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Spears v. First American Eappraiseit

United States District Court, N.D. California, San Jose Division

April 27, 2015

FELTON A. SPEARS, JR. and SIDNEY SCHOLL, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
FIRST AMERICAN EAPPRAISEIT (a/k/a eAppraiseIT, LLC), a Delaware limited liability company, Defendant.

FEINSTEIN DOYLE PAYNE & KRAVEC, LLC, Joseph N. Kravec, Jr., (pro hac vice), Pittsburgh, PA, Co-Lead Counsel and Co-Lead Trial Counsel for Plaintiff and the Class.

KELLER ROHRBACK L.L.P., Lynn Lincoln Sarko (pro hac vice), Gretchen Freeman Cappio (pro hac vice), Tana Lin (pro hac vice), Raymond Farrow (pro hac vice). Seattle, WA, Khesraw Karmand. Matthew J. Preusch, Santa Barbara, CA, Co-Lead Trial Counsel for Plaintiff and the Class.

LAW OFFICE OF JANET LINDNER SPIELBERG, Jane indner Spielberg, Los Angeles, CA, Co-Lead Counsel and Trial Counsel for Plaintiff and the Class.

BRAUN LAW GROUP, P.C., Michael D. Braun, Los Angeles, CA, Trial Counsel for Plaintiff and the Class.

John C. Hueston, A. Matthew Ashley, Justin N. Owens, lrell & Manella LLP, Newport Beach, California, Attorneys for Defendant.

FINAL JUDGMENT AND ORDER OF DISMISSAL

RONALD M. WHYTE, District Judge.

IT IS HEREBY ADJUDGED AND DECREED THAT:

1. This Judgment incorporates by reference the definitions in the Amended Stipulation of Settlement dated December 8, 2014 ("Stipulation"), attached as Exhibit A, and all terms used herein shall have the same meanings as set forth in the Stipulation unless set forth differently herein. The terms of the Stipulation are fully incorporated in this Judgment as if set forth fully here.

2. The Court has jurisdiction over the subject matter of this action and all Parties to the action, including all Settlement Class Members.

3. Pursuant to Federal Rule of Civil Procedure 23(b)(3), the Court hereby certifies the following Settlement Class:

All consumers throughout the United States who, on or after June 1, 2006, received home loans for personal, as opposed to business or commercial purposes, originated by Washington Mutual Bank, F.A., utilizing appraisals that they obtained from defendant First American eAppraiseIT (a/k/a eAppraiseIT. LLC) ("EA"). Excluded from the Class are: (a) employees, officers and directors of EA and its subsidiaries and affiliates; (b) persons who timely and properly exclude themselves from the Settlement Class; and (c) the Court, the Court's immediate family and Court staff.

4. Pursuant to Federal Rule of Civil Procedure 23(c)(3), all Settlement Class Members (defined as a member of the Settlement Class who has not been properly excluded from the Settlement Class) are bound by this Judgment.

5. The Court finds, consistent with its prior orders certifying the Class in this litigation, that the Settlement Class meets all requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(3) for certification of the class claims alleged in the Second Amended Complaint, including (a) numerosity; (b) commonality; (c) typicality; (d) adequacy of the class representatives and Class Counsel; (e) predominance of common questions of fact and law among the Settlement Class; and (f) superiority.

6. Pursuant to Federal Rule of Civil Procedure 23(a), consistent with its prior orders certifying the Class in this litigation, the Court finds that Plaintiff Felton A. Spears, Jr. is a member of the Settlement Class, his claims are typical of those of the Settlement Class and he fairly and adequately protected the interests of the Settlement Class throughout the proceedings in the Litigation. Accordingly, the Court hereby appoints Felton A. Spears, Jr. as Settlement Class Representative.

