LaSalle Town Houses Cooperative Association et al v. Detroit, City of

Filing 85

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND ATTORNEY FEES 80 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LASALLE TOWN HOUSES COOPERATIVE
ASSOCIATION, et al.,
Individually and on behalf of all
similarly situation class members,
Case No. 4:12-cv-13747
Plaintiffs,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
CITY OF DETROIT,
Defendant.
/

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND
ATTORNEY FEES [80]
I. INTRODUCTION
This matter is before the Court pursuant to Federal Rule of Civil Procedure
23. The case involves plaintiffs and class representatives LaSalle Town Houses
Cooperative Association, Nicolet Town House Cooperative Association, Lafayette
Town Houses Inc., Joliet Town Houses Cooperative Association, and St. James
Cooperative (“Named Plaintiffs” or “Class Representatives”), and Defendant City
of Detroit, acting through its Detroit Water and Sewerage Department (“DWSD”)
(collectively, the “Settling Parties”). Plaintiffs moved this Court for an Order
granting final approval of their settlement and consideration of Class Counsel’s

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Motion for Award of Attorneys’ Fees, Costs, and Expenses [80] on December 4,
2015. Defendant has no objection to that motion.
The Court, having held a Rule 23(e)(2) fairness hearing, and having
considered the record and the presentations of the parties, is satisfied that the Rule
23 requirements are met, as detailed below, and hereby APPROVES the
settlement and Settlement Agreement.
The Court preliminarily approved the Settlement Agreement on December
15, 2015, and approved the notice to class members which described the
settlement, set the objection deadline, and scheduled the fairness hearing. Dkt. No.
83. The notice was timely mailed to class members as directed by the Court. The
Court conducted the fairness hearing on March 28, 2016. Based on the hearing, the
record, and the submissions and presentations to the Court, the Court makes the
following findings of fact and conclusions of law.
II. FINDINGS OF FACT
The Parties and the Class
A.

The Named Plaintiffs and Class Representatives are LaSalle Town Houses

Cooperative Association, Nicolet Town House Cooperative Association, Lafayette
Town Houses Inc., Joliet Town Houses Cooperative Association, and St. James
Cooperative. Named Plaintiffs were certified as representatives of the Class by this
Court in an Order [47] dated March 3, 2014.
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B.

Defendant City of Detroit, acting through its DWSD, is the entity that

provides water and sewerage to residents which include Plaintiffs and others
similarly situated.
C.

On March 3, 2014, the Court certified the following class, pursuant to

Federal Rules of Civil Procedure 23(b)(1)(A) and (b)(2):
a.

All entities or individuals owning, or acting for owners of, buildings,

apartment buildings, townhouses, housing cooperatives and condominiums
with multiple units and utilized for residential purposes whom and which
have been charged at a commercial rate by the City of Detroit and/or the
Detroit Water and Sewerage Department for water and sewerage and
component services with the time period at least six years prior to the filing
of this action through the date of final judgment or such longer amount of
time as may be allowed by law.
D.

The Court further ordered on March 3, 2014, that Randall Pentiuk and Kerry

Morgan be appointed Class Counsel, pursuant to Federal Rule of Civil Procedure
23(g).
E.

The Settling Parties seek approval of their settlement and Settlement

Agreement, Dkt. No. 80, resolving this class action.

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The Claims and Defenses
F.

The individual plaintiffs filed this lawsuit on behalf of themselves and the

class in August 2012, alleging equal protection violations and seeking restitution,
an accounting and escrow, and injunctive relief. Dkt. No. 1, pp. 7–10 (Pg. ID No.
7–10).
G.

This lawsuit alleged that Defendant violated the equal protection clauses of

the Michigan and Federal Constitutions by charging multi-family dwellings a
commercial, rather than residential, rate for monthly drainage charges based upon
water meter size. Id. at 7–8. Plaintiffs also claim damages for breach of contract in
assumpsit, seek an accounting and escrow of allegedly overpaid funds, and request
injunctive relief against future charges. Id. at 9–10.
H.

