Opinion
Case No. C10-05261 SBA
12-20-2012
ROBERT BAKER, individually and on behalf of others similarly situated, Plaintiff, v. GEMB LENDING INC.; THOR CC, INC., THOR CREDIT CORPORATION, E*TRADE FINANCIAL CORPORATION WHICH WILL DO BUSINESS IN CALIFORNIA AS E-TRADE FINANCIAL CORPORATION; CCB CREDIT SERVICES, INC.; and DOES 1 through 50, inclusive, Defendants.
KEMNITZER, BARRON, & KRIEG, LLP BRYAN KEMNITZER Bar No. 066401 NANCY BARRON Bar No. 099278 AMY TAY Bar No. 252600 TRUEBLOOD LAW FIRM ALEXANDER B. TRUEBLOOD Bar No. 150897 Attorneys for Plaintiff Robert Baker and the potential class
KEMNITZER, BARRON, & KRIEG, LLP
BRYAN KEMNITZER Bar No. 066401
NANCY BARRON Bar No. 099278
AMY TAY Bar No. 252600
TRUEBLOOD LAW FIRM
ALEXANDER B. TRUEBLOOD Bar No. 150897
Attorneys for Plaintiff Robert Baker and the potential class
CLASS ACTION
FINAL ORDER AND JUDGMENT
THIS MATTER came before the Court for a hearing on December 19, 2012, pursuant to Plaintiff Robert Baker's Motion for Final Approval of the Class Action Settlement and Motion for an Award of Attorneys' Fees, Costs, and Expenses, at which time the Parties, and any other interested persons present at the hearing and entitled to be heard, were afforded the opportunity to be heard in support of and in opposition to the proposed Settlement Agreement by and among the named Plaintiff ROBERT BAKER, individually and on behalf of the proposed Settlement Class, and Defendants GEMB LENDING INC.; E*TRADE FINANCIAL CORPORATION; and CCB CREDIT SERVICES, INC.
There was no opposition to the Motions. By Order filed on July 25, 2012, this Court preliminarily approved the settlement, conditionally certified a class for settlement purposes only, approved the proposed form of notice, and ordered that notice be given. Notice of the Settlement has been given to all Identified Settlement Class Members by first-class mail as set forth in the Settlement Agreement and this Court's Preliminary Approval Order, Proof of Notice has been filed with the Court, and the deadline for Settlement Class Members to opt out or object to the settlement has passed. Having read and considered all papers and documents presented, all exhibits and affidavits filed, all arguments of counsel, and the law,
IT IS ORDERED, ADJUDGED AND DECREED on this day of December 19, 2012, that:
1. This Final Judgment incorporates the Settlement Agreement, and the capitalized terms used in this Final Judgment shall have the meanings and/or definitions given to them in the Settlement Agreement, as submitted to the Court with the Motion for Preliminary Approval of Class Action Settlement Agreement, unless otherwise defined herein.
2. This Court has jurisdiction over the subject matter of this Action and over all parties to this Action, including all members of the Settlement Class.
3. This Court certifies this Action, for settlement purposes only, as a class action.
4. The following Settlement Class, conditionally certified by the Court in its Order filed on July 25, 2012, is hereby certified under Federal Rule of Civil Procedure 23 for settlement purposes only, and is hereinafter referred to as the "Class":
All California citizens:
a) who entered into a Conditional Sale Contract in California for the purchase of a Motor Vehicle;
b) whose Motor Vehicle was repossessed or voluntarily surrendered;Excluded from the Settlement Class are:
c) who were issued a written post repossession notice by GEMB and/or Thor at any time from four years preceding the filing of this Action (October 12, 2006) through February 1, 2012;
d) whose Conditional Sale Contract was owned by GEMB, Thor and/or E*Trade at the time the notice was sent; and
e) who were assessed a Deficiency Balance following the disposition of the Motor Vehicle.
a) persons from whom GEMB, E*Trade and/or CCB obtained judgments prior to filing of the complaint on October 12, 2010; and/or5. The Court finds that the Settlement Class meets the requirements necessary for class certification under Fed. R. Civ. P. 23(a):
b) persons who made a payment on or toward their deficiency balance after the written post repossession notice was sent and who also filed for bankruptcy.
