Gunter v. United Federal Credit Union et al

Filing 138

AMENDED ORDER granting ECF No. 134 Preliminary Approval of Class Action Settlement. The final hearing is set for 6/3/2019 at 10:00 AM in Reno Courtroom 5 before Judge Miranda M. Du. Signed by Judge Miranda M. Du on 2/19/2019. (Copies have been distributed pursuant to the NEF - PAV)

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Gregory G. Gordon, State Bar No. 5334
[e-mail]
GREGORY G. GORDON, LTD
871 Coronado Center Drive, Suite 200
Henderson, Nevada 89052
Ph: [phone] / Fax: [phone]

Richard D. McCune, Pro Hac Vice
[e-mail]
Emily J. Kirk, Pro Hac Vice
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McCUNE WRIGHT AREVALO LLP
7 3281 East Guasti Road, Suite 100
Ontario, California 91761
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Taras Kick, Pro Hac Vice
[e-mail]
Robert Dart, Pro Hac Vice
[e-mail]
THE KICK LAW FIRM, APC
815 Moraga Drive
Los Angeles, California 90049
Ph: [phone] / Fax: [phone]
Attorneys for Plaintiff Tonya Gunter and the Certified Class

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UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF NEVADA

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TONYA GUNTER, individually, and on
behalf of all others similarly situated,

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Plaintiff,

Case No.: 3:15-cv-00483-MMD-WGC
AMENDED
[PROPOSED] ORDER GRANTING
PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT

v.
UNITED FEDERAL CREDIT UNION,
DOES 1-5 inclusive, and ROE
CORPORATIONS 6-10 inclusive,

Assigned to Judge Miranda M. Du

Defendants.

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No.: 3:15-cv-00483-MMD-WGC

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The Court, having considered Plaintiff’s Motion for Preliminary Approval of Class Settlement,
and all supporting documents thereto (collectively, the “Motion”), the Settlement Agreement and
Release dated as of February 5, 2019 (the “Settlement Agreement”), and the arguments of counsel, rules
as follows:
1.

Defined terms in this Order shall have the same meaning given such terms in the

Settlement Agreement.
2.

This Court finds on a preliminary basis that the class as defined in the Settlement

Agreement (“Settlement Class”) meets all of the requirements for certification of a settlement class
under the Federal Rules of Civil Procedure and applicable case law. Accordingly, the Court
provisionally certifies the Settlement Class, which is composed of the following two subclasses:
“Regulation E Class” shall mean those members of Defendant who were assessed an Overdraft
Fee for an ATM or non-recurring debit card payment transaction for the first time between
August 15, 2010 and September 30, 2018; and

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“Sufficient Funds Class” shall mean those members of Defendant who were assessed an
Overdraft Fee between October 3, 2011 and September 30, 2018 on any type of payment
transaction and at the time such fee was assessed, the member had sufficient money in his or her
ledger balance to cover the transaction that resulted in the fee.

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3.

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The Court provisionally appoints Tonya Gunter as the Class Representative of the

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4.
The Court appoints Kurtzman Carson Consultants, LLC (“KCC”) as the Claims
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Administrator under the terms of the Settlement Agreement.
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5.
For purposes of the Settlement Agreement, the Court further provisionally finds that
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24 counsel for the Settlement Class, Richard McCune of McCune Wright Arevalo, LLP, and Taras Kick of
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representing the Settlement Class, and they are provisionally approved as Class Counsel.
6.

This certification of a preliminary Settlement Class under this Order is for settlement
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No.: 3:15-cv-00483-MMD-WGC

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purposes only and shall not constitute, nor be construed as, an admission on the part of the Defendant in

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this Action that any other proposed or certified class action is appropriate for class treatment pursuant to

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the Federal Rules of Civil Procedure or any similar statute, rule or common law. Entry of this Order is
without prejudice to the rights of Defendant to oppose class certification in this action should the
settlement not be approved or not be implemented for any reason or to terminate the Settlement
Agreement as provided in the Settlement Agreement.
7.

The Court provisionally, and solely for purposes of this settlement, finds that the

members of the Settlement Class are so numerous that joinder of all members would be impracticable,
that the litigation and proposed settlement raise issues of law and fact common to the claims of the Class
Members and these common issues predominate over any issues affecting only individual members of

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the Settlement Class, that the claims of Tonya Gunter (the “Named Plaintiff”) are typical of the claims

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of the Settlement Class, that in prosecuting this Action and negotiating and entering into the Settlement

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Agreement, the Named Plaintiff and her counsel have fairly and adequately protected the interests of the

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Settlement Class and will adequately represent the Settlement Class in connection with the settlement,
and that a class action is superior to other methods available for adjudicating the controversy.
8.

The Court has reviewed the Settlement Agreement and the attached Notice of Pending

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Class Action and Proposed Settlement (“Notice”) (Exhibit 1 to the Settlement Agreement) and finds that

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the settlement memorialized therein falls within the range of reasonableness and potential for final

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approval, thereby meeting the requirements for preliminary approval, and that the Notice should go out

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to the Settlement Class in the manner described in the Settlement Agreement. The settlement appears to
be reasonable in light of the risk inherent in continuing with litigation. The Court also notes that the
settlement is a non-reversionary one where no money will be returned to the Defendant. The Court also
notes that the settlement was arrived at after an arm’s length negotiation involving experienced counsel.
9.

The Court finds that the methods of giving notice prescribed in the Settlement Agreement
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No.: 3:15-cv-00483-MMD-WGC

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meet the requirements of the Federal Rules of Civil Procedure and due process, are the best notice

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practicable under the circumstances, shall constitute due and sufficient notice to all persons entitled

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thereto, and comply with the requirements of the Constitution of the United States, and all other
applicable laws.
10.

For the purposes stated and defined in the Settlement Agreement, the Court hereby sets

the following dates and deadlines:

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a.

Ten days after issuance of this Order – Deadline for notice administrator to send notice;

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b.

Thirty days after notice is sent – Deadline to opt out;

c.

Thirty-five days after notice is sent – Deadline for motion for final approval and

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attorneys’ fees;

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d.

Fifteen days after Motion for Final Approval is filed – Deadline to object;

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e.

Ten days after deadline to object – Deadline for class counsel or defendant’s counsel to

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file responses to any objections and to provide list of opt outs;
f.

Twenty days after deadline to object – Hearing on final approval;

g.

Thirty days after the time to cash checks has expired – Preliminary deadline for filing of

Final Accounting
11.

The Court hereby approves and adopts the procedures, deadlines, and manner governing

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all requests to be excluded from the Class, or for objecting to the proposed settlement, as provided for in

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the Settlement Agreement.

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12.

All costs incurred in connection with providing notice and settlement administration

services to the Class Members shall be paid from the Settlement Fund.
13.

If the settlement is not approved or consummated for any reason whatsoever, the

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Settlement Agreement and all proceedings in connection therewith shall terminate without prejudice to

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the status quo ante and rights of the parties to the action as they existed prior to the date of the execution
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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No.: 3:15-cv-00483-MMD-WGC

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of the Settlement Agreement, except as otherwise provided in the Settlement Agreement.
Good cause appearing therefore, IT IS SO ORDERED. The final hearing is set for June
3, 2019 at 10:00 AM in Reno Courtroom 5 before Judge Miranda M. Du.
February 14
Dated: _________________, 2019.
________________________________
Honorable Miranda M. Du
United States District Judge

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[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Case No.: 3:15-cv-00483-MMD-WGC