Lace v. Fortis Plastics LLC

Filing 86

OPINION AND ORDER - PRELIMINARY APPROVAL OF SETTLEMENT RE 78 Joint Motion for Settlement Approval in Class Action and 80 Joint Sealed Motion for Settlement Approval in Class Action. The Settlement Agreement is hereby preliminarily approved, pend ing a final hearing on the Proposed Settlement. Fairness hearing set for 9/2/15 at 2:00 PM in US District Court - South Bend before Judge Jon E DeGuilio. Briefs due 4/3/15 regarding consolidation. See order for other details and deadlines. Signed by Judge Jon E DeGuilio on 3/24/2015. (kds)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
HENRY LACE, on behalf of himself and
all others similarly situated,
Plaintiffs,
v.
FORTIS PLASTICS LLC and
MONOMOY CAPITAL PARTNERS, L.P.,
Defendants.

JIM YOUNG, on behalf of himself and all
others similarly situated,
Plaintiffs,
v.
FORTIS PLASTICS LLC and
MONOMOY CAPITAL PARTNERS, L.P.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 3:12-CV-363 JD

Case No. 3:12-CV-364 JD

OPINION AND ORDER
Now before the Court are joint motions for preliminary approval of the proposed
settlement of these two class action suits. [DE 78 in ‘363; DE 76 in ’364.]1 The Court has
reviewed the motions and briefs in support in both cases; the filings appear to be identical in both
cases. Accordingly, all of the pending motions are addressed in a single order. The parties seek
certification of a settlement class, as well as the Court’s preliminary approval of the class
settlement as set forth in the Settlement Agreement. [DE 78-1 in ‘363; DE 76-1 in ‘364.] In

1

Consistent with the Court’s previous order [DE 77], the parties have filed both a redacted and sealed version of the
motions at issue here. This order applies equally to the sealed motions. [DE 80 in ‘363; DE 78 in ‘364.]

addition, the parties want the Court to approve the Notice of Class Action Settlement. [DE 78-2
in ‘363; DE 76-2 in ‘364.]
I. Background
On September 24, 2014, the Court ordered that class certification was warranted in each
case under Rule 23(a) and (b)(3) for a class that was seeking damages under the Worker
Adjustment and Retraining Notification (“WARN”) Act, 29 U.S.C. § 2101.2 The Plaintiffs
alleged that workers at both Fortis Plastics facilities were terminated without the advance notice
required by the WARN Act. In the ‘363 action, the Court certified the following class:
Any and all persons who worked at or reported to the facility located at 3615
Voorde Drive, South Bend, Indiana, on the date sixty days prior to the closing of
that facility.
[DE 62 at 22 in ‘363.] In the ‘364 action, the Court certified the following class:
Any and all persons who worked at or reported to the facility located at 428 South
U Street, Fort Smith, Arkansas, on the date sixty days prior to the closing of that
facility.
[DE 60 at 19 in ‘364.] Harwood Feffer, LLP, was appointed as class counsel and Anderson,
Agostino & Keller, P.C., was appointed as liaison counsel in each case. Mr. Lace was appointed
as class representative in the ‘363 action and Mr. Young was appointed as class representative in
the ‘364 action. After the parties conducted additional discovery, they reached a settlement. As a
result, the parties are requesting that the Court preliminarily approve the settlement, as well as
grant related relief.
II. Consolidation
As an initial matter, based on the proposed settlement—which includes a joint settlement
fund from which the claims of both classes would be paid—as well as the substantially identical
2

The Court declined to certify the Indiana Wage Payment claim asserted in the ‘363 action.

2

issues raised by these two cases, the Court proposes to consolidate the two cases for the purposes
of settlement approval. The parties are ORDERED to file, within 10 days of this order, a filing
indicating their position with respect to consolidation.
III. Class Certification
As noted above, the Court previously certified a class in each of the cases at issue in this
order. In their joint motion, the parties propose a slightly modified class definition, which would
be applicable to both cases. They ask the Court to certify the following class:
(a) all persons who worked at the Fortis facility located at 3615
Voorde Drive, South Bend, Indiana up to 60 days prior to its
closing (the “Indiana Class”), and (b) all persons who worked at
the Fortis facility located at 428 South U Street, Fort Smith,
Arkansas up to 60 days prior to its closing (the “Arkansas Class”).
[DE 81 at 4–5 in ‘363; DE 77 at 4–5 in ‘364.]
The Court finds the proposed class meets the requirements for certification under Federal
Rule of Civil Procedure 23(a) and (b)(3) and incorporates the reasoning contained in the initial
opinions certifying the respective classes in each case. [DE 62 in ‘363; DE 60 in ‘364.]
Accordingly, the Court MODIFIES the definition of the previously certified class to the
definition jointly proposed by the parties and stated above.
Rule 23 requires that a court certifying a class also appoint class counsel. Fed. R. Civ. P.
23(c)(1)(B), (g). Class counsel must fairly and adequately represent the interests of the class.
Fed. R. Civ. P. 23(a)(4). Here, Harwood Feffer, LLP, and Anderson, Agostino & Keller, P.C.,
have been representing the respective classes since the initial certification was made. For the
same reasons previously stated, Harwood Feffer, LLP, is appointed as class counsel and
Anderson, Agostino & Keller, P.C., is appointed as liaison counsel for the revised class. Mr.

