Trombley v. Bank of America Corporation
Filing
139
ORDER granting (as provided in this attached order) 133 Motion for Final Approval of the Class Action Settlement, and granting (as provided in this attached order) 132 Motion for an Award of Attorneys' Fees. So Ordered by Judge Joseph A. DiClerico, Jr. (New Hampshire, sitting by designation) on 9/12/2013. (Duhamel, John)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND
Bruce J. Trombley
and Ryan Sukaskas
v.
Civil No. 08-cv-456-JD
Bank of America Corporation
O R D E R
The plaintiffs, Bruce J. Trombley and Ryan Sukaskas, sued
Bank of America Corporation (“BAC”), on their own behalf and on
behalf of a nationwide putative class, alleging, inter alia,
breach of the implied covenant of good faith and fair dealing.1
The parties have entered into a revised class action settlement
agreement.
They now seek final approval of their agreement,
certification of the settlement class, awards to the named class
representatives, and an award of attorneys’ fees and costs.
1
Trombley and Sukaskas also alleged breach of contract,
violation of the Truth in Lending Act, and unconscionability of
the credit card agreements. The parties stipulated to the
dismissal of the unconscionability claim without prejudice. The
court granted motions in favor of BAC on the breach of contract
and Truth in Lending Act claims.
Background
Trombley and Sukaskas alleged that BAC imposed fees and
other penalties when they made their credit card payments on or
close to the due date.
Trombley made a payment in person at a
BAC branch on the due date, but BAC did not credit the payment on
that date, imposed a late fee, and cancelled his promotional
interest rate.
Sukaskas attempted to make an online payment for
his credit card balance but was informed that BAC would not
credit the payment on that day because it was the due date.
To
avoid paying late, he paid by telephone, and BAC imposed a
telephone payment fee.
They further alleged that BAC has imposed
similar fees and charges on the putative class members for
timely-tendered payments.
Trombley and Sukaskas filed this case as a putative class
action on November 24, 2008, alleging breach of contract, breach
of the duty of good faith and fair dealing, violation of the
Truth in Lending Act, and unconscionability of the credit card
agreements.
The parties initially litigated whether the claims
were subject to arbitration, until BAC withdrew its motion for
arbitration.
The parties stipulated to the dismissal of the
unconscionability claim without prejudice.
The court granted
motions in favor of BAC on the breach of contract and Truth in
Lending Act claims, leaving only the claim that BAC violated the
2
duty of good faith and fair dealing by failing to post the
plaintiffs’ and the putative class members’ payments on the day
they were received, without imposing additional fees or charges.
The parties entered a Settlement Agreement that is dated
June 27, 2011.
For purposes of settlement, the parties agreed to
the following definition of the settlement class:
all Persons who, at any time between August 1, 2006 and
February 22, 2010: (x) had a credit card account with
FIA2 and (y) made a Qualifying Payment in connection
with that account (i) in person at a Bank of America
banking center; (ii) by phone using Bank of America’s
pay-by-phone service; or (iii) electronically using
Bank of America’s online banking services; and (z) who
incurred a late payment fee, finance charge, or other
fees, penalties or charges, in connection with the
timing of such payment that was not waived or refunded.
Settlement Agreement § 2(bb).
“Qualifying Payment” for purposes
of the settlement class means:
payment by a FIA cardholder on a FIA credit account
where the payment is (x) equal to or in excess of the
minimum payment due for the monthly billing cycle in
which it is made (y) not determined by Defendant to be
deficient for non-sufficient funds; and (z) made, or
alleged by the cardholder to be made, on or before the
same day as the “Payment Due Date” or other deadline
stated in the operative cardholder agreement,
cardholder statement or other disclosure to the
cardholder.
Settlement Agreement § 2(u).
2
FIA Card Services, N.A. is the successor-in-interest to
Bank of America, N.A. and is a wholly-owned subsidiary of BAC.
Revised Settlement Agreement, § 1, Recitals.
3
On July 29, 2011, the court granted preliminary approval of
the settlement agreement and conditional certification of the
settlement class.
The court also ordered notice to be sent to
the potential class members.