Defendant claimed that multiple family dwellings of five or more units were

charged higher raters to cover the greater amount of stormwater runoff that enters
the sewage system from these complexes. Dkt. No. 22, pp. 16–17 (Pg. ID No. 311–
12).
The Litigation and Settlement Negotiations
I.

The Settling Parties have undertaken both formal and informal discovery,

and have identified the specific meter sizes for which the commercial rates differ
from the residential rates, and the Accounts to which these differences apply. In
addition, the Settling Parties have had numerous meetings and negotiated with
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each other, including two full-day mediation sessions with the United States
Magistrate Judge in which they discussed the merits of the case’s claims and
defenses. These efforts were regularly reported to the Court.
J.

The second settlement conference produced a mutually-acceptable

settlement which is embodied in the parties’ Settlement Agreement. Dkt. No. 81-2.
That settlement and the Settlement Agreement are before the Court.
The Settlement Terms
K.

The Settlement Agreement provides for resolution of the litigation. The

Settlement Agreement provides the following:
a.

Defendant will issue a credit of no more than $575.00 per Qualified

Account, applied toward unpaid past and future drain charges, for each
Qualified Account of a Settlement Class Member. Defendant understands
that the known Qualified Accounts of the Settlement Class numbers 672
accounts.
b.

Defendant will make one cash payment of $6,000.00 to each Named

Plaintiff, for a total of $30,000.00.
c.

Defendant will make one cash payment of $200,000.00 to the Class

Counsel, in a check made payable to “Pentiuk, Couvreur & Kobiljak, P.C.”
for attorney fees, costs, and expenses for this Civil Action and for Claims by
the Class against the City in the Bankruptcy Court.
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L.

The following Settlement Class is certified for settlement purposes. It is

made up of all Settlement Class Members. The Settlement Agreement defines a
Settlement Class Member as:
a.

Any entity or individual owning, or acting for an owner of, property

that has a building, apartment building, townhouse, housing cooperative, or
condominium with multiple units, utilized for residential purposes and
located within the City of Detroit, for which property the City of Detroit has
established a sewerage and drainage Account, and for whom the Account is
being charged by the City of Detroit at a commercial rate for sewerage and
drainage as of July 16, 2015, and for whom the Account has been charged
based upon water meter size, where the water meter size is either 1½ inches
or 2 inches, and for whom the Account does not have an Unpaid A/R
Balance, and who has not timely elected to be excluded from this settlement,
in the manner described in Paragraph 8.e. and 8.f. of the Settlement
Agreement.
M.

The Settlement Agreement provides, in pertinent part: “Class Counsel will

file a motion under Federal Rule of Civil Procedure 54(d)(2), as required by Rule
23(h), seeking an award of attorney fees, expenses and costs in the amount set
forth in Paragraph 4.c. above. Class Counsel will provide notice required by Rule
23(h)(1). The Court may hold a hearing on the motion. Whether or not the Court

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holds a hearing, Class Counsel will assist the Court in finding facts and reaching
legal conclusions that are required by Rules 23(h)(3), 54(d)(2)(C), and 52(a).”
(Release and Settlement Agreement, Paragraph 6.c.)
N.

The award of attorneys’ fees, costs, and expenses will not reduce benefits

payable to Settlement Class Members. Defendant has agreed to pay the award of
attorneys’ fees, costs, and expenses, if approved by the Court, in an amount not to
exceed $200,000.00. Defendant does not object to Class Counsel’s motion for fee
award.
Counsel’s Assessment
O.

Class Counsel argues settlement embodied in the Settlement Agreement is

fair, reasonable, and beneficial to the class. Although they believe that Plaintiffs’
case is strong, Class Counsel counterbalanced that against the inherent risks of
litigation in determining that it was prudent to accept the benefits offered in the
settlement.
P.

