united states district court district of new … motion for award of... · td bank, n.a.,...

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

REGINA C. FILANNINO-RESTIFO, on Behalf of Herself and All Others Similarly Situated, Plaintiff,

TD BANK, N.A., Defendant.

Case No.: 16-2374 (JBS-JS) UNOPPOSED MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS, AND SERVICE AWARD HEARING DATE: JANUARY 11, 2018

DAVID DIAZ and RYAN FRANCO, Individually and on Behalf of All Other Others Similarly Situated, Plaintiffs,

Case No.: 16-2395 (JBS-JS)

NONA LUCE, on Behalf of Herself and All Others Similarly Situated, Plaintiff,

DAVID SPECTOR, on Behalf of Himself and All Others Similarly Situated, Plaintiff,

Case 1:16-cv-02374-JBS-JS Document 56 Filed 12/19/17 Page 1 of 4 PageID: 1085

DAVID McENERNEY, on Behalf of Himself and All Others Similarly Situated, Plaintiff,

CHRISTINE KRULAN, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,

JUAN CARLOS MACIAS, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,

TD BANK, N.A, Defendant.

JEFFREY FEINMAN, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,

UNOPPOSED MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS, AND SERVICE AWARD

Representative Plaintiffs, Regina C. Filannino-Restifo, David Diaz, Ryan Franco, Nona

Luce, David Spector, David McEnerney, Christine Krulan, Juan Carlos Macias, Crossroad

Foundation, Andrew Sobczak, Alexis Mullen, Tracy Olechowski and Jeffrey Feinman (the

“Representative Plaintiffs”), having reached an agreement in principle with Defendant, TD Bank,

N.A. (herein “TD Bank” and, together with Representative Plaintiffs, the “Parties”) to settle the

above captioned cases, respectfully move this Court to enter the proposed Order approving an

award of attorneys’ fees, reimbursement of costs and approval of service award to the named

plaintiffs (the “Final Approval Order”).

In support of this unopposed motion, Representative Plaintiffs submit the enclosed

memorandum of law and exhibits.

Respectfully submitted this 19th day of December 2017.

Dated: December 19, 2017

/s/ Stephen P. DeNittis Stephen P. DeNittis, Esquire DENITTIS OSEFCHEN, P.C. 525 Route 73 North – Suite 410 Marlton, New Jersey 08053 On behalf of Plaintiffs David Spector, Regina Filannino-Restifo

And Jeffrey Smith, Esquire WOLF HALDENSTEIN ADLER

FREEMAN & HERZ, LLP 270 Madison Avenue New York, NY 10016 On behalf of Plaintiff Regina Filannino-Restifo

Bruce Heller Nagel, Esquire Robert H. Solomon, Esquire Greg M. Kohn, Esquire NAGEL RICE, LLP 103 Eisenhower Parkway Roseland, New Jersey 07068 On behalf of Plaintiffs Christine Krulan, David Diaz and Ryan Franco

Michael Elliot Criden, Esquire Lindsey Caryn Grossman, Esquire Kevin Bruce Love, Esquire CRIDEN & LOVE, P.A. 7301 SW 57th Court – Suite 515 South Miami, FL 33143 On behalf of Plaintiff Juan Carlos Macias

John D. Radice, Esquire Kenneth B. Pickle, Esquire RADICE LAW FIRM, P.C. 34 Sunset Boulevard Long Beach, NJ 08008 On behalf of Plaintiff David McEnerney

Jeffrey H. Squire, Esquire Lawrence P. Eagel, Esquire David J. Stone, Esquire BRAGAR EAGEL & SQUIRE, P.C. 885 Third Avenue – Suite 3040 New York, NY 10022 On behalf of Plaintiff Jeffrey Feinman

Michael J. DeBenedictis, Esquire DeBENEDICTIS & DeBENEDICTIS 20 Brace Road – Suite 350 Cherry Hill, NJ 08034 On behalf of Plaintiff Nona Luce

