Agnone et al v. Camden County, Georgia et al

Filing 102

AMENDED REPORT AND RECOMMENDATIONS that 82 Supplemental MOTION for Settlement - Preliminary Approval, 78 MOTION to Certify Class , 84 Supplemental MOTION for Settlement (Second Supplement to Motion for Preliminary App roval of Class Settlement and For Certification of Settlement Class), 91 Supplemental MOTION for Settlement Third Supplement to Motion for Preliminary Approval of Class Settlement and Certification of Settlement Class be granted on the modified terms and conditions set forth below. Signed by Magistrate Judge Brian K. Epps on 10/10/2018. (pts)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
CAMDEN COUNTY, GEORGIA;
)
WILLIS R. KEENE, JR.; JIMMY
)
STARLINE; CHUCK CLARK;
)
TONY
SHEPPARD;
GARY
)
BLOUNT; DAVID L. RAINER;
)
KATHERINE
NISI
ZELL;
)
CHARLENE SEARS; STEPHEN
L. BERRY; STEPHEN L. HOWARD; O. )
BRENT GREEN; JOHN MCDILL; DAVID )
KEATING; SCOTT BRAZELL; LEXON )
INSURANCE COMPANY; THOMAS A. )
DIERUF; DAVID E. CAMPBELL; )
JEKYLL
SOUND
DEVELOPMENT )
COMPANY,
LLC;
and
CAMDEN )
)
COUNTY DEVELOPMENT, LLC,
)
)
Defendants.
)

STEPHEN AGNONE & ENZO
AGNONE;
DOUGLAS
&
CYNTHIA PORCELLI; BRIDGE
POINTE AT JEKYLL SOUND
COMMUNITY
ASSOCIATION,
INC., et al.,

Civil Action No:
2:14-cv-00024-LGW-BKE

AMENDED REPORT AND RECOMMENDATION TO CERTIFY CLASS ACTION
AND PRELIMINARILY APPROVE CLASS SETTLEMENT
On October 2, 2018, the Court recommended granting Plaintiffs’ Motion for
Preliminary Approval of Class Settlement and Certification of Settlement Class and three
supplements thereto. (Doc. no. 94.) On October 9, 2018, Plaintiffs filed their Request for
Modification of Report and Recommendation.

(Doc. no. 97.)

On October 10, 2018,

Defendants filed a Notice of Consent stating they have no objection to either the October 2nd
Report and Recommendation or the modifications proposed by Plaintiffs. (Doc. no. 98.) On
the same date, the Court conducted a phone conference to propose one additional modification
to the Report and Recommendation. All parties consented to the modification. (Doc. no. 100.)
Accordingly, the Court REPORTS and RECOMMENDS Plaintiffs’ Motion for Preliminary
Approval of Class Settlement and Certification of Settlement Class and three supplements
thereto, (doc. nos. 78, 82, 84, 91), be GRANTED on the modified terms and conditions set
forth below.
Plaintiffs, Class Representatives, the Lexon Defendants1 and Camden County, Georgia
(“Camden County”) have agreed to a settlement, the terms and conditions of which are set
forth in an executed Settlement Agreement (the “Agreement” or the “Settlement” or the
“Settlement Agreement”).

The parties reached the Settlement through arm’s length

negotiations after three mediations. Under the Settlement, if approved, the Settlement Class
will receive a total of $11.75 million (the “Settlement Proceeds”) (i) to construct infrastructure
improvements in Phase I in the Bridge Pointe at Jekyll Sound Subdivision (the “Subdivision”),
(ii) to pay their attorneys’ fees approved by the Court, and (iii) to pay to Class Representatives
service fees not to exceed $5,000 each for their service as such.
Pursuant to the terms and conditions of the Agreement, Lexon has paid on behalf of
Camden County: (i) $3,750,000 into the Registry of this Court to be held pending final
approval of the Settlement in this Action and disbursed in accordance with the Agreement, and

1

The Lexon Defendants are Lexon Insurance Company; Jekyll Sound Development
Company, LLC; Camden County Development, LLC; Thomas A. Dieruf; and David E.
Campbell.
2

