Wyckoff et al v. United States of America et al

Filing 397

ORDER by Judge Illston granting 387 Motion for Settlement; granting 394 Motion for Joinder (tf, COURT STAFF) (Filed on 3/12/2010)

1 CHAVEZ & GERTLER LLP JONATHAN E. GERTLER (Bar No. 111531) 2 JOSEPH R. IGELMUND (Bar No. 52493) 42 Miller Avenue 3 Mill Valley, California 94941 Telephone: [phone] Facsimile: [phone] 5 Attorneys for Plaintiffs SUSAN WYCKOFF and ALEXANDER WYCKOFF 6 7 8 9 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) Plaintiffs ) vs. ) UNITED STATES OF AMERICA; DANIEL ) ) EARL SPERL and DOES 1 through 10, ) Defendants. ) ) And Consolidated Action: ) CHARLIE EAP vs. UNITED STATES OF ) AMERICA AND DANIEL EARL SPERL. ) ) Case No. C-07-3600 SI Date: April 14, 2010 Time: 4:30 p.m. Court: Hon. Susan Illston

10 SUSAN WYCKOFF, individually, and as Administratrix of the Estate of PETER 11 WYCKOFF; ALEXANDER WYCKOFF by and through his Guardian ad Litem, SUSAN 12 WYCKOFF, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case No. C-07-2301 SI

[AMENDED PROPOSED] ORDER APPROVING (1) COMPROMISE OF PENDING ACTION BY MINOR ALEXANDER WYCKOFF THROUGH GUARDIAN AD LITEM SUSAN WYCKOFF; (2) ALLOCATION OF SETTLEMENT PROCEEDS TO MINOR ALEXANDER WYCKOFF; (3) ADMINISTRATION OF NET SETTLEMENT PROCEEDS TO MINOR ALEXANDER WYCKOFF; (4) COMPROMISE OF PENDING ACTION BY SUSAN WYCKOFF; (5) ATTORNEYS' FEE AGREEMENT EXECUTED BY GUARDIAN AD LITEM SUSAN WYCKOFF FOR MINOR ALEXANDER WYCKOFF; AND (6) PAYMENT OF FEES AND EXPENSES OF MINOR ALEXANDER WYCKOFF, INCLUDING ATTORNEYS' FEES AND EXPENSES

[AMENDED PROPOSED] ORDER APPROVING COMPROMISE OF PENDING ACTION, ETC., Case No. C09-3600 SI and C07-2301

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The Verified Petition of Susan Wyckoff, Guardian ad Litem for minor Alexander

2 Wyckoff, and individually, for an order approving (1) the compromise by minor Alexander 3 Wyckoff, through Guardian ad Litem Susan Wyckoff, of the pending action, (2) the 4 allocation of settlement proceeds as between minor Alexander Wyckoff and Petitioner, 5 (3) the administration of the net settlement proceeds for the benefit of minor Alexander 6 Wyckoff, (4) the compromise of the pending action by Susan Wyckoff, as required by 7 defendant United States and ordered by the Court on the filed Stipulation for Compromise, 8 (5) the attorneys' fee agreement executed by Guardian ad Litem Susan Wyckoff for the 9 benefit of minor Alexander Wyckoff; and (6) payment of fees and expenses of minor 10 Alexander Wyckoff, including attorneys' fees and expenses, as set forth in the Petition, came 11 on for hearing on April 14, 2010 before the United States District Court for the Northern 12 District of California, the Honorable Susan Illston presiding. 13 Jonathan E. Gertler, Chavez & Gertler LLP, appeared for Susan Wyckoff as Guardian

14 ad Litem for minor Alexander Wyckoff and individually. James A. Scharf, United States 15 Attorney's Office, appeared for defendant United States of America. Kristina Velarde, 16 Cesari Werner & Moriarty, appeared for defendant Daniel Sperl. 17 The Court having considered the Petition and supporting papers filed therewith, and

18 the matters stated at hearing, and good cause appearing: 19 IT IS ORDERED that the settlement by Petitioner of this action, including without

20 limitation settlement for the total amount of $3,100,000, shall be and it hereby is approved; 21 IT IS FURTHER ORDERED that the requested allocation of 30%, or $930,000, of

22 the settlement amount for the benefit of minor Alexander Wyckoff, and 70%, or $2,170,000, 23 of the settlement amount to Petitioner individually, shall be and it hereby is approved; the 24 Court finds that the settlement, the $3,100,000 settlement amount, and the allocation of 30% 25 of the settlement amount for the benefit of minor Alexander Wyckoff, are fair and reasonable 26 to his interests; 27 IT IS FURTHER ORDERED that the attorneys' fee agreement, between Petitioner
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[AMENDED PROPOSED] ORDER APPROVING COMPROMISE OF PENDING ACTION, ETC., Case No. C09-3600 SI and C07-2301

28 individually and as Guardian ad Litem for minor Alexander Wyckoff on the one hand and

