Common use of Settlement Class Certification Clause in Contracts

Settlement Class Certification. 47. Defendant disputes that a class would be manageable or that common issues predominate over individual ones, and further denies that a litigation class properly could be certified on the claims asserted in the Litigation. However, solely for purposes of avoiding the expense and inconvenience of further litigation, Defendant does not oppose the certification of the Class for settlement purposes only. Preliminary certification of the Class for settlement purposes shall not be deemed a concession that certification of a litigation class is appropriate, nor would Defendant be precluded from challenging class certification in further proceedings in the Litigation or in any other action if the Settlement Agreement is not finalized or finally approved. If the Settlement Agreement is not finally approved by the Court for any reason whatsoever, any certification of the Class will be void, and no doctrine of waiver, estoppel or preclusion will be asserted against Defendant in any litigated certification proceedings in the Litigation. No agreements made by or entered into by Defendant in connection with the Settlement Agreement may be used by Plaintiffs, any person in the Class or any other person to establish any of the elements of class certification in any litigated certification proceedings, whether in the Litigation or any other judicial proceeding. 48. Subject to Court approval, and for settlement purposes only, the following Class shall be certified: All persons a. who were users or subscribers to a wireless or cellular telephone service within the United States to which ▇▇▇▇▇ Fargo made or initiated any Call in connection with the collection or servicing of a mortgage or home equity loan, credit card account, retail installment sale contract for an automobile, automobile loan, overdraft on a deposit account, student loan, or in connection with a fraud alert on a credit card or deposit account, using any automated dialing technology or artificial or prerecorded voice technology; b. who were not customers of ▇▇▇▇▇ Fargo at the time of the Call; and, c. who were Called between January 20, 2013 and the entry of the Preliminary Approval Order for Calls placed in connection with automobile loans or fraud alerts on credit cards or deposit accounts; between September 18, 2014 and the entry of the Preliminary Approval Order for Calls placed in connection with credit card accounts; between December 20, 2015 and the entry of the Preliminary Approval Order for Calls placed in connection with student loans or overdrafts on deposit accounts; between March 1, 2016 and the entry of the Preliminary Approval Order for Calls placed in connection with mortgages or home equity loans; or between April 1, 2016 and the entry of the Preliminary Approval Order for Calls placed in connection with retail installment sale contracts for automobiles. d. Excluded from the Class are Defendant, any affiliate or subsidiary of Defendant, any entities in which such companies have a controlling interest, the Court and staff to whom this case is assigned, and any member of the Court’s or staff’s immediate family. 49. If for any reason the settlement is not granted preliminary and final approval, Defendant’s agreement to certification of the Class shall not be used for any purpose, including in any request for class certification in the Litigation or any other proceeding.

