Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 1 of 33 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ) ) ) ) ) ) ) ) ) ) ) ) )

Transcription

1 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 1 of 33 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK HARRY GAO and ROBERTA SOCALL, on behalf of themselves and all others similarly situated, v. Plaintiffs, JPMORGAN CHASE & CO. and CHASE BANK USA, N.A. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:14-cv PAC MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND CERTIFICATION OF THE SETTLEMENT CLASS

2 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 2 of 33 TABLE OF CONTENTS PAGE I. INTRODUCTION...1 II. PROCEDURAL HISTORY... 2 III. EFFECTUATING THE TERMS OF THE SETTLEMENT... 5 A. CERTIFICATION OF THE SETTLEMENT CLASS... 5 B. THE SETTLEMENT FUND... 5 C. THE RELEASES... 6 D. NOTICE... 6 E. PROPOSED DISTRIBUTION OF THE NET SETTLEMENT FUND... 7 F. ATTORNEYS FEES AND EXPENSES AND CLASS REPRESENTATIVE SERVICE AWARDS... 7 IV. ARGUMENT... 8 A. THE COURT SHOULD APPROVE THE SETTLEMENT AGREEMENT The Proposed Settlement Is Procedurally Fair The Proposed Settlement Is Substantively Fair a. The Litigation Is Complex And Would Be Expensive And Lengthy b. The Reaction of the Class has been Positive c. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly d. Plaintiffs Face Substantial Risks Going Forward e. The Ability of Chase to Withstand a Greater Judgment f. The Settlement Fund Created is Substantial in Light of the Possible Recovery and the Risks of Litigation B. THE COURT SHOULD CERTIFY THE SETTLEMENT CLASS The Class Meets All Rule 23(a) Prerequisites a. The Class Is So Numerous That Joinder Of All Members Is Impracticable b. Commonality is Met c. The Plaintiffs Claims Are Typical d. Adequate Representation The Class Meets All Rule 23(b)(3) Requirements a. Common Questions Predominate i-

3 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 3 of 33 b. Superiority is Met C. THE NOTICE PLAN HAS, AND WILL CONTINUE TO, ADEQUATELY ADVISE SETTLEMENT CLASS MEMBERS OF THEIR RIGHTS D. OBJECTOR FOLLMAN V. CONCLUSION ii-

4 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 4 of 33 TABLE OF AUTHORITIES PAGE CASES Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) Berkson v. Gogo LLC, 147 F. Supp. 3d 123 (E.D.N.Y. 2015) Cagan v. Anchor Sav. Bank FSB, No. 88 Civ. 3024, 1990 WL (E.D.N.Y. May 17, 1990) Cassese v. Williams, 503 F. App x 55 (2d Cir. 2012) Charron v. Pinnacle Grp. N.Y. LLC, 874 F. Supp. 2d 179 (S.D.N.Y. 2012)... 12, 16 Charron v. Wiener, 731 F.3d 241 (2d Cir. 2013)... 8, 12 City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974)... passim Clark v. Ecolab Inc., No. 07 Civ (PAC), 2010 WL (S.D.N.Y. May 11, 2010)... 9 Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) D Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001)... 9 demunecas v. Bold Food, LLC, No. 09 CIV DAB, 2010 WL (S.D.N.Y. Aug. 23, 2010) Diaz v. Residential Credit Solutions, Inc., 299 F.R.D. 16 (E.D.N.Y. 2014) Dupler v. Costco Wholesale Corp., 705 F. Supp. 2d 231 (E.D.N.Y. 2010) Enriquez v. Cherry Hill Mkt. Corp., 993 F. Supp. 2d 229 (E.D.N.Y. 2014) Fogarazzao v. Lehman Bros., Inc., 232 F.R.D. 176 (E.D.N.Y. 2005) Frank v. Eastman Kodak Co., 228 F.R.D. 174 (W.D.N.Y. 2005) Gilliam v. Addicts Rehab. Ctr. Fund., No. 05 Civ. 3452, 2008 WL (S.D.N.Y. Mar. 24, 2008) iii-

5 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 5 of 33 Handschu v. Special Servs. Div., 787 F.2d 828 (2d Cir. 1986) In re Agent Orange Prod. Liab. Litig., 611 F. Supp (E.D.N.Y. 1985) In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000) In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y. 2000)... 14, 15, 16 In re Bolar Pharm. Co., Inc., Sec. Litig., 966 F.2d 731 (2d Cir. 1992) In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ , 2007 WL (S.D.N.Y. July 27, 2007)... 8 In re Giant Interactive Grp., Inc. Sec. Litig., 279 F.R.D. 151 (S.D.N.Y. 2011) In re Ira Haupt & Co., 304 F. Supp. 917 (S.D.N.Y. 1969) In re Med. X-Ray, No , 1998 WL (E.D.N.Y. Aug. 7, 1998) In re PaineWebber Inc. Ltd. Partnerships Litig., 117 F.3d 721 (2d Cir. 1997) In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., 986 F. Supp. 2d 207 (E.D.N.Y. 2013) In re Presidential Life Sec., 857 F. Supp. 331 (S.D.N.Y. 1994) In re Sony SXRD Rear Projection Television Class Action Litig., No. 06 CIV (RPP), 2008 WL (S.D.N.Y. May 1, 2008) In re Top Tankers, Inc. Sec. Litig., No. 06 Civ , 2008 WL (S.D.N.Y. July 31, 2008)... 9 Maley v. Dale Global Techs. Corp., 186 F. Supp. 2d 358 (S.D.N.Y. 2002) Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997)... 19, 20 Martens v. Smith Barney, Inc., 181 F.R.D. 243 (S.D.N.Y. 1998) McMahon v. Olivier Cheng Catering & Events, LLC, No. 08 CIV (PGG), 2010 WL (S.D.N.Y. Mar. 3, 2010) McReynolds v. Richards-Cantave, 588 F.3d 790 (2d Cir. 2009) iv-