After the parties provided
additional briefings and revisions, the proposed short form
notice was revised and certain additional findings were included
in the approval order.
Notice was sent to 393,792 potential class members with a
deadline of October 28, 2011, to opt out of or object to the
proposed class action settlement.
Only one objection was filed.
A final approval hearing was held on December 8, 2011.
were 3,591 claims filed and approved.
There
The parties’ motion for
final approval and class certification and the plaintiffs’
unopposed motion for representative awards, attorneys’ fees, and
costs were denied without prejudice on May 4, 2012, because the
amount of attorneys’ fees requested was unreasonable in relation
to the benefit to the class members.
The parties’ motion to return them to their status before
the settlement and to reset the discovery deadlines was granted.
On January 8, 2013, the parties notified the court that they had
reached a revised settlement agreement.
was held on February 12, 2013.
A pretrial conference
The parties filed a motion for
approval of the Revised Settlement Agreement, dated April 4,
4
2013, and certification of the class; a motion for representative
awards, attorneys’ fees, and costs; and a proposed final order.
The Revised Settlement Agreement defines the settlement
class as follows:
all Persons who, at any time during the Class Period:
(w) had a credit card account with FIA; (x) made a
payment, in connection with that account, on or before
the same day as the “Payment Due Date” or other
deadline stated in the operative cardholder agreement,
cardholder statement or other disclosure to the
cardholder; (y) made such payment (i) in person at a
Bank of America banking center; (ii) by phone using
Bank of America’s pay-by-phone service; or (iii)
electronically using Bank of America’s online banking
services; and (z) who incurred a late payment fee,
finance charge, or other fees, penalties or charges, in
connection with the timing of such payment.
Revised Settlement Agreement § 2(cc).3
The Settlement Class does
not include the individuals who submitted timely and valid
requests for exclusion from the Class, who are listed on
ATTACHMENT A.
The Class Period is August 1, 2006, through
February 22, 2010.
Id. § 2(h).
3
The proposed orders, filed on April 10, 2013, and August
21, 2013, and motion papers provide a slightly different
settlement class definition that uses “(x)” instead of “(w)”
following “Class Period:” and do not insert a subsection letter
after “other disclosure to the cardholder;” where (y) is used in
the settlement class definition in the agreement. The parties
also cite to section 2, part (dd), of the Revised Settlement
Agreement for the definition when that definition pertains to
“Settlement Class Counsel.” The differences in the definitions
are not material. The court uses the definition provided in the
filed copy of the Revised Settlement Agreement, dated April 4,
2013, as the best expression of the parties’ agreement.
5
Under the terms of the Revised Settlement Agreement, the
total settlement fund is $4,000,000.
The 3,591 class members who
submitted approved claims will each receive $40, for a total of
$143,640.
Other BAC cardholders who received notice of the class
action settlement but did not submit a claim or the claim was not
approved will each receive a pro rata share of what is left of
the settlement fund after the approved claims, the administrative
costs, the representative awards, and attorneys’ fees are paid.
Any amount remaining in the settlement fund 180 days after all
checks to the class members were mailed will be distributed
through cy pres payments to the Consumer Federation of America America Saves program and Consumer Action.
On April 4, 2013, BAC provided notification of the Revised
Settlement Agreement as required by the Class Action Fairness Act
of 2005.
Discussion
The parties seek final approval of their revised class
action settlement agreement and certification of the settlement
class.
The plaintiffs move for approval of payments to the class
representatives and for an award of attorneys’ fees and costs.
BAC filed a response to the plaintiffs’ motion for fees and costs
and does not oppose the request.
6
I.
Class Certification
The plaintiffs seek certification of a settlement class
under Federal Rule of Civil Procedure 23(b)(3).
“To obtain
certification of a class action for money damages under Rule
23(b)(3), a plaintiff must satisfy Rule 23(a)’s . . .
prerequisites of numerosity, commonality, typicality, and
adequacy of representation . . . and must also establish that
‘the questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly
and efficiently adjudicating the controversy.’”
Amgen Inc. v.
Conn. Retirement Plans & Tr. Funds, 133 S. Ct. 1184, 1191 (2013)
(quoting Rule 23(b)(3)).
