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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LORI KEMPLY, et al.,

Plaintiffs,

v.

CASHCALL, INC.,

Defendant.

Case No. 08-cv-03174-MEJ 

FIRST ORDER RE: NOTICE AND 

DISTRIBUTION PLAN

Dkt. No. 313

BACKGROUND

Following the issuance of the Findings of Fact and Conclusions of Law in this certified 

class action, the Court ordered the parties to meet and confer on a plan of notice and distribution 

of a statutory award of $500,000 to the Conditioning Class Members. See Findings of Fact and 

Conclusions of Law, Dkt. No. 312. The parties timely filed a joint statement regarding their 

proposed notice and distribution plan. Jt. Stmt., Dkt. No. 313; id., Ex. A (Notice and Distribution 

Plan, “Plan”), Dkt. No. 313-1.1 

This Order considers (1) the Court’s initial review of the proposed Notice Form and (2) the 

issues that must be resolved before the Court can enter judgment, including further assessment of 

the parties’ proposed division of the statutory award.

//

 

1 Defendant CashCall, Inc. also indicated its intent to appeal the Court’s Findings of Fact and 

Conclusions of Law and seek a stay of any judgment entered. Jt. Stmt. at 1; Plan at 1 n.1. 

Plaintiffs state they “are willing to stipulate to a stay of judgment provided that CashCall provides 

a bond or other security in an amount set by the Court.” Id. Additionally, the parties note they 

“intend to meet and confer regarding a form of judgment and a proposed stipulated briefing 

schedule regarding Plaintiffs’ motion for attorneys’ fees and costs.” Id.

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United States District Court

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NOTICE & DISTRIBUTION PLAN

Having reviewed the parties’ Notice and Distribution Plan, the Court notes several 

deficiencies, which include, but are not limited to:

(1) The parties do not name their proposed “class administrator” or seek approval of this 

entity. Presumably, based on their proposed Notice Form, the parties intend to name “KCC”2as 

the class administrator, but this is unclear.

(2) In paragraph 3 of the Plan, the parties state that “[t]he administrator will report to the 

parties the amount of uncashed checks within seventy-five days of the date of mailing checks” and 

“[t]he parties will meet and confer to determine whether it is appropriate to have a second 

distribution or, alternatively, to pay the amount of the uncashed checks to the Court-approved cy 

pres recipient.” Plan ¶ 3 (emphasis added). The parties do not suggest that they will provide the 

Court with any notice about the number of uncashed checks or seek the Court’s approval about 

how to proceed in such an event beyond potentially seeking the Court’s sign-off on a cy pres

recipient. There is also no proposed timeline or deadlines about when the parties must make their 

determinations or seek approval from the Court. 

(3) The form notice itself does not describe what this case is about, how the class is 

defined, why Class Members are receiving an award, where to find more information about the 

case, or who Class Members should contact if they have questions, among other things. Nor does 

it appear the parties have maintained the website established for this case following class 

certification. The problems noted in this section risk confusing Class Members and burdening the 

Court with requests for communication and information about the case. 

Given these issues, the Court will not sign off on the parties’ Notice and Distribution Plan 

at this time.

ISSUES TO BE RESOLVED BEFORE JUDGMENT

Although the Court anticipated finalizing the Notice and Distribution Plan before entering 

 

2 Kurtzman Carson Consultants served as the class administrator in providing notice of class 

certification to the class. See Class Cert. Notice Plan at 2, Dkt. No. 128; Decl. of Jeffrey 

Gyomber, Dkt. No. 308-1.

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judgment, further delay that will result from getting the Notice and Distribution Plan from where it 

is now to a finalized state is not acceptable. At this point the Court perceives only one final issue 

that needs to be resolved prior to the entry of a final judgment: specifically, how to divide the 

$500,000 statutory award among the class. A complete judgment should reflect how the Court 

finds the award should be allocated among the class. The Court will address any other pending 

issues—e.g., a notice plan, attorneys’ fees, etc.— after judgment is entered.

Turning to the issue of how to distribute the statutory award, the parties propose to divide 

the $500,000 by the total number of loans that qualified for inclusion in the Conditioning Class 

minus the number of timely excluded loans. Plan ¶ 3. In other words, Conditioning Class 

Members who had multiple loans qualifying for inclusion in the Conditioning Class will receive a 

per capita payment for each such loan (e.g., a Class Member with two participating loans will 

receive a check for twice the amount of a Class Member with only one loan). Id. 

But the parties do not explain (1) why they settled on this division of the award or (2) how 

they intend to address rounding issues in dividing the award amount by the number of loans. 

While the parties’ proposed “per-loan” distribution does not appear to flout the Electronic Funds 

Transfer Act’s civil liability provisions, 15 U.S.C. § 1963m, the parties provide no support as to 

why this method of distribution is appropriate under the law and/or the facts of this case. 

Additionally, the parties seem to ignore the fact that the $500,000 award is not evenly divided by 

the 96,588 class loans, and depending on how the divided amount is rounded, the total payment 

falls either a few hundred dollars below or above the $500,000 statutory amount. There is no 

indication they considered this issue.

ORDER

In light of the foregoing, the Court ORDERS as follows:

By May 26, 2016, the parties must meet and confer and file a joint statement of no more 

than 10 pages, double-spaced, addressing the following:

(1) why the parties propose to use the “per-loan” division of the statutory award, providing 

support as to why this method of distribution is appropriate under the law and/or the 

facts of this case; and

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(2) how the parties propose to address the rounding issue in the distribution of the statutory 

award, and why their proposal is supported under the law and/or the facts of this case.3

Additionally, the parties should submit either joint or competing proposed judgment(s) by the 

same date. No chambers copies are required. 

As a final note, while CashCall may not have any particular interest at this point in the 

method of dividing or distributing the award, the Court has ordered CashCall’s participation in 

determining the matters above and will consider waived any future objections to issues arising 

from the method of dividing or distributing the award if CashCall does not address them in the 

joint statement.

The Court will hold a status conference on the foregoing matters on June 2, 2016 at 10:00 

a.m. in Courtroom B, located on the 15th Floor of the Federal Building, 450 Golden Gate Avenue, 

San Francisco, California.

IT IS SO ORDERED.

Dated: May 12, 2016

______________________________________

MARIA-ELENA JAMES

United States Magistrate Judge

 

3

In doing so, the parties should also keep in mind how their proposals for the first distribution 

may impact any future secondary distribution in the event there are uncashed checks or other 

unclaimed funds.

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