Manker et al v. Spencer
Filing
216
SUPPLEMENTAL ORDER granting Preliminary Approval of Class Action Settlement and Class Notice (see attached). Signed by Judge Charles S. Haight, Jr. on October 12, 2021. (Dorais, L.)
Case 3:18-cv-00372-CSH Document 211-5 Filed 09/17/21 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
TYSON MANKER, on behalf of himself and
all others similarly situated, and NATIONAL
VETERANS COUNCIL FOR LEGAL
REDRESS, on behalf of itself, its members,
and all others similarly situated,
No. 3:18-cv-372 (CSH)
Plaintiffs,
v.
CARLOS DEL TORO, Secretary of the Navy,
OCTOBER 12, 2021
Defendant.
SUPPLEMENTAL ORDER GRANTING PRELIMINARY APPROVAL OF CLASS
ACTION SETTLEMENT AND CLASS NOTICE
Haight, Senior District Judge:
WHEREAS, as of September 16, 2021, Tyson Manker and National Veterans
Council for Legal Redress (“NVCLR”) (collectively “Class Representatives”), individually
and on behalf of themselves, NVCLR’s members, and a class of persons similarly
situated (the “Plaintiffs”), on the one hand, and Carlos Del Toro, in his official capacity as
Secretary of the U.S. Navy (the “Navy”) (“Defendant”), on the other, entered into a Stipulation
and Agreement of Settlement (the “Stipulation” or “Settlement Agreement”) in the abovetitled litigation (the “Action”), which is subject to review under Rule 23 of the Federal Rules of
Civil Procedure and which, together with the exhibits thereto, sets forth the terms and
conditions of the proposed settlement of the Action and the claims alleged in the Complaint
filed on March 2, 2018 [Doc. 1] on the merits and with prejudice (the “Settlement”); and
WHEREAS, the Court has reviewed and considered the Stipulation and accompanying
exhibits; and
WHEREAS, the Parties to the Stipulation have consented to the entry of this order; and
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WHEREAS, all capitalized terms used in this order that are not otherwise defined
herein have the meanings defined in the Stipulation;
NOW, THEREFORE, IT IS HEREBY ORDERED, this 12th day of October, 2021
that:
1.
The Court has reviewed the Stipulation and preliminarily finds the Settlement set
forth therein to be fundamentally fair, reasonable, adequate, and in the best interests of the
Settlement Class members, especially in light of the benefits achieved on behalf of them, the
risks and delay inherent in litigation, and the limited amount of any potential recovery that
could be shared by the Settlement Class members.
Furthermore, the Parties’ Settlement
Agreement was the result of good-faith, arm’s-length negotiations between experienced counsel
under the supervision of Magistrate Judge Robert M. Spector, and is without any obvious
deficiencies.
2.
Pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Court has
made a preliminary determination to certify the following Settlement Class for the purposes of
settlement only:
Veterans who served during the Iraq and Afghanistan Era—defined as
the period between October 7, 2001, and the present—who:
a) were discharged from the Navy, Navy Reserves, Marine Corps, or
Marine Corps Reserve with less-than-Honorable statuses, including
General and Other-than-Honorable discharges but excluding
Uncharacterized, Bad Conduct, Dishonorable discharges, or
Dismissals;
b) have not received upgrades of their discharge statuses to Honorable
from the NDRB; and
c) have diagnoses of PTSD, TBI, or other related mental health
conditions, or records documenting one or more symptoms of
PTSD, TBI, or other related mental health conditions at the time of
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discharge, attributable to their military service under the Hagel
Memo standards of liberal or special consideration.
3. The Court finds and concludes that the prerequisites of class action certification
under Rule 23 of the Federal Rules of Civil Procedure have been satisfied for the
Settlement Class defined herein and for the purposes of the Settlement only, in that:
(a)
the members of the Settlement Class are so numerous that joinder of all
Settlement Class members is impracticable;
(b)
there are questions of law and fact common to the Settlement Class
members;
(c)
the claims of the Class Representatives are typical of the Settlement
(d)
Class Representatives and Class Counsel have fairly and adequately
Class’s claims;
represented and protected the interests of the Settlement Class;
(e)
there are no conflicts of interest between the Class Representatives and
members of the Settlement Class;
(f)
the questions of law and fact common to Settlement Class members
predominate over any individual questions; and
(g)
a class action is superior to other available methods for the fair and
efficient adjudication of this controversy.
4. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, and for the purposes
of the Settlement only, Tyson Manker and National Veterans Council for Legal Redress are
certified as Class Representatives. The Jerome N. Frank Legal Services Organization of Yale
Law School and the law firm of Jenner & Block LLP are appointed as Class Counsel.
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5.