When certification is sought for
purposes of settlement, the certification requirements designed
to protect absentees require heightened scrutiny because the
court will not have the opportunity to modify the class, if
necessary, over the course of the litigation.
Amchem Prods.,
Inc. v. Windsor, 521 U.S. 591, 620 (1997); Hochstadt v. Boston
Sci. Corp., 708 F. Supp. 2d 95, 102 (D. Mass. 2010) (“[W]hen a
settlement class is proposed, it is incumbent on the district
court to give heightened scrutiny to the requirements of Rule 23
in order to protect absent class members.”).
7
A.
Requirements of Rule 23(a)
“Rule 23(a) requires that (1) there be numerosity, (2) there
be common questions of law or fact, (3) the class
representative’s claims be typical of the class, and (4) the
representative’s representation of the class be adequate.”
In re
New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 18
(1st Cir. 2008).
1.
Numerosity
The numerosity requirement is satisfied if the class is so
large that joinder of all the class members would be
impracticable.
Fed. R. Civ. P. 23(a)(1).
393,792 potential class members.
approved 3,591 claims.
Notice was sent to
The claims administrator
Therefore, the settlement class meets the
numerosity requirement.
2.
Commonality
A class must share common questions of law or fact.
Civ. P. 23(a)(2).
Fed. R.
To satisfy the commonality requirement, the
claims of the class “must depend upon a common contention . . .
[which] must be of such a nature that it is capable of classwide
resolution--which means that determination of its truth or
falsity will resolve an issue that is central to the validity of
8
each one of the claims in one stroke.”
Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2550-51 (2011).
Trombley and Sukaskas assert that the class’s claim shares
common questions of law and fact because the claim arises from
the same BAC cardholder agreement and would be determined based
on Delaware law pertaining to the breach of the duty of good
faith and fair dealing.
Claims based on form agreements or
contracts with a common application across the class are based on
uniform questions of law and fact.
See, e.g., McKinney v. U.S.
Postal Serv., 2013 WL 164283, at *6 (D.D.C. Jan. 16, 2013); In re
Checking Account Overdraft Litig., 286 F.R.D. 645, 652 (S.D. Fla.
2012) Walsh Chiropractic, Ltd. v. StrataCare, Inc., 2011 WL
4336727, at *5 (S.D. Ill. Sept. 14, 2011); Campion v. Old
Republic Home Protection Co., Inc., 272 F.R.D. 517, 526 (S.D.
Cal. 2011).
The settlement class in this case satisfies the
commonality requirement.
3.
Typicality
To meet the requirement of typicality, the class
representatives’ claims must “arise from the same event or
practice or course of conduct that gives rise to the claims of
other class members, and [be] based on the same legal theory.”
Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009)
9
(internal quotation marks omitted); Martins v. 3PD, Inc., 2013 WL
1320454, at *7 (D. Mass. Mar. 28, 2013).
The remaining claim in
this case, breach of the duty of good faith and fair dealing,
arises from BAC’s policy, under the cardholder’s agreement, that
three payment methods would incur fees, charges, or penalties
imposed by BAC.
Trombley made his payment in person at a branch bank, and
Sukaskas paid by telephone after trying to pay electronically.
Both incurred fees, charges, or other penalties as a result.
As
defined, each member of the class also made a payment before or
on the same day as the payment deadline in one or more of the
three stated payment methods and incurred fees, charges, or
penalties.
The circumstances of Trombley’s and Sukaskas’s claims
are typical of the settlement class.
4.
Adequacy
The class representatives must also be able to fairly and
adequately protect the interests of the class.
23(a)(4).
Fed. R. Civ. P.
To satisfy the adequacy requirement, the plaintiffs
must show that the representatives’ interests will not conflict
with the class members’ interests and that plaintiffs’ counsel is
qualified and able to represent the class.
Martins, 2013 WL
1320454, at *7; see also Ortiz v. Fibreboard Corp., 527 U.S. 815,
10
856 (1999); cf. George v. Nat’l Water Main Cleaning Co., 286
F.R.D. 168, 178 n.6 (D. Mass. 2012) (noting that commentators
have suggested that adequacy of class counsel is addressed under
Rule 23(g)).