Case 1:16-cv-02374-JBS-JS Document 56-1 Filed 12/19/17 Page 1 of 20 PageID: 1089

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

REGINA C. FILANNINO-RESTIFO, on Behalf of Herself and All Others Similarly Situated, Plaintiff,

DAVID DIAZ and RYAN FRANCO, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,

NONA LUCE, on Behalf of Herself and All Others Similarly Situated, Plaintiff,

DAVID SPECTOR, on Behalf of Himself and All Others Similarly Situated, Plaintiff,

DAVID McENERNEY, on Behalf of Himself and All Others Similarly Situated, Plaintiff,

CHRISTINE KRULAN, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,

JUAN CARLOS MACIAS, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,

JEFFREY FEINMAN, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiffs,

ORDER GRANTING CLASS CERTIFICATION OF A SETTLEMENT CLASS AND FINAL APPROVAL OF A PROPOSED CLASS ACTION

SETTLEMENT, GRANTING PLAINTIFFS’ COUNSEL’S APPLICATION FOR ATTORNEYS’ FEES AND LITIGATION COSTS, AND GRANTING

REPRESENTATIVE PLAINTIFFS A SERVICE AWARD

THIS MATTER having been opened to the Court by Class Counsel, on behalf of Regina

C. Filannino-Restifo, David Diaz, Ryan Franco, Nona Luce, David Spector, David McEnerney,

Christine Krulan, Juan Carlos Macias, Crossroad Foundation, Andrew Sobczak, Alexis Mullen,

Tracy Olechowski and Jeffrey Feinman (the “Representative Plaintiffs”) by way of their

unopposed motions for final approval of their proposed settlement with TD Bank, N.A. (“TD

Bank”) (together with Representative Plaintiffs, the “Parties”) and for an award of Attorneys’ Fees

and Litigation Costs to Class Counsel and a Service Award to Representative Plaintiffs in the

above Actions;

WHEREAS, the Court having reviewed and considered the motions and supporting

materials filed by Class Counsel, and having also reviewed the court file in these Actions;

WHEREAS, this Court has fully considered the record and the requirements of law; and

good cause appearing;

WHEREAS, the Court finds that the Settlement Agreement was entered into at arm’s

length by experienced counsel and only after mediation and extensive negotiations and is not the

result of collusion; and

WHEREAS, the Court granted Representative Plaintiffs’ Motion for Preliminary

Approval of the Settlement Agreement on July 12, 2017, and conditionally certified the

Settlement Class solely for purposes of settlement (ECF No. 43) (“Preliminary Approval

Order”); and

WHEREAS, pursuant to the Settlement Agreement and the Court’s Preliminary Approval

Order, a class list was compiled from a review of the records of TD Bank. Following that

review, a total of approximately 5.1 million Account holders were identified. Settlement Class

Members were thereafter provided with notice and an opportunity to object to the Settlement or

opt-out of the Settlement Class; and

WHEREAS, the Court conducted a fairness hearing on January 11, 2018; and

WHEREAS, the Court has fully considered the record of these proceedings, the

representations, argument, and recommendation of counsel for the Parties, and the requirements

of law and good cause appearing,

IT IS THIS ____ day of ______________, 2018, ORDERED that the Final Approval and Judgment is GRANTED, subject to the

following terms and conditions:

1. Definitions. Unless otherwise provided herein, the Court adopts and incorporates

the definitions to all capitalized terms in the Settlement Agreement and those defined terms shall

have the same meaning in this Order.

2. Approval of Settlement Agreement. The Court finds, upon review of the

Settlement Agreement and consideration of the nine factors enunciated in Girsh v. Jepson, 521

F.2d 153, 157 (3d Cir. 1975), that the Settlement and the proposed payment distribution

program provided for in the Settlement are fair, reasonable and adequate. Accordingly the terms

of the Settlement, including all exhibits thereto, are approved in their entirety by the Court and

incorporated into this Order as if expressly set forth and shall have the same force and effect as

an Order of the Court. The Parties and their counsel are ordered to implement and to

consummate the Settlement Agreement according to its terms and provisions. The releases set

forth in the Settlement Agreement are incorporated by reference.