$250,000 to Bridge Pointe at Jekyll Sound Community Association, Inc. (“BPJSCA” or the
“Association”) to pay a portion of the Association’s attorneys’ fees related to the litigation.
The Lexon Defendants will also pay all costs of notice to the Settlement Class. The Settlement
will collectively benefit Class Members by providing funds to construct infrastructure
improvements in the Subdivision. A description of how and when the Settlement Proceeds
will be paid and disbursed, if the Settlement is finally approved, is included in the Agreement.
In exchange for these considerations, Class Representatives and each member of the
Settlement Class will be deemed to have fully, finally, and forever resolved, discharged, and
released their claims against the Lexon Defendants and others as described in paragraph 9.a of
the Settlement Agreement, relating to or arising from the Subdivision and Bonds issued by
Lexon Insurance Company to secure infrastructure improvements in the Subdivision (the
“Bonds”), and the subject matter of this Action, the Camden County Action,2 and the Befumo
Action,3 except any claim any Class Member may have against BPJS Investments, LLC
(“BPJSI”), Robert Steven Williams, Sr., Robert Steven Williams, Jr., Wilrite, LLC, George L.
Potter, Alexander Michael Martinez, MIROBO LLC, and Emerson Property, LLC.
The Agreement has been filed with the Court, and Class Representatives and Class
Counsel have filed a Motion for Preliminary Approval of Class Settlement and for Certification
of the Settlement Class as supplemented and revised (the “Motion”), and the Joint Statement
of Class Counsel, in support of the Motion. Upon considering the Motion as supplemented and
revised and exhibits thereto, the Settlement, the record in these proceedings, the
2

Camden County v. Lexon Insurance Company, et. al., Case No. 2:14-cv-00020-LGW- BKE
(S.D. Ga 2014).
3
Befumo, et al. v. Lexon Insurance Co., et al., Civil Action File No. 17-A05587-1, Superior
Court of Gwinnett County, Georgia.
3

representations and recommendations of Class Counsel, and the requirements of law, the Court
REPORTS and RECOMMENDS findings that: (i) the Court has jurisdiction over the subject
matter and parties to these proceedings; (ii) for settlement purposes only, the proposed
Settlement Class meets the requirements of Federal Rule of Civil Procedure 23 and should be
certified; (iii) the persons and entities identified below should be approved as Class
Representatives and Class Counsel; (iv) the Settlement is the result of informed, good-faith,
arm’s length negotiations between the parties and their capable and experienced counsel and
is not the result of collusion; (v) the Settlement is within the range of reasonableness and should
be preliminarily approved; (vi) the proposed Notice Program and proposed form of notice, as
modified below, satisfy Federal Rule of Civil Procedure 23 and constitutional due process
requirements, and are reasonably calculated under the circumstances to apprise the Settlement
Class of the pendency of the Class Action, Class Certification, the terms of the Settlement,
Class Counsel’s application for an award of attorneys’ fees and expenses (“Fee Application”)
and request for service fees for Class Representatives, and Class Members’ rights to object to
the Settlement; (vii) good cause exists to schedule and conduct a Final Fairness Hearing,
pursuant to Federal Rule of Civil Procedure 23(e), to assist the Court in determining whether
to grant final approval of the Settlement and enter Final Judgment, and whether to grant Class
Counsel’s Fee Application and request for service fees for Class Representatives; and (viii)
the other related matters pertinent to the preliminary approval of Settlement should also be
approved.
The Court further REPORTS and RECOMMENDS the following findings and
conclusions:
1.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1367(a)
4

because the claims asserted in the Second Amendment to Complaint are so related to the claims
within the Court’s original jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution. Moreover, this Court has subject matter
jurisdiction over this matter pursuant to 28 U.S.C. § 1332(d)(2) as the matter in controversy
exceeds $5,000,000, and at least one member of the proposed Class is a citizen of a state
different from that of any of the Defendants.
2.

This Court has personal jurisdiction over the Lexon Defendants. Each of them

is alleged to have breached agreements and duties to be performed in Camden County,
Georgia.
3.