A potential for conflict between class
representatives and other class members, however, does not defeat
the adequacy requirement because “perfect symmetry of interest is
not required and not every discrepancy among the interests of
class members renders a putative class untenable.”
Matamoros v.
Starbucks Corp., 699 F.3d 129, 138 (1st Cir. 2012).
The plaintiffs state that the representatives have no
interests that conflict with the rest of the class.
Although
Trombley and Sukaskas will each receive $5,000, if allowed,
instead of the $40 recovery by each of the approved class
members, the award to the representative parties will not affect
the amount paid to the approved class members.
Therefore, there
are no conflicts that undermine the adequacy of Trombley and
Sukaskas as class representatives.
Plaintiffs’ counsel, Peter N. Wasylyk, Michael D. Donovan,
Michael J. Quirk, and Andrew S. Kierstead, were appointed as
class counsel pursuant to Federal Rule of Civil Procedure 23(g)
for purposes of the conditional certification of the settlement
class.
Counsel satisfy the requirements of Rule 23(a)(4).
11
B.
Requirements of Rule 23(b)(3)
The plaintiffs seek certification of the settlement class
under Rule 23(b)(3) on the grounds that “the questions of law or
fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy.”
The court considers the class
members’ separate interests in controlling the case, other
litigation by class members, the desirability of this forum, and
the likely difficulties of managing the class action in
determining the applicability of Rule 23(b)(3).
For purposes of
a settlement class, whether common questions of law or fact exist
must be considered in the context of the case prior to
settlement, Ortiz, 527 U.S. at 858, but any issues pertaining to
class management litigation need not be considered.
Amchem, 521
U.S. at 620.
In this case, the claim of breach of the duty of good faith
and fair dealing would have been decided under Delaware law for
all of the class members.
Therefore, common legal questions
existed among the class.
Further, because BAC used cardholder
agreements with the same terms and the class definition specified
the circumstances underlying the claim, the class shared common
questions of fact.
12
The settlement class as defined in the Revised Settlement
Agreement, which was filed on April 10, 2013, with document
number 133, at Section 2(cc) is certified under Rule 23(a) and
Rule 23(b)(3).
II.
Revised Settlement Agreement
A settlement in a class action must be approved by the
court, following a hearing, and must be based on findings that
the settlement is fair, reasonable, and adequate.
Fed. R. Civ.
P. 23(e); Nat’l Ass’n of Chain Drug Stores v. N. Eng. Carpenters
Health Benefits Fund, 582 F.3d 30, 44 (1st Cir. 2009).
The
court’s assessment of whether the proposed settlement is fair,
reasonable, and adequate requires consideration of a variety of
factors, including the terms of the settlement, the risks of
litigation, the negotiation process, the reaction of the class to
the settlement, and the course of the litigation prior to
settlement.
See, e.g., Baptista v. Mutual of Omaha Ins. Co., 859
F. Supp. 2d 236, 240-41 (D.R.I. 2012); In re Tyco Int’l, Ltd.
Multidistrict Litig., 535 F. Supp. 2d 249, 259-60 (D.N.H. 2007).
The approval process “involves balancing the advantages and
disadvantages of the proposed settlement as against the
consequences of going to trial or other possible but perhaps
13
unattainable variations on the proffered settlement.”
Chain Drug
Stores, 582 F.3d at 44.
A.
Benefit to the Class
Under the terms of the Revised Settlement Agreement, the
approved class members each will receive $40.00, which is more
than full reimbursement for a late fee paid to BAC under the
circumstances described in the class definition.
The other
potential class members will receive a pro rata share of the
remainder of the fund, which will be considerably less than
$40.00 each, but provides some compensation nevertheless.4
Litigation of the remaining issue of whether BAC breached
the implied duty of good faith and fair dealing in its late fees
practices would require additional expense with a far from
certain outcome.
The Revised Settlement Agreement provides more
compensation to class members than was proposed under the
original settlement agreement.
Under the Revised Settlement
Agreement, each class member with an approved claim will receive
more than the amount of a late fee or penalty.