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Petitioner's attorneys on the other, shall be and it hereby is approved; the Court finds that the fee agreement is fair and reasonable to minor Alexander Wyckoff's interests; IT IS FURTHER ORDERED that the costs advanced by Petitioner's attorneys in the total amount of $148,559.09, and the requested allocation of 30%, or $44,567.73, of the costs for the benefit of minor Alexander Wyckoff, and 70%, or $103,991.36, of the costs to Petitioner individually, shall be and they hereby are approved; the Court finds that said costs, and the allocation of 30% of said costs for the benefit of minor Alexander Wyckoff, are fair and reasonable to his interests; IT IS FURTHER ORDERED that the attorneys' fees requested by Petitioner's attorneys in the total amount of $737,860.23 pursuant to the attorneys' fee agreement, and the requested allocation of 30%, or $221,358.06, of said attorneys' fees for the benefit of minor Alexander Wyckoff, and 70%, or $516,502.17, of said attorneys' fees to Petitioner individually, shall be and they hereby are approved; the Court finds that said attorneys' fees, and the allocation of 30% of said attorneys' fees for the benefit of minor Alexander Wyckoff, are fair and reasonable to his interests; IT IS FURTHER ORDERED, as to the proposed administration of the settlement proceeds for minor Alexander Wyckoff, that: (a) Petitioner shall endorse defendant United States' settlement check (payable to

"Susan Wyckoff as Guardian ad Litem for Alexander Wyckoff, and her attorneys, Chavez & Gertler") over to Petitioner's attorneys, Chavez & Gertler LLP, and Petitioner's attorneys, Jonathan E. Gertler, Chavez & Gertler LLP, shall cause the endorsed check to be deposited in the Chavez & Gertler LLP trust account at Citibank, Mill Valley, California; (b) Petitioner's attorneys, Jonathan E. Gertler, Chavez & Gertler LLP, after

deposit and clearing of defendant United States' settlement check in the Chavez & Gertler LLP trust account, shall cause Chavez & Gertler LLP to be reimbursed from its trust account its expenses in the total amount of $44,567.73, and attorneys' fees in the total amount of $221,358.06, concerning the representation of Alexander's
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[AMENDED PROPOSED] ORDER APPROVING COMPROMISE OF PENDING ACTION, ETC., Case No. C09-3600 SI and C07-2301

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interests; (c) Petitioner's attorneys, Jonathan E. Gertler, Chavez & Gertler LLP, after

payment of the expenses and attorneys' fees concerning the representation of Alexander's interests as aforesaid, shall cause to be issued its trust account check for $664,074.21 ("Alexander's Net Settlement Proceeds") payable to "Susan Wyckoff as Guardian ad Litem for Alexander Wyckoff," and shall cause said check to be deposited in an insured account ("Alexander's Account"), under the title "Susan Wyckoff as Guardian ad Litem for Alexander Wyckoff," at Citibank, 130 Throckmorton Avenue, Mill Valley, California; (d) Citibank shall be authorized to purchase, for Alexander's Account, insured

certificates of deposit or "money market" funds, pending further investment of Alexander's Net Settlement Proceeds upon further order of the Court; (e) Funds in Alexander's Account shall be subject to withdrawal only upon

authorization of the Court, pursuant to Cal.Prob.C. § 3611(b) and notwithstanding any prior order of the Court; and (f) Petitioner's attorneys, Jonathan E. Gertler, Chavez & Gertler LLP, shall cause

a copy of the Court's order to be served on the registered agent of and a manager of the financial institution at which Alexander's Account is held, prior to deposit of Alexander's Net Settlement Proceeds in Alexander's Account; IT IS FURTHER ORDERED, pursuant to § 3612(a) of the California Probate Code and any other relevant provision therein, and notwithstanding any Stipulation For Compromise executed by the parties or any order of the Court, this Court shall have continuing jurisdiction of the money paid or to be paid, delivered, deposited, or invested for the benefit of Alexander, until he reaches 18 years of age; IT IS FURTHER ORDERED, pursuant to the Stipulation for Compromise and the Court's prior order thereon, that the settlement by Petitioner Susan Wyckoff of her individual claims in this action shall be and it hereby is approved; the Court finds that the settlement as to Petitioner Susan Wyckoff individually is fair and reasonable to her interests; and
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[AMENDED PROPOSED] ORDER APPROVING COMPROMISE OF PENDING ACTION, ETC., Case No. C09-3600 SI and C07-2301

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IT IS FURTHER ORDERED that, notwithstanding any prior order of the Court, the settlement check by defendant United States in the amount of $2,170,000 shall be made payable to "Susan Wyckoff and her attorneys, Chavez & Gertler" only.
11 Dated: March ___ , 2010

____________________________________ THE HONORABLE SUSAN ILLSTON UNITED STATES DISTRICT JUDGE

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[AMENDED PROPOSED] ORDER APPROVING COMPROMISE OF PENDING ACTION, ETC., Case No. C09-3600 SI and C07-2301