Touchstone Group, LLC v. Rink et al
FINAL ORDER Granting Approval of Class Action Settlements, Awards of Attorneys' Fees and Expenses, Class Representatives' Incentive Awards and Dismissal With Prejudice. By Judge Christine M. Arguello on 07/18/2014. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 1:11-cv-02971-CMA-KMT
TOUCHSTONE GROUP, LLC, MARGRET GREENSPAN,
AND RONALD GREENSPAN,
On behalf of themselves and all others similarly situated,
DANIEL J. RINK;
ASTOR, WEISS, KAPLAN, & MANDEL LLP;
CHRISTOPHER FLANNERY, ESQ;
STEVEN GRANOFF, CPA;
KRASSENSTEIN & UNGER, LLC; AND
ESTILL & LONG, LLC
FINAL ORDER GRANTING APPROVAL OF CLASS ACTION SETTLEMENTS,
AWARDS OF ATTORNEYS’ FEES AND EXPENSES, CLASS REPRESENTATIVES’
INCENTIVE AWARDS AND DISMISSAL WITH PREJUDICE
AND NOW, this 18th day of July, 2014, upon consideration of Plaintiffs’ Motion
for Final Approval of the Class Action Settlement, the Declaration of Anthony D. Shapiro
in support thereof, and all accompanying Settlement Agreements, the accompanying
Declaration of Josephine Bravata from Strategic Claims Services Concerning the
Mailing of Notice of Class Action, Proposed Settlement, and Final Hearing on
Settlement; and Class Counsels’ Motion for Award of Attorneys’ Fees, Expenses, and
Incentive Awards for the Class Representatives, the accompanying Declarations of
Patrick Howard and Anthony D. Shapiro in support thereof, the representations of all
counsel during the Fairness Hearing, and all other papers and proceedings herein, it is
hereby ORDERED as follows:
This Court has subject matter jurisdiction over this action and personal
jurisdiction over all parties to the Settlement Agreements. 1
Capitalized terms not otherwise defined herein shall have the same
meaning as set forth in the Settlement Agreements.
The following Settlement Class, which was conditionally certified in the
Order granting preliminary approval of the Settlements on March 21, 2013 (Doc. # 227),
is certified for settlement purposes as follows:
ALL PERSONS OR ENTITIES WHO INVESTED IN ANY
SECURITIES ISSUED OR PROMOTED BY MANTRIA
CORPORATION OR SPEED OF WEALTH, LLC, OR ANY
OF THEIR SUBSIDIARIES OR AFFILIATES SINCE
SEPTEMBER 2007 AND INCURRED A NET LOSS OF
THEIR INVESTMENTS (THE “SETTLEMENT CLASS”).
EXCLUDED FROM THE SETTLMENT CLASS ARE
DEFENDANTS, MANTRIA CORPORATION, SPEED OF
WEALTH LLC AND ANY OF THEIR OFFICERS,
EMPLOYEES, OR AFFILIATES.
This Court finds that certification of the Settlement Class is appropriate
The Settlement Class is so numerous that joinder of all members is
impracticable, satisfying the requirement of Rule 23(a)(1);
On December 21, 2012, the Court dismissed Astor, Weiss, Kaplan & Mandel, LLP,
Krassenstein & Unger, LLC and Steven L. Granoff, CPA from this action pursuant to Fed. R.
Civ. P. 12(b)(2) for lack of personal jurisdiction. (Doc. # 121). With the consent of all parties to
this action, the Plaintiffs filed an Amended Complaint on October 21, 2013 and added each
previously dismissed party to the action. (Doc. # 186). For purposes of this settlement only,
Astor, Weiss, Kaplan & Mandel, LLP, Krassenstein & Unger, LLC and Steven L. Granoff, CPA,
have consented to the jurisdiction of this Court.
There are questions of law or fact common to the Settlement Class,
satisfying the requirements of 23(a)(2);.
The claims of Class Representatives, Touchstone Group, LLC and
Margret and Ronald Greenspan, are typical of the claims of the members of the
Settlement Class, satisfying the requirements of Rule 23(a)(3);
The Class Representatives will fairly and adequately protect the
interests of the Settlement Class, and they have retained Class Counsel qualified in
litigating class actions, satisfying the requirements of Rule 23(a)(4); and
Questions of law or fact common to the members of the Settlement
Class, as set forth above, predominate over any questions affecting only individual
members, and a class action is superior to other available methods for the fair and
efficient adjudication of the controversy, satisfying the requirements of Rule 23(b)(3).
If this Final Judgment and Order of Dismissal is set aside, materially
modified, or returned by this Court on appeal, and it is not fully reinstated on further
appeal, this Order shall be vacated and shall have no force or effect whatsoever.
570 Class Notices were disseminated to Settlement Class Members
pursuant to the Order Granting Preliminary Approval. In response, the Court received
approximately sixteen objections to the terms of the proposed Settlement. The Court
has carefully considered the objections and has OVERRULED them.
For the reasons stated at the final fairness hearing held on July 18, 2014,
the Court concludes that the proposed settlement is a fair, reasonable and adequate
compromise of the claims asserted in this action as it relates to the Released Parties.