6 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 6 of 33 Mohney v. Shelly s Prime Steak, Stone Crab & Oyster Bar, No. 06 CIV (PAC), 2009 WL (S.D.N.Y. Mar. 31, 2009) Moore v. Margiotta, 581 F. Supp. 649 (E.D.N.Y. 1984) Newman v. Stein, 464 F.2d 689 (2d Cir. 1972) Padro v. Astrue, No. 11-CV-1788 (CBA)(RLM), 2013 WL (E.D.N.Y. Oct. 18, 2013)... 9 Penn. Pub. Sch. Employees Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111 (2d Cir. 2014) Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982) Prasker v. Asia Five Eight LLC, No. 08 CIV. 5811(MGC), 2010 WL (S.D.N.Y. Jan. 6, 2010)... 9 RMED Int l, Inc. v. Sloan s Supermarkets, Inc., No. 94 Civ. 5587, 2003 WL (S.D.N.Y. May 15, 2003) Robidoux v. Celani, 987 F.2d 931 (2d. Cir. 1993)... 19, 20 Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) Spann v. AOL Time Warner, Inc., No. 02 Civ. 8238, 2005 WL (S.D.N.Y. June 7, 2005)... 8 Sykes v. Mel S. Harris & Assocs. LLC, 7 80 F.3d 70 (2d Cir. 2015); Teachers Ret. Sys. Of Louisiana v. A.C.L.N. Ltd., No. 01 Civ , 2004 WL (S.D.N.Y. May 14, 2004)... 17, 18 Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193 (S.D.N.Y. 1992) Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct (2016) Velez v. Majik Cleaning Serv., Inc., No. 03 Civ. 8698, 2007 WL (S.D.N.Y. June 25, 2007) Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct (2011) Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005)... 8, 9, 17 Willix v. Healthfirst, Inc., No. 07-cv-1143, 2011 WL (E.D.N.Y. Feb. 18, 2011) v-

7 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 7 of 33 Wright v. Stern, 553 F. Supp. 2d 337 (S.D.N.Y. 2008) Yang v. Focus Media Holding Ltd., No. 11-Civ (CM) (GWG), 2014 WL (S.D.N.Y. Sept. 4, 2014)... 9 OTHER AUTHORITIES Manual for Complex Litigation, Third, (1995)... 9 RULES Fed. R. Civ. P. 23(a)(1) Fed. R. Civ. P. 23(a)(2)... 8, 19 Fed. R. Civ. P. 23(a)(3) Fed. R. Civ. P. 23(a)(4) Fed. R. Civ. P. 23(b)(3)... 21, 22 Fed. R. Civ. P. 23(f) vi-

8 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 8 of 33 I. INTRODUCTION Court appointed counsel Golomb & Honik, P.C. and Trief & Olk ( Class Counsel 1 ), on behalf of Plaintiffs, HARRY GAO and ROBERTA SOCALL (collectively, Plaintiffs ) respectfully request that this Court finally approve a proposed class action settlement pursuant to which Defendants have agreed to create a Settlement Fund of over $2 million to resolve this litigation with the Class in exchange for a release of claims. The Settlement was negotiated at arm s length by highly experienced class counsel and reached only following years of hard-fought litigation. Thus, Plaintiffs and Class Counsel were fully informed of the strengths and weaknesses of the claims asserted. The Parties global Settlement resolves all claims against Defendants JPMorgan Chase & Co. ( JPMC ) and Chase Bank USA, N.A. ( CBUSA ) (collectively, Chase or Defendants ) and satisfies all of the criteria for final approval pursuant to Federal Rule of Civil Procedure 23(b)(3) and (e). In providing the Settlement Class with significant benefits, the Settlement is more than fair, adequate, and reasonable. Thus, subject to the request to extend the administration timeline made by joint motion filed this same day and explained below, Plaintiffs and Class Counsel respectfully urge that final approval will be warranted following the requested supplemental administration and request at that time an order that: (1) approves the terms of the Settlement as within the range of fair, adequate, and reasonable; (2) certifies the Settlement Class pursuant to Federal Rule of Civil Procedure 23(b)(3) and (e) for settlement purposes only; 1 The definitions in the Settlement Agreement and Release ( Agreement ) (Dkt. 70-1), as amended by the Modification and Supplement to the Agreement ( Modification and Supplement ) attached as an Exhibit to the joint motion filed this same day, are hereby incorporated as though fully set forth herein, and capitalized terms shall have the meanings attributed to them in the Agreement, as amended by the Modification and Supplement. -1-

9 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 9 of 33 (3) finds that the Notice Program has satisfied due process and was well effectuated to provide adequate notice to Settlement Class Members pursuant to the terms of the proposed Notice Program as set forth in the Settlement Agreement; and (4) grants Final Approval of the class action Settlement. II. PROCEDURAL HISTORY The proposed Settlement is the culmination of years of vigorously contested litigation. Class Counsel has previously provided detailed recitations of the history of the case and the settlement negotiations undertaken. See Memorandum of Law in Support of Plaintiffs [Unopposed] Motion for Preliminary Approval of Class Action Settlement ( PA Brief ), at D.E. # 69, 4-7; Grunfeld Declaration in Support of Plaintiffs Motion for Preliminary Approval of the Class Action Settlement ( Grunfeld PA Dec. ), at D.E. # 70, 9-18; Memorandum in Support of Plaintiffs Unopposed Motion for Approval of Attorneys Fees and Service Awards and Reimbursement of Costs ( Fee Brief ), at D.E. # 75, 2-3; Declaration of Kenneth Grunfeld in Support of Plaintiffs Motion for Approval of Attorneys Fees and Service Awards, and Reimbursement of Costs ( Grunfeld Fee Dec. ), at D.E. # 76, at 6 (also referencing Grunfeld PA Dec. at 7-32). The following is a summary of the steps taken since October 25, 2016, the date the Court entered the Amended Order Granting Preliminary Approval of the Class Settlement. See D.E. # 72 ( PA Order ). Immediately following the entry of the PA Order, the Parties and case managers from Kurtzman Carson Consultants ( KCC or Settlement Administrator ) met to confirm the case deadlines and begin the process of compliance with the Notice Program requirements to the Class. See Declaration of Kenneth Grunfeld in Support of Plaintiffs Motion for Final Approval of the Class Action Settlement ( Grunfeld FA Dec. ), that is being filed simultaneously with this Motion as Exhibit A, at 5-11; Declaration of Eric Robin re: Notice Procedures ( KCC Dec ) -2-