Class Counsel identified a number of factors that led to their conclusion that

the settlement is fair, reasonable, and beneficial to the class. Class Counsel
considered the uncertainties and risks involved in refusing to settle and insisting on
proceeding to trial. They recognized that litigation could lead to a “a high stakes
zero sum undertaking, in which one party is likely to achieve complete victory

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while the opposing party experiences complete defeat,” while settlement
guaranteed Class Members credits for unpaid past and future charges.
Q.

Based on these factors, in consultation with the class representatives, Class

Counsel concludes that the settlement and Settlement Agreement are fair,
reasonable, and beneficial to the class.
R.

At the hearing, Defense counsel concurred that the settlement is fair,

reasonable, and adequate and represents a mutually beneficial positive resolution
of the parties’ dispute, bringing certainty, avoiding more delay and expense,
eliminating the risk of adverse result, and providing valuable benefits to class
members.
Notice to Class
S.

The Court approved the Class Notice–titled “Legal Notice of Class Action

Settlement,” on December 15, 2015. Dkt. No. 83. The Manager of the Billings and
Collections Division of DWSD supervised the mailing of that notice to account
holders of each of the 672 Qualified Accounts. Dkt. No. 84-2. The mailing was
completed on January 4, 2016, when all of the envelopes were given to the United
States Postal Service for mailing.
T.

The Legal Notice of Class Action Settlement provides that: “The grounds on

which Class Counsel is seeking an award of fees, costs and expenses are generally
based on Class Counsel’s diligent prosecution of this action. They have not
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received any fees or reimbursement for any costs or expenses associated with this
case. Class Counsel will apply to the Court by motion for an award to Class
Counsel for attorneys’ fees, costs and expenses of not more than Two Hundred
Thousand Dollars ($200,000.00 USD) to which the settling Defendant will not
object and which is part of the settlement being paid by Defendant. Class Counsel
will also seek the payment of $6,000.00 to each of the Class Representatives for
their contributions to this litigation, also part of the settlement being paid by
Defendant.”
U.

The Class Notice was provided in the form of the proposed Settlement Class

Notice submitted to the Court by the parties.
The Approval Process
V.

Pursuant to the Court’s order preliminarily approving the settlement, Dkt.

No. 83, and the notice, the Court held a fairness hearing on March 28, 2016. One
individual appeared to voice his reason for wishing to be excluded from the class.
No Class Member appeared at the hearing to present an objection.
W.

As discussed in more detail below, the Court concludes that the settlement,

concurred in by all parties and their counsel, and reached in the course of
negotiations and mediation facilitated by a United States Magistrate Judge, is the
product of reasoned and informed “arm’s length” negotiations which produced a
mutually-beneficial settlement that eliminates uncertainties, avoids further delay
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and expense, eliminates each side’s risk of adverse result, and is consistent with the
public interest, and, in these circumstances, is fair, reasonable, and adequate under
Rule 23(e)(2).
III. CONCLUSIONS OF LAW
1.

This Court has subject matter jurisdiction over this action under 28 U.S.C.

§ 1331. The Court also has personal jurisdiction over the parties in this action.
2.

Capitalized terms not otherwise defined in this Order shall have the same

meaning as set forth in the Settlement Agreement.
3.

As previously determined in the Court’s March 3, 2014 Order, Dkt. No. 47,

class certification is appropriate in this case because it satisfies Rule 23(a)
standards—numerosity, commonality, typicality, and adequacy of representation—
and Rule 23(b)(1)(A) and (b)(2). The case affects 672 Qualified Accounts, Dkt.
No. 80, p. 10 (Pg. ID. No. 1316), including Named Plaintiffs, so the joinder of all
Class Members is impracticable. Questions of law and fact are common to the
class, including questions regarding whether the Class Members should have been
charged a residential rate for their sewerage and drainage accounts. The claims of
the Named Plaintiffs are typical of the class, and Defendant’s defenses apply to all
class members. All of the facts shown indicate that Named Plaintiffs will
adequately and fairly represent the interests of the class, pursuant to Rule 23(a)(4).

