Nakamura v. Wells Fargo Bank, National Association

Filing 148

MEMORANDUM AND ORDER granting 147 Joint Motion for Distribution of Remaining Net Settlement Fund. See Order for further details. Signed by District Judge Daniel D. Crabtree on 8/31/20. (ctv)

Case 5:17-cv-04029-DDC-GEB Document 148 Filed 08/31/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JIN NAKAMURA,
Plaintiff,
v.

Case No. 17-4029-DDC-GEB

WELLS FARGO BANK,
NATIONAL ASSOCIATION, d/b/a
WELLS FARGO DEALER
SERVICES, INC.,
Defendant.

MEMORANDUM AND ORDER

This matter comes before the court on the parties’ Joint Motion for Distribution of
Remaining Net Settlement Fund (Doc. 147).
The court entered its Memorandum and Order (“Order”) (Doc. 144) granting final
approval of the parties’ September 25, 2019 Settlement Agreement (Doc. 144-1) and entered its
Judgment dismissing this case (Doc. 146) on May 21, 2019. The court reserved jurisdiction
over future proceedings administering the Settlement. Doc. 144-1 at 7, ¶ 11.
The Order directed the Settlement Administrator to distribute the Net Settlement
Fund to the Settlement Class Members (as those terms are defined the Settlement
Agreement) as set forth under the Distribution Plan attached as Exhibit A to the Settlement
Agreement. Doc. 144-1 at 30–31.
The Settlement Administrator distributed the Net Settlement Fund to the Settlement
Class Members as set forth under the Distribution Plan. Settlement payments were made
by checks issued to the 405 Settlement Class Members. 351 Settlement Class Members

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negotiated their checks; 54 Settlement Class Members did not. The uncashed checks have
since been voided and their value added back to the Net Settlement Fund. Doc. 147-1 at 4,
¶ 4. As of August 4, 2020, $669,373.76 remains in the Net Settlement Fund. Id. at 4, ¶ 5.
The Distribution Plan calls for the remaining Net Settlement Fund proceeds to be
distributed as cy pres to a not-for-profit organization providing services to military
servicemembers and veterans. Doc. 144-1 at 31. In the Settlement Agreement, the parties
mutually agreed on The Warrior Initiative to receive any proceeds distributed as cy pres
from the Net Settlement Fund. Doc. 144-1 at 31. But, the Warrior Initiative is no longer
active and cannot receive the remaining Net Settlement proceeds. See Doc. 147 at 8, ¶ 8.
The parties now jointly move for an order from the court authorizing the Settlement
Administrator to make a second distribution of the Net Settlement Fund to the Settlement
Class Members. Doc. 147. Specifically, the parties seek authority to distribute the
remaining Net Settlement Fund, on a pro rata basis, to the Settlement Class Members who
cashed their original checks (the “Second Distribution”). Id. The parties also jointly
request that the court authorize the Settlement Administrator, after making the Second
Distribution to the Settlement Class Members, to distribute any remaining Net Settlement
Fund proceeds as cy pres to Military Family Advisory Network, Inc. (“MFAN”) in lieu of
the recipient set forth in the Distribution Plan. Id. at 4, ¶11. MFAN is a 501(c)(3)
organization that connects military families to the resources they need, including financial
planning and education. Id.
The court retained jurisdiction over the Settlement and all future proceedings
involving the “administration, consummation, and enforcement” of the Settlement

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Case 5:17-cv-04029-DDC-GEB Document 148 Filed 08/31/20 Page 3 of 5

Agreement. Doc. 144 at 7, ¶ 11. See Macias v. N.M. Dep’t of Labor, 300 F.R.D. 529,
552–53 (D.N.M. 2014) (quoting Kokkonen v. Guardian Life. Ins. Co. of Am., 511 U.S. 375,
378 (1994) (“a court can retain jurisdiction over a case after its dismissal” by “including in
the order of dismissal a separate provision retaining jurisdiction over the settlement
agreement”) (internal quotations omitted)). The representative plaintiff, class counsel, and
defendants jointly move the court to modify the Distribution Plan, Doc. 147, as allowed by
the approved Settlement Agreement. Doc. 144-1 at 24, ¶ L. See also Keepseagle v.
Vilsack, 118 F. Supp. 3d 98, 129 (D.D.C. 2015) (settlement agreement modifications are
proper if done in accordance with the settlement agreement terms). The court thus may
approve the modification proposed by all parties.
The court has considered the parties’ papers, relevant legal authority, and the record
in this case, and the court hereby grants the motion.
IT THEREFORE IS ORDERED BY THE COURT THAT:
1.

The Settlement Administrator has fulfilled its obligations under the Settlement

Agreement for the distribution of the Net Settlement Fund to the Settlement Class
Members. The court determines that it is practicable and reasonable to distribute the
remaining Net Settlement Fund proceeds, on a pro rata basis, to the 351 Settlement Class
Members who cashed their original checks. See, e.g., In re Thornburg Mortg., Inc. Sec.
Litig., 912 F. Supp. 2d 1178, 1246-47 (D.N.M. 2012) (finding a second distribution to class
members who cashed their initial checks reasonable); Sarkisov v. StoneMor Partners L.P., No.
13-cv-04834-JD, 2015 WL 1249169, at *4 (N.D. Cal. Mar. 18, 2015) (finding a settlement that
called for unclaimed funds to “be redistributed to the Class Members who cashed their initial

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settlement payment checks on a pro-rata basis as a second distribution” fair and reasonable
(internal quotations omitted)).
2.

The Settlement Administrator is directed to carry out the Second Distribution as

follows:
a.

The Settlement Administrator shall issue checks to the Settlement Class

Members who cashed their checks in the initial distribution. The checks shall be marked
“Void 60 days after the date shown on this check” and shall automatically void sixty (60)
days after issuance;
b.

Within this sixty (60) day timeframe, the Settlement Administrator shall

reissue a check if: i) the check is returned as undeliverable; or ii) the Authorized
Recipient (as that term is defined in the Settlement Agreement) asks for the check to be
reissued. Reissued checks shall be valid for thirty (30) days; and
c.

All uncashed checks shall be voided ninety (90) days after the original

issuance date and the value of the uncashed checks shall be added back to the Net
Settlement Fund.
3.

The court authorizes Settlement Administrator, without further order from the

court, to distribute any Net Settlement Funds proceeds remaining after the Second Distribution as
cy pres to Military Family Advisory Network, Inc.
IT IS SO ORDERED.

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Dated this 31st day of August 2020, at Kansas City, Kansas.
s/Daniel D. Crabtree__________
Daniel D. Crabtree
United States District Judge 

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