10 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 10 of 33 at 2. The format of the notice documents, the layout and language in the Settlement Website ( and the Integrated Voice Response ( IVR ) script to be used for the case s toll free telephone number ( ) were then negotiated and finalized by the Parties and KCC so the website and number could go live on November 11, See Grunfeld FA Dec. at 6; KCC Dec. at 8-9. Shortly thereafter, an initial wire payment was sent by Chase to KCC to cover initial costs of administration. See Grunfeld FA Dec. at 7. The Parties and KCC then finalized and prepared for the initial mailing and ing of Notice to the Class, which was accomplished starting on December 16 and completed before December 23, Id.; KCC Dec. at 5, 7. Beginning immediately after notice was accomplished, the Parties and KCC worked together to address class member issues, handle mailing matters to maximize reach, and track objections, opt-outs and claim filings. Grunfeld FA Dec. at 8; KCC Dec. at 2. KCC provided weekly reports as well. Grunfeld FA Dec. at 8. On January 25, 2017, Class Counsel filed a motion for attorneys fees, costs and service awards, which was immediately made available on the Settlement Website. See Fee Brief, D.E. # 75. In reviewing the claims filed, the Parties and KCC came to understand that a number of claims were being filed that were deficient because they lacked information required to identify whether these individuals were indeed members of the Class. Grunfeld FA Dec. at 9; KCC Dec. at 13. Accordingly, on February 21, 2017 and continuing on a rolling basis, the Parties and KCC began sending s alerting potential class members of deficiencies in their claim forms and steps they can take to remediate any problems. Id. The objection and exclusion deadline was February 15, 2017; there was only one objector (Arayah Fallman, addressed below in section IV.D infra), and there were only six -3-

11 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 11 of 33 timely opt-outs (one additional opt-out was untimely). Grunfeld FA Dec. at 10, 51; KCC Dec. at 10 (addressing the opt-opts specifically). On March 17, 2017, the claims deadline passed. See PA Order, D.E. # 72. As per the Notice Program set forth in the Settlement Agreement and preliminarily approved by the Court, the Notice Administrator adequately notified Settlement Class Members of the Settlement through direct mail and notice and the establishment of the Settlement Website and toll free telephone number that contains all relevant information regarding the settlement approval process. Grunfeld FA Dec. at 11; KCC Dec. at 5-9. As described in more detail in a joint motion to reschedule the Final Approval Hearing and approve Supplement Notice filed this same day, the Parties were recently alerted to an issue concerning the total number of Forfeited Points reported for certain Settlement Class Member Accounts. It was ultimately determined that this issue affected 7,749 of the total 65,984 Accounts, whereby, as a result of an inadvertent, good faith oversight, the total number of Forfeited Points for these Accounts was underreported by a factor of 100. To remedy that issue, the Parties have agreed (1) to increase the Settlement Fund ratably to account for the corrected number of Forfeited Points increasing the Settlement Fund by $210,000.00, and thus taking the total cash consideration from $2,085, to $2,295, and (2) to seek to implement a Supplemental Notice Program concerning the affected Settlement Class Members. Subject to the Court s approval, this Supplemental Notice Program will require an extension of certain deadlines in this case, including the Final Approval Hearing, to effectuate the Supplemental Notice and finalize the Settlement. Class Counsel expect to file a supplemental brief on final approval, before a rescheduled Final Approval Hearing, to provide the Court with an update on the supplemental notice and administration. -4-

12 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 12 of 33 III. EFFECTUATING THE TERMS OF THE SETTLEMENT Class Counsel has previously provided the Settlement Agreement [D.E. # 70-1] and a detailed recitation of the settlement terms. See PA Brief, [D.E. # 69] at 7-9; Grunfeld PA Dec. [D.E. # 70] at The following is a summary of the steps taken since the PA Order was entered on October 25, 2016 to effectuate the terms of the Settlement. See D.E. # 72. A. CERTIFICATION OF THE SETTLEMENT CLASS The Agreement defines a Settlement Class, for settlement purposes, consisting of: All Chase Bank USA, N.A. ( CBUSA ) cardmembers in the United States whom CBUSA identifies as having forfeited rewards points, from June 2009 to Preliminary Approval, upon the closure of their CBUSA credit-card account(s) by CBUSA for the reason or reasons for which Plaintiffs CBUSA accounts were closed, and who were not given the opportunity to redeem those rewards points post-closure. See Settlement Agreement, [D.E. # 70-1] at The Settlement Class includes 65,984 Accounts which we have determined are held by 50,320 individuals, encompassing a total of 792,174,651 Points Forfeited. See Grunfeld FA Dec. at 13; KCC Dec. at 3. B. THE SETTLEMENT FUND Chase originally agreed to provide a Settlement Fund of $2,085, (Settlement Agreement. D.E. #70-1] at 37, 40. As discussed above, the Parties have subsequently agreed to a ratable increase of the Settlement Fund by $210,000.00, for a total Settlement Fund of $2,295, The Settlement Fund is designated to cover all payments and costs of the Settlement, including: Distribution of payments to Claimants; 2 Excluded from the Class are all current employees, officers, and directors of CBUSA or JPMC, and the judge presiding over this Action and his staff. Settlement Agreement, at [D.E. # 70-1] at