7. Having considered the factors set forth in Federal Rule of Civil Procedure 23(g)(1), the Court finds that Settlement Class Counsel have fairly and adequately represented the Settlement Class for purposes of entering into and implementing the settlement, and thus, hereby appoints Joseph N. Kravec, Jr., Feinstein Doyle Payne & Kravec, LLC; and Lynn Lincoln Sarko and Gretchen Freeman Cappio, Keller Rohrback, L.L.P as Settlement Class Counsel to represent the Settlement Class members. Plaintiff is also represented by Settlement Class Counsel and Janet Lindner Spielberg, Law Offices of Janet Lindner Spielberg; and Michael D. Braun, Braun Law Group, P.C.

8. The list of Persons excluded from the Settlement Class because they filed valid requests for exclusion ("Exclusions") is attached hereto as Exhibit B. Persons who filed timely, completed Exclusions are not bound by this Judgment or the terms of this Stipulation. However, such persons are not entitled to any rights or benefits provided to Settlement Class Members by the terms of the Stipulation.

9. The Court directed that Class Notice be given pursuant to the notice program proposed by the Parties and approved by the Court. In accordance with the Court's Preliminary Approval Order and the Court-appointed notice program, the Settlement Administrator posted to the Settlement Website and mailed the Notice of Class Action Settlement dated January 5, 2015, which is Exhibit C to this Judgment. The declaration of Tore Hodne, attesting to the dissemination of the Class Notice, demonstrates compliance with this Court's Preliminary Approval Order. Dkt. No. 597. The Class Notice advised of the terms of the Settlement; of the Final Fairness Hearing, and the right to appear at such Final Fairness Hearing; of the rights to remain in, or opt out of, the Settlement Class and to object to the Settlement; of the right to submit a Claim; procedures for exercising such rights; and the binding effect of this Judgment, whether favorable or unfavorable, to the Settlement Class, including the scope of the Released Claims described in Section XII of the Stipulation.

10. The forms and methods of notice described above meet all applicable requirements of the Federal Rules of Civil Procedure, the United States Code, the United States Constitution, 28 U.S.C. § 1715, and any other applicable law. The Court further finds that Notice in the form approved by the Court was provided and that it constituted the best practicable notice under the circumstances. The Court further finds that the form of notice was concise, clear, and in plain, easily understood language, and was reasonably calculated under the circumstances to apprise of the pendency of the Litigation, the claims, issues and defenses of the Settlement Class, the definition of the Settlement Class certified, the right to be excluded from the Settlement Class, the right to object to the proposed Settlement, the right to appear at the Final Fairness Hearing, through counsel if desired, the right to submit a Claim, and the binding effect of a judgment on Settlement Class Members, including the scope of the Released Claims described in Section XII of the Stipulation.

11. Pursuant to Federal Rule of Civil Procedure 23(e)(2), the Court finds after a hearing and based upon all submissions of the Parties and interested persons that the Parties' proposed Settlement is fair, reasonable, and adequate. The Court also finds that the proposed Settlement is consistent with and in compliance with all applicable requirements of the Federal Rules of Civil Procedure, the United States Code, and the United States Constitution, and other applicable law.

12. The terms and provisions of the Stipulation were entered into by experienced counsel and only after extensive, arms-length negotiations conducted in good faith and with the assistance of an experienced mediator, the Honorable John Leo Wagner (Ret.). The Stipulation of Settlement is not the result of collusion.

13. Those negotiations followed over six years of robust motion practice and discovery, and they coincided with extensive pretrial preparations by counsel for both Parties. When the Parties advised the Court that they had reached a settlement on October 16, 2014, they collectively had over 30 motions pending before the Court.

14. Those proceedings gave counsel opportunity to adequately assess this case's strengths and weaknesses - and thus to structure the Settlement in a way that adequately accounts for those strengths and weaknesses.

15. Approval of the Stipulation will result in substantial savings of time, money and effort to the Court and the Parties, and will further the interests of justice.

16. EA has denied and continues to deny Plaintiff's claims and allegations against it, and has raised various factual and legal arguments in support of its vigorous defense in this Litigation. Further, evidence of the Class's prospects for recovery in light of EA's financial status, in addition to the litigation risks, weigh heavily in favor of the fairness and adequacy of this Settlement.