Appears in 3 contracts

Sources: Settlement Agreement, Settlement Agreement, Settlement Agreement

Settlement Class Certification. 47. 5.1 The Class Plaintiffs will seek, and Settling Defendant disputes that shall not oppose, the Court’s certification of a class would be manageable or that common issues predominate over individual ones, and further denies that a litigation class properly could be certified on the claims asserted in the Litigation. However, solely for purposes of avoiding the expense and inconvenience of further litigation, Defendant does not oppose the certification of the Class for settlement purposes onlyonly (the “Settlement Class”) pursuant to Fed. Preliminary certification of the R. Civ. P. 23(b)(3), which Settlement Class for settlement purposes shall not be deemed a concession that certification of a litigation class is appropriate, nor would as to Settling Defendant be precluded from challenging class certification in further proceedings in the Litigation or in any other action if the Settlement Agreement is not finalized or finally approved. If the Settlement Agreement is not finally approved by the Court for any reason whatsoever, any certification of the Class will be void, and no doctrine of waiver, estoppel or preclusion will be asserted against Defendant in any litigated certification proceedings in the Litigation. No agreements made by or entered into by Defendant in connection with the Settlement Agreement may be used by Plaintiffs, any person in the Class or any other person to establish any of the elements of class certification in any litigated certification proceedings, whether in the Litigation or any other judicial proceeding. 48. Subject to Court approval, and for settlement purposes only, the following Class shall be certifieddefined as follows: All persons a. who were users persons or subscribers entities who, from January 1, 2005 to a wireless or cellular telephone service within the United States to which ▇▇▇▇▇ Fargo made or initiated any Call in connection with the collection or servicing of a mortgage or home equity loan, credit card account, retail installment sale contract for an automobile, automobile loan, overdraft on a deposit account, student loan, or in connection with a fraud alert on a credit card or deposit account, using any automated dialing technology or artificial or prerecorded voice technology; b. who were not customers of ▇▇▇▇▇ Fargo at the time of the Call; and, c. who were Called between January 20, 2013 and the entry date of the Preliminary Approval Order Order, entered into an SSA bond transaction with a Defendant; a direct or indirect parent, subsidiary, affiliate, or division of a Defendant; a Released Party; or an alleged co-conspirator, where such Persons were either domiciled in the United States or its territories or, if domiciled outside of the United States or its territories, entered into an SSA bond transaction in the United States or its territories or that otherwise involved United States trade or commerce. Excluded from the Settlement Class are Defendants, their co-conspirators identified herein, and their officers, directors, management, employees, current subsidiaries or affiliates, and all federal governmental entities; provided, however, that Investment Vehicles shall not be excluded from the definition of the Settlement Class. If Co-Lead Counsel broadens the class definition in an amended complaint, the term “Settlement Class” in this Agreement shall incorporate by reference the broader definition. 5.2 The Parties’ agreement as to certification of the Settlement Class is only for Calls placed purposes of effectuating this Settlement as to Settling Defendant, and for no other purpose. Settling Defendant retains all of its objections, arguments, and defenses, and reserves all rights to contest class certification if the Settlement set forth in connection with automobile loans this Agreement does not receive the Court’s final approval, if the Court’s approval is reversed or fraud alerts vacated on credit cards appeal, if this Agreement is terminated as provided herein, or deposit accountsif the Settlement set forth in this Agreement otherwise fails to proceed for any other reason. The Parties acknowledge that there has been no stipulation to a class or certification of a class for any purpose other than effectuating the Settlement, and that, if the Settlement set forth in this Agreement does not receive the Court’s final approval, if the Court’s approval is reversed or vacated on appeal, if this Agreement is terminated as provided herein, or if the Settlement set forth in this Agreement otherwise fails to close for any other reason, then this Agreement as to certification of the Settlement Class becomes null and void ab initio, and neither this Agreement nor any other Settlement-related statement may be cited in support of an argument for certifying a class related to this proceeding. 5.3 Any Person falling within the definition of the Settlement Class may submit a Request for Exclusion. A Request for Exclusion must be (i) in writing; between September 18(ii) signed by the Person or his, 2014 her, or its authorized representative; (iii) state the name, address, and phone number of that Person; and (iv) include (a) proof of membership in the Settlement Class and (b) a signed statement that “I/we hereby request that I/we be excluded from the Settlement Class in the In re SSA Bonds Antitrust Litigation.” Unless the Court orders otherwise, a Request for Exclusion that does not include all of the foregoing information, that does not contain the proper signature, that is sent to an address other than the one designated in the Notice, or that is not sent within the appropriate deadlines as the Court may allow, shall be invalid, and the entry Person(s) filing such an invalid request shall be a Settlement Class Member and shall be bound by the settlement set forth in the Agreement, if approved. All Persons who submit valid and timely Requests for Exclusion in the manner set forth in this Paragraph shall be excluded from the Settlement Class, shall have no rights under the Agreement, shall not share in the distribution of the Settlement Fund, and shall not be bound by the Agreement. All Persons who submit valid and timely Requests for Exclusion in the manner set forth in this Paragraph shall also be excluded from the settlement class with respect to any other settlement agreement with any other Defendant if such settlement has received preliminary approval as of the date the Notice is sent to Settlement Class Members. 5.4 Any Person who has not requested exclusion from the Settlement Class and who objects to the settlement set forth in this Agreement may appear in person or through counsel, at that Person’s own expense, at the Fairness Hearing to present any evidence or argument that the Court deems proper and relevant. However, no such Person shall be heard, and no papers, briefs, pleadings, or other documents submitted by any such Person shall be received and considered by the Court, unless such Person properly submits a written objection that includes (i) a notice of intention to appear; (ii) proof of membership in the Settlement Class; and (iii) the specific grounds for the objection and any reasons why such Person desires to appear and be heard, as well as all documents or writings that such Person desires the Court to consider. Such written objection must be both filed with the Court no later than fifty (50) days prior to the date set for the Fairness Hearing and mailed to Co-Lead Counsel and Bank of America’s counsel at the addresses provided in the Notice and postmarked no later than fifty (50) days prior to the date set for the Fairness Hearing. Any Person that fails to object in the manner prescribed herein shall be deemed to have waived his, her, or its objections and will forever be barred from making any such objections in the Action, unless otherwise excused for good cause shown, as determined by the Court. 5.5 If the Preliminary Approval Order for Calls placed in connection with credit card accounts; between December 20, 2015 and the Notice are approved by the Court, Co-Lead Counsel shall submit, and Bank of America shall support, a motion for entry of a Final Judgment and Order of Dismissal, substantially in the Preliminary Approval Order form of Exhibit B attached hereto, that: (i) certifies the Settlement Class pursuant to Fed. R. Civ. P. 23(a) and Fed. R. Civ. P. 23(b)(3) solely for Calls placed the purpose of the settlement; (ii) approves finally the settlement set forth in connection with student loans or overdrafts on deposit accounts; between March 1this Agreement and its terms as being a fair, 2016 reasonable, and adequate settlement as to Settlement Class Members within the meaning of Fed. R. Civ. P. 23 and directing its consummation according to its terms; (iii) finds that the Settlement Class Notice constituted due, adequate, and sufficient notice of the settlement set forth in this Agreement and the entry Fairness Hearing and meets the requirements of due process and the Federal Rules of Civil Procedure; (iv) directs that, as to the Released Parties, the Action shall be dismissed with prejudice and, except as provided for in this Agreement, without costs; (v) orders that the Releasing Parties are permanently enjoined and barred from instituting, commencing, or prosecuting any action or other proceeding asserting any Released Claims against any Released Party; (vi) retains with the Court exclusive jurisdiction over the Settlement and this Agreement, including the administration and consummation of the Preliminary Approval Order Settlement; and determines under Fed. R. Civ. P. 54(b) that there is no just reason for Calls placed in connection with mortgages or home equity loans; or between April 1, 2016 delay and directs that the entry judgment of the Preliminary Approval Order for Calls placed in connection with retail installment sale contracts for automobilesdismissal as to Settling Defendant shall be final and entered forthwith. d. Excluded from the Class are Defendant, any affiliate or subsidiary of Defendant, any entities in which such companies have a controlling interest, the Court and staff to whom this case is assigned, and any member of the Court’s or staff’s immediate family. 49. If for any reason the settlement is not granted preliminary and final approval, Defendant’s agreement to certification of the Class shall not be used for any purpose, including in any request for class certification in the Litigation or any other proceeding.