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4.

The March 3, 2014 Order also appointed Class Counsel, pursuant to Rule

23(g). Dkt. No. 47. This appointment required consideration of counsel’s work,
experience, legal knowledge, resources, and other factors “pertinent to counsel’s
ability to fairly and adequately represent the interests of the class.” Rule
23(g)(1)(A)(i)-(iv) and (B). In the March Order, the Court determined that Randall
Pentiuk and Kerry Morgan were well-suited and qualified to adequately represent
the interests of the class. Dkt. No. 47.
Legal Standard
5.

The Court shall give final approval to a settlement agreement of a class

action if, following a hearing, the Court finds that the settlement is “fair,
reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In making this determination,
the Court evaluates the proposed class action settlement in light of the general
federal policy favoring the settlement of class actions. IUE-CWA v. General
Motors Corp., 238 F.R.D. 583, 593 (E.D. Mich. 2006).
6.

The Sixth Circuit has held that seven factors guide the inquiry into whether

or not the proposed settlement is fair, reasonable, and adequate:
(a) the risk of fraud or collusion;
(b) the complexity, expense and likely duration of the litigation;
(c) the amount of discovery engaged in by the parties;
(d) the likelihood of success on the merits;
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(e) the opinions of class counsel and class representatives;
(f) the reaction of absent class members; and
(g) the public interest.
Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen.
Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007).
7.

The Court need not decide the merits of the case, resolve unsettled legal

questions, or decide whether one side is right or has the better of the arguments. Id.
at 631–32. Rather, the Court is tasked with “weighing the plaintiff’s likelihood of
success on the merits against the amount and form of the relief offered in the
settlement.” Id. at 631 (quoting Carson v. Am. Brands, Inc., 450 U.S. 79, 88 n.14
(1981)). In assessing the amount of the settlement, the Court does not ask whether
the settlement is the most favorable possible result in the litigation, but only
whether it falls within the “range of reasonableness.” IUE-CWA, 238 F.R.D. at
596.
8.

The settlement’s proponents bear the burden of persuading the Court that the

settlement is fair and reasonable. Steiner v. Fruehauf Corp., 121 F.R.D. 304, 306
(E.D. Mich. 1988), aff’d sub nom. Priddy v. Edelman, 883 F.2d 438 (6th Cir.
1989). The fundamental question before the Court is “whether the parties are using
settlement to resolve a legitimate legal and factual disagreement.” Gen. Motors,
497 F.3d at 632.

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9.

“The evaluation and approval of a class settlement is committed to the sound

discretion of the district court.” IUE-CWA, 238 F.R.D. at 594 (citing Clark Equip.
Co. v. Int’l Union, Allied Indus. Workers of Am., AFL-CIO, 803 F.2d 878, 880 (6th
Cir. 1986)).
Sufficiency of Class Notice
10.

Prior to the fairness hearing, the district court “must direct notice in a

reasonable manner to all class members who would be bound by the proposal.”
Fed. R. Civ. P. 23(e)(1). Notice must be “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950).
11.

The Court finds that the Class Notice, which was approved by the Court in

December 2015 and then sent to all Qualified Accounts, satisfies Federal Rule of
Civil Procedure 23(e)(1). The notice conveyed the required information and
afforded a reasonable time for those interested to make an objection.
The Fairness Hearing
12.