17. All Settlement Class Members, which excludes those persons who have timely and validly filed exclusions, are bound by this Judgment and by the terms of the Stipulation, including the scope of the Released Claims described in Section XII of the Stipulation.

18. None of the Settlement, this Judgment, nor the fact of the Settlement constitutes any admission by any of the Parties of any liability, wrongdoing or violating of law, damages or lack thereof, or of the validity or invalidity of any claim or defense asserted in the Litigation. If the Settlement and Stipulation are not upheld on appeal, or are otherwise terminated for any reason, the Stipulation and all negotiations, proceedings, and documents prepared, and statements made in connection therewith, shall be without prejudice to any Party and shall not be deemed or construed to be an admission by an party of any fact, matter, or position of law; all parties shall stand in the same procedural position as if the Settlement and Stipulation had not been negotiated, made, or filed with the Court.

19. The Court hereby dismisses with prejudice the action and all Released Claims identified in Section XII of the Stipulation against each and all Released Persons and without costs to any of the Parties as against the others. The Court hereby orders that effective on the Effective Date the Plaintiff, Felton A. Spears, Jr., as well as the Settlement Class Members who have not requested a timely Exclusion from the Settlement, whether or not such Settlement Class Members share in the Settlement Fund, release all claims and causes of action asserted against EA in the complaints filed by Plaintiff in this Litigation, and any claims, causes of action damages, demands, rights, and liabilities of any kind or nature whatsoever, asserted or not, threatened or not, alleged or not, known or unknown, suspected or unsuspected, disclosed or undisclosed, contingent or fixed, at law or in equity that arise out of or relate in any way to the facts alleged in the Litigation, and which have been or could have been asserted in the Litigation or another forum by Plaintiff or Settlement Class Members against EA, any other Released Persons, and/or any or all of their respective past and present, direct and indirect divisions, subsidiaries, parent companies, successors, predecessors, joint-ventures, and affiliated companies (which shall include any person or entity which controls, is controlled by, or is under common control with any such party), including but not limited to any past or present, direct or indirect subsidiary of any of them, and all of the officers, directors, employees, shareholders, agents, servants, brokers, distributors, representatives, partners, members, administrators, insurers, attorneys, and assigns of all such persons or entities.

It is further ordered that effective as of the Effective Date: (1) all Settlement Class Members who have not requested a timely Exclusion are permanently barred and enjoined from filing, commencing, prosecuting, intervening in or participating in (as parties and/or class members) any lawsuit in any jurisdiction to the extent such lawsuit asserts a Released Claim; and (2) all Settlement Class Members who have not requested a timely Exclusion are barred and precluded from organizing Settlement Class Members or soliciting the participation of Settlement Class Members in a separate class for purposes of pursuing as a purported class action any lawsuit (including by seeking to amend a pending complaint to include class allegations, or seeking class certification in a pending action in any jurisdiction) to the extent such a lawsuit asserts a Released Claim. In connection with the Released Claim(s), as of the Effective Date, each Settlement Class Member is deemed to have waived any and all provisions, rights, and benefits conferred by § 1542 of the California Civil Code and any statute, rule, and legal doctrine similar, comparable, or equivalent to California Civil Code § 1542, which reads as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

20. The Court reserves jurisdiction over the implementation, administration and enforcement of this Judgment and the Stipulation, and all matters ancillary thereto.

21. The Court finds that no reason exists for delay in ordering final judgment pursuant to Federal Rule of Civil Procedure 54(b), and the Clerk is hereby directed to enter this Judgment forthwith.

22. The Parties are hereby authorized, without needing further approval from the Court, to agree to and adopt such modifications and expansions of the Stipulation which are consistent with this Judgment and do not limit the rights of Settlement Class Members under the Stipulation.

IT IS SO ORDERED.

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Plaintiff Felton A. Spears, Jr. ("Plaintiff"), on behalf of himself and each of the Settlement Class Members, and Defendant eAppraiseIT, LLC ("EA" or "Defendant") (collectively, the "Parties") make this Stipulation of Settlement. Plaintiff, Plaintiff's Counsel, Defendant, and Defendant's Counsel acknowledge that they are entering into this Settlement as a free and voluntary act without duress or undue pressure or influence, and that Plaintiff, Plaintiff's Counsel, Defendant, and Defendant's Counsel have not relied on any promises, representations or warranties regarding the subject matter hereof other than as set forth in this Stipulation of Settlement.