Venue is proper in this District because a substantial part of the events giving

rise to the claims against Lexon Defendants allegedly occurred in Camden County, Georgia,
the Bonds were underwritten for construction of infrastructure improvements in Camden
County, and each of the Lexon Defendants is alleged to have breached agreements and duties
to be performed in Camden County.
Certification of Proposed Settlement Class
4.

In deciding whether to preliminarily certify a settlement class, a court must

consider the same facts that it would consider in connection with a proposed litigation class –
i.e, all Rule 23(a) factors and at least one subsection of Rule 23(b) must be satisfied – except
that the court need not consider the manageability of a potential trial, since the settlement, if
approved, would obviate the need for a trial. See Amchem Products, Inc. v. Windsor, 521
U.S. 591, 620 (1997); Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977); Columbus
Drywall & Insulation, Inc. v. Masco Corp., 258 F.R.D. 545, 553-54 (N.D. Ga. 2007).

5

Class Definition
5.

The Court finds, for settlement purposes only, that the Federal Rule of Civil

Procedure 23 factors are present and certification of the proposed Settlement Class is
appropriate under Rule 23. The Court, therefore, preliminarily certifies the following
Settlement Class:
All persons or entities who hold legal or equitable title as of the
date of preliminary approval of the Class Action Settlement to
any Unit or Parcel in the Bridge Pointe at Jekyll Sound
Subdivision and any transferees of any Unit or Parcel following
preliminary approval of the Class Action Settlement (together the
“Lot Owners”); provided, however, that BPJS Investments, LLC,
Robert Steven Williams, Sr., and Robert Steven Williams, Jr.
shall not be members of the Settlement Class, as they have
already released any and all claims against the Lexon Defendants.
Fed. R. Civ. P. 23 Class Action Factors
6.

The Court finds, for settlement purposes only, that the Settlement Class satisfies

the following factors of Federal Rule of Civil Procedure 23:
(a)

Numerosity: In this Action there are hundreds of Class Members hailing from

some 28 states across the United States. Their joinder is impracticable. Thus, the Rule 23(a)(1)
numerosity requirement is met. See Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th
Cir.1986); Columbus Drywall & Insulation, 258 F.R.D. at 554.
(b)

Commonality: The bar for proving commonality is met when there is at least

one issue whose resolution will affect all or a significant number of the putative class members.
See Williams v. Mohawk Industries, 568 F.3d 1350, 1355 (11th Cir. 2009). Here, the
commonality requirement is satisfied for settlement purposes because there are many questions
of law and fact common to the Settlement Class regarding the Subdivision and the
Bonds, including: (i) whether Class Members had standing to bring their claims; (ii) whether
6

the Lexon Defendants owed any duty or obligation to any of the Class Members; (iii) whether
any claims Class Members might have had against the Lexon Defendants have already been
released by the County’s release of Lexon from liability; (iv) whether any of the Lexon
Defendants breached any duty or obligation to any of the Class Members; (v) the extent to
which the Bonds covered the costs of infrastructure improvements that were not completed by
the developer of the Subdivision; and (vi) if there was any breach of any obligation or duty by
any of the Lexon Defendants, what the remedy should be. See Fed. R. Civ. P. 23(a)(2).
(c)

Typicality:

Class Representatives are typical of absent Settlement Class

Members because the infrastructure improvements that would benefit the lots in the
Subdivision have not been constructed, and all of them will benefit from the relief provided
by the Settlement. Further, the Class Representatives are not subject to any unique defenses.
Rule 23(a)(3) is therefore satisfied, See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d
1332, 1337 (11th Cir. 1984) (typicality satisfied where claims “arise from the same event or
pattern or practice and are based on the same legal theory”); Murray v. Auslander, 244 F.3d
807, 811 (11th Cir. 2001) (named plaintiffs are typical of the class where they “possess the
same interest and suffer the same injury as the class members”).
(d)

Adequacy: Adequacy under Rule 23(a)(4) relates to: (i) whether the proposed

class representative has interests antagonistic to the Settlement Class; and (ii) whether the
proposed class counsel has the competence to undertake the litigation at issue. See In re
Piedmont Office Trust, Inc. Sec. Litig., 264 F.R.D. 693, 699 (N.D. Ga. 2010). Rule 23(a)(4)
is satisfied here because there are no conflicts of interest between Class Representatives and