Fairness hearings contain several procedural safeguards, including the

requirement that parties to the settlement “must proffer sufficient evidence to allow
the district court to review the terms and legitimacy of the settlement”; that “class

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members ‘may object to [the] proposed settlement’ on the record”; and that “class
members have a right to participate in the hearing.” Gen. Motors, 497 F.3d at 635
(alteration in original). Nevertheless, the district court “may limit the fairness
hearing to whatever is necessary to aid it in reaching an informed, just and
reasoned decision” and does not need to provide objecting class members with “the
entire panoply of protections afforded by a full-blown trial on the merits.” Tenn.
Ass’n of Health Maint. Orgs. v. Grier, 262 F.3d 559, 567 (6th Cir.2001) (internal
quotation marks omitted).
13.

Based on the facts and arguments presented in the pleadings and at the

hearing, the Court concludes that the settlement is fair, reasonable, and adequate
under Rule 23(e)(2).

Assessing the Dispute and Weighing Continued Litigation Against Settlement
14.

“The fairness of each settlement turns in large part on the bona fides of the

parties legal dispute.” Gen. Motors Corp., 497 F.3d at 631. Accordingly, the
district court must assess whether the parties are using the settlement to resolve a
legitimate dispute of law and fact. Id.
15.

Consideration of this factor as applied to the present case leads to the

conclusion that there is a legitimate dispute between the parties and that the
settlement of this lawsuit provides a positive alternative to the risks of continued
litigation.
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16.

Here, Class Members and Defendant disagree about whether it is legally

permissible to charge multi-family dwellings a commercial, rather than residential,
rate for drainage charges in order for DWSD to recoup allegedly higher costs for
stormwater runoff at these properties. The parties’ views on this question
fundamentally differ. Further litigation of this question would require the Court to
adjudicate a sharply-contested disagreement.
17.

Thus, the Court finds that the parties’ dispute is genuine, serious, and

substantial; that continued litigation would entail considerable effort and expense;
that the outcome of that litigation is uncertain; and that class members would bear
the risk of continued litigation with the potential for an adverse result. The above
circumstances favor a settlement that ends the litigation, eliminates uncertainties,
and is beneficial to all involved parties. Accordingly, the Court determines that the
settlement is informed, prudent, and rational, within the “range of reasonableness,”
and fair, reasonable, and adequate under Rule 23(e)(2).
The Risk, Delay, and Expense of Further Litigation
18.

“Whatever the relative merits of the parties’ positions, there is no such thing

as risk-free, expense-free litigation.” IUE-CWA, 238 F.R.D. at 596. Complex
litigation is both costly and time-consuming, and other class action cases in this
district have spanned nearly a decade prior to appellate review. Id. (citing Sprague
v. Gen. Motors Corp., 133 F.3d 388 (6th Cir. 1998) (en banc) (upholding, after 9
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years of litigation); Bittinger v. Tecumseh Prods., 201 F.3d 440 (6th Cir.1999) (per
curiam) (affirming, after 8 years of litigation)).
19.

Here, the litigation, which began in 2012, has already spanned over three

and a half years. Without a settlement, Class Members would be subject to risk,
uncertainty, potential hardship, and delay while awaiting the outcome of continued
litigation, which might ultimately be decided against them. Accordingly, the risk,
delay, and expense factor favors approval of the settlement, which will ultimately
ensure that Class Members receive credits towards past and future drain charges on
their accounts.
The Judgment of Legal Counsel Factor
20.

Class Counsel’s judgment that the settlement is in the best interest of the

class “is entitled to significant weight, and supports the fairness of the class
settlement.” IUE–CWA, 238 F.R.D. at 597. The class has been represented by
seasoned litigators with many years of experience in the area of class actions and
other complex cases. Class Counsel’s efforts in the settlement process displayed an
informed, reasoned, and practical approach to the litigation process. The Court
recognizes their experience and diligence, and concludes that their endorsement of
the settlement “is entitled to significant weight.” IUE–CWA, 238 F.R.D. at 597
(“the Court must rely upon the judgment of experienced counsel and, absent fraud,
‘should be hesitant to substitute its own judgment for that of counsel.’ ”) (citations
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omitted). Accordingly, the Court finds that the judgment of counsel factor warrants
approval of the settlement.