I. RECITALS

A. Plaintiff, together with former Plaintiff Sidney Scholl ("Ms. Scholl"), filed this action on February 8, 2008. Dkt. No. 1.

B. Among other claims, Plaintiff and Ms. Scholl alleged that EA had violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2607(a) (the "RESPA claim"). Id. ¶ 84. Plaintiff and Ms. Scholl also asserted claims under the following: (i) RESPA, 12 U.S.C. § 2607(b); (ii) Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq.; (iii) Consumers Legal Remedies Act, California Civil Code § 1750, et seq.; and (iv) breach of contract. Dkt. No. 1.

C. On March 9, 2009, the Court denied EA's motion to dismiss Plaintiff's RESPA claim. Dkt. No. 147. The Court granted EA's motion to dismiss all of Plaintiff and Ms. Scholl's other claims. Id.

D. On March 30, 2009, Plaintiff filed his Second Amended Complaint ("SAC"). Dkt. No. 149.

E. On May 7, 2010, Plaintiff and Ms. Scholl moved for class certification. Dkt. No. 189. EA opposed the motion. Dkt. No. 201.

F. On July 2, 2010, the Court denied without prejudice Plaintiff and Ms. Scholl's motion for class certification. Dkt. No. 209.

G. On November 19, 2010, Plaintiff and Ms. Scholl filed their Renewed Motion for Class Certification. Dkt. No. 217. EA opposed the motion. Dkt. No. 231.

H. On April 25, 2012, the Court granted Plaintiff and Ms. Scholl's Renewed Motion for Class Certification and certified the following class:

All consumers in California and throughout the United States who, on or after June 1, 2006, received home loans from Washington Mutual Bank, FA in connection with appraisals that were obtained through eAppraiseIT.

Dkt. No. 249 at 12.

I. Following over six years of robust motion practice and discovery, on September 16, 2014, the Court issued an Order: (1) granting EA's Motion for Summary Judgment as to Ms. Scholl, dismissing Ms. Scholl's RESPA claim and denying the remainder of EA's Motion for Summary Judgment (Dkt. No. 438 at 12-19); (2) granting, in part, and denying, in part, Plaintiff's Motion for Summary Judgment and dismissing certain of EA's affirmative defenses ( id. at 19-25); (3) granting Plaintiff's Motion to Bifurcate and bifurcating the issue of "whether there was inflation of appraisals on an aggregate basis as a result of an agreement between WMB [Washington Mutual Bank] and EA" from other liability, class membership, and damages issues ( id. at 2, 31-35); (4) granting, in part, and denying, in part, EA's Motion to Strike Plaintiff's Expert Reports ( id. at 35-43); and (5) denying EA's Motion to Decertify and clarifying the Class definition as follows:

All consumers throughout the United States who, on or after June 1, 2006, received home loans for personal, as opposed to business or commercial purposes, originated by Washington Mutual Bank, F.A., utilizing appraisals that they paid for and obtained from defendant eAppraiseIT. Excluded from the Class are employees, officers, and directors of defendant and their subsidiaries and affiliates. Id. at 25-31.

J. Thereafter, the Parties participated in hard-fought, multiday, in-person mediation with The Honorable John Leo Wagner (Ret.) on September 17, 2014 and September 25, 2014, followed by two mediator proposals issued on September 29, 2014 and October 11, 2014.

K. EA has represented that it wound down its business in 2012, is no longer operating, and has a negative net worth.

L. Following considerable arms' length negotiation conducted by Judge Wagner, the Parties accepted the second mediator proposal on October 13, 2014.

M. With over 30 motions pending, the parties advised the Court on October 16, 2014 that they had reached a settlement. Dkt. No. 557.

