Kevin Hart et al v. Carolyn W. Colvin
Filing
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STIPULATION AND ORDER re 89 STIPULATION WITH PROPOSED ORDER re 88 Order on Motion for Settlement TO AMEND ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT filed by Nancy A. Berryhill. Signed by Judge Jon S. Tigar on April 25, 2017. (wsn, COURT STAFF) (Filed on 4/25/2017)
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GERALD A. McINTYRE (SBN 181746)
gmcintyre@justiceinaging.org
JUSTICE IN AGING
3660 Wilshire Blvd., Suite 718
Los Angeles, CA 90010
T: (213) 674-2900 / F: (213) 550-0501
CHAD A. READLER
Acting Assistant Attorney General
JUDRY L. SUBAR
Assistant Director
Federal Programs Branch
M. ANDREW ZEE (CA Bar No. 272510)
United States Department of Justice
Civil Division, Federal Programs Branch
450 Golden Gate Avenue, Room 7-5395
San Francisco, CA 94102
T: (415) 436-6646 / F: (415) 436-6632
Email: m.andrew.zee@usdoj.gov
ANNA RICH (SBN 230195)
arich@justiceinaging.org
TRINH PHAN (SBN 267288)
tphan@justiceinaging.org
JUSTICE IN AGING
1330 Broadway, Suite 525
Oakland, CA 94612
T: (510) 663-1055 / F: (213) 550-0501
Attorneys for Defendant
Attorneys for Plaintiffs
(Additional Counsel listed on next page)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
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KEVIN HART, NINA SILVA-COLLINS,
and LEE HARRIS, on behalf of themselves
and all others similarly situated,
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Plaintiffs,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, in her
official capacity,
Defendant.
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Case No. 3:15-cv-00623-JST
STIPULATED REQUEST TO AMEND
ORDER GRANTING FINAL APPROVAL
OF CLASS ACTION SETTLEMENT AND
[PROPOSED] ORDER
Hon. Jon S. Tigar
Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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WILLIAM L. STERN (SBN 96105)
WStern@mofo.com
CLAUDIA M. VETESI (SBN 233485)
CVetesi@mofo.com
ROBERT T. PETRAGLIA (SBN 264849)
RPetraglia@mofo.com
ELIZABETH BALASSONE (SBN 280563)
EBalassone@mofo.com
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
T: (415) 268-7000 / F: (415) 268-7522
HOPE NAKAMURA (SBN 126901)
hnakamura@legalaidsmc.org
LEGAL AID SOCIETY OF SAN MATEO COUNTY
330 Twin Dolphin Drive, Suite 123
Redwood City, CA 94065
T: (650) 558-0915 / F: (650) 517-8973
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Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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Plaintiffs, Kevin Hart, Nina Silva-Collins, and Lee Harris, on behalf of themselves and all
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others similarly situated, and Defendant, Nancy A. Berryhill, Acting Commissioner of Social
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Security, sued solely in her official capacity (“SSA”), submit this Stipulated Request to Amend
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the Court’s April 17, 2017 Order Granting Final Approval of Class Action Settlement (“Order”)
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[ECF No. 88] to comport with the terms of the parties’ Amended Settlement Agreement
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(“Agreement”) [ECF No. 79-1]. The April 17, 2017 Order differs from the Agreement in the
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following four material respects. First, on page 1, line 19, the Order recites that the case involves
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“evidence used by Administrative Law Judges (‘ALJs’),” but the case involved adjudications at
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all levels, not just at the ALJ stage, so Plaintiff would request that “Administrative Law Judges
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(‘ALJs’)” be replaced with “Social Security Administration (‘SSA’)”; and at page 1, line 20-21,
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instead of saying “The evidence ALJs consider when making a disability benefits determination
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includes consultative evaluations,” this should be re[placed with “The evidence the agency
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considers when making a disability benefits determination often includes consultative evaluations
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… . “ Second, the Order sets the date for mailing Request Forms as May 19, 2017, but under the
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Agreement that the Court was approving, the deadline for mailing the Request Forms is later,
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namely, ninety days (for most forms) and twenty days (for another form) after the time for any
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appeals from the approval order has elapsed. Third, the Order contains language that might create
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confusion concerning the enforcement mechanism negotiated and agreed upon by the parties.
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Fourth, the parties had requested that the Court grant final approval to the amended class
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definition, which was omitted from the Court’s Order Granting Final Approval. Respectfully,
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therefore, the parties request that the Court amend its April 17, 2017 Order in the manner
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described below. Alternatively, the parties request that the Court withdraw the Order and enter
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the Amended Proposed Order [ECF No. 85-1] that the parties submitted on March 1, 2017 in
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connection with Plaintiffs’ Motion for Final Approval.