(a) The Settlement Class includes over 2,400 individuals and is so numerous that joinder of all members is impracticable;6. The Court finds that the Settlement Class, at least for the purposes of settlement, meets the requirements necessary for class certification under Fed. R. Civ. P. 23(b)(3), in that questions of law and fact common to the Settlement 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 this controversy. Manageability issues do not
(b) There are questions of law and fact common to the Settlement Class;
(c) The claims of Class Representative Robert Baker are typical of the claims of the Settlement Class; and
(d) The Class Representative, together with Class Counsel, has fairly and adequately represented and protected, and will continue to fairly and adequately represent and protect, the interests of the Settlement Class.
prevent certification in this controversy because there will be no trial.
7. The members of the Settlement Class have been provided with adequate notice of the settlement terms. The Class Notice, sent via first-class mail to each Identified Settlement Class Member, constitutes the best notice practicable under the circumstances, was reasonably calculated to communicate actual notice of the litigation and the proposed settlement to Settlement Class members, and is in full compliance with the requirements of Federal Rules of Civil Procedure and due process of law.
8. The members of the Settlement Class were given an adequate opportunity to opt out of the settlement. Attached to this Final Judgment as Exhibit 1 is a true and correct list of all Settlement Class members who timely submitted Requests for Exclusion. No Settlement Class members, other than those listed in Exhibit 1, are excluded from the Settlement Class or from the effect of this Final Judgment.
9. The Settlement Agreement is the product of extensive arm's length negotiation between the Parties, as well as two judicial settlement conferences before Magistrate Judge Laurel Beeler.
10. The Settlement Agreement executed by the Parties provides substantial benefits to the Settlement Class members. The terms thereof are fair, reasonable, adequate, and in the best interests of the Settlement Class, and are therefore finally approved and incorporated herein by the Court.
11. The settlement and Settlement Agreement should be implemented and consummated in accordance with the terms of the Settlement Agreement. To the extent already implemented by the parties, such implementation is hereby approved and ratified by the Court.
12. Upon the Effective Date of the Settlement Agreement, Plaintiff and all Settlement Class members, and their heirs, executors, estates, predecessors, successors, assigns, agents and representatives, shall be deemed to have jointly and severally released and forever discharged GEMB LENDING INC.; E*TRADE FINANCIAL CORPORATION; and CCB CREDIT SERVICES, INC., and any of their present and former officers, directors, attorneys, accountants, assigns, representatives, employees, heirs, insurance carriers, executors, estates, predecessors,
affiliates, parents, subsidiaries, agents, and successors in interest, from any and all Released Claims as that term is defined in section 2.28 of the Settlement Agreement.
13. Plaintiff, Defendants and all Participating Settlement Class Members expressly waive and relinquish any and all rights and benefits which they may have under, or which may be conferred upon them by, the provisions of California Civil Code section 1542, as set forth in the Settlement Agreement.
14. This Action is hereby dismissed, on the merits, with prejudice, on the terms set forth in the Settlement Agreement, and without any award of attorneys' fees or costs except as expressly provided in the Settlement Agreement and in this Final Order and Judgment.
15. The terms of the Settlement Agreement and this Final Judgment shall be forever binding on all Participating Settlement Class Members, including the Class Representative, and shall have res judicata effect in any pending or future lawsuits or proceedings that may be brought or maintained by or on behalf of any Participating Settlement Class Members. This Court hereby bars and enjoins: (i) all Participating Settlement Class Members, including the Class Representative, and all persons acting on behalf of, or in concert or participation with, such Participating Settlement Class Members, from filing, commencing, prosecuting, intervening in, or participating in, any lawsuit in any jurisdiction on behalf of any Participating Settlement Class Member, based upon or asserting any of the Released Claims as that term is defined in the Settlement Agreement; and (ii) all Participating Settlement Class Members, including the Class Representative, and all persons acting on behalf of or in concert or participation with such Participating Settlement Class Members, from bringing a class action on behalf of Participating Settlement Class Members or seeking to certify a class which includes such Participating Settlement Class Members, in any lawsuit based upon or asserting any of the Released Claims as that term is defined in the Settlement Agreement.