3

Lace is appointed representative of the Indiana Class and Mr. Young is appointed representative
of the Arkansas Class.
IV. Class Notice and Settlement
For classes certified under Rule 23(b)(3), the following notice must be given to the class
members concerning the class certification:
[T]he best notice that is practicable under the circumstances, including individual
notice to all members who can be identified through reasonable effort. The notice
must clearly and concisely state in plain, easily understood language:
(i)
the nature of the action;
(ii)
the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv)
that a class member may enter an appearance through an attorney if the
member so desires;
(v)
that the court will exclude from the class any member who requests
exclusion;
(vi)
the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B); see Smith v. Shawnee Library System, 60 F.3d 317, 321 (7th Cir.
1995) (noting that class members of a Rule 23(b)(3) class must receive reasonable notice and an
opportunity to opt out, which is an absolute requirement for a court to exercise jurisdiction over
those class members) (citations omitted).
And relative to the settlement or compromise of class action claims, as presented by the
parties’ proposed Settlement Agreement, Rule 23(e) states:
The claims, issues, or defenses of a certified class may be settled, voluntarily
dismissed, or compromised only with the court’s approval. The following
procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1)
The court must direct notice in a reasonable manner to all class members
who would be bound by the proposal.
(2)
If the proposal would bind class members, the court may approve it only
after a hearing and on finding that it is fair, reasonable, and adequate.
(3)
The parties seeking approval must file a statement identifying any
agreement made in connection with the proposal.

4

(4)

(5)

If the class action was previously certified under Rule 23(b)(3), the court
may refuse to approve a settlement unless it affords a new opportunity to
request exclusion to individual class members who had an earlier
opportunity to request exclusion but did not do so.
Any class member may object to the proposal if it requires court approval
under this subdivision (e); the objection may be withdrawn only with the
court's approval.

Fed. R. Civ. P. 23(e).
Based on the range of possible outcomes and the cost, delay, and uncertainty associated
with further litigation, the Court finds that the Settlement is within the range of possible approval
and that preliminary approval of the Settlement Agreement is warranted. The Settlement
Agreement appears to be the product of earnest, informed, arm’s length, and non-collusive
negotiations; it has no obvious deficiencies; it does not improperly grant preferential treatment to
any individual or group of individuals within the Settlement Class; and it warrants notice to
Class Members of a formal fairness hearing, at which evidence may be presented in support of
and in opposition to the proposed Settlement.
Class Notice will be provided to each of the Class Members by first class or other bulk
mail as determined by the appointed Settlement Administrator to the most recent address known
to Monomoy for each of the Class Members. Such mailing will be made within 21 days of the
entry of this Order. The Court will evaluate whether the proposed notice is sufficient prior to
proceeding to any fairness hearing based upon the number of Class Members actually receiving
notice.
The Court further finds that the form of the Class Notice, attached as Ex. B to the Joint
Motion with certain modifications stated below, meets all applicable requirements of the Federal
Rules of Civil Procedure, the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, due process,
and any other applicable law; sufficiently describes, in clear, concise and easily understood
5

language, the nature of the Actions and claims, the certified Settlement Class, and the issues and
defenses; states that the Settlement Agreement, if approved, will be binding on all Class
Members; summarizes the terms of the Settlement Agreement and the right of and manner for
each of the Class Members to receive payment under the Settlement or to opt-out of or object to
the Settlement Agreement; informs each of the Class Members of his or her right to appear by
counsel at the Fairness Hearing, and that further information is available from Class Counsel
upon request; informs the Class Members that the Settlement Agreement provides for the release
of their claims pursuant to the Settlement Agreement and for the payment of Class Counsel’s
attorneys’ fees; and constitutes due, adequate, and sufficient notice to all persons entitled to
notice.
Accordingly, the Court HEREBY ORDERS, pursuant to Rule 23(e) of the Federal Rules
of Civil Procedure that:
1.

