurisdiction by this Court in
this matter does not affect in any way the finality of this Order.
14.

This Court continues to retain jurisdiction over this action in

accordance with the Final Approval Order.
IT IS SO ORDERED, this _____ day of _______________________, 2012.

_________________________________
The Honorable William Hoeveler

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