13 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 13 of 33 Payment of Class Counsel s attorneys fees and costs; Payment of Service Awards to Plaintiffs; Payment of any Taxes on the Settlement Fund Account; Payment of any costs of Settlement Administration and the Notice Program and Supplemental Notice Program; and Payment of additional fees, costs, and expenses not specifically enumerated, consistent with the purposes of the Agreement, subject to approval of Class Counsel and Chase. Id. 62. None of the money in the Settlement Fund reverts to Chase. Cy pres was contemplated (see id. at 15) but will not be required immediately because all of the money in the Net Settlement Fund will be claimed by Settlement Class Members. C. THE RELEASES Plaintiffs and the Settlement Class have agreed to Release all claims that were or could have been alleged in the Action, as set forth in Section XIV of the Agreement. The Releases are standard for class actions. Only six Settlement Class Members have timely elected to exclude themselves from the Settlement (the Opt-outs). KCC Dec. at 10. These individuals and their Accounts are not bound by the terms of the Agreement. Settlement Agreement at 54. D. NOTICE By all metrics, the Notice Program was a success. Settlement Class Members were provided with adequate Notice of the Settlement and the response was significant. Upon information and belief, the availability of funds in this settlement for Chase customers whose accounts were terminated and Points were Forfeited was reported by well known class action websites (i.e. as well as popular reward points websites (i.e., See Grunfeld FA Dec. at 21. By December 16, 2016, 50,320-6-

14 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 14 of 33 individuals were sent direct Mail Notices and 23,446 s were sent as well to the owners of a total of 65,984 Accounts. KCC Dec. at 5, 7. KCC received 7,766 Notices returned as undeliverable by the Post Office (15%). KCC Dec. at 6. It then performed standard skip traces for new address and found possible new addresses for 5,012 persons, which were immediately r ed notices. Id. The robust amount of information provided to Settlement Class Members and the simplicity of the claims filing process enabled 17,140 Claims to be filed. KCC Dec. at 13. E. PROPOSED DISTRIBUTION OF THE NET SETTLEMENT FUND Pursuant to the Settlement Agreement at 76, determining the amount to be paid for each Forfeited Point claimed requires KCC to divide the Net Settlement Fund by the total number of Forfeited Points for all approved Claimants. Because this determination will likely change during the supplemental administration period proposed today by the parties, if the Court approves Supplemental Notice, Class Counsel will submit a supplemental filing upon conclusion of the extended Settlement administration timeline providing the Court with the estimated perpoint value for approved claims to be paid. F. ATTORNEYS FEES AND EXPENSES AND CLASS REPRESENTATIVE SERVICE AWARDS Consistent with the Settlement Agreement and PA Order, Class Counsel submitted a motion for attorneys fees, costs, and Service Awards on January 25, 2017, which was 21 days before the Settlement Class Members deadline for filing objections and requests for exclusion. See Settlement Agreement [D.E. # 70-1] at 57; Fee Brief, D.E. # 75. The Fee Brief was immediately made available on the Settlement Website. See KCC Dec. at 9. The Court received that motion well in advance of receiving this motion for Final Approval and well before the Final Approval Hearing. Subject to the Court s approval, Class Counsel will submit an -7-

15 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 15 of 33 amended motion for fees, costs, and Service Awards in accordance with the schedule proposed in the joint motion filed this same day. IV. ARGUMENT A. THE COURT SHOULD APPROVE THE SETTLEMENT AGREEMENT Under Rule 23(e)(2) of the Federal Rules of Civil Procedure, a court may approve a class action settlement only... on finding that [the agreement] is fair, reasonable and adequate. Fed. R. Civ. P. 23(e)(2). The fair, reasonable and adequate standard effectively requires parties to show that a settlement agreement is both: (1) procedurally fair; and (2) substantively fair. See Charron v. Wiener, 731 F.3d 241, 247 (2d Cir. 2013) (citations omitted); accord McReynolds v. Richards-Cantave, 588 F.3d 790, (2d Cir. 2009). In recognition of the strong judicial policy in favor of settlements, particularly in the class action context, courts evaluating settlement agreements adopt a presumption of both their procedural and substantive fairness. See McReynolds, 588 F.3d at 803 (citing Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005)); Spann v. AOL Time Warner, Inc., No. 02 Civ. 8238, 2005 WL , at *6 (S.D.N.Y. June 7, 2005) ( [P]ublic policy favors settlement, especially in the case of class actions. ). Absent fraud or collusion, [courts] should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement. In re EVCI Career Colls. Holding Corp. Sec. Litig., No. 05 Civ , 2007 WL , at *4 (S.D.N.Y. July 27, 2007). In its Order granting Plaintiffs Motion for Preliminary Approval of the Settlement, this Court preliminarily approved the Settlement Agreement. Here, because the Settlement Agreement is both procedurally and substantively fair, Plaintiffs respectfully ask the Court to finally approve the Agreement. -8-