The Settlement Agreement is hereby preliminarily approved—pending a final

hearing on the Proposed Settlement—as fair, reasonable and adequate, and as having provided
for notice to each of the Class Members of the release of his or her claims, as provided in the
Settlement Agreement, should he or she not opt-out of the Settlement. The Settlement Class,
defined as (A) all persons who worked at the Fortis facility located at 3615 Voorde Drive, South
Bend, Indiana up to 60 days prior to its closing and (B) all persons who worked at the Fortis
facility located at 428 South U Street, Fort Smith, Arkansas up to 60 days prior to its closing, is
properly certified for settlement purposes, pursuant to Rule 23(a) and (b)(3) of the Federal Rules
of Civil Procedure.
2.

The form and content of the Class Notice and the service of such notice by the

appointed Settlement Administrator by first class mail to each of the Class Members at the
6

address last known to Monomoy for each individual is hereby approved except with respect to
the revisions ordered below. Monomoy will continue to work in good faith with Class Counsel
and the Settlement Administrator to determine the correct address for each Class Member, but
only to the extent that Monomoy has possession or control of any information relevant to such
efforts and otherwise pursuant to the Settlement Agreement.
3.

The Class Notice shall be mailed by first class mail by the Settlement

Administrator within 21 days of entry of the Preliminary Approval Order. Within 20 days after
mailing the notices, Class Counsel shall file with this Court a status report identifying those
potential class members that could not be located. Based on the number of notices returned as
undeliverable, the Court will consider the need for additional methods of notice to the Class
Members. The Class Notice shall be substantially similar to the form provided and approved
herein [DE 78-2 in ‘363; DE 76-2 in ‘364] EXCEPT the following revisions are ORDERED to
be made:
-

At the end of the notice, the following language shall be added:
This notice has been authorized by the United States District Court for the Northern
District of Indiana. The Court has taken no position in this case regarding the merits
of the claims, and the Court takes no position on whether any individual should optout of the class action.

-

The following deadlines shall be included in the Notice:
Page 5:

Claim form to be postmarked by June 15, 2015

Page 6:

Opt-Out letters to be postmarked by June 15, 2015

Page 7:

Objections to be postmarked by June 29, 2015

The date of the final fairness hearing as set forth at the end of this Order shall be
included in the Class Notice in the spaces provided on pages 1, 6, and 8.

7

4.

The form and content of the Claim form [DE 85 in ‘363; DE 83 in ‘364] is

approved EXCEPT that on pages 1 and 2, the claim form shall state that the form is to be
postmarked by June 15, 2015.
5.

The Court approves the selection of Berdon Claims Administration LLC

(“Berdon”) as the Settlement Administrator. Based on a review of publicly available information,
Berdon is “a nationally-recognized notice and claims administration firm,” In re Advanced
Battery Techs., Inc. Sec. Litig., 298 F.R.D. 171, 182 (S.D.N.Y. 2014), whom has been appointed
as claims administrator in several hundred class action lawsuits. The Court directs Plaintiffs to
cause Berdon to perform each and every one of the functions listed in Paragraphs 3 and 20–22 of
the Settlement Agreement in accordance with the terms of the Settlement Agreement and this
Order. Pursuant to the Settlement Agreement, costs associated with the administration of the
Settlement, including the cost of notifying the Class Members, shall be reimbursed from the
Settlement Fund.
6.

The Court will consider comments and/or objections to the Settlement, the Plan of

Allocation, Class Counsel’s request for attorneys’ fees and reimbursement of expenses, or case
contribution awards for the Class Representatives, only if such comments or objections and any
supporting papers are filed with the Court, having been postmarked on or before June 29, 2015,
and served on counsel as follows:
FOR FILING:
Clerk of the Court
United States District Court
for the Northern District of Indiana
204 S. Main St.
South Bend, IN 46601
Re: WARN Case Nos. 3:12-cv-363-JD and
3:12-cv-364-JD

PLAINTIFFS’ LEAD COUNSEL:
Robert I. Harwood
Harwood Feffer LLP
488 Madison Avenue, 8th Floor
New York, NY 10022

8

MONOMOY’S COUNSEL:
Donald V. Orlandoni
McDonald Hoppkins PLC
3955 Woodward Avenue, Ste. 318
Bloomfield Hills, MI 48304
7.

A hearing on the final approval of the settlement proposed in the Settlement

Agreement (the “Fairness Hearing”) will be held on a date that allows the Class Members
sufficient time to secure further information regarding the relief sought by the Joint Motion, to
opt-out of or object to the Settlement should they choose to do so, and/or to engage counsel to
appear at the Fairness Hearing.
8.

