Guiette v. U.S. Bank National Association

Filing 28

ORDER (1) Conditionally certifying a settlement class; (2) Preliminarily approving class action settlement; (3) Approving notice plan; and (4) Setting final approval hearing on 7/8/2019 at 1:30PM, in Courtroom 1, Room 805.Signed by Judge Timothy S. Black on 2/13/19. (rrs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
VIRGINIA GUIETTE, on behalf of herself
and all others similarly situated,

Case No. 1:18-cv-00174-TSB
CLASS ACTION

Plaintiff,
Judge Timothy S. Black
v.
U.S. BANK NATIONAL ASSOCIATION,
Defendant.

ORDER:
(1) CONDITIONALLY CERTIFYING A SETTLEMENT CLASS;
(2) PRELIMINARILY APPROVING CLASSACTION SETTLEMENT;
(3) APPROVING NOTICE PLAN; AND
(4) SETTING FINAL APPROVAL HEARING ON JULY 8, 2019
This civil action having come before the Court on Plaintiff’s unopposed motion
for preliminary approval of the proposed class action settlement of this case (the
“Action”) between Plaintiff Virginia Guiette, individually and on behalf of the Settlement
Class (“Plaintiff”), and Defendant U.S. Bank National Association (“Defendant”), as set
forth in the Parties’ Settlement Agreement and Release (the “Agreement,” which
memorializes the “Settlement”). Having duly considered the papers, THE COURT
HEREBY FINDS AND ORDERS AS FOLLOWS:
1.

The Court has jurisdiction over the subject matter of the Litigation, the

Parties, and all Settlement Class Members.

2.

Unless defined herein, all defined terms in this Order shall have the

meanings ascribed to them in the Agreement.
3.

The Court has conducted a preliminary evaluation of the Settlement as set

forth in the Agreement for fairness, adequacy, and reasonableness. Based on this
evaluation, the Court finds there is cause to believe that: (i) the Agreement is fair,
reasonable, and adequate, and within the range of possible approval; (ii) the Agreement
has been negotiated in good faith at arms-length between experienced attorneys familiar
with the legal and factual issues of this case; and (iii) with respect to the forms of notice
of the material terms of the Agreement to Settlement Class Members for their
consideration and reaction, that notice is appropriate and warranted. Therefore, the Court
grants preliminary approval of the Settlement.
4.

The Court, pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of

Civil Procedure, conditionally certifies, for purposes of this Settlement only, the
following Settlement Class:
All users or subscribers to a wireless or cellular service within
the United States who used or subscribed to a phone number
to which U.S. Bank made or initiated one or more Calls
during the Class Period using any automated dialing
technology or artificial or prerecorded voice technology,
according to U.S. Bank’s available records, and who are
within Subclass One and/or Two, which are defined as
follows:
Subclass One consists of persons who used or subscribed to a
cellular phone number to which U.S. Bank made or initiated a
Call or Calls in connection with a Residential Mortgage Loan.

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Subclass Two consists of persons who used or subscribed to a
cellular phone number to which U.S. Bank made or initiated a
Call or Calls in connection with a Home Equity Loan.
Excluded from the Settlement Class are Defendants and any
affiliate or subsidiary of Defendants, and any entities in
which any of such companies have a controlling interest, as
well as all persons who validly opt out of the Settlement
Class.
5.

The Court hereby appoints Plaintiffs as Class Representatives of the

Settlement Class pursuant to Rule 23 of the Federal Rules of Civil Procedure.
6.

The Court appoints Hyde & Swigart, APC and Kazerouni Law Group, APC

as Class Counsel pursuant to Rule 23 of the Federal Rules of Civil Procedure.
7.