16 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 16 of The Proposed Settlement Is Procedurally Fair To determine procedural fairness, courts examine the negotiating process leading to the settlement. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005); D Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001). A party must show that the agreement is the product of arm s-length, good faith negotiation. McReynolds, 588 F.3d at 804; see also Padro v. Astrue, No. 11-CV-1788 (CBA)(RLM), 2013 WL , at *3 (E.D.N.Y. Oct. 18, 2013) ( Where the integrity of the negotiation process is preserved, a strong initial presumption of fairness attaches to the proposed settlement. ); Prasker v. Asia Five Eight LLC, 08 CIV. 5811(MGC), 2010 WL (S.D.N.Y. Jan. 6, 2010). A presumption of fairness, adequacy and reasonableness may attach to a class settlement reached in arm s-length negotiations between experienced, capable counsel after meaningful discovery. Wal-Mart Stores, 396 F.3d at 116 (quoting Manual for Complex Litigation, Third, (1995)); see also D Amato, 236 F.3d at 85; Prasker, 2010 WL at *4. In evaluating the settlement, the Court should keep in mind the unique ability of class and defense counsel to assess the potential risks and rewards of litigation; a presumption of fairness, adequacy and reasonableness may attach to a class settlement reached in arms-length negotiations between experienced, capable counsel after meaningful discovery. Clark v. Ecolab Inc., 07 Civ (PAC), 2010 WL , at *4 (S.D.N.Y. May 11, 2010); In re Top Tankers, Inc. Sec. Litig., No. 06 Civ , 2008 WL , at *3 (S.D.N.Y. July 31, 2008). Further, participation of a highly qualified mediator in settlement negotiations strongly supports [the] finding that negotiations were conducted at arm s length and without collusion. Yang v. Focus Media Holding Ltd., No. 11-Civ (CM) (GWG), 2014 WL , at *5 (S.D.N.Y. Sept. 4, 2014); see also D Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001) (a mediator s involvement in settlement negotiations helps to ensure that the proceedings were free of collusion and undue pressure ). -9-

17 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 17 of 33 Here, Plaintiffs engaged in years of hard-fought litigation and conducted a thorough investigation and evaluation of the claims. Grunfeld PA Dec. at The Settlement was reached only after Class Counsel undertook extensive steps in, inter alia, evaluating claims, researching the law, drafting and briefing legal memoranda, preparing for and conducting discovery, participating in Court hearings and mediation, and negotiating settlement. See Grunfeld Fee Dec. at 11. The Parties also participated in extensive settlement negotiations under the supervision of this Court and professional mediator Jonathan Marks. See Grunfeld PA Dec. at On August 25, 2016, the Parties agreed to settle the case. See Settlement Agreement at 1. During the entirety of the action, Plaintiffs and the Class were represented by counsel with significant experience in consumer and class action litigation. See Grunfeld PA Dec. at 42. These arm slength negotiations involving sophisticated counsel raise a presumption that the settlement meets the requirements of due process. See Mohney v. Shelly s Prime Steak, Stone Crab & Oyster Bar, 06 CIV (PAC), 2009 WL , at *4 (S.D.N.Y. Mar. 31, 2009). Thus, the Agreement is procedurally fair. 2. The Proposed Settlement Is Substantively Fair To determine substantive fairness, courts determine whether the settlement s terms are fair, adequate, and reasonable according to the factors set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974). Those factors are: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; -10-

18 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 18 of 33 (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendant to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Grinnell, 495 F.2d at 463. All of the Grinnell factors weigh in favor of final approval of the Settlement Agreement. See PA Brief at a. The Litigation Is Complex And Would Be Expensive And Lengthy Consumer class action lawsuits, like this action, are complex, expensive, and lengthy. See, e.g., Dupler v. Costco Wholesale Corp., 705 F. Supp. 2d 231, 239 (E.D.N.Y. 2010); In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000). Plaintiffs filed this case almost three years ago. See Grunfeld PA Dec. at 9. Since then, the action has prompted two motions for dismissal; significant discovery; extensive discovery dispute briefings and hearings, and private mediation. See Grunfeld Fee Dec. at 11. Should this Court not approve the Settlement Agreement, this lengthy litigation would resume, with upcoming disputes over the scope of discovery, class certification, summary judgment motions, expert testimony, and potential appeals to the Second Circuit by whichever party ultimately prevailed on the issues in the District Court. And if this case were to proceed to trial, the resulting fact-intensive trial would result in significant expenses to all Parties. Settlement, on the other hand, will result in prompt and equitable payments to the Settlement Class Members who submit timely and valid Claims. Thus, this factor weighs in favor of Final Approval. -11-

19 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 19 of 33 b. The Reaction of the Class has been Positive It is well-settled that the reaction of the class to the settlement is perhaps the most significant factor to be weighed in considering its adequacy. Maley v. Dale Global Techs. Corp., 186 F. Supp. 2d 358, (S.D.N.Y. 2002). Here, over 17,000 total claims were filed. See KCC Dec. at 13, 14 (discussing potentially deficient Claims as well). Moreover, the lack of a significant number of class member objections may itself be taken as evidencing the fairness of a settlement. See D Amato, 236 F.3d (holding that the district court properly concluded that 18 objections from a class of 27,883 weighed in favor of settlement); Charron v. Pinnacle Grp. N.Y. LLC, 874 F. Supp. 2d 179, 196 (S.D.N.Y. 2012), aff d sub nom. Charron v. Wiener, 731 F.3d 241 (2d Cir. 2013) (finding settlement to possess initial presumption of fairness, reasonableness, and adequacy where 118 class members, or less than 1% of class, filed objections); RMED Int l, Inc. v. Sloan s Supermarkets, Inc., No. 94 Civ. 5587, 2003 WL , at *1 (S.D.N.Y. May 15, 2003). Similarly, a low opt out rate is also supportive of a settlement that is fair and warrants approval. See In re Sony SXRD Rear Projection Television Class Action Litig., No. 06 CIV (RPP), 2008 WL , at *6 (S.D.N.Y. May 1, 2008) (reasoning that where only 22 of approximately 175,000 class members (0.0126%) chose to opt out of the class, agreement showed support for approval of settlement); Wright v. Stern, 553 F. Supp. 2d 337, 345 (S.D.N.Y. 2008) (noting that where 13 out of 3,500 class members objected and only 3 opted-out, [t]he fact that the vast majority of class members neither objected nor opted out is a strong indication of fairness). The deadline for objecting to the Settlement Agreement and seeking exclusion was February 15, See PA Order at 37. The deadline for filing a Claim was March 17,