3. Approval of Settlement Class. This Court certifies the following Settlement Class

for settlement purposes pursuant to Fed. R. Civ. P. 23(a) and (b)(3), including because the proposed

Settlement Class is currently and readily ascertainable based on objective criteria:

All persons in the United States who, between April 11, 2010 and Preliminary Approval, used a TD Bank Penny Arcade machine to exchange coins for a credit to a TD Bank Account or for cash. Excluded from the Settlement Class are all current TD Bank employees, officers and directors, counsel for TD Bank, Class Counsel, the judges presiding over the Actions, and the immediate family members of such judges, and any and all Settlement Class Members who timely and validly requested exclusion from the Settlement Class.

The Court finds that the Settlement Class meets all the applicable requirements of Rule 23 of the

Federal Rules of Civil Procedure, affirms certification of the Settlement Class for settlement

purposes, and approves the Settlement set forth in the Agreement as being fair, just reasonable,

and adequate. Specifically, the Court finds and concludes:

a. The Settlement Class is so numerous that joinder of all members is impracticable,

satisfying the requirement of Rule 23(a)(1);

b. There are questions of law or fact common to the Settlement Class, satisfying the

requirements of Rule 23(a)(2) and Rule 23(c)(1)(B);

c. The claims of the Representative Plaintiffs are typical of the claims of the Settlement

Class, satisfying the requirements of Rule 23(a)(3);

d. The Representative Plaintiffs will fairly and adequately protect the interests of the

Settlement Class, the interests of the Representative Plaintiffs are not antagonistic to

those of the Settlement Class, and the Representative Plaintiffs are represented by

counsel who are experienced and competent in the prosecution of complex class

action litigation, satisfying the requirements of Rule 23(a)(4);

e. Questions of law or fact common to the members of the Settlement Class

predominate over questions affecting only individual members, and a class action is

superior to other methods available for the fair and efficient adjudication of the

controversy, satisfying the requirements of Rule 23(b)(3); and

f. The action is manageable as a class action.

4. Approval of Plan of Allocation. The plan of allocation described in the Settlement

Agreement and Long Form Notice is approved as fair, reasonable, and adequate to the Settlement

Class Members, and the Parties and the Settlement Administrator are directed to administer the

Settlement accordingly.

5. Adequacy of Notices. The Court finds that due and adequate Notices were provided

pursuant to Rule 23 of the Federal Rules of Civil Procedure to all members of the Settlement

Class, notifying the Settlement Class of, inter alia, the pendency of this action and the proposed

Settlement. The Notices provided were the best notice practicable under the circumstances and

included individual notice by email or first class mail to all members of the Settlement Class who

could be identified through reasonable effort. The Notices provided to the Settlement Class fully

complied in all respects with the requirements of Rule 23.

6. Opt-Out Settlement Class Members. In accordance with the terms of the

Settlement Agreement, Class Counsel filed under seal with this Court a schedule of all

Settlement Class Members who have timely and validly requested to be excluded from the

Settlement Class and accordingly are not included in or bound by this Final Judgment and Order.

The Settlement Class Members who have opted-out are not entitled to receive any

reimbursement as described in the Settlement Agreement, Long Form Notice, Postcard Notice or

Claim Form.

7. Approval of Class Representatives. Based upon the Court’s familiarity with the

claims and parties, the Court finds that the Representative Plaintiffs adequately represent the

interests of the Settlement Class and hereby appoint the Representative Plaintiffs as Class

Representatives.

