Discover Bank v. Shea

827 A.2d 292 (2003) 362 N.J. Super. 90 DISCOVER BANK, Plaintiff-Appellant, v. James B. SHEA, Defendant-Respondent. Superior Court of New Jersey, Appellate Division. Submitted May 28, 2003. Decided June 11, 2003. Ballard, Spahr, Andrews & Ingersoll, and Mark J. Levin of the Pennsylvania bar, admitted pro hac vice, Philadelphia, PA, for appellant (Glenn A. Harris, Voorhees, of counsel and on the brief). Strange & Carpenter, and Samuel C. Inglese, of the California bar, admitted pro hac vice, for respondent (Brian R. Strange, on the brief). Before Judges STERN, COBURN and COLLESTER. PER CURIAM. Plaintiff appeals from a judgment of the Law Division dismissing its complaint on the grounds that defendant's agreement to arbitrate disputes with plaintiff, prohibiting participation in a class action, was not enforceable in New Jersey. Defendant, a New Jersey resident, instituted an action against plaintiff in California, on behalf of a class of Discover Card credit holders, seeking relief for allegedly improper fees and charges. While plaintiff's appeal was pending before us, we conducted a telephone conference with counsel as a result of communications requesting an adjournment of this action by virtue of a possible settlement in California. The matter was adjourned with the understanding that if the California trial judge approved the settlement, the appeal would be dismissed without prejudice to reinstatement if the trial judge subsequently rejected the settlement after hearing from members of the aggrieved class. We have now been advised that on April 10, 2003, the Superior Court of California, County of Orange, granted a motion preliminarily approving settlement of the class action. Plaintiff was directed to mail or cause to be mailed the settlement notice to members of plaintiff's class, and a "Formal Fairness Hearing to determine whether there exists any reasonable basis why the settlement should not be approved as being fair, reasonable, adequate, lawful, and in the best interests of the Plaintiff Class" was scheduled for September 18, 2003. Accordingly, consistent with the parties' agreement, confirmed by letter of April 25, 2003, we dismiss the appeal, without costs, subject to reinstatement in the event that, after the "Formal Fairness Hearing" in the Superior Court of California, the trial judge does not approve the settlement or for any other reason the settlement does not become final. So ordered.