Appears in 2 contracts

Sources: Settlement Agreement, Settlement Agreement

Settlement Class Certification. 4772. Defendant Landmark disputes that a class would be manageable or that common issues predominate over individual ones, and further denies that a any litigation class properly could be certified on the claims asserted in the Litigation. However, solely for purposes of avoiding the expense and inconvenience of further litigation, Defendant Landmark does not oppose the certification of the Class for settlement purposes only. Preliminary certification of the Class for settlement purposes shall not be deemed a concession that certification of a litigation class is appropriate, nor would Defendant Landmark be precluded from challenging class certification in further proceedings in the Litigation or in any other action if the Settlement Agreement is not finalized or finally approved. If the Settlement Agreement is not finally approved by the Court for any reason whatsoever, any certification of the Class will be void, and no doctrine of waiver, estoppel estoppel, or preclusion will be asserted against Defendant Landmark in any litigated certification proceedings in the Litigation. No agreements made by or entered into by Defendant Landmark in connection with the Settlement Agreement may be used by Plaintiffs, any person in the Joint Owner, Class Members, or any other person to establish any of the elements of class certification in any litigated certification proceedings, whether in the Litigation or any other judicial proceeding. 4873. Subject to Court approval, and for settlement purposes only, the following Settlement Class shall be certified: All persons a. who were users holders of a personal or subscribers business checking account originally established at Landmark Bank, including former holders and holders with accounts transitioned to a wireless or cellular telephone service within the United States to which ▇▇▇▇▇▇▇ Fargo made or initiated any Call in connection with the collection or servicing of a mortgage or home equity loanBank, credit card account, retail installment sale contract for an automobile, automobile loan, overdraft on a deposit account, student loan, or in connection with a fraud alert on a credit card or deposit account, using any automated dialing technology or artificial or prerecorded voice technology; b. who were not customers of ▇▇▇▇▇ Fargo at the time regardless of the Call; and, c. who were Called between January 20state of residence or citizenship of its account holder, 2013 and who, during the entry of the Preliminary Approval Order for Calls placed in connection with automobile loans Class Period, incurred one or fraud alerts more Challenged Fees based on credit cards or deposit accounts; between September 18, 2014 and the entry of the Preliminary Approval Order for Calls placed in connection with credit card accounts; between December 20, 2015 and the entry of the Preliminary Approval Order for Calls placed in connection with student loans or overdrafts on deposit accounts; between March 1, 2016 and the entry of the Preliminary Approval Order for Calls placed in connection with mortgages or home equity loans; or between April 1, 2016 and the entry of the Preliminary Approval Order for Calls placed in connection with retail installment sale contracts for automobilesAPSN Transactions. d. Excluded from the Class are Defendant, any affiliate or subsidiary of Defendant, any entities in which such companies have a controlling interest, the Court and staff to whom this case is assigned, and any member of the Court’s or staff’s immediate family. 4974. If for any reason the this settlement is not granted preliminary and final approval, Defendantor if this Agreement is terminated in accordance with its terms, the Parties, pleadings and proceedings will return to the status quo ante as if no settlement had been negotiated or entered into, and as if no Amended Class Action Complaint had been filed (such amendment being solely for settlement purposes). Plaintiffs shall file such motions and pleadings as are necessary to return this case to the Litigation posture that existed before this settlement was reached, and to ensure that the Parties are postured in the Litigation as they were before the Amended Class Action Complaint was filed. Landmark’s agreement herein to certification of the Settlement Class as described in the Amended Class Action Complaint or otherwise shall not be used for any purpose, including in any request resolving Plaintiffs’ motion for class certification in the Litigation or any request for certification in any other proceeding.