7

the Settlement Class as to the settlement of this Action,4 and Class Representatives have
retained competent counsel to represent them and the Settlement Class. Class Counsel have
regularly engaged in complex litigation with factual and legal issues similar to the present
Action, including collective actions, and have dedicated substantial resources to prosecuting
this action. Moreover, the Class Representatives and Class Counsel have vigorously and
capably represented the Class Members’ interests in this action.
(e)

Risk of Inconsistent Judgments:

Under Rule 23(b)(1)(A), certification is

appropriate if there is a risk of “inconsistent or varying adjudications” that would subject the
defendant to “incompatible standards of conduct.” See Fed. R. Civ. P. 23(b)(1)(A). “The
phrase ‘incompatible standards of conduct’ refers to the situation where different results in
separate actions would impair the opposing party’s ability to pursue a uniform continuing
course of conduct.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1193 (9th
Cir.), opinion amended on denial of reh’g, 273 F.3d 1266 (9th Cir. 2001) (some internal
quotation marks omitted). Courts routinely certify classes under Rule 23(b)(1)(A) when
adjudication of a single action will require the defendant to take actions that will necessarily
affect the entire class. See, e.g., Klewinowski v. MFP, Inc., No. 8:13-CV-1204-T-33TBM,
2013 WL 5177865, at *3(M.D. Fla. Sept. 12, 2013) (certifying class under Rule 23(b)(1)(A)
because a single, unitary adjudication was the only way to conclusively determine whether the
letter defendant sent its customers violated the law); Smith v. Tower Loan of Mississippi, Inc.,
216 F.R.D. 338, 371(S.D. Miss. 2003), aff’d sub nom. Smith v. Crystian, 91 F. App’x 952 (5th

4

BPJSI is an owner of lots in the Subdivision and is a defendant in the Befumo Action and
another action brought by members of the Settlement Class and Class Counsel. However, BPJSI
has already released all of its claims against the Lexon Defendants and is excluded from the
putative class.
8

Cir. 2004) (certifying class under Rule 23(b)(1)(A) when plaintiffs challenged the lawfulness
of policies that applied to all customers); Rozo v. Principal Life Ins. Co., No. 4:14-CV-000463JAJ-CFB, 2017 WL2292834, at *5 (S.D. Iowa May 12, 2017) (certifying class under Rule
23(b)(1)(A), because “[i]f the class is not certified, and adjudication proceeds on an individual
basis, there is a very real risk of inconsistent judgments regarding [the defendant’s] fiduciary
status and its compliance with ERISA standards, as well as the amount of money to which plan
participants are entitled”); In re Enron Corp., No. CIV.A. H-01-3913, 2006 WL 1662596, at
*15 (S.D. Tex. June 7, 2006) (certifying class under Rule 23(b)(1)(A) in ERISA action
because adjudication of individual action would impose obligations on defendant that would
apply equally to all class members).
Indeed, the 1966 Advisory Committee Note to Rule 23(b)(1)(A) specifically identifies
disputes over a bond issue as a situation that would warrant certification under Rule 23(b)(1).
See Fed. R. Civ. P. 23 Advisory Committee 1966 Cmt (also identifying disputes regarding
a landowner’s riparian rights or rights respecting a nuisance as warranting certification under
Rule 23(b)(1)). The committee reasoned this situation warranted a “unitary adjudication”
because a defendant might be ordered to comply with two differing standards of conduct. See
id.
Here, Class Representatives allege the Lexon Defendants failed to honor their
obligations under payment and performance bonds and this failure, in turn, has prevented the
construction of infrastructure improvements in the Subdivision that would benefit owners of
lots in the Subdivision. These improvements would be common to each lot owner in the
Subdivision. Moreover, whether and the extent to which the Lexon Defendants would be liable
to Class Representatives and Class Members to construct these improvements turns on several
9

issues including (a) the standing of a lot owner who is not a party to the Bonds to enforce the
obligations of the surety, (b) whether the County’s alleged release of the Bonds is binding on
Class Members, and (c) the extent to which the Lexon Defendants would be liable, if at all, for
completion of infrastructure improvements in the Subdivision under the Bonds. Thus, a
unitary adjudication is necessary to avoid potentially inconsistent judgments and differing
standards of conduct.
Protection of the Interests of Other Similarly Situated Claimants:

