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.
FINAL JUDGMENT AND ORDER OF DISMISSAL
LAURIE SMITH CAMP, CHIEF UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Plaintiffs’ Motion for Final Approval of Class Action Settlement and for Final Certification of Settlement Class (Filing No. 199) and the Plaintiffs’ Motion for Attorney Fees and Costs and Incentive Award (Filing No. 202). The Parties appeared before the Court for a hearing on these matters on February 1, 2016.
On or about February 2, 2012, Plaintiff, Amador L. Corona (“Plaintiff”) filed a proposed class action lawsuit, Amador L. Corona v. Transcendent One, Inc. and First National Bank of Omaha, Case No. CI 12-867, in the District Court of Douglas County, Nebraska, which was removed to the United States District Court for the District of Nebraska and docketed as Case No. 8:12-cv-0089 and later amended on March 21, 2013, and captioned as Amador L. Corona v. First National Bank of Omaha and United Bank Card, Inc. (doing business as Harbortouch) (the “Lawsuit”).
After extensive arms-length negotiations, discovery and motion practice, including a mediation, the Parties entered into a National Class Action Settlement and Release dated July 21, 2015 (the “Agreement”) (Filing No. 192-1). On July 22, 2015, Plaintiff filed the Agreement, along with his Motion for Preliminary Approval of Class Action Settlement (“Preliminary Approval Motion”). The Agreement includes Harbortouch Payments, LLC (formerly United Bank Card, Inc. d/b/a Harbortouch) (“Harbortouch”), First National Bank of Omaha, and TSYS Merchant Solutions, LLC as Released Persons.
In compliance with the Class Action Fairness Act of 2005, codified as 28 U.S.C. § 1715, Counsel for Harbortouch served written notice of the proposed class settlement on the United States Attorney General and the Attorneys General of the states in which Settlement Class members reside within 10 days after Plaintiff’s Motion for Preliminary Approval of Class Action Settlement and for Conditional Certification of Settlement Class was filed.
On August 26, 2015, upon consideration of Plaintiff’s Preliminary Approval Motion and the record, the Court entered an Order of Preliminary Approval of Class Settlement (“Preliminary Approval Order”). Pursuant to the Preliminary Approval Order, the Court, among other things, (i) preliminarily certified, for settlement purposes only, a class of plaintiffs referred to as the Settlement Class with respect to the claims asserted in the Lawsuit; (ii) preliminarily approved the proposed settlement; (iii) appointed Amador L. Corona as the Class Representative; (iv) appointed Joel Ewusiak, Ewusiak Law, P.A., 100 Main Street, Suite 205, Safety Harbor, FL 34695, Gary R. Pearson, 221 S. 66thStreet, Lincoln, N.E. 68510, Christopher Roberts, Chris Roberts Law Firm, P.A., 303 Main Street #654, Safety Harbor, FL 34695, and Scott E. Schutzman, Law Offices of Scott E. Schutzman, 3700 S. Susan Street, Suite 120, Santa Ana, CA 92704 as Class Counsel; (v) ordered that notice be given to Settlement Class Members; and (vi) set the date and time of the Fairness Hearing.
On February 1, 2016, a Fairness Hearing was held to determine whether the Lawsuit satisfies the applicable prerequisites for class action treatment and whether the proposed settlement is fundamentally fair, reasonable, adequate, and in the best interest of the Settlement Class and should be approved by the Court pursuant to Fed.R.Civ.P. 23.
Under Rule 23(e)(1)(C) the Proposed Settlement must be fair, reasonable, and adequate in the way the Proposed Settlement addresses the interests of all those who will be affected by it. To determine whether the settlement is fair, reasonable, and adequate, the Court must consider (i) the merits of the plaintiff's case, weighed against the terms of the settlement; (ii) the defendant's financial condition; (iii) the complexity and expense of further litigation; and (iv) the amount of opposition to the settlement. Prof'l Firefighters Ass'n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 648 (8th Cir. 2012). The Eighth Circuit has stated:
A strong public policy favors agreements, and courts should approach them with a presumption in their favor. Although a trial court must consider the terms of a class action settlement to the extent necessary to protect the interests of the class, judges should not substitute their own judgment as to optimal settlement terms for the judgment of the litigants and their counsel.
Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1148-49 (8th Cir. 1999) (internal marks and citations omitted).
The Court has considered the law, the Agreement, and all arguments and written submissions made in connection with the matter. No objections or comments by Settlement Class Members were received, and no Class Members appeared at the fairness hearing. For the reasons stated, the Court concludes the settlement is fair, reasonable, and adequate. Accordingly, IT IS ORDERED:
1. Plaintiffs’ Motion for Final Approval of Class Action Settlement and for Final Certification of Settlement Class (Filing No. 199), is granted.
2. The Court has jurisdiction over the subject matter of this action, Plaintiff, Harbortouch, all Settlement Class Members and all Released Parties.
3. Pursuant to Fed.R.Civ.P. 23(b)(3), the Lawsuit is hereby finally certified, for settlement purposes only, as a class action on behalf of the following 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 ...