20 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 20 of 33 Id. 3 The Notices sent to Settlement Class Members included explanations of the allocation formula as well as the number of Points Forfeited for each Account, so that each Class Member would have an idea of how much they might receive in the Settlement. KCC Dec. at 3. The Notices also informed Settlement Class Members that they could object to or exclude themselves from the Settlement and explained how to do so. See Grunfeld PA Dec. at Only one Class Member out of 50,320 objected to the Settlement, and only six timely opted out. KCC Dec. at This favorable response demonstrates that the Settlement Class approves of the Settlement, which supports Final Approval. Maley, 186 F. Supp. 2d at 374 (no objections to a settlement providing for attorneys fees in the amount of 33 1/3% of the settlement fund indicated class approval); In re PaineWebber Ltd. Partnerships Litig., 171 F.R.D. 104, 126 (S.D.N.Y.), aff d sub nom. In re PaineWebber Inc. Ltd. Partnerships Litig., 117 F.3d 721 (2d Cir. 1997) (finding an extremely favorable response where nearly 200,000 notices were mailed to potential class members and only 3 objections were raised); In re Presidential Life Sec., 857 F. Supp. 331, 336 (S.D.N.Y. 1994) (noting that potential shortcomings of a settlement might have necessitated rejection of the agreement, were it not for the absence of objections ); demunecas v. Bold Food, LLC, 09 CIV DAB, 2010 WL , at *5 (S.D.N.Y. Aug. 23, 2010); Wright, 553 F. Supp. 2d at (S.D.N.Y. 2008). Further, the Plaintiffs, who have been active and engaged participants in this case from the beginning, support the Settlement Agreement. See Grunfeld Fee Dec. at 28; Declaration of Plaintiff Harry Gao ( Gao Dec ) at 2 and Declaration of Plaintiff Roberta Socall ( Socall Dec ) at 2 (Plaintiffs Declarations attached to Grunfeld FA Dec.). 3 Should the Court approve Supplemental Notice, then Supplemental Notice Settlement Class Members will have an extended period of time to object, opt out or file a claim. -13-

21 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 21 of 33 Accordingly, the second Grinnell factor weighs in favor of Final Approval. c. Discovery Has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly The Court next considers whether Class Plaintiffs had sufficient information on the merits of the case to enter into a settlement agreement... and whether the Court has sufficient information to evaluate such a settlement. In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., 986 F. Supp. 2d 207, 224 (E.D.N.Y. 2013) (citations omitted). To approve a proposed settlement,... it is enough for the parties to have engaged in sufficient investigation of the facts to enable the Court to intelligently make... an appraisal of the Settlement. In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 164, 176 (S.D.N.Y., 2000) (citing Plummer v. Chemical Bank, 668 F.2d 654 (2d Cir. 1982) and quoting Martens v. Smith Barney, Inc., 181 F.R.D. 243, 263 (S.D.N.Y. 1998)). The proper question is whether counsel had an adequate appreciation of the merits of the case before negotiating. McMahon v. Olivier Cheng Catering & Events, LLC, 08 CIV (PGG), 2010 WL , at *5 (S.D.N.Y. Mar. 3, 2010) (citation omitted). The pretrial negotiations and discovery must be sufficiently adversarial that they are not designed to justify a settlement... [but] an aggressive effort to ferret out facts helpful to the prosecution of the suit. In re Austrian, 80 F. Supp. 2d at 176 (quotation marks omitted). This case is sufficiently far along to more than meet this standard. Although continuing to litigate this case through trial would require many more hours of work for both sides, the Parties have completed enough discovery to be well positioned to evaluate the merits of the case. See Grunfeld Fee Dec. at 11; Grunfeld PA Dec. at First, the legal issues in this case have been thoroughly explored, challenged, and pared down through Chase s motions to dismiss. See Grunfeld PA Dec. at Next, the Parties have engaged in a significant amount of -14-

22 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 22 of 33 discovery, including written discovery, document production and depositions. See Grunfeld Fee Dec. at 11; Grunfeld PA Dec. at Finally, as part of the preparations for mediation, the Parties exchanged briefs and research upon which they rely, as well as confirmatory discovery such that each side has a thorough understanding of the other sides case and defenses. Grunfeld PA Dec. at Thus, Plaintiffs and Class Counsel had sufficient information to evaluate the terms of the Settlement. d. Plaintiffs Face Substantial Risks Going Forward The fourth, fifth and sixth Grinnell factors are all met in this case. Litigation inherently involves risks. Willix v. Healthfirst, Inc., No. 07-cv-1143, 2011 WL , at *4 (E.D.N.Y. Feb. 18, 2011) (citation omitted). Settlements, because they avoid merits and class certification adjudication, remove uncertainty over establishing a defendant s liability and maintaining class certification. See id.; In re Ira Haupt & Co., 304 F. Supp. 917, 934 (S.D.N.Y. 1969); Velez v. Majik Cleaning Serv., Inc., No. 03 Civ. 8698, 2007 WL , at *6 (S.D.N.Y. June 25, 2007). In weighing the risks of establishing liability and damages, the court must only weigh the likelihood of success by the plaintiff class against the relief offered by the settlement. In re Austrian, 80 F. Supp. 2d at 177 (internal quotation marks omitted). The risk of obtaining and maintaining class status through trial is an important consideration. See In re Giant Interactive Grp., Inc. Sec. Litig., 279 F.R.D. 151, 162 (S.D.N.Y. 2011). Class Counsel is confident in its ability to prove Plaintiffs case. However, for purposes of this brief, Plaintiffs concede that they would face hurdles in establishing liability, damages and obtaining and maintaining class in this case. First, only limited causes of action remain, and even those that remain are still being challenged by Chase. See Grunfeld PA Dec. at 18. If Chase were to succeed in removing any additional claims or were to establish any of its numerous affirmative defenses, Plaintiffs potentially would not be able to establish liability. -15-