8. Approval of Class Counsel. The Court hereby appoints Bruce H. Nagel of Nagel

Rice, LLP (“Nagel”), Michael Criden of Criden & Love, P.A. (“Criden”), Jeffrey Smith of Wolf

Haldenstein Adler Freeman & Herz, LLP (“Wolf”), and John Radice of Radice Law Firm

(“Radice”) as Class Counsel pursuant to Rule 23(g) and preliminarily finds that they fairly and

adequately represent the interests of the Settlement Class. The Court further appoints Stephen

DeNittis to serve as liaison counsel for the Settlement Class in these Actions.

9. Binding. The terms of this Final Approval Order and Judgment and the

Settlement are binding on the Representative Plaintiffs and all members of the Settlement Class

who have not timely and validly opted-out and shall have res judicata, collateral estoppel, and all

other preclusive effect in any claims for relief, causes of action, suits, petitions, demands in law

or equity, or any allegations of liability, damages, debts, contracts, agreements, obligations,

promises, attorneys’ fees, costs, interests, or expenses that were or could have been asserted in

these Actions.

10. Dismissal With Prejudice of Complaints. The Complaints in the Actions are

dismissed with prejudice.

11. Dismissal of Released Claims. All Released Claims (as defined in the

Settlement Agreement) that were asserted against TD Bank, N.A. in these Actions are dismissed

with prejudice. Furthermore, Representative Plaintiffs and the Settlement Class are barred and

permanently enjoined from instituting or prosecuting any Released Claims against TD Bank,

N.A., whether or not such Released Claims were asserted in the Actions.

12. Disbursement of Claims. The Parties and the Settlement Administrator shall

distribute the proceeds of the Settlement Fund, in accordance with the terms of the Settlement

Agreement.

13. Class Counsel’s Attorneys’ Fees. Class Counsel is hereby awarded reasonable

Attorneys’ Fees in the amount of $______________ and costs in the amount of

$_______________. These amounts shall be paid and distributed in accordance with the

Settlement Agreement.

14. Representative Plaintiffs’ Service Award. Each Representative Plaintiff is

hereby awarded a Service Award in the amount of $_______________. This Service Award

shall be paid and distributed in accordance with the Settlement Agreement.

15. Ongoing Jurisdiction. Without affecting the finality of this Final Approval Order

and Judgment, the Court shall retain continuing jurisdiction over this action, the Parties and the

Settlement Class, for the purposes of, inter alia, implementing and enforcing the Settlement

Agreement (including any issue that may arise in connection with the formation and/or

administration of the Settlement Fund).

16. No Admission. Neither this Order nor the Settlement Agreement nor any other

Settlement-related document nor anything contained herein or therein or contemplated hereby or

thereby nor any proceedings undertaken in accordance with the terms set forth in the Settlement

Agreement or herein, or in any other Settlement-related document, shall constitute, be construed

as or be deemed to be evidence of, or an admission or concession by the Parties as to the validity

of any claim that has been or could have been asserted against any or all of them or as to the

propriety of class certification for any purposes other than for purposes of the current proposed

Settlement.

Dated:____________ _______________________________ JEROME B. SIMANDLE, U.S.D.J.

CERTIFICATE OF SERVICE I, Stephen P. DeNittis, of full age certify under penalty of perjury that on this day, I

caused to be served, via ECF, on all counsel of record a copy of (a) Unopposed Motion for

Award of Attorneys’ Fees, Costs, and Service Award; (b) Brief in Support of Application for

Award of Attorneys’ Fees, Reimbursement of Coasts and Appr oval of Service Awards to

Named Plaintiffs; (c) Certification of Stephen P. DeNittis, Esq. in Support of Final Approval of

Proposed Class Action Settlement and Approval of Plaintiffs’ Application for an Award of

Attorneys’ Fees, Costs and Incentive Award; and (g) Proposed Form of Order.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

Dated: December 19, 2017 /s/ Stephen P. DeNittis Stephen P. DeNittis

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