(f)

Certification is appropriate under Rule 23(b)(1)(B) when “adjudications with respect
to individual class members [would], as a practical matter, . . . be dispositive of [or impair] the
interests of the other members not parties to the individual adjudications.” See Fed. R. Civ.
P. 23(b)(1)(B).
The Lot Owners will have, through the Association, an interest in roads, sewers, and
other common elements of the Subdivision as co-owners. A judgment bearing on the interest
of one Lot Owner will, therefore, potentially impact or impair the interests of other Lot
Owners. Accordingly, all Lot Owners should be part of the Class, except BPJSI, Williams,
Sr., and Williams, Jr., which have already released all of their claims against the Lexon
Defendants, because as Class Members all of them will be potentially affected by the
judgment. See Reefshare, Ltd. v. Nagata, No. CV 87-0024, 1987 WL 109921, at *6 (D. Haw.
Aug. 4, 1987), certified question answered, 70 Haw. 93, 762 P.2d 169 (1988); 7 Charles A.
Wright & Arthur R. Miller, et al., Fed. Prac. & Proc. Civ. § 1621 (3d ed. 2017) (“[W]hen all
cotenants will be affected by the judgment or when the absence of some of them will prevent
complete justice from being rendered to everyone interested in the land, all the cotenants must
be joined.”).
10

In addition, the Court in Reefshare found creation of negative precedent is enough to
find a party’s interest may be impaired or impeded. Here, each of the Lot Owners has
essentially the same claim against the Lexon Defendants based on the same facts. If these
actions proceed individually, courts in any other actions, while not bound by an earlier
decision, will “undoubtedly consider and possibly respect any such . . . ruling.” See PulitzerPolster v. Pulitzer, 784 F.2d 1305, 1310 (5th Cir. 1986). Because individual adjudications
would impair or impede the interests of other lot owners, certification under Rule 23(b)(1)(B)
is appropriate here.
(g)

General Applicability to the Class:

Rule 23(b)(2) provides that a class action is appropriate when a party against whom
class allegations have been made “has acted or refused to act on grounds that apply generally
to the class,” and the representatives are seeking “final injunctive relief or corresponding
declaratory relief.” Fed. R. Civ. P. 23(b)(2). Certification of a class under Rule 23(b)(2) is
appropriate where the remedy sought is “an indivisible injunction” that applies to all class
members “at once.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 362 (2011).
The Settlement will create a common fund that will be used to build infrastructure
improvements in Phase I of the Subdivision. The improvements are common to all Lot Owners
in that they may be used by (and will provide a benefit to) any person who owns a lot in the
Subdivision. In allegedly failing to complete/fund these improvements, the Lexon Defendants
acted in a way that is “generally applicable” to the entire Settlement Class. An injunction
requiring Lexon to perform under the Bonds would provide a common fund for the
construction by the Association of infrastructure in the Subdivision. This is a form of
“indivisible relief” that would flow to the Settlement Class as a whole “at once.” Finally, the
11

Lot Owners in this Action specifically requested injunctive relief. For these reasons,
certification under Rule 23(b)(2) is appropriate here.
Appointment of Class Representatives and Class Counsel
7.

The Court appoints the following persons as Class Representatives: Douglas

Porcelli, Joseph Moronese, Jr., and Richard Mumford.
8.

The Court appoints the following persons and entities as Class Counsel who

shall be responsible for handling all Settlement-related matters on behalf of Class
Representatives and the Settlement Class:
Robert G. Aitkens
Aitkens & Aitkens, P.C.
827 Powers Ferry Road
Building One, Suite 100
Atlanta, GA 30339
Telephone: [phone]

John T. Sparks, Sr.
Austin & Sparks, P.C.
2974 Lookout Place, N.E.
Suite 200
Atlanta, GA 30305
Telephone: [phone]

Preliminary Approval of the Settlement
9.

