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Labriola v. Bank of America, National Association

United States District Court, Ninth Circuit

August 29, 2013

JOHN ROBERT LABRIOLA, on behalf of himself and those similarly situated, Plaintiff;
v.
BANK OF AMERICA, NATIONAL ASSOCIATION; MERRILL LYNCH, PIERCE, FENNER & SMITH INCORP.; BANK OF AMERICA CORPORATION; and Does 3-50, inclusive, Defendant.

JAMES A. QUADRA, State Bar No. 131084, REBECCA M. COLL, State Bar No. 184468, QUADRA & COLL, LLP, San Francisco, California, Attorneys for John LaBriola on Behalf of Himself and Those Similarly Situated.

AMENDED ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT

CLUDIA WILKEN, District Judge.

The motion of Plaintiff John LaBriola, on behalf of himself and all those similarly situated, for Preliminary Approval of Class Settlement was heard in Courtroom 2 of the above-captioned Court before Honorable Claudia Wilken on May 30, 2013. The Court considered the papers submitted by the parties, including the Class Action Settlement Stipulation together with its exhibits ("Settlement Agreement"), and the arguments of counsel. Good cause appearing, the Court granted Plaintiff's Motion for Preliminary Approval of the Class Settlement on June 6, 2013. Thereafter, the parties submitted supplemental information showing good cause to amend the Court's Order Granting Preliminary Approval of the Class Action Settlement, including an amended Settlement Agreement (the "Amended Settlement Agreement"). The Court hereby amends its prior order and makes the following findings and orders:

1. The Court finds that the Amended Settlement Agreement submitted on August 7, 2013, incorporated herein by this reference and made a part of this Order of Preliminary Approval, has no obvious deficiencies, and is within the range of possible approval at the final approval hearing. It appears to the Court on a preliminary basis, that the settlement is fair and reasonable to Class Members when balanced against the risks of further litigation relating to liability and damages issues and potential appeals of rulings.

2. Significant investigation, research, and litigation have been conducted such that counsel for the parties at this time are able to reasonably evaluate their respective positions. Settlement at this time will avoid substantial costs, delay and risks that would be presented by the further prosecution of the litigation. The proposed settlement has been reached as a result of serious, informed, and non-collusive negotiations between the parties.

3. The proposed settlement does not appear to improperly grant preferential treatment to class representatives or segments of the Class.

4. Provisional certification of the proposed settlement class, for settlement purposes only, is appropriate under Federal Rules of Civil Procedures 23(a) and 23(b)(3). The Court makes the following findings:

a. The proposed settlement class is numerous, in that it includes approximately 275 class members, and joinder would be impractical.

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

c. The claims of the Class are typical of the claims or defenses of the class.

d. Proposed class representative John LaBriola will fairly and adequately protect the interests of the class.

e. The proposed settlement class is ascertainable, because the settlement class definition allows members of the settlement class to identify themselves, and because Defendant's own records allow for identification of members of the settlement class.

f. Questions of law or fact common to class members predominate over any questions affecting only individual members.

g. A class action is superior to other available methods for fairly and efficiently adjudicating the parties' controversy. Approving provisional certification of the settlement class will provide ...


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