The Discovery and Evidence Factor
21.

The Settling Parties have vigorously litigated the case, including the

undertaking of formal and informal discovery. Dkt. No. 80, p. 7 (Pg. ID No. 1313).
Through this discovery, over 1000 pages of documents were generated for review
and analysis of Defendant’s rate philosophy and structure. Id. at 24.
22.

The Court finds that through this cooperative information exchange, the

Settling Parties developed a body of documents and information that permitted an
informed assessment of the litigation and was sufficient to demonstrate to the
Court that their dispute is genuine and based on good-faith legal positions.
23.

The Court concludes that there is sufficient information to conclude that the

settlement is a fair, reasonable, and adequate resolution of the dispute.
Accordingly, the evidence factor, too, warrants approval of the settlement under
Rule 23(e)(2).
The Fairness Factor
24.

“Courts may [also] scrutinize settlements to determine whether absent class

members have lost out in favor of attorneys and named class members.” IUE-

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CWA, 238 F.R.D. at 598 (quoting UAW v. GM, 2006 WL 891151, at *19, 2006
U.S. Dist. LEXIS 14890, at *60) (alteration in original).
25.

The total amount to be paid by Defendants is $616,400.00. Defendants will

issue a credit of $575.00 to each of the 672 Qualified Accounts, totaling
$386,400.00. Defendants will provide a cash payment to each of the Named
Plaintiffs in the amount of $6,000.00, for a total of $30,000.00. Finally, Class
Counsel is seeking $200,000.00 in attorneys’ fees, costs, and expenses.
26.

The first issue to address is whether the incentive payment to the Named

Plaintiffs is fair to the class. The Sixth Circuit has not passed judgment on the
appropriateness of incentive awards; however, the Circuit has stated that “there
may be circumstances where incentive awards are appropriate.” Vassalle v.
Midland Funding LLC, 708 F.3d 747, 756 (6th Cir. 2013). Meanwhile, the Seventh
Circuit has stated that, “[b]ecause a named plaintiff is an essential ingredient of
any class action, an incentive award is appropriate if it is necessary to induce an
individual to participate in the suit.” Cook v. Niedert, 142 F.3d 1004, 1016 (7th
Cir. 1998). “In deciding whether such an award is warranted, relevant factors
include the actions the plaintiff has taken to protect the interests of the class, the
degree to which the class has benefitted from those actions, and the amount of time
and effort the plaintiff expended in pursuing the litigation.” Id.

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27.

Here, the argument for awarding the incentive fees is that for the past four

years, Named Plaintiffs have litigated this case for the benefit of Settlement Class
Members. Dkt. No. 80, p. 20 (Pg. ID No. 1327). Additionally, Plaintiff’s counsel
presented the Court with two opinions from the Eastern District of Michigan where
incentive awards were approved. See Date v. Sony Elecs., Inc., No. 07-15474, 2013
WL 3945981, at *13 (E.D. Mich. July 31, 2013) (approving an incentive award in
a non-common fund case); Griffin v. Flagstar Bancorp, Inc., No. 2:10-CV-10610,
2013 WL 6511860, at *9 (E.D. Mich. Dec. 12, 2013) (approving “case
contribution” awards for named plaintiffs). Based on the evidence presented, the
Court finds that the $6,000 payments to Named Plaintiffs are reasonable.
28.

Next, the Court turns to the fairness of Class Counsel’s fee in light of the

credits to the class. Although Class Counsel’s fee is over 32% of the total amount
being paid or credited by Defendants, Class Counsel and staff expended 934.40
hours, worth $272,114.18 in fees, prior to filing the fee petition. Dkt. No. 80, pp.
25–26 (Pg. ID No. 1331–32). The fees appropriately were computed based on
work hours and estimated future work hours through the conclusion of the
litigation, on a “lodestar” basis. Additionally, Class Counsel’s fees were subject to
a discount factor—a negative multiplier of 73%—and did not take place until after
the settlement for the class was negotiated. Based on these facts, the Court cannot
say that the Settlement Agreement improperly benefits the attorneys.