At the preliminary approval stage, the Court’s task is to evaluate whether the

Settlement is within the “range of reasonableness.” 4 Newberg on Class Actions, § 11.26 (4th
ed. 2010). Preliminary approval is appropriate where the proposed settlement is the result of
the parties’ good faith negotiations, there are no obvious deficiencies, and the settlement falls
within the range of reason. Settlement negotiations that involve arm’s length, informed
bargaining with the aid of experienced counsel support a preliminary finding of fairness.
See Manual for Complex Litigation, § 30.42 (3rd ed. 1995) (“A presumption of fairness,
adequacy, and reasonableness may attach to a class settlement reached in arm’s length
negotiations between experienced, capable counsel after meaningful discovery.”) (internal
quotation marks omitted).
12

10.

The Court recommends preliminary approval of the Settlement (and the exhibits

attached to the Motion, as supplemented and revised) as being fair, reasonable, and adequate.
The Court finds the Settlement was reached in the absence of collusion, and is the product of
informed, good-faith, arm’s length negotiations between the parties, and their capable and
experienced counsel after three mediations. The Court further finds that the Settlement
(including the exhibits attached to the Motion, as supplemented), is within the range of
reasonableness and possible judicial approval, such that: (i) a presumption of fairness is
appropriate for the purposes of preliminary settlement approval; (ii) it is appropriate to provide
notice to the Settlement Class, as set forth below and in the Settlement, and (iii) the Court
should schedule a Final Fairness Hearing to assist the Court in determining whether to grant
final approval to the Settlement and enter final judgment.
Approval of Notice and Notice Program and Direction to Effectuate Notice
11.

The Court recommends approval of the form and content of the Notice to be

provided to the Settlement Class, substantially in the form attached as Exhibit 3 to the
Representative Plaintiffs’ and Proposed Class Counsel’s Third Supplement to Motion for
Preliminary Approval of Class Settlement and for Certification of Settlement Class. The Court
further finds that the Notice Program, described in paragraph 7 of the Settlement, is practicable
under the circumstances. The Notice and Notice Program are reasonably calculated under the
circumstances to apprise the Settlement Class of the pendency of the Action, Class
Certification, the terms of the Settlement, and their rights to object to the Settlement, Class
Counsel’s fee request, and the request for service awards for Class Representatives. The
Notice and Notice Program satisfy all applicable requirements of law, including, but not
limited to, Federal Rules of Civil Procedure 23 and the constitutional requirement of due
13

process.
12.

Two changes to the Notice are necessary, however, for the sake of clarity and

completeness:
(a)

The following sentence shall be added as the second sentence to
§ 11, How will the lawyers be paid?: “The attorneys’ fee award
of not more than $400,000 to be sought from the Court is in
addition to $792,607.52 in attorneys’ fees previously paid to
Class Counsel as referenced in § 7 above and the fee request filed
by Class Counsel.”

(b)

The following sentence shall be added as the final sentence to §
7, What does the Settlement provide?: “For more information
regarding infrastructure costs, please see the W.H. Gross
Estimate dated September 24, 2018, a copy of which is available
at www.noticeclass.com/BridgePointeSettlement.”
Appointment of Settlement Administrator and Duties

13.

The Court recommends that Stephen Tilghman (Tilghman & Co., P.C., Post

Office Box 11250, Birmingham, Alabama 35202) be appointed to act as Settlement
Administrator.
14.

The Settlement Administrator shall implement the Notice Program, as set forth

below and in the Settlement, using substantially the form of Notice attached as Exhibit 3 to
the Representative Plaintiffs’ and Proposed Class Counsel’s Third Supplement to Motion for
Preliminary Approval of Class Settlement and for Certification of Settlement Class and
approved by this Order. Notice shall be provided by Mail or email, if available from Class
Counsel, to all of the Settlement Class Members.
15.

The Settlement Administrator shall administer the Notice Program. Within the

time frames described herein, the Settlement Administrator shall send Notice by United States
Mail or email to all of the Settlement Class Members.
14

16.

The Notice Program shall commence on October 15, 2018 and shall be

completed by November 5, 2018.
17.

