Fikara v. Niemann Foods Inc

Filing 29

OPINION AND ORDER: The Class Action Settlement Agreement and Release is preliminarily APPROVED. The Court directs the Clerk to file a copy with signatures redacted of the Settlement Agreement and Exhibits; and to file under seal an unredacted copy of the Settlement Agreement and Exhibits. The Court provisionally approves this matter to proceed as a class action for purposes of settlement and conditionally approves the class. The Court preliminarily approves Plaintiff Larry Fikara as the Class Re presentative and his counsel of record as counsel for the class. The Court appoints CPT Group, Inc. as the third-party Claims Administrator. The Court directs the parties and Claims Administrator to comply with the terms and conditions of the Settlem ent Agreement as modified by this Opinion and Order. The Court sets a final hearing to consider the fairness and adequacy of the Settlement Agreement, final approval the Settlement Agreement, and entry of a Final Approval Order and Judgment on February 2, 2018 at 10:30 a.m. in Courtroom 3, U.S. Courthouse, 600 East Monroe Street, Springfield, Illinois 62701. SEE WRITTEN OPINION AND ORDER. Entered by Magistrate Judge Tom Schanzle-Haskins on 10/20/2017. (MJC, ilcd)

E-FILED

Monday, 23 October, 2017 11:14:13 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION
LARRY FIKARA,
Plaintiff,
v.
NIEMANN FOODS, INC.,
Defendant.

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No. 16-3285

OPINION AND ORDER
TOM SCHANZLE-HASKINS, U.S. Magistrate Judge:
On July 28, 2017, this Court conducted a mediation of this action
between Plaintiff Larry Fikara and Defendant Niemann Foods, Inc
(Niemann) (collectively the Parties). The Parties tentatively agreed to settle
this matter and to submit to the Court a proposed settlement agreement.
Minute Entry entered July 28, 2017. The Parties then consented to
proceed before this Court. Consent to the Exercise of Jurisdiction by a
United States Magistrate Judge and Reference Order entered September
20, 2017 (d/e 28). The Parties have now submitted to the Court an
agreement entitled “Class Action Settlement Agreement and Release”
executed by the Parties and their attorneys (Settlement Agreement),
including the following Exhibits to the Settlement Agreement: Exhibit A
Class Notice, Exhibit B Claim Form, and Exhibit C General and
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Comprehensive Release of Claims (collectively the Exhibits). After careful
review of the Settlement Agreement, Exhibits, the filings in this proceeding,
and the applicable law and rules, the Court enters the following Opinion
and Order.
1.

The Court preliminarily approves the Settlement Agreement subject

to the provisions of this Opinion and Order. The Court directs the Clerk to
file a copy with signatures redacted of the Settlement Agreement and
Exhibits; and to file under seal an unredacted copy of the Settlement
Agreement and Exhibits.
2.

The Court preliminarily approves certification of this matter to proceed

as a class action for purposes of settlement under the Settlement
Agreement. The Court conditionally certifies of the following class (Class):
All applicants or employees of Niemann Foods for whom a
consumer report or investigative consumer report was procured
by Niemann Foods from October 19, 2011 to February 16,
2016.
3.

The Court preliminarily approves of Plaintiff Fikara as the

representative for the Class for purposes of this settlement. The
Court preliminarily approves Fikara’s attorneys CounselOne, P.C.;

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Eggnatz, Lopatin & Pascucci, LLP; and Nelson & Nelson, P.C. as
counsel for the Class (Class Counsel).
4.

Pursuant to the Settlement Agreement, the Court preliminarily

finds that:
A.

The members of the Class (Class Members) are

ascertainable and so numerous as to make it impracticable to
join all Class Members;
B.

There are common questions of law and fact;

C.

Plaintiff believes his claims are typical of the claims of the

Class Members;
D.

Plaintiff and Class Counsel will fairly and adequately

protect the interests of the Class Members;
E.

The prosecution of separate actions by Class Members

would create the risk of inconsistent adjudications, which would
establish incompatible standards of conduct; and
F.

Plaintiff believes questions of law and fact common to the

Class Members predominate over individual questions and that
a class action is superior to other available means for the fair
and efficient adjudication of the controversy

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5.