On July 8, 2019 at 1:30 p.m., in Courtroom 1, Room 805 of the Potter

Stewart United States Courthouse, 100 East Fifth Street, Cincinnati, Ohio 45202, or at
such other date and time later set by Court Order, this Court will hold a Final Approval
Hearing on the fairness, adequacy and reasonableness of the Agreement and to determine
whether (i) final approval of the Settlement embodied by the Agreement should be
granted, and (ii) Class Counsel’s application for attorneys’ fees and expenses, and
incentive awards to Plaintiffs, should be granted, and in what amount. No later than May
6, 2019, Plaintiff must file papers in support of Class Counsel’s application for attorneys’
fees and expenses, and the incentive award to the Class Representative. No later than
June 24, 2019, which is fourteen (14) days prior to the Final Approval Hearing, Plaintiff
must file papers in support of final approval of the Settlement and respond to any written
objections. Defendant may (but is not required to) file papers in support of final approval
of the Settlement, so long as it does so no later than July 1, 2019.
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8.

Pursuant to the Agreement, Rust Consulting, Inc., is hereby appointed as

Claims Administrator and shall be required to perform all the duties of the Claims
Administrator as set forth in the Agreement and this Order.
9.

The Court approves the proposed Notice Plan for giving notice to the

Settlement Class (i) directly (using post cards), (ii) through publication; (iii) through a
toll-free telephone number; (iv) through a press release; and (iv) by establishing a
Settlement Website at the web address of www.USbankTCPAsettlement.com, as more
fully described in the Agreement. The Notice Plan, in form, method, and content,
complies with the requirements of Rule 23 and due process, and constitutes the best
notice practicable under the circumstances. The Court hereby directs the Parties and the
Claims Administrator to complete all aspects of the Notice Plan no later than March 15,
2019 in accordance with the terms of the Agreement.
10.

The Claims Administrator will file with the Court by no later than June 24,

2019, which is fourteen (14) days prior to the Final Approval Hearing, proof that Notice
was provided in accordance with the Agreement and this Preliminary Approval Order, as
well as proof that notice was provided pursuant to the Class Action Fairness Act, 28
U.S.C. § 1715.
11.

Settlement Class Members who wish to either object to the Settlement or

request to be excluded from it must do so by the Objection Deadline and Opt-Out
Deadline of June 6, 2019 which are both ninety (90) calendar days after the Settlement
Notice Date. Settlement Class Members may not both object and opt out. If a Settlement

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Class Member submits both a Request for Exclusion and an objection, the Request for
Exclusion will be controlling.
12.

To file a Request for Exclusion, Settlement Class Members must follow the

directions in the Notice and send a compliant request to the Claims Administrator at the
address designated in the Class Notice by the Opt-Out Deadline. In the Request for
Exclusion, the Settlement Class Member must state his or her full name, address, and
cellular telephone number(s) at which the Settlement Class Member alleges he or she
received a call from the Defendant, and must state in writing that he or she wishes to be
excluded from the Settlement. No Request for Exclusion will be valid unless all of the
information described above is included. No Settlement Class Member, or any person
acting on behalf of or in concert or participation with that Settlement Class Member, may
exclude any other Settlement Class Member from the Settlement Class.
13.

If a timely and valid Request for Exclusion is made by a member of the

Settlement Class, then that person will not be a Settlement Class Member, and the
Agreement and any determinations and judgments concerning it will not bind the
excluded person.
14.

All Settlement Class Members who do not opt out in accordance with the

terms set forth in the Agreement will be bound by all determinations and judgments
concerning the Agreement.
15.

To object to the Settlement, Settlement Class Members must follow the

directions in the Notice and file a written Objection with the Court by the Objection

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Deadline. For the objection to be valid it must be written. He or she must also state the
reasons for his or her Objection, and whether he or she intends to appear at the Final
Hearing on his or her own behalf or through counsel. The Settlement Class Member
must state his or her full name, address, and cellular telephone number(s) that the
Settlement Class Member alleges received a call from the Defendant. He or she must
state any prior objections made to other cases, the case name and court along with the
disposition of that objection. Any documents that the objecting Settlement Class Member
wishes for the Court to consider must also be attached to the objection. Any and all
objections shall identify any lawyer that represents the objecting Settlement Class
Member as to this case or such objection. No Objection will be valid unless all of the
information described above is included. Copies of all papers filed with the Court must
be simultaneously delivered to Class Counsel and counsel for the Defendant. The Parties
will have the right to depose any objector to assess whether the objector has standing.
16.

