Casey v. Citibank, N.A. et al
Filing
158
DECISION AND ORDER denying 146 Motion to Intervene. Signed by Judge David N. Hurd on 3/21/2014. (amt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------GORDON CASEY and DUANE SKINNER,
individually and on behalf of all others
similarly situated,
Plaintiffs,
-v-
5:12-CV-820 (LEAD)
CITIBANK, N.A.; CITIMORTGAGE, INC.;
MIDFIRST BANK, N.A., doing business as
Midland Mortgage; and FIRSTINSURE, INC.,
Defendants.
--------------------------------CELESTE COONAN, individually and on
behalf of all others similarly situated,
Plaintiff,
-v-
1:13-CV-353 (MEMBER)
CITIBANK, N.A.; CITIMORTGAGE, INC.;
ASSURANT, INC.; AMERICAN SECURITY
INSURANCE COMPANY; and STANDARD
GUARANTY INSURANCE COMPANY,
Defendants.
--------------------------------APPEARANCES:
OF COUNSEL:
NICHOLS KASTER, PLLP
Attorneys for Plaintiffs Casey, Skinner,
and Coonan
4600 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
One Embarcadero Center, Suite 720
San Francisco, CA 94111
E. MICHELLE DRAKE, ESQ.
JOSEPH C. HASHMALL, ESQ.
KAI H. RICHTER, ESQ.
MATTHEW C. HELLAND, ESQ.
BERGER & MONTAGUE, P.C.
Attorneys for Plaintiffs Casey, Skinner,
and Coonan
1622 Locust Street
Philadelphia, PA 19103
PATRICK F. MADDEN, ESQ.
SARAH R. SCHALMAN–BERGEN, ESQ.
SHANON J. CARSON, ESQ.
TAUS, CEBULASH & LANDAU, LLP
Attorneys for Plaintiffs Casey, Skinner,
and Coonan
80 Maiden Lane, Suite 1204
New York, NY 10038
BRETT H. CEBULASH, ESQ.
KEVIN LANDAU, ESQ.
GILMAN LAW, LLP
Attorneys for Plaintiff Coonan
Beachway Professional Center Tower
3301 Bonita Beach Road, Suite 307
Bonita Springs, FL 34134
KENNETH G. GILMAN, ESQ.
BALLARD SPAHR, LLP
Attorneys for Defendants Citibank, N.A.
and CitiMortgage, Inc.
999 Peachtree Street, Suite 1000
Atlanta, GA 30309
CHRISTOPHER J. WILLIS, ESQ.
SARAH T. REISE, ESQ.
STEFANIE H. JACKMAN, ESQ.
MENTER, RUDIN & TRIVELPIECE, P.C.
Attorneys for Defendants Citibank, N.A.;
and CitiMortgage, Inc.
308 Maltbie Street, Suite 200
Syracuse, NY 13204
MITCHELL J. KATZ, ESQ.
TERESA M. BENNETT, ESQ.
GOODWIN PROCTER LLP
Attorneys for Defendants MidFirst Bank,
N.A. and FirstInsure, Inc.
Exchange Place
53 State Street
Boston, MA 02109
DAVID S. KANTROWITZ, ESQ.
JOHN C. ENGLANDER, ESQ.
MATTHEW G. LINDENBAUM, ESQ.
COSTELLO, COONEY & FEARON, PLLC
Attorneys for Defendants MidFirst Bank,
N.A. and FirstInsure, Inc.
500 Plum Street, Suite 300
Syracuse, NY 13204
EDWARD G. MELVIN, ESQ.
ROBERT J. SMITH, ESQ.
-2-
CARLTON FIELDS JORDEN BURT, P.A.
Attorneys for Defendants Assurant, Inc.,
American Security Insurance Company,
and Standard Guaranty Insurance Company
Jefferson Square, Suite 400 East
1025 Thomas Jefferson Street, N.W.
Washington, DC 20007
FRANK G. BURT, ESQ.
BRIAN P. PERRYMAN, ESQ.