Pursuant to the Settlement Agreement, the Court hereby appoints

CPT Group, Inc., to perform the customary duties of a third-party claims
administrator (Claims Administrator) as set forth in detail in the Settlement
Agreement.
6.

The Court approves Exhibit A to the Settlement Agreement entitled

“Notice of Settlement and Release of Claims” (Class Notice), with the
following modification. The following sentence shall be inserted after the
first sentence and before the second sentence of paragraph 6(a): “You
may do this personally or through an attorney (retained at your own
expense).” The first three sentences of paragraph 6(a), as modified by this
Opinion and Order, shall state:
If you want to receive benefits under the settlement, you must
sign and return a Claim Form to the Claims Administrator at the
address below by First Class or certified U.S. Mail postmarked
no later than _______, 2017. You may do this personally or
through an attorney (retained at your own expense). It is
recommended that you retain a receipt of your mailing, or that
you call the Claims Administrator before the submission
deadline to confirm the Claims Administrator has received your
Claim Form or request for exclusion.
7.

The Court approves Exhibit B to the Settlement Agreement entitled

“Claim Form” (Claim Form).
8.

The Court approves distribution of the Class Notice and Claim Form

by U.S. Mail. The Court directs Niemann Foods to provide confidentially to
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the Claims Administrator on or before October 30, 2017, a Class List as
defined in the Settlement Agreement. The Claims Administrator shall
review and update the mailing address information in the Class List as set
forth in the Settlement Agreement and provide the Parties with a finalized
copy of the Notice and Claim Form on or before November 6, 2017. The
Claims Administrator shall insert into the finalized copy of the Notice and
Claim Form shall all dates, as set forth below, that are currently blank.
9.

On November 8, 2017, the Claims Administrator shall distribute the

copies of the finalized Notice and Claim Form to the Class Members by
U.S. Mail postage prepaid to the Class Members at the addresses on the
updated Class List.
10.

Class Members may: (1) elect to exclude themselves from

participating in the Class notifying the Claims Administrator in the manner
set forth in the Notice (Opt-Out Election); (2) submit a fully completed Claim
Form to the Claims Administrator (Completed Claim Form); or (3) not
respond to the Notice. All Opt-Out Elections and all Completed Claim
Forms must be submitted to the Claims Administrator by U.S. Mail and
must be postmarked on or before December 26, 2017 (the “Opt-Out
Deadline” for Opt-Out Elections and the “Claims Due Date” for completed
Claim Forms).
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11.

Any Class Member may object to or oppose the final approval of the

Settlement Agreement. All objections or oppositions to final approval of the
Settlement Agreement (Objections) must be filed with the Court on or
before December 26, 2017 (Objections Deadline) with service on the
Parties.
12.

The Court sets a final hearing to consider the fairness and adequacy

of the Settlement Agreement, final approval the Settlement Agreement, and
entry of a Final Approval Order and Judgment on February 2, 2018 at
10:30 a.m. in Courtroom 3, U.S. Courthouse, 600 East Monroe Street,
Springfield, Illinois 62701.
13.

The Parties and the Claims Administrator with comply with all other

the terms and conditions of the Settlement Agreement and this Opinion and
Order.
THEREFORE, the Class Action Settlement Agreement and Release
is preliminarily APPROVED. The Court directs the Clerk to file a copy with
signatures redacted of the Settlement Agreement and Exhibits; and to file
under seal an unredacted copy of the Settlement Agreement and Exhibits.
The Court provisionally approves this matter to proceed as a class action
for purposes of settlement and conditionally approves the class. The Court
preliminarily approves Plaintiff Larry Fikara as the Class Representative
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and his counsel of record as counsel for the class. The Court appoints
CPT Group, Inc. as the third-party Claims Administrator. The Court directs
the parties and Claims Administrator to comply with the terms and
conditions of the Settlement Agreement as modified by this Opinion and
Order. The Court sets a final hearing to consider the fairness and
adequacy of the Settlement Agreement, final approval the Settlement
Agreement, and entry of a Final Approval Order and Judgment on February
2, 2018 at 10:30 a.m. in Courtroom 3, U.S. Courthouse, 600 East Monroe
Street, Springfield, Illinois 62701.
ENTER: October 20, 2017

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

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