United States District Court, D. Nebraska
AMADOR L. CORONA, Attorney at Law, individually and on behalf of all other similarly situated persons; Plaintiff,
UNITED BANK CARD, INC., a corporation; Defendant.
ORDER GRANTING PRELIMINARY APPROVAL PROPOSED SETTLEMENT
LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Motion for Preliminary Approval of Class Action Settlement and for Conditional Certification of Settlement Class (Filing No. 190) filed by the Plaintiff, and the Findings and Recommendation (Filing No. 194) issued by Magistrate Judge F.A. Gossett. Defendant has indicated that it does not object to the Findings and Recommendation. (Filing No. 195.) The parties to this action, Plaintiff, Amador L. Corona and Defendant, Harbortouch Payments, LLC (formerly United Bank Card, Inc. d/b/a Harbortouch), through their respective counsel, have entered into a National Class Action Settlement and Release dated July 21, 2015 (“Agreement”), and subject to Court approval and following Notice to the Class Members and a Fairness Hearing, the parties have agreed to settle this above-captioned lawsuit (“Lawsuit”) upon the terms and conditions set forth in the Agreement and dismiss the Lawsuit with prejudice. The Court incorporates by reference the definitions set forth in the Agreement. Based upon the Agreement, the record, and proceedings in this case, and the Court deeming that the definitions set forth in the Agreement:
IT IS ORDERED:
1. The Findings and Recommendation (Filing No. 194) issued by Magistrate Judge F.A. Gossett are adopted in their entirety.
2. The Motion for Preliminary Approval of Class Action Settlement and for Conditional Certification of Settlement Class (Filing No. 190) is granted, as follows:
3. The Court has jurisdiction over the subject matter of this action, Plaintiff, Amador L. Corona (“Plaintiff”), Defendant, Harbortouch Payments, LLC (formerly United Bank Card, Inc. d/b/a Harbortouch) (“Harbortouch”), all members of the Settlement Class, and all Released Parties.
4. Pursuant to Fed.R.Civ.P. 23(b)(3), the Lawsuit is hereby preliminarily certified as a class action, for settlement purposes only, on behalf of the following Settlement Class with respect to the claims asserted in the Lawsuit:
All Persons within the United States that are or were Harbortouch Merchants, and that paid Harbortouch an IRS Processing Validation Fee and did not receive a full refund, provided that the Person submitted a Merchant Application to Harbortouch prior to February 1, 2009.
Excluded from the Settlement Class are:
a. Persons that received a full refund of IRS Processing Fees paid;
b. Persons that believed, before signing the Merchant Application, that First National Bank of Omaha or Harbortouch had a right under the contract to unilaterally amend or modify contractual terms that would permit the assessment of the IRS Processing Validation Fees, after providing 30 days’ written notice;
c. Harbortouch and its employees, officers, directors, and all persons with a controlling interest, and Harbortouch’s legal representatives, predecessors, successors and assigns; and
d. Persons that submitted a valid and timely request for exclusion from the Settlement Class.
5. Pursuant to Fed.R.Civ.P. 23, the Court preliminarily certifies, for settlement purposes only, Plaintiff, Amador L. Corona as the Class Representative and Joel Ewusiak, Ewusiak Law, P.A., 100 Main Street, Suite 205, Safety Harbor, FL 34695, Gary R. Pearson, 221 S. 66th Street, Lincoln, NE 68510, Christopher Roberts, Chris Roberts Law Firm, P.A., 303 Main Street #654, Safety Harbor, FL 34695, and Scott E. ...