A hearing will be held before The Honorable Jon E. DeGuilio, United States

District Judge, in his First Floor Courtroom at the Robert A. Grant Federal Building and United
States Courthouse, 204 S. Main Street, South Bend, Indiana, 46601 at 2:00 (Eastern Time) on
September 2, 2015 to (A) determine whether the proposed Settlement is fair, reasonable, and
adequate, and should be approved by the Court, (B) determine whether a Final Approval Order
substantially in the form of Exhibit C to the Joint Motion, should be entered, which would,
among other things, dismiss the Actions with prejudice as to Monomoy, (C) determine whether
the release by the Class Members of the Released Claims, as set forth in the Settlement
Agreement, should be provided to the Releasees, (D) determine whether the proposed Plan of
Allocation for the proceeds of the Settlement is fair and reasonable, and should be approved by
the Court, (E) consider Class Counsel’s application for an award of attorneys’ fees and
reimbursement of expenses, (F) consider the application for case contribution awards for the
Class Representatives, and (G) rule upon such other matters as the Settlement contemplates and
as the Court may deem just and proper.

9

9.

The Fairness Hearing may be adjourned by the Court without notice to the Class

Members other than by an announcement of the adjournment at the scheduled time of the
Fairness Hearing or at the scheduled time of any adjournment of the Fairness Hearing. The Court
may consider modifications of the Settlement (with the consent of the Class Representatives and
Monomoy) without further notice to the Class Members.
10.

The Court reserves the right to approve the Settlement with or without

modification and with or without further notice of any kind. The Court further reserves the right
to enter its Judgment approving the Settlement Agreement and dismissing the Actions with
prejudice as to Monomoy regardless of whether it has approved the Plan of Allocation or
awarded attorneys’ fees and expenses or case contribution awards to the Class Representatives.
11.

At least 14 days prior to the deadline for filing and serving objections, Class

Counsel shall submit the papers in support of final approval of the Settlement, the proposed Plan
of Allocation, Class Counsel’s request for attorneys’ fees and reimbursement of expenses, and
case contribution awards for the Class Representatives. The Parties may submit papers in
response to any objections in advance of the Fairness Hearing.
12.

14 days after Opt-Out letters are due, Class Counsel shall file with the Court a

Notice of Class Action Opt-Outs, listing the names of all persons who timely excluded
themselves from the Settlement Class by submitting an Opt-Out letter.
13.

At least 30 days prior to the Fairness Hearing, Class Counsel shall file with the

Court proof of timely compliance with the notice requirements.
14.

Monomoy’s Counsel and Class Counsel shall promptly furnish each other with

copies of any and all objections and notices of intention to appear at the Fairness Hearing that
come into their possession.
10

15.

The Court will only consider objections that are timely and valid. To be

considered, an objection must be in writing and be signed by the Class Member making the
objection and must include the following: (A) the name of this action; (B) the objecting Class
Member’s full name, address, telephone number, and signature (an attorney’s signature is not
sufficient); (C) a statement that the objector is a Class Member and an explanation of the basis
upon which the objector claims to be a Class Member; (D) all grounds for the objection,
accompanied by any legal support known to the objector or his or her counsel; (E) a statement
confirming whether the objector or any counsel representing the objector intends to personally
appear and/or testify at the final approval hearing; and (F) a list of any persons who may be
called to testify at the final approval hearing in support of the objection. Any member of the
Settlement Class or other person who does not timely file and serve a written objection
complying with the terms above shall be deemed to have waived, and shall be forever foreclosed
from raising, any objection to the Settlement, and any untimely objection shall be barred.
16.

Pending final determination of whether the Settlement should be approved, the

Class Representatives, all 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 Released
Claims against any of the Releases. Pending the Fairness Hearing, the Court stays all
proceedings in the Actions, other than those proceedings necessary to carry out or enforce the
terms and conditions of the Settlement Agreement.
17.

In the event that Complete Settlement Approval does not occur, this Order shall

become null and void, and shall be without prejudice to the rights of the Settling Parties, all of
whom shall be restored to their respective positions existing as of the day the Settlement

11

Agreement was fully executed. In such event, Paragraph 24 of the Settlement Agreement shall
govern the rights of the Settling Parties.
18.

Under no circumstances shall this Order, the Settlement Agreement, any of their

terms and provisions, the negotiations or proceedings connected with them, or any of the
documents or statements referred to therein, be construed, deemed or used as an admission,
concession or declaration by or against Monomoy of any fault, wrongdoing, breach or liability.
Nor shall this Order, the Settlement Agreement, any of their terms and provisions, the
negotiations or proceedings connected with them, or any of the documents or statements referred
to therein, be construed, deemed or used as an admission, concession or declaration by or against
the Class Representatives or the other Class Members that their claims lack merit or that the
relief requested in the Actions is inappropriate, improper or unavailable, or as a waiver by any
party of any defenses or claims he, she or it may have.
19.

The Court retains jurisdiction over all proceedings arising out of or related to the

Settlement.
SO ORDERED.
ENTERED: March 24, 2015

/s/ JON E. DEGUILIO
Judge
United States District Court

12