Appears in 1 contract

Sources: Settlement Agreement

Settlement Class Certification. 4764. Defendant Provident disputes that a class would be manageable or that common issues predominate over individual ones, and further denies that a any litigation class properly could be certified on the claims asserted in the Litigation. However, solely for purposes of avoiding the expense and inconvenience of further litigation, Defendant Provident does not oppose the certification of the Class for settlement purposes only. Preliminary certification of the Class for settlement purposes shall not be deemed a concession that certification of a litigation class is appropriate, nor would Defendant Provident be precluded from challenging class certification in further proceedings in the Litigation or in any other action if the Settlement Agreement is not finalized or finally approved. If the Settlement Agreement is not finally approved by the Court for any reason whatsoever, any certification of the Class will be void, and no doctrine of waiver, estoppel estoppel, or preclusion will be asserted against Defendant Provident in any litigated certification proceedings in the Litigation. No agreements made by or entered into by Defendant Provident in connection with the Settlement Agreement may be used by PlaintiffsPlaintiff, any person in the Class Members, or any other person to establish any of the elements of class certification in any litigated certification proceedings, whether in the Litigation or any other judicial proceeding. 4865. Subject to Court approval, and for settlement purposes only, the following Settlement Class shall be certified: All persons a. who were users or subscribers to a wireless or cellular telephone service within the United States to which ▇▇▇▇▇ Fargo made or initiated any Call in connection with the collection or servicing holders of a mortgage personal or home equity loanbusiness checking account originally established at Provident Bank, credit card account, retail installment sale contract for an automobile, automobile loan, overdraft on a deposit account, student loan, or in connection with a fraud alert on a credit card or deposit account, using any automated dialing technology or artificial or prerecorded voice technology; b. who were not customers of ▇▇▇▇▇ Fargo at the time regardless of the Call; and, c. who were Called between January 20state of residence or citizenship of its account holder, 2013 and who, during the entry of the Preliminary Approval Order for Calls placed in connection with automobile loans Class Period, incurred one or fraud alerts more Challenged Fees based on credit cards or deposit accounts; between September 18, 2014 and the entry of the Preliminary Approval Order for Calls placed in connection with credit card accounts; between December 20, 2015 and the entry of the Preliminary Approval Order for Calls placed in connection with student loans or overdrafts on deposit accounts; between March 1, 2016 and the entry of the Preliminary Approval Order for Calls placed in connection with mortgages or home equity loans; or between April 1, 2016 and the entry of the Preliminary Approval Order for Calls placed in connection with retail installment sale contracts for automobilesAPSN Transactions. d. Excluded from the Class are Defendant, any affiliate or subsidiary of Defendant, any entities in which such companies have a controlling interest, the Court and staff to whom this case is assigned, and any member of the Court’s or staff’s immediate family. 4966. If for any reason the this settlement is not granted preliminary and final approval, Defendantor if this Agreement is terminated in accordance with its terms, the Parties, pleadings and proceedings will return to the status quo ante as if no settlement had been negotiated or entered into. Plaintiff shall file such motions and pleadings as are necessary to return this case to the Litigation posture that existed before this settlement was reached, and to ensure that the Parties are postured in the Litigation as they were before the Mediation was completed. Provident’s agreement herein to certification of the Settlement Class as described in the Complaint or otherwise shall not be used for any purpose, including in resolving any request motion for class certification in the Litigation or any request for certification in any other proceeding.

Appears in 1 contract

Sources: Settlement Agreement