23 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 23 of 33 Second, Plaintiffs must prove that class members suffered injuries that are susceptible to common proof in a class action. To do so would require significant work to continue to collect and collate all data from all of Chase s many credit card products and to defeat potential damagerelated defenses, including those based on statutes of limitations and unclean hands. Third, maintaining a class through trial here is risky especially in light of the fact that, prior to the Settlement, the Plaintiffs had not yet moved to certify a class. Doing so, and maintaining the class through trial, would require extensive and expensive briefing by both Parties, the outcome of which is by no means assured. Plus, Chase would likely move to decertify, and potentially might also seek permission to file an interlocutory appeal under Fed. R. Civ. P. 23(f). These factors favor final approval. e. The Ability of Chase to Withstand a Greater Judgment The seventh Grinnell factor the ability of a defendant to withstand a greater judgment has, in practice, transformed into an acknowledgement that it is more important that a class receive some relief than possibly yet more relief. Charron 874 F. Supp. 2d at 201. A defendant s ability to withstand a greater judgment, standing alone, does not suggest that the settlement is unfair. Frank v. Eastman Kodak Co., 228 F.R.D. 174, 186 (W.D.N.Y. 2005) (quoting In re Austrian 80 F. Supp. 2d at 178 n.9). The Settlement here affords Settlement Class Members substantial monetary benefits, and by resolving the Settlement Class claims, the Settlement removes the Settlement Class costs of maintaining this litigation. f. The Settlement Fund Created is Substantial in Light of the Possible Recovery and the Risks of Litigation The determination of whether a settlement amount is reasonable does not involve the use of a mathematical equation yielding a particularized sum. Frank, 228 F.R.D. at 186 (quoting In re Austrian, 80 F. Supp. 2d at 178). Instead, there is a range of reasonableness -16-

24 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 24 of 33 with respect to a settlement a range which recognizes the uncertainties of law and fact in any particular case and the concomitant risks and costs necessarily inherent in taking any litigation to completion. Id. (quoting Newman v. Stein, 464 F.2d 689, 693 (2d Cir. 1972)). The adequacy of a settlement amount offered should be judged in light of the strengths and weaknesses of the plaintiff[s ] case. In re Med. X-Ray, No , 1998 WL , at *5 (E.D.N.Y. Aug. 7, 1998) (alteration in original). That a settlement amount is less than the maximum potential recovery is not a barrier to approval. See Grinnell., 495 F.2d at 455 n.2 ( [T]here is no reason, at least in theory, why a satisfactory settlement could not amount to a hundredth or even a thousandth part of a single percent of the potential recovery. ) 4 In fact, when settlement assures immediate payment of substantial amounts to class members, even if it means sacrificing speculative payment of hypothetically larger amount years down the road, settlement is reasonable under this factor. Gilliam v. Addicts Rehab. Ctr. Fund., No. 05 Civ. 3452, 2008 WL , at *5 (S.D.N.Y. Mar. 24, 2008) (quoting Teachers Ret. Sys. Of Louisiana v. A.C.L.N. Ltd., No. 01 Civ , 2004 WL , at *5 (S.D.N.Y. May 14, 2004)). Here, the calculus is clear and obvious. Settlement Class Members are benefiting from a Settlement that provides them cash in hand in return for their Forfeited Points, which is a form of remediation looked upon extremely favorably by courts in this circuit. See Berkson, 147 F. Supp. 3d at 133. There is a broad range of potential recovery if the case were to be litigated to judgment by trial. On the one hand, Plaintiffs could prevail on their remaining claims and 4 Courts in this Circuit have approved class settlements even where the amount of the settlement is a small percentage of the best possible recovery. See Spann, 2005 WL , at *6-7 (granting final approval where $2.9 million class settlement was only 18% of plaintiffs highest possible litigation payoff); Cagan v. Anchor Sav. Bank FSB, No. 88 Civ. 3024, 1990 WL 73423, at *3-4 (E.D.N.Y. May 17, 1990) (approving $2.3 million class settlement over objections that the best possible recovery would be approximately $121 million ). -17-

25 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 25 of 33 recover an amount reflecting their view of the value of Points Forfeited. On the other hand, Defendants could prevail on their legal arguments to defeat liability entirely, resulting in no recovery for the Settlement Class Members. As it is, Plaintiffs negotiated a sizable settlement of almost $2.3 million. In addition, the fact that the Settlement Agreement provides for a prompt claims period and payment to claimants favors approval of the Settlement. Teachers Ret. Sys. of La2004 WL , at *5 (citing In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1396, 1405 (E.D.N.Y. 1985) ( [M]uch of the value of a settlement lies in the ability to make funds available promptly. ) (modified on other grounds). Given this range of possible damages, the Agreement provides a substantial recovery that falls well within the range that courts have traditionally found to be fair, reasonable, and adequate under the law. Weighing the benefits of the settlement against the risks associated with proceeding in the litigation, the settlement amount is reasonable. B. THE COURT SHOULD CERTIFY THE SETTLEMENT CLASS A court may certify a settlement class upon finding that the action underlying the settlement satisfies all Rule 23(a) prerequisites and Rule 23(b) requirements. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, (1997). In the PA Order [D.E. # 72], this Court provisionally certified the Settlement Class. Here, because the Settlement Class satisfies all Rule 23(a) prerequisites and Rule 23(b)(2) requirements, Plaintiffs respectfully ask the Court to finally certify the Settlement Class, for settlement purposes. 1. The Class Meets All Rule 23(a) Prerequisites The Rule 23(a) requirements are numerosity, commonality, typicality, and adequacy. The proposed Settlement Class satisfies all of these requirements. -18-