The Court therefore approves the terms of all Settlement Agreements.
The Class Notice, the contents of which were previously approved by the
Court, was disseminated both by first class mail and electronic mail, as well as posted
on the Class Website in accordance with the procedures required by the Court’s
Preliminary Approval Order in accordance with applicable law. Plaintiffs, the Settlement
Class and the Released Parties are bound by this Final Judgment and Order of
Dismissal and by the Settlement Agreements.
The Court dismisses, on the merits and with prejudice, all claims currently
pending before it against the Released Parties that are belonging to the Settlement
Class who did not request exclusion from the class in the time and manner provided for
in the Class Notice (“Settlement Class Members”). As of the Effective Date of the
Settlement, the Class Representatives and the Settlement Class Members shall be
deemed to hereby fully and irrevocably release, waive, and discharge the following
Released Parties from all Released Claims (as defined in the Settlement Agreements):
(1) Astor, Weiss, Kaplan & Mandel, LLP and Christopher P. Flannery; (2) Krassenstein
& Unger, LLC and Steven L. Granoff; (3) Estill & Long, LLC; (4) Tatum, LLC; and (5)
Daniel J. Rink.
Having reviewed Class Counsel’s Motion for Attorneys’ Fees, the Court
awards Class Counsel reasonable attorneys’ fees in the amount of 30% of the
Settlement Fund for a total of one million eight hundred and fifteen thousand
($1,815,000) in addition to an award of actual expenses incurred in the litigation of
Strategic Claims Services’ (“Strategic Claims”) request for payment for
services provided in preparing and mailing the notice in the amount of $5,971.34 is
granted. After Strategic Claims completes the administration of the settlement, and
prior to mailing the settlement proceeds, Strategic Claims shall make an application to
the Court via Class Counsel for payment for the balance of its services. In no event, will
that payment exceed $32,000.
The Court awards Class Representatives, Touchstone Group, LLC,
Margret Greenspan and Ronald Greenspan an incentive fee award of $2,500 each for a
total of $7,500.
Within 30 days of the Effective Date as defined in the Settlement
Agreement, the Released Parties shall pay into the Escrow Account established by the
Settlement Administrator the total amount of six-million fifty thousand dollars
($6,050,000) as follows: (i) Tatum, LLC and Rink shall deposit the total sum of five
million one hundred thousand ($5,100.000.00); (ii) the Astor Weiss Parties shall deposit
the total sum of seven hundred and fifty thousand dollars ($750,000.00); (iii) Estill &
Long LLC shall deposit the total sum of one hundred thousand dollars ($100,000); and
(iv) the Krassenstein Parties shall deposit the total sum of one hundred thousand dollars
($100,000.00). The respective above-referenced deposits shall constitute the entire
monetary consideration to be paid by or on behalf of the Released Parties in connection
with this Settlement.
After the deduction of Court awarded Attorneys’ Fees and Costs to Class
Counsel; payment of Notice Costs and Administration; and the Incentive Awards, the
remaining balance (“Settlement Class Fund”) shall remain in the Escrow Account until a
final judgment is entered in the above captioned litigation as to all parties and the
Claims Period deadline closes.
Once a final judgment is entered, the Settlement
Administrator shall mail a letter to each Class Member with their pro rata settlement
share. The pro rata distribution shall be determined based upon the forensic accounting
prepared the Receiver and provided to Class Counsel demonstrating the amount of
each Settlement Class Member’s outstanding and unpaid investment in Mantria
Corporation. The Class Member will have thirty (30) days to return the letter confirming
their investment amount and pro rata distribution or provide documents supporting a
differing amount. The Settlement Administrator will make the final determination on the
appropriate amount of loss based on all available information. Once that process is
complete, the Settlement Administrator shall mail checks to each Class Member. If any
funds remain in the Escrow Account after 200 days from the first mailing, Class Counsel
shall petition to the Court and provide suggested uses of the money, including redistribution to class members or an award of cy pres.
The Settlement Agreements, acts performed in furtherance of the
Settlement Agreements or the settlement set forth therein, and documents executed in
furtherance of the Settlement Agreements or the settlement set forth therein may not be
deemed or be used as evidence or an admission supporting: (a) the validity of any
claim made by one or more of the Class Representatives, Settlement Class Members,
or Class Counsel; (b) any wrongdoing or liability of the Released Parties; or (c) any fault
or omission of the Released Parties in any court, administrative agency or other
The Settlement Agreements shall not be offered or be admissible in
evidence against Released Parties or cited or referenced to in any action or proceeding,
except in an action or proceeding that is in furtherance of its terms or to enforce its
Without affecting the finality of this Final Judgment and Order of Dismissal
in any way, the Court reserves continuing jurisdiction over the parties regarding the
enforcement of the terms of the Settlement Agreements, including any and all tangential
disputes that arise related to the litigation and/or the Settlement and its enforcement.
The Clerk is directed to enter the Final Judgment and Order of Dismissal
pertaining to the Released Parties.
DATED: July 18, 2014
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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