W. GLENN MERTEN, ESQ.
COHEN & COHEN LLP
Attorneys for Defendants Assurant, Inc.,
American Security Insurance Company,
and Standard Guaranty Insurance Company
258 Genesee Street, Suite 505
Utica, NY 13502
RICHARD A. COHEN, ESQ.
DAVID N. HURD
United States District Judge
DECISION and ORDER
I. INTRODUCTION
Plaintiff Casey initiated this class action on May 17, 2012. An amended class action
complaint, filed on July 26, 2012, added plaintiff Skinner. On January 2, 2013, a
Memorandum–Decision and Order was filed denying defendants' motions to dismiss. Casey
v. Citibank, N.A., 915 F. Supp. 2d 255 (N.D.N.Y. 2013). Plaintiff Coonan initiated a separate
class action on March 27, 2013. On July 24, 2013, plaintiffs' counsel was appointed interim
co-lead class counsel pursuant to Federal Rule of Civil Procedure 23(g)(3). The
Casey/Skinner action was consolidated with the Coonan action on August 7, 2013.
Plaintiffs and defendants Citibank, N.A. and CitiMortgage, Inc. ("the Citi defendants")
engaged in two mediation sessions in November and December 2013. On January 10,
2014, plaintiffs and the Citi defendants filed a joint notice of class settlement. This document
expressed the parties' intent to file a motion for preliminary approval of the settlement
-3-
agreement by January 31, 2014.
On January 30, 2014, counsel for a proposed class of borrowers who have asserted
claims against the Citi defendants in the Northern District of Ohio ("the Ohio plaintiffs") filed a
letter seeking permission to be heard in opposition to the yet-to-be-filed motion for
preliminary approval. Plaintiffs and the Citi defendants filed their motion for preliminary
approval of the settlement agreement on February 5, 2014. On February 27, 2014, the Ohio
plaintiffs filed a motion to intervene for the limited purpose of objecting to the proposed
settlement agreement. The motion to intervene has been fully briefed and was considered
on submit without oral argument.
II. DISCUSSION
The Ohio plaintiffs' attempt to object to the proposed settlement agreement is
inappropriate and premature. The proper time to present their objections is at the final
approval hearing. See In re Penthouse Exec. Club Comp. Litig., No. 10 Civ. 1145, 2013 WL
1828598, at *2 (S.D.N.Y. Apr. 30, 2013) ("[A] plaintiff[']s dissatisfaction with certain
settlement terms is not a bar to preliminary approval."); Davis v. J.P. Morgan Chase & Co.,
775 F. Supp. 2d 601, 608 (W.D.N.Y. 2011) ("[T]o the extent that the proposed intervenors
have particular objections to the terms of the proposed settlement, there is no reason why
those concerns cannot be fully and adequately aired at the fairness hearing and in the
context of the Court's decision whether to finally approve the settlement.").
Assuming preliminary approval is granted, the Ohio plaintiffs' interests can be
protected at the fairness hearing for final approval of the settlement. Moreover, if they do not
wish to be bound by the settlement, they can opt out of the class and pursue their cases
separately. See Davis, 775 F. Supp. 2d at 605–06.
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Finally, the Ohio plaintiffs imply that plaintiffs Casey, Skinner, and Coonan and the Citi
defendants have orchestrated the consolidation and settlement of their cases in an attempt
to interfere with the ongoing action in the Northern District of Ohio. This is without merit. The
Ohio action was initiated after plaintiffs' counsel was appointed interim co-lead class counsel,
after these cases were consolidated, and after the parties began mediation sessions.
Further, the proposed settlement agreement was reached after the exchange of discovery,
through arms-length negotiations between experienced counsel, and with the assistance of a
third-party mediator. There is thus a "presumption that the settlement achieved meets the
requirements of due process." In re Penthouse Exec. Club Comp. Litig., 2013 WL 1828598,
at *2 (internal quotation marks omitted).
Accordingly, it is
ORDERED that
The Ohio Plaintiffs' motion to intervene is DENIED.
IT IS SO ORDERED.
Dated: March 21, 2014
Utica, New York.
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