On or before November 12, 2018, the Settlement Administrator shall provide

Class Counsel and counsel for the Lexon Defendants an affidavit or declaration that confirms
the Notice Program was completed in a timely manner. Class Counsel shall file such affidavit
or declaration with the Court in conjunction with Class Representatives’ Motion for Final
Approval of the Settlement.
18.

All fees and costs associated with the Notice Program shall be paid by the Lexon

Defendants, as set forth in the Settlement.
19.

The Settlement Administrator shall establish a Settlement Website as a means

for Settlement Class Members to obtain notice of, and information about, the Settlement. The
Settlement Website shall be established by October 15, 2018. The Settlement Website shall
include links to the Settlement, the Notice, this Order, and such other documents as Settlement
Class Counsel and counsel for the Lexon Defendants agree to post or that the Court orders
posted on the Settlement Website. These documents shall remain on the Settlement Website
at least until final approval.
20.

The Settlement Administrator shall provide a help line for Settlement Class

Members to call with Settlement-related inquiries, and shall answer the questions of Settlement
Class Members who call with or otherwise communicate such inquiries.
21.

The Settlement Administrator is directed to perform any other responsibilities

under the Notice Program assigned to the Settlement Administrator by Counsel for the Lexon
Defendants and Class Counsel.

15

Final Approval Hearing and Objections
22.

The Court recommends a Final Fairness Hearing be scheduled for the date and

time set forth in paragraph 27 to assist the Court in determining whether to grant Final
Approval of the Settlement, and whether Class Counsel’s Fee Application and request for
service fees for Class Representatives should be granted.
23.

Any member of the Settlement Class may object to the Settlement, Class

Counsel’s Fee Application and/or the request for service fees for Class Representatives. Any
such objections must be filed or mailed, and postmarked no later than January 22, 2019, to the
Clerk of Court, Settlement Class Counsel, and counsel for the Lexon Defendants, at the
addresses provided below:
COURT
Clerk of Court
United States District Court
Brunswick Courthouse
P.O. Box 1636
Brunswick, GA 31521

CLASS COUNSEL
Robert G. Aitkens
Aitkens & Aitkens, P.C.
1827 Powers Ferry Road
Building One, Suite 100
Atlanta, GA 30339
John T. Sparks, Sr.
Austin & Sparks, P.C.
2974 Lookout Place, N.E.
Suite 200
Atlanta, GA 30305

DEFENSE COUNSEL
W. Joseph McCorkle, Jr.
Balch & Bingham LLP
P.O. Box 78
Montgomery, Alabama 36101
Geremy W. Gregory
Balch & Bingham LLP
841 Prudential Drive
Suite 1400
Jacksonville, FL 32207

For an objection to be considered by the Court, the objection must be filed or
postmarked no later than January 22, 2019, and must include the following information:
(i)

the objector’s full name, address, telephone number, and e-mail
address (if any);

(ii)

information identifying the objector as a Settlement Class
Member, including any documentary proof that the objector is a
member of the Settlement Class (e.g., copy of notice, copy of
deed to lot or lots in the Subdivision, or evidence of payment of
property taxes for 2018);
16

(iii)

a written statement of all grounds for the objection, accompanied
by any legal support for the objection the objector believes
applicable;

(iv)

the identity/ies of all counsel representing the objector;

(v)

a statement confirming whether the objector intends to
personally appear and/or testify at the Final Fairness Hearing;

(vi)

the identity/ies of all counsel representing the objector who will
appear at the Final Fairness Hearing;

(vii)

a list of all persons who will be called to testify at the Final
Fairness Hearing in support of the objection; and

(viii)

the objector’s signature or the signature of the objector’s duly
authorized attorney or other duly authorized representative
(along with documentation setting forth such representation).

An objection shall be deemed to have been submitted when mailed, provided it is
received with a postmark date indicated on the envelope of no later than January 22, 2019,
mailed first-class postage prepaid, and addressed in accordance with the instructions in the
Settlement and Long Form Notice.
Further Papers in Support of Settlement and Fee Application
24.