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Request for Amendment of the Order
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The Conclusion of the Order provides as follows:
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CONCLUSION
Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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The Court finds the settlement agreement fair, adequate, and
reasonable and GRANTS Plaintiffs motion for final approval of the
settlement.
The parties shall distribute the Request Forms by May 19,
2017.
Defendant will pay $490,000 in attorneys’ fees and costs to
Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San
Mateo County. The Court finds that this award is fair and reasonable
in light of the nature of this Action, counsel’s experience and efforts
in prosecuting and resolving this action, and the benefits obtained
for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has
agreed to waive its fees and costs.
The Court reserves exclusive and continuing jurisdiction
over the Action, the Class Representatives, the Class members, and
Defendants for the purposes of supervising the implementation,
enforcement, and construction of the Settlement and this Judgment.
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Order 5. The parties request that the Order be amended to remove the second and fourth
paragraphs of this Conclusion, and to include a term that the parties had requested that the Court
include.
Second Paragraph: In the Agreement, the parties did not establish a date certain (such as
May 19, 2017) by which SSA would send claimants the agreed-upon notices and claim forms
(referred to by the Court as “Request Forms” in the Order). Instead, the deadline to send such
forms is to be established in relation to the “date on which the Settlement becomes effective.”
See Agreement 18, 20, 27, 28, 31 (providing that SSA will send Notices A, A2, B, and B2 within
ninety days after the effective date and Notice C within twenty days after the effective date).
Pursuant to the agreed definition, the “date on which the Settlement becomes effective” will not
be known until either (1) any timely appeal of the approval order is resolved; or (2) no timely
appeal is filed. Agreement 4 (defining “date on which the Settlement becomes effective”). A
May 19, 2017 deadline to distribute the Request Forms is therefore at odds with the terms of the
Agreement. Further, counsel have been informed that SSA is not in a position to meet a May 19,
2017 deadline (which would in any event come before the deadline for an appeal from the April
17, 2017 Order). Therefore, the parties respectfully request that the second paragraph of the
Conclusion be stricken. Otherwise, the parties will be in the difficult position of having an Order
Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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granting final approval of a Settlement Agreement that deviates from the negotiated terms of the
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Settlement Agreement (and which, as a practical matter, cannot be performed).
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Fourth Paragraph: In the Agreement, the parties identified specific pre-dispute resolution
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procedures in an Enforcement provision. Agreement 33-35. Without noting the Enforcement
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provision, the April 17, 2017 Order states that the Court “reserves exclusive and continuing
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jurisdiction over the Action, the Class Representatives, the Class members, and Defendants for
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the purposes of supervising the implementation, enforcement, and construction of the Settlement
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and this Judgment.” Order 5.
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process for remedying alleged violations of this Agreement.” Agreement 33. The parties “further
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agree[d] that no other litigation action in the Case, including but not limited to the filing of any
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motions or pleadings, may be taken except as set forth in this Section VI [concerning
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Enforcement].” Id. In order to avoid potential confusion from the language in the Order (which
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does not expressly reference the Enforcement provision), the parties respectfully request that the
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fourth paragraph of the Conclusion be stricken.1
In the Agreement, however, the parties agreed to an “exclusive
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Final Approval of Amended Class Definition: In the Agreement, the parties agreed, for
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settlement purposes, to amend the definition of the class and to request that the Court amend the
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certified class so that the plaintiff class is defined as consisting of “all persons whose SSI or SSDI
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benefits were either denied or terminated and for whom a consultative examination was prepared
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by Dr. Frank Chen, and all persons who received a partially favorable decision or determination
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on their claim for SSI or SSDI benefits and for whom a consultative examination was prepared
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by Dr. Chen.” Agreement 6-7. Although the Court preliminarily approved this modification of
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the class definition, see Order Granting Mot. for Prelim. Approval, ECF No. 81, at 6-7, it did not
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expressly grant final approval to this modification. To ensure that proper notice is given of the
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It appears that the fourth paragraph of the Conclusion may have been drawn from the
original proposed order submitted by Plaintiffs in connection with their Motion for Final
Approval. See Proposed Order, ECF No. 82-3, at 5, ¶ 10 (using same language as fourth
paragraph of the Conclusion). Following submission of this proposed order, SSA registered its
objections to this language with Plaintiffs’ counsel, and the parties then agreed to submit an
Amended Proposed Order, in which this language does not appear. See Notice of Am. Proposed
Order, ECF No. 85-1; see also Def.’s Mem. Supp. Final Approval, ECF No. 83, at 1 n.2.
Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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amended class definition, and out of an abundance of caution, the parties respectfully request that
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the Court add a new paragraph to the Conclusion granting final approval to the amended class
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definition. See also Notice of Am. Proposed Order, ECF No. 85-1, at 1-2, ¶ 5.