N. Trial was scheduled to begin in this litigation on November 24, 2014. Dkt. No. 380.

O. Accordingly, following protracted, extensive and hard-fought settlement negotiations at the two mediations and subsequent negotiations thereafter, the Parties agreed to settle the Litigation pursuant to the terms set forth in this Stipulation of Settlement.

P. The Parties first executed a stipulation of settlement on November 21, 2014, and filed it with the Court on the same date. Dkt. No. 570-1. This amended Stipulation of Settlement contains non-material revisions intended to simplify the definition of "Released Claims, " and is accompanied by amended exhibits reflecting this revision and also implementing the Court's suggested revisions to language in the Notice of Class Action Settlement (Exhibit C) and the Claim Form (Exhibit A). This amended Stipulation of Settlement is entered into by the Parties with the understanding that it will supersede the November 21, 2014 stipulation.

Q. EA has committed the Settlement Fund will be funded by its parent, CoreLogic Information Resources, LLC, an entity with sufficient financial resources to fully fund the Settlement Fund with unencumbered funds, the payment of which will not result in CoreLogic Information Resources, LLC's insolvency, and for which this Settlement provides a reasonably equivalent benefit to CoreLogic Information Resources, LLC. Plaintiff and Settlement Class Members agree that, except for enforcing the terms of this Settlement, they will not use this commitment as evidence to support any claim of any kind (including but not limited to any claim in any bankruptcy proceeding or based on some alter ego or piercing the corporate veil theory or similar claim) against CoreLogic Information Resources, LLC or any of its past and present, direct and indirect corporate parents, subsidiaries and affiliates, joint-ventures, brokers, distributors, representatives, partners, members, divisions, officers, directors, employees, shareholders, agents, servants, attorneys, administrators, successors, predecessors, insurers and assigns of all such persons or entities.

II. DEFINITIONS

A. As used in this Stipulation, the following capitalized terms have the meanings specified below. Unless otherwise indicated, defined terms include the plural as well as the singular.

1. "Chase Data" means data produced in this Litigation by JPMorgan Chase Bank, N.A., and extracted from Washington Mutual Bank's ("WMB" or "WaMu") records regarding loans of potential Class members and EA's appraisal services.

2. "Claim" means a claim for RESPA Settlement Relief described in Plaintiff's Proposed Plan of Allocation, as approved or modified by the Court.

3. "Claim Deadline" means the deadline established by the Court to submit a Claim, which shall be at least fifteen (15) days prior to the Final Fairness Hearing.

4. "Claim Form" means the documents to be submitted by Claimants, substantially in the form attached hereto as Exhibit A and discussed in the Plan of Allocation. Claim Forms will be available online at the Settlement Website.

5. "Claimant" means a Settlement Class Member who submits a Claim. 6. "Claims Administration Protocols" means the protocols set forth in the Claims

Administration Protocols, attached as Exhibit B.

7. "Class" means the class certified by the Court's Order dated September 16, 2014 (Dkt. No. 438).

8. "Class Notice" means the "Notice of Class Action Settlement" substantially in the form attached hereto as Exhibit C which may be modified as necessary to comply with the provisions of any Preliminary Approval Order entered by the Court.

9. "Class Representative" means, subject to Court approval, Felton A. Spears, Jr.

10. "Court" means the United States District Court for the Northern District of California.

11. "Defendant" means EA.

12. "Defendant's Counsel" means the following individuals:

13. "Effective Date" means the date on which all of the conditions of Settlement have been satisfied, including:

1. EA delivers to Plaintiff the fully executed documents provided for in Section XIII hereof;

2. The Court preliminarily approves the Stipulation of Settlement;

3. The Court enters Final Judgment;

4. If there is a properly and timely filed objection, the expiration (without the filing or noticing of an appeal) of the time to appeal from the Final Judgment;

5. The final dismissal of any appeal from the Final Judgment;

6. If a ruling or decision is entered by an appellate court with respect to affirmance of the Final Judgment, the time to petition for a writ of certiorari with respect to the Final Judgment is expired, the petition has been denied or dismissed or, if granted, ...


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