Class Representatives and Class Counsel shall file their Motion for Final

Approval of the Settlement no later than February 1, 2019. Class Representatives and Class
Counsel shall file their Request for Fee Application, and Request for Service Fees for Class
Representatives no later than October 8, 2018. The Request for Fee Application shall identify
an amount of attorneys’ fees and advanced expenses for each Law Firm and an aggregated
amount of requested fees and advanced expenses. The Fee Application of each law firm shall
be amended no later than February 1, 2019, to include the amount of attorney’s fees and
advanced expenses provided since the initial Request for Fee Application.
17

Class Representatives and Class Counsel shall file their responses to timely filed

25.

objections to the Motion for Final Approval of the Settlement, Amended Request for Fee
Application, and Request for Service Fees for Class Representatives no later than February 1,
2019. If any of the Lexon Defendants chooses to file a response to timely filed objections to
the Motion for Final Approval of the Settlement, he or it also must do so no later than February
1, 2019.
Effect of Failure to Approve the Settlement or Termination Thereof
26.

In the event the Settlement is not approved by the Court, or for any reason the

Parties fail to obtain a Judgment and Final Approval Order as contemplated in the Settlement,
or the Settlement is terminated pursuant to its terms for any reason, then the following shall
apply:
(a)

The Second Amendment to Complaint shall be dismissed w ithout

prejudice;
(b)

All orders and findings entered in connection with the Settlement shall become

null and void and have no further force and effect, shall not be used or referred to for any
purposes whatsoever, and shall not be admissible or discoverable in any other proceeding;
(c)

All of the Parties’ respective pre-Settlement claims and defenses will be

preserved;
(d)

Nothing contained in this Order is, or may be construed as, any admission or

concession by or against any party on any point of fact or law; and
(e)

Neither the Settlement terms nor any publicly disseminated information

regarding the Settlement, including, without limitation, the Notice, court filings, orders and
public statements, may be used as evidence. In addition, neither the fact of, nor any documents
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relating to, either party’s withdrawal from the Settlement, any failure of the Court to approve
the Settlement, and/or any objections or interventions may be used as evidence.
Stay/Bar of Other Proceedings
27.

All proceedings in this Action are hereby stayed until further order of the Court,

except as may be necessary to implement the terms of the Settlement.

Pending final

determination of whether the Settlement should be approved, Class Representatives, all
persons or entities in the Settlement Class, and persons purporting to act on their behalf are
enjoined from commencing or prosecuting (either directly, representatively, or in any other
capacity) against any party to be released by the Agreement any action or proceeding in any
court asserting any claim to be released by the Settlement.
Schedule of Events
28.

Based on the foregoing, the Court recommends the following schedule for the

Final Fairness Hearing and the actions which must precede it:
(a)

Class Representatives and Class Counsel shall file their Request for Fee

Application, and Request for Service Fees for Class Representatives no later than October 8,
2018.
(b)

The Settlement Administrator shall establish the Settlement Website and help

line as soon as practicable following Preliminary Approval, but no later than October 15,
2018;
(c)

The Settlement Administrator shall begin the Notice Program no later than

October 15, 2018 and complete the Notice Program no later than November 5, 2018;
(d)

Settlement Class Members must file any objections to the Settlement no later

than January 22, 2019;
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(e)

Class Representatives and Class Counsel shall file their responses to timely filed

objections to Settlement no later than February 1, 2019;
(f)

If any of the Lexon Defendants chooses to file a response to timely filed

objections to Settlement, he or it shall do so no later than February 1, 2019;
(g)

Class Representatives and Class Counsel shall file their Motion for Final

Approval of the Settlement, Amended Request for Fee Application, and Request for Service
Fees for Class Representatives no later than February 1, 2019;
(h)

The Fee Application of each law firm shall be amended no later than February

1, 2019, to include the amount of attorneys’ fees and advanced expenses provided since the
initial Request for Fee Application; and
(i)

The Final Fairness Hearing will be held on February 20, 2019, at 9:00 a.m. in

Courtroom 1 of the Brunswick Courthouse, 801 Gloucester Street, Brunswick, GA 31520.
SO REPORTED AND RECOMMENDED this 10th day of October, 2018, at
Augusta, Georgia.

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