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In summary, the parties respectfully request that the Court amend page 1, line 19 to replace
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“Administrative Law Judges (‘ALJs’)” with “Social Security Administration (‘SSA’)”; and at
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page 1, line 20-21, instead of saying “The evidence ALJs consider when making a disability
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benefits determination includes consultative evaluations,” this should be replaced with “The
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evidence the agency considers when making a disability benefits determination often includes
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consultative evaluations … . “ The Conclusion of the Order should be amended so that it provides
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as follows:
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CONCLUSION
The Court finds the settlement agreement fair, adequate, and
reasonable and GRANTS Plaintiffs motion for final approval of the
settlement.
This Court gives its final approval of the Settlement to the
amended class definition as approved in its Order Granting Motion
for Preliminary Approval of Class Action Settlement:
[A]ll persons whose SSI or SSDI benefits
were either denied or terminated and for whom a
consultative examination was prepared by Dr. Frank
Chen, and all persons who received a partially
favorable decision or determination on their claim
for SSI or SSDI benefits and for whom a consultative
examination was prepared by Dr. Chen.
(ECF No. 81 at 6-7.)
Defendant will pay $490,000 in attorneys’ fees and costs to
Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San
Mateo County. The Court finds that this award is fair and reasonable
in light of the nature of this Action, counsel’s experience and efforts
in prosecuting and resolving this action, and the benefits obtained
for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has
agreed to waive its fees and costs.
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Alternatively, the parties request that the Court withdraw the Order in its entirety and enter the
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Amended Proposed Order [ECF No. 85-1] that the parties submitted on March 1, 2017 in
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connection with Plaintiffs’ Motion for Final Approval. A proposed order is attached.
Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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Dated: April 21, 2017
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WILLIAM L. STERN
CLAUDIA M. VETESI
ROBERT T. PETRAGLIA
ELIZABETH BALASSONE
MORRISON & FOERSTER LLP
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By: /s/ William L. Stern
WILLIAM L. STERN
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Attorney for Plaintiffs
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Dated: April 21, 2017
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION
CHAD A. READLER
Acting Assistant Attorney General
JUDRY L. SUBAR
Assistant Director
M. ANDREW ZEE (CA Bar # 272510)
Attorney
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By: /s/ Andrew Zee
M. ANDREW ZEE
Attorneys for Defendant
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Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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[PROPOSED] ORDER
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Upon stipulation of the parties, and good cause appearing, the Court hereby orders that:
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The Court’s April 17, 2017 Order Granting Final Approval of Class Action Settlement is
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amended by
Replacing, at page 1, line 19, “Administrative Law Judges (‘ALJs’)” with “Social
Security Administration (‘SSA’)”;
Replacing, at page 1, line 20-21, “The evidence ALJs consider when making a disability
benefits determination includes consultative evaluations,” with “The evidence the agency
considers when making a disability benefits determination often includes consultative
evaluations,“; and
Striking the Conclusion section appearing at lines 2 through 12 of page 5, and replacing it
with the following text:
CONCLUSION
The Court finds the settlement agreement fair, adequate, and
reasonable and GRANTS Plaintiffs motion for final approval of the
settlement.
This Court gives its final approval of the Settlement to the
amended class definition as approved in its Order Granting Motion
for Preliminary Approval of Class Action Settlement:
[A]ll persons whose SSI or SSDI benefits
were either denied or terminated and for whom a
consultative examination was prepared by Dr. Frank
Chen, and all persons who received a partially
favorable decision or determination on their claim
for SSI or SSDI benefits and for whom a consultative
examination was prepared by Dr. Chen.
(ECF No. 81 at 6-7.)
Defendant will pay $490,000 in attorneys’ fees and costs to
Plaintiffs’ counsel Justice in Aging and Legal Aid Society of San
Mateo County. The Court finds that this award is fair and reasonable
in light of the nature of this Action, counsel’s experience and efforts
in prosecuting and resolving this action, and the benefits obtained
for the Class. Plaintiffs’ co-counsel, Morrison & Foerster, has
agreed to waive its fees and costs.
Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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Dated: April 25, 2017
HON. JON S. TIGAR
United States District Court Judge
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Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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ATTESTATION
Pursuant to Local Rule 5-1(i)(3), I attest that I am the ECF user whose user ID and
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password are being used in the electronic filing of this document, and further attest that I have
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obtained the concurrence in the filing of the document from the other signatory.
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/s/ Andrew Zee
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M. ANDREW ZEE
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CERTIFICATE OF SERVICE
I hereby certify that on the 21st day of April, 2017, I electronically transmitted the
foregoing document to the Clerk of Court using the ECF System for filing.
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/s/ Andrew Zee
M. ANDREW ZEE
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Hart, et al. v. Berryhill, Case No. 3:15-cv-00623-JST
Stipulated Request to Amend Order Granting Final Approval
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