The recovery to
the class provided by the Revised Settlement Agreement is
4
The the pro rata share to the unapproved class members is
likely to be around $6.00 each.
14
preferable to the original settlement agreement and to continued
litigation.
B.
Notice and Hearing
As is explained above in the Background section, notice, as
approved by the court, was sent to 393,792 potential class
members with October 28, 2011, as the deadline for opting out of
the class.
2011.
A final approval hearing was held on December 8,
The class defined in the Revised Settlement Agreement is
the same as the class defined in the original settlement
agreement.
Because the compensation provided by the Revised Settlement
Agreement is more beneficial to the class than the compensation
offered by the original settlement agreement, no additional
notice nor a second hearing is necessary.
In addition, a total
of $218,052.71 has been spent on notice and administration costs.
Notice of the Revised Settlement Agreement, a second approval
hearing, and a second claims process would substantially increase
the administrative costs.
C.
Reaction of the Class
Only 3,591 individuals, a small percentage of those notified
of the class action settlement, filed claims that were approved.
15
However, only sixteen people opted out of the class and only one
person objected to the proposed settlement.5
The single
objector, Jeffrey L. Roudebush, would not qualify as a class
member.
Roudebush did not have a BAC account in 2010 when he claimed
to have made in-person payments and incurred a late fee and
raised interest rates, although Norilyn L. Roudebush did have a
BAC account.
Further, BAC records establish that, contrary to
the representations in Roudebush’s objection, no in-person
payments were made to that account in 2010, that payments were
made in amounts less than the required minimum payments, that no
payments have been made since July of 2010, and that BAC wrote
off the account in December of 2010.
Roudebush did not attend
the approval hearing on December 8, 2011.
Given the background provided by BAC, Roudebush does not
raise a valid objection to the class action settlement.
The lack
of objection and the small number of potential class members who
opted out of the class weigh in favor of approving the
settlement.
5
One person has two different claimant identification
numbers and is listed twice.
16
D.
Costs of Administration
As part of the Revised Settlement Agreement, the parties
agreed that the costs of notice to potential class members and
administration of the settlement would be paid from the
settlement fund.
The court granted preliminary approval to the
parties’ original settlement agreement for appointment of Rust
Consulting, Inc. as Settlement Administrator.
Rust Consulting
has served as the settlement administrator since September of
2011.
The plaintiffs represent that the cost of notice and
administration of the settlement to date is $218,052.71, which is
supported by affidavits and invoices.
The amount of the costs is
reasonable, and the agreement to pay the costs from the
settlement fund is also reasonable.
There will be additional costs of administration incurred in
the process of sending payments to the class members with
approved claims and sending pro rata shares to class members who
did not file claims or whose claims were not approved.
Going
forward, Rust Consulting shall file a written report at least
every three months showing the nature, amount, and proposed
recipients of expenses for administering the settlement.
17
E. Fair, Reasonable, and Adequate
The Revised Settlement Agreement provides adequate
compensation to approved class members and some compensation for
BAC account holders who did not file claims or were not approved.
The Agreement does not provide for reversion of part of the fund
to BAC.
The cy pres provision is funded, if at all, by the
amount of uncashed checks after a reasonable waiting period.
The Revised Settlement Agreement provides significant
benefits to class members that weigh in favor of approval while
further litigation would entail substantial costs and risk.
Therefore, the Revised Settlement Agreement is a fair,
reasonable, and adequate resolution of the case for the class.
III.
Representative Payment, Attorneys’ Fees, and Costs
Under the terms of the Revised Settlement Agreement, the
parties agreed to payments to the representative parties and to
an award of attorneys’ fees and costs.
A.
Representative Payments
Named plaintiffs in a class action may be awarded an amount
greater than the other class members as an incentive to encourage
participation in the class action and to compensate for the
services provided in that capacity.
18
Baptista, 859 F. Supp. 2d at
244; see also Sullivan v. DB Investments, Inc., 667 F.3d 273, 333
n.65 (3d Cir. 2011).
Such awards are reasonable if they are
proportional to the named plaintiffs’ time and effort and in the
context of the case as a whole.