A hearing (the “Fairness Hearing”) pursuant to Rule 23(e) of the Federal Rules of
Civil Procedure is hereby scheduled to be held by Zoom conference before the Court on
December 16, 2021 at 10:00 a.m. At the Fairness Hearing, the Court will address: (a) whether
to grant final approval to the Settlement as fair, reasonable, and adequate, and issue the Final
Approval Order dismissing the Amended Complaint with prejudice and releasing the claims set
forth in the Stipulation; (b) whether the Settlement Class should be finally certified for purposes
of the Settlement only; (c) whether the relief provided to the Settlement Class for reconsideration
and reapplication of discharge upgrade applications is fair, reasonable, and adequate; (d) whether
to approve the Stipulation’s award of attorneys’ fees and costs; and (e) any other matters as the
Court may deem appropriate.
6.
The Court reserves the right to approve the Settlement with or without modification
and with or without further notice to the Settlement Class of any kind. The Court may also
adjourn the Fairness Hearing or modify any of the dates herein without further notice to
members of the Settlement Class.
7.
The Court finds that the distribution of the Class Notice attached as Exhibit A to
the Stipulation in the manner set forth in the Stipulation is the best notice practicable under the
circumstances, consistent with due process of law, and constitutes due and sufficient notice of
this Order and the Settlement to all persons entitled thereto and is in full compliance with the
requirements of Rule 23 of the Federal Rules of Civil Procedure.
8.
Class Counsel are directed to undertake the extensive outreach strategy described
in the Stipulation that includes issuance of a press release as well as the following efforts: (a)
engagement with both traditional media outlets and social media, (b) engagement with militaryand veterans-specific news media, (c) collaboration with key elected officials, and (d) publicizing
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the settlement with veterans’ organizations, legal services offices, and veterans advocates across
the country. Recipients of communications from Class Counsel should receive copies of the
Stipulation and Agreement of Settlement.
9.
Defendant shall publicize the Settlement and Class Notice by issuing a press release
of its own.
10.
Plaintiffs shall cause the Class Notice to be distributed to Settlement Class members
in accordance with the terms of the Stipulation no later than fourteen (14) days after the entry
of this Order.
11. Settlement Class members shall be bound by all orders, determinations and judgments
in this Action concerning the Settlement, whether favorable or unfavorable.
12.
Any Settlement Class member may appear in person or through counsel (at their
own expense) at the Fairness Hearing and be heard in support of or in opposition to the fairness,
reasonableness, and adequacy of the proposed Settlement, award of counsel fees, and the
reimbursement of costs. The Court will consider any Settlement Class member’s objection to
the Settlement only if such Settlement Class member has served by hand, mail, or e-mail their
written objection and supporting papers (including any legal support or evidence in support of
the objection and grounds to support their status as a Class member) such that they are received
on or before twenty-one (21) calendar days before the Fairness Hearing, upon Class Counsel:
Michael J. Wishnie, Jerome N. Frank Legal Services Organization, Yale Law School, P.O. Box
209090, New Haven, CT 06520-9090, manker.settlement@yale.edu; and Defendant’s Counsel:
Natalie N. Elicker, U.S. Attorney’s Office for the District of Connecticut, 157 Church St, 25th
Floor, New Haven, CT 06510, Natalie.Elicker@usdoj.gov; and has filed said objections and
supporting papers with the Clerk of the Court, United States District Court for the District of
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Connecticut, 141 Church Street, New Haven, CT 06510. Any Settlement Class member who
does not make his, her, or its objection in the manner provided for in the Class Notice shall be
deemed to have waived such objection and shall forever be foreclosed from making any
objection to any aspect of the Settlement, unless otherwise ordered by the Court. Attendance at
the Fairness Hearing is not necessary, however, persons wishing to be heard orally in opposition
to the approval of the Settlement are required to indicate in their written objection their intention
to appear at the hearing. Persons who intend to object to the Settlement and desire to present
evidence at the Fairness Hearing must include in their written objections the identity of any
witnesses they may call to testify and exhibits they intend to introduce into evidence at the
Fairness Hearing.
13.
Settlement Class members do not need to appear at the hearing or take any other
action to indicate their approval.
14.
Pending final determination of whether the Settlement should be approved, Class
Representatives, all Settlement Class members, and each of them, and anyone who acts or
purports to act on their behalf, shall not institute, commence or prosecute any action which
asserts the Settled Claims in the Stipulation against the Defendant.
15. Class Counsel shall file and serve its application for final approval of the Settlement
no later than December 9, 2021. Along with this application, Class Counsel shall file and serve
an affidavit stating and describing in detail the communications between Class Counsel and
recipients of the outreach efforts referred to in Paragraph 8 of this order.
16.
If the Settlement fails to become effective as defined in the Stipulation or is
terminated, then both the Stipulation, including any amendment(s) thereof, except as expressly
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provided in the Stipulation, and this Preliminary Approval Order shall be null and void, of no
further force or effect, and without prejudice to any Party, and may not be introduced as evidence
or used in any actions or proceedings by any person or entity against the Parties, and the Parties
shall be deemed to have reverted to their respective litigation positions as of the date and time
immediately prior to the execution of the Stipulation.
17.
The Court retains exclusive jurisdiction over the Action to consider all further
matters arising out of or connected with the Settlement.
DATED this 12th day of October, 2021, in New Haven, Connecticut.
BY THE COURT:
/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge
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