16. It is expressly determined that there is no just reason for delay and the entry of this Final Judgment is hereby directed. In the event that this Final Judgment is appealed, its mandate will automatically be stayed until and unless the Final Judgment is affirmed in its entirety by the court of last resort to which such appeal(s) has (have) been taken and such affirmance is no longer
subject to further appeal or review.
17. This Final Judgment is final for purposes of appeal and may be appealed, and the Clerk is hereby directed to enter Judgment thereon.
18. Class Representative Robert Baker is granted a service award in the amount of $10,000, to be paid by Defendants in accordance with the terms of the Settlement Agreement. Defendants shall pay this amount by check made payable to Robert Baker and delivered to Class Counsel's office: Kemnitzer, Barron & Krieg, LLP at 445 Bush Street, Floor 6, San Francisco, CA 94108 on or before the Distribution Date under the terms of the Settlement Agreement, so long as a W-9 is provided for him to Defendants. The service award shall be paid by Defendants separate from and in addition to the payments to the Settlement Class and shall not reduce the amounts of those payments.
19. Plaintiff is entitled to an award of attorneys' fees, costs and expenses. The Parties have negotiated a total award of $435,000 for attorneys' fees, costs and expenses. The Court finds that such an award is reasonable and appropriate under all of the circumstances presented. The amount of the award was negotiated at arms-length among experienced counsel, and is reasonable compared to the benefits conferred, representing a fraction of the approximately $44.7 million in Deficiency Balances which Defendants have agreed not to collect. Accordingly, Class Counsel is awarded reasonable attorneys' fees, costs and expenses totaling $435,000. Defendants shall pay this amount by check made payable to Kemnitzer, Barron, & Krieg, LLP and delivered to Class Counsel's office located at Kemnitzer, Barron & Krieg, LLP 445 Bush Street, Floor 6, San Francisco, CA 94108 within ten (10) business days of the Effective Date under the terms of the Settlement Agreement. Such payment of attorneys' fees, costs and expenses shall be separate from and in addition to the payments to the Settlement Class and shall not reduce the amount of those payments. Kemnitzer, Barron & Krieg, LLP shall distribute the award among Class Counsel pursuant to their separate agreement.
20. In the event that the settlement does not become effective in accordance with the terms of the Settlement Agreement, then this Final Judgment shall be rendered null and void and shall be vacated, and the Settlement Agreement and all orders entered in connection therewith
shall be rendered null and void.
21. Neither this Final Judgment nor the Settlement Agreement on which it is based is an admission or concession by any of the Defendants of any fault, omission, liability, or wrongdoing. This Settlement Approval Order and Final Judgment is not a finding of the validity or invalidity of any claims in this Action or a determination of any wrongdoing by GEMB LENDING INC.; E*TRADE FINANCIAL CORPORATION; CCB CREDIT SERVICES, INC; or THOR CREDIT CORPORATION. The Court's final approval of this Agreement and the Parties' settlement, if it occurs, will not constitute any opinion, position, or determination of this Court as to the merits of the claims and defenses of any Party.
22. The Parties are directed to carry out their obligations under the terms of the Settlement Agreement.
23. Jurisdiction is hereby reserved by this Court to assure compliance with all terms of this settlement, in accordance with the Settlement Agreement and this Final Judgment.
24. Class Counsel shall serve a copy of this Final Judgment on all Parties or their counsel within seven (7) days of receipt.
25. This Order terminates Docket 102 and Docket 109. The Clerk shall close the file.
IT IS SO ORDERED
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SAUNDRA BROWN ARMSTRONG
United States District Judge
EXHIBIT 1
LIST OF SETTLEMENT CLASS MEMBERS WHO TIMELY REQUESTED EXCLUSION 1. Stella Kotyuk 2. Facundo Torres M