See, e.g., Vassalle v. Midland
Funding LLC, 708 F.3d 747, 756 (6th Cir. 2013); Baptista, 859 F.
Supp. 2d at 244; In re New Motor Vehicles Canadian Exp. Antitrust
Litig., 2011 WL 1398485, at *4 (D. Me. Apr. 13, 2011).
The plaintiffs seek payments of $5,000.00 each to Trombley
and Sukaskas as the representative plaintiffs in this case.
They
have served as the representative plaintiffs in this case from
its inception in 2008.
Counsel represents that Trombley and
Sukaskas were actively involved in the case from assisting with
the preparation of the complaint, participation in discovery
preparation and depositions, and negotiation of the settlement.
The plaintiffs cite other cases where similar amounts have been
awarded.
Although the plaintiffs do not provide the number of hours
expended by Trombley and Sukaskas as representative plaintiffs,
their activities combined with the age of the case suggest a
significant amount of time.
The requested award of $5,000 each
is in line with other similar awards.
See, e.g., In re Ins.
Brokerage Antitrust Litig., --- F.R.D. ---, 2013 WL 3956378, at
*21 (D.N.J. Aug. 1, 2013); Barbosa v. Cargill Meat Solutions
19
Corp., --- F.R.D. ---, 2013 WL 3340939, at *22-*23 (E.D. Cal.
July 2, 2013); In re Nissan Radiator/Transmission Cooler Litig.,
2013 WL 4080946, at *15 (S.D.N.Y. May 30, 2013).
The
representative payments of $5,000 each are reasonable.
B.
Attorneys’ Fees and Costs
The parties agreed that class counsel would submit a request
for fees and costs in an amount that did not exceed 30% of the
settlement fund of $4,000,000.
Class counsel request an award of
$1,200,000 in fees and costs.
“In a certified class action, the court may award reasonable
attorney’s fees and nontaxable costs that are authorized by law
or by the parties’ agreement.”
Fed. R. Civ. P. 23(h).
The court
may award attorneys’ fees based on a percentage of the fund or on
a lodestar calculation method in common fund cases.
In re
Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire
Litig., 56 F.3d 295, 307 (1st Cir. 1995).
Here, the parties
agree that an award of class counsels’ fees should be made and
that a percentage of the fund is the appropriate method.
Cf.
In
re Volkswagen & Audi Warranty Extension Litig., 692 F.3d 4, 7-15
(1st Cir. 2012) (holding that in diversity class action suit
where parties did not agree to the award of fees state law
controls the award).
Pursuant to Rule 23(h), “courts have an
20
independent obligation to ensure that the award, like the
settlement itself, is reasonable.”
In re Bluetooth Headset
Prods. Liability Litig., 654 F.3d 935, 941 (9th Cir. 2011).
Under the original settlement agreement, the settlement fund
could have been as much as $5,000,000.
Based on the small number
of approved claims, the actual payments to class members would
only have been $110,548.
As proposed, BAC would have been
obligated to pay $2,278,600.71, which was less than half of the
proposed settlement amount of $5,000,000.
seeking $1,500,000 in fees and costs.
Class counsel were
The settlement agreement
was not approved because the amount of the agreed attorneys’ fees
and costs was disproportionate to the benefit to the class and
the actual amount to be paid by BAC.
The settlement fund under the Revised Settlement Agreement
is $4,000,000.
As provided in the Revised Settlement Agreement,
payments to approved class members will total $143,640.00.
The
costs of notice and claim administration are $218,052.71.
Class
counsel seek 30% of the fund, which is $1,200,000.00.
The
remainder of the fund, after those amounts are paid, is to be
divided in pro rata shares to the potential class members who did
not opt out but either did not make claims or whose claims were
not approved, which is 390,183 individuals.
Any checks that are
not cashed after 180 days will be distributed through cy pres
21
payments to the Consumer Federation of America - America Saves
program and Consumer Action.
As structured in the Revised Settlement Agreement, the
potential dollar amount of the benefit to the class, those whose
claims were approved and the others entitled to pro rata shares,
is $2,428,307.29.
Any checks that are sent but not cashed within
180 days will be distributed through cy pres payments.