26 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 26 of 33 a. The Class Is So Numerous That Joinder Of All Members Is Impracticable Under the numerosity prerequisite of Rule 23(a), plaintiffs must show that their proposed class is so numerous that joinder of all [its] members is impracticable. Fed. R. Civ. P. 23(a)(1). This prerequisite is construed liberally. Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (explaining that numerosity will be found where a proposed class is obviously numerous ); see also Robidoux v. Celani, 987 F.2d 931, 935 (2d. Cir. 1993). Though no magic number of class members exists for meeting the numerosity prerequisite, courts presume [the prerequisite is met] for classes larger than forty members. Penn. Pub. Sch. Employees Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014). Plaintiffs learned that the class definition comprised 65,984 Accounts held by 50,320 customers. Accordingly, the Settlement Class far exceeds 40 members, rendering joinder impracticable. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citation omitted). Accordingly, numerosity is met here. b. Commonality is Met Rule 23(a)(2) provides that there must be questions of law or fact common to the class for a suit to be certified as a class action. Fed. R. Civ. P. 23(a)(2). This prerequisite is met where a proposed class members have brought claims that all centrally depend upon [the resolution of] a common contention. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011). The Second Circuit has construed this liberally, holding that plaintiffs need only allege injuries derive[d] from defendants... unitary course of conduct. Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 84 (2d Cir. 2015); Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, (S.D.N.Y. 1992). -19-

27 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 27 of 33 Here, the Court has already ruled that there are questions of law and fact common to the Settlement Class Members. PA Order [D.E. # 72], at 9. Thus, the commonality prerequisite of Rule 23(a) is satisfied here. c. The Plaintiffs Claims Are Typical Rule 23(a)(3) provides that the claims of the Plaintiffs must be typical of the claims of... the class. Fed. R. Civ. P. 23(a)(3). The Second Circuit has interpreted this prerequisite to require plaintiffs to show that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented. Robidoux, 987 F.2d at (citations omitted). District courts in the Second Circuit have repeatedly found this prerequisite easily satisfied, particularly in consumer class action cases. See Enriquez v. Cherry Hill Mkt. Corp., 993 F. Supp. 2d 229, 233 (E.D.N.Y. 2014); Fogarazzao v. Lehman Bros., Inc., 232 F.R.D. 176, 180 (E.D.N.Y. 2005) ( The typicality requirement is not demanding. ) (internal citations and quotation marks omitted). Here, the claims of the Plaintiffs and those of the Settlement Class Members arise from the same alleged conduct. The typicality prong is satisfied here. See PA Order [D.E. # 72], at 9 ( Plaintiffs claims are typical of the claims of the Settlement Class Members they seek to represent for purposes of Settlement ). d. Adequate Representation Rule 23(a)(4) requires that the representative parties fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). To do this, plaintiffs must demonstrate that the: (1) class representatives do not have conflicting interests with other class members; and (2) class counsel is qualified, experienced and generally able to conduct the litigation. Marisol A., 126 F.3d at 378. Courts within the Second Circuit have consistently applied a lenient standard for meeting both of the adequate representation requirements. Diaz v. Residential Credit Solutions, -20-

28 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 28 of 33 Inc., 299 F.R.D. 16, (E.D.N.Y. 2014). For the adequacy of class representatives, Second Circuit courts have required that plaintiffs merely show that no fundamental conflicts exist between a class representative(s) and its members. Charron, 731 F.3d at 249. For the adequacy of class counsel, courts generally only challenge class counsel s adequacy when there is a conflict in the interests of represented plaintiffs, or if class counsel also acts as a class representative. Moore v. Margiotta, 581 F. Supp. 649, 652 (E.D.N.Y. 1984). Here, the adequacy prerequisite is satisfied. The Plaintiffs have no fundamental conflicts with other Settlement Class Members interests, as they seek the same type of relief and assert the same legal claims, as other Settlement Class Members. See Gao Dec. at 3; Socall Dec. at 3. Similarly, the Court has held that Plaintiffs have retained experienced counsel to represent them. See PA Order [D.E. # 72], at 9. Class Counsel firms have successfully handled national, regional, and statewide class actions, as well as other complex mass or multi-party actions, throughout the United States in both federal and state courts, against national banks and financial services companies, including against these Defendants. See Grunfeld FA Dec. at 25; Grunfeld PA Dec. at 42 and n The Class Meets All Rule 23(b)(3) Requirements Rule 23(b)(3) provides that questions of law or fact common to class members must predominate over any questions affecting only individual members. Fed. R. Civ. P. 23(b)(3). In addition, Plaintiffs must demonstrate that [a] class action is superior to other methods for fairly and efficiently adjudicating the controversy. Id. Both of these requirements are met here. a. Common Questions Predominate The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). -21-

29 Case 1:14-cv PAC Document 78 Filed 03/23/17 Page 29 of 33 Here, the Settlement Class handily satisfies Rule 23(a) s requirements, which goes a long way toward satisfying the Rule 23(b)(3) requirement of commonality. Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986) (citation omitted). Every Settlement Class Member s claims may be proven by the same set of facts. See PA Order [D.E. # 72], at 9. b. Superiority is Met Rule 23(b)(3) asks whether a class action is the superior means to adjudicate the class s claims. The rule expressly sets forth a list of relevant factors: class members interest in bringing individual actions; the extent of existing litigation by class members; the desirability of concentrating the litigation in one forum; and potential issues with managing a class action. Fed. R. Civ. P. 23(b)(3)(A-D). This requirement is met. See PA Order [D.E. # 72], at 9. Only one Class Member has filed an objection and only six have timely opted out. KCC Dec. at Moreover, no Class Member has expressed any interest in or brought any individual actions. See Grunfeld FA Dec.at 51. Certification of the Settlement Class now in this Court will allow for efficient adjudication of claims that would likely not be brought owing to prohibitive legal expenses, while at the same time preserving scarce judicial resources. Accordingly, a class action is the best available method for the efficient adjudication of this litigation. C. THE NOTICE PLAN HAS, AND WILL CONTINUE TO, ADEQUATELY ADVISE SETTLEMENT CLASS MEMBERS OF THEIR RIGHTS Due Process and the Federal Rules of Civil Procedure require that notice to the class of a class action settlement fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings. Visa U.S.A., Inc., 396 F.3d at 114. The standard for determining whether a class action settlement notice satisfies this requirement is measured by reasonableness. Id. at