If a Settlement Class Member does not submit a written comment on the

proposed Settlement or the application of Class Counsel for attorneys’ fees and expenses
and the incentive awards in accordance with the deadline and procedure set forth in the
Notice, and the Settlement Class Member wishes to appear and be heard at the Final
Approval Hearing, the Settlement Class Member must file a notice of intention to appear
with the Court and serve a copy upon Class Counsel and Defendant’s Counsel no later
than Objection/Opt-Out Deadline, and comply with all other requirements of the Court
for such an appearance.

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17.

Any Settlement Class Member who fails to timely file a written objection

with the Court and notice of his or her intent to appear at the Final Approval Hearing in
accordance with the terms of this Order, above and as detailed in the Notice, and at the
same time provide copies to Class Counsel and Defendant’s Counsel, shall not be
permitted to object to the Agreement at the Final Approval Hearing, shall be foreclosed
from seeking any review of the Agreement by appeal or other means, shall be deemed to
have waived his, her, or its objections, and shall be forever barred from making any such
objections in the Action. All members of the Settlement Class, except those members of
the Settlement Class who submit timely Requests for Exclusion, will be bound by all
determinations and judgments in the Action, whether favorable or unfavorable to the
Settlement Class.
18.

Pending the final determination of whether the Settlement should be

approved, all pre-trial proceedings and briefing schedules in the Action are stayed. If the
Settlement is terminated or final approval does not for any reason occur, the stay will be
immediately terminated.
19.

If the Settlement is not approved or consummated for any reason

whatsoever, the Settlement and all proceedings in connection with the Settlement will be
without prejudice to the right of Defendant or the Settlement Class Representative to
assert any right or position that could have been asserted if the Agreement had never been
reached or proposed to the Court, except insofar as the Agreement expressly provides to
the contrary. In such an event, the Parties will return to the status quo ante in the Action

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and the certification of the Settlement Class will be deemed vacated. The certification of
the Settlement Class for settlement purposes will not be considered as a factor in
connection with any subsequent class certification decision.
20.

The Agreement and any and all negotiations, documents, and discussions

associated with it, will not be deemed or construed to be an admission or evidence of any
violation of any statute, law, rule, regulation, or principle of common law or equity, or of
any liability or wrongdoing, by Defendant, or the truth of any of the claims, and evidence
relating to the Agreement will not be discoverable or used, directly or indirectly, in any
way, whether in the Action or in any other action or proceeding, except for purposes of
demonstrating, describing, implementing, or enforcing the terms and conditions of the
Agreement, this Order, and the Final Judgment and Order of Dismissal.
21.

Counsel are hereby authorized to use all reasonable procedures in

connection with approval and administration of the Settlement that are not materially
inconsistent with this Order or the Agreement, including making, without further
approval of the Court, minor changes to the form or content of the Notice and Claim
Form, and other exhibits that they jointly agree are reasonable and necessary. The Court
reserves the right to approve the Agreement with such modifications, if any, as may be
agreed to by the Parties without further notice to the members of the Class.

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22.

Accordingly, the following are the deadlines by which certain events must

occur:
March 15, 2019

Deadline to Provide Class Notice

May 6, 2019

Deadline for Plaintiff’s Motion for Attorneys’ Fees and Incentive
Award

June 6, 2019

Deadline for Class Members to file Objections or submit Requests
for Exclusion

June 24, 2019

Deadline for Parties to File the Following:
(1) List of Class Members who Made Timely and Proper Requests
for Exclusion;
(2) Proof of Class Notice and CAFA Notice; and
(3) Motion and Memorandum in Support of Final Approval,
including responses to any Objections.

June 6, 2019

Deadline for Settlement Class Members to Submit a Claim Form

July 8, 2019
at 1:30 p.m.

Final Approval Hearing in Courtroom 1, Room 805

IT IS SO ORDERED.
Dated: _________________
2/13/19

______________________
Timothy S. Black
United States District Judge

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