Because
the class members with approved claims will receive 100% of the
late fee or penalty charged by BAC, the cy pres payments in the
Revised Settlement Agreement properly augment the benefit to the
class.
In re Pharm. Ind. Average Wholesale Price Litig., 588
F.3d 24, 33 (1st Cir. 2009).
While the requested attorneys’ fees and costs are 30% of the
entire settlement fund, they are slightly less than 50% of the
benefit to the class.
In the circumstances of this case,
however, where the individual loss to each class member was small
and the case has consumed nearly five years in litigation, the
amount of fees and costs requested is reasonable.
IV.
Summary
Based on the analysis provided above, the court makes the
following findings and rulings.
22
Notice of this action, of the proposed settlement, and of
the claim and opt-out processes was provided to all persons who
were reasonably identifiable as potential class members.
No
additional notice or hearing is necessary because the Revised
Settlement Agreement provides greater benefits to the class than
were available under the original settlement.
The notice
provided was proper and adequate.
BAC provided notice of the settlement in this case to the
appropriate officials as required by the Class Action Fairness
Act of 2005, 28 U.S.C. § 1715.
The settlement class as defined in the Revised Settlement
Agreement dated April 4, 2013, and filed on April 10, 2013,
document number 133, is certified for purposes of settlement
only.
The Revised Settlement Agreement, dated April 4, 2013, and
filed on April 10, 2013, document number 133, is fair, adequate,
and reasonable and is approved.
The parties shall perform as
required under the terms of the Revised Settlement Agreement.
The plaintiffs’ request for costs and attorneys’ fees in the
amount of $1,200,000 is approved.
The representative awards of $5,000 each are approved.
As determined previously, Rust Consulting is the Settlement
Administrator, and the reasonable costs of administration shall
23
be paid from the settlement fund.
The costs of notice and
administration to date, $218,052.71, are reasonable and shall be
paid from the settlement fund.
At least every three months, the
Settlement Administrator shall file with the court a written
report of the nature, amount, and proposed recipients of
administration costs that are to be paid from the settlement
fund.
All claims in this case are dismissed with prejudice in
accord with the Revised Settlement Agreement.
The court shall
retain jurisdiction to resolve any disputes or challenges about
the performance or administration of the Revised Settlement
Agreement and challenges to the notice provided, this order, and
the Revised Settlement Agreement.
As provided in the Revised
Settlement Agreement, if the Agreement is terminated or the
judgment in this case is reversed on appeal, this order and
related orders will be vacated and will no longer have any force
or effect.
The parties have agreed that the Revised Settlement
Agreement, the settlement of this case, and the proceedings in
this case do not constitute admissions or evidence supporting
liability or the validity of any claim or defense in this case.
24
Conclusion
For the foregoing reasons, the plaintiffs’ motion for final
approval of the class action settlement (document no. 133) and
the plaintiffs’ motion for an award of attorneys’ fees (document
no. 132) are granted as provided in this order.
All claims in this case are dismissed with prejudice.
The
clerk of court shall enter judgment accordingly.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
(Sitting by designation.)
September 12, 2013
cc:
Michael D. Donovan, Esquire
David J. Fioccola, Esquire
Robert G. Flanders, Jr., Esquire
Andrew S. Kierstead, Esquire
Mark P. Ladner, Esquire
Michael J. Quirk, Esquire
Adam M. Ramos, Esquire
Peter N. Wasylyk, Esquire
25
ATTACHMENT A
Class Members Who Opted Out of the Class
Claimant ID Number
Name
6220808
6572198
5668649
4724148
5708055
5145331
5841103
7313073
5498024
6795566
5677511
7875946
6400613
5011070
8041661
4912040
7748974
Catherine M. Gyeski
Catherine M. Gyeski
Cheryl K. Van Ingen
Claudia Ugalde
Dr. Barbara J. Lozano
Edward C. Gyeski
Frank Wolland
Hernando A. Dumaop
Jennifer L. Beralas
Joaquin Amador
Maryanne Taylor
Martha L. Solomon
Mary L. Holmes
Michelle Keating
Nick Goutchkoff
Virginia Schneegans
William L. Bohan
26
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