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The “Arm’s Length” Factor
29.

“Courts presume the absence of fraud or collusion unless there is evidence to

the contrary.” IUE-CWA, 238 F.R.D. at 598. There is no evidence of fraud or
collusion in the present case. Since this litigation began in 2012, the parties have
displayed disagreed civilly over the legal issues in dispute. The parties worked
with a neutral United States Magistrate Judge to reach their settlement, after their
first settlement conference was unsuccessful. The process was entirely at arm’s
length, and thus this factor too supports approval of the settlement.
The Public Interest Factor
30.

The Court finds that the settlement is in the public interest. The settlement

benefits both of the Class Members and Defendant, and simultaneously serves the
public interest by achieving certainty for parties. The public interest is also served
by resolving disputes in federal courts with efficiency and expediency, aiding in
judicial economy. See Cardizem, 218 F.R.D. at 530 (citations omitted) (“[T]here is
a strong public interest in encouraging settlement of complex litigation and class
action suits because they are ‘notoriously difficult and unpredictable’ and
settlement conserves judicial resources.”). The public interest factor, too, favors
approval of the settlement.

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Objections of Class Members and Excluded Class Members
31.

No objections have been filed or lodged in a timely manner.

32.

The Court finds that the proposed settlement has provided an opportunity for

Class Members to exclude themselves from the Settlement Class in accordance
with Federal Rule of Civil Procedure 23(e)(4), and that the following are, at their
request, hereby excluded from the Settlement Class:
a. Henry Properties No. 1, LLC. DWSD Accounts 300-2385-300 and 3002382-300. Located respectively at 9710 W. Outer Drive, Detroit, Michigan
48223 and 9730 W. Outer Drive, Detroit, MI. 48223, at the written and
timely request of Manager Stephen H. Lange, confirmed by Attorney Kerry
L. Morgan on February 22, 2016.
IV. CONCLUSION
33.

The Court finds that the Settlement Agreement resolves a genuine and

serious legal dispute between the Class Members and Defendant; that it is the
product of informed “arm’s length” negotiations and mediation; that it achieves a
mutually-beneficial settlement, fairly and without any suggestion of fraud and
collusion; that it binds Defendant, adding to the class members’ security; that it
eliminates litigation risks and uncertainties for all sides; that it avoids further delay,
expense, and hardship; that it serves the interests of the class as a whole, and
presents a reasonable alternative to continued litigation; that it conserves judicial
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resources and is consistent with the public interest; that it has the parties’ and
counsel endorsements; that it is within an acceptable “range of reasonableness”;
and, finally, considering all the circumstances, that it is fair, reasonable, and
adequate under Rule 23(e)(2).
34.

For the foregoing reasons, and those in the record and stated at the fairness

hearing, it is ORDERED that Plaintiffs’ Motion for Approval of Class Action
Settlement and For Fees [80] is GRANTED.
35.

It is further ORDERED that the parties’ settlement and the class Settlement

Agreement, Dkt. No. 81-2, is APPROVED in all respects and as to all parties.
36.

It is further ORDERED that Class Counsel’s Motion for Award of

Attorney’s Fees, Costs, and Expenses in the amount of $200,000 is GRANTED.
37.

It is further ORDERED that all terms and provisions of the Release and

Settlement Agreement are to be implemented.
38.

It is further ORDERED that all Parties are bound by this Order and by the

Settlement Agreement. All valid members of the Settlement Class who did not
make a valid request for exclusion in the time and manner provided in the
Settlement Class Notice are barred and permanently enjoined from commencing or
prosecuting any action, suit, proceeding, or claim against the City of Detroit or the
Detroit Water and Sewerage Department based upon, relating to, or arising out of
any of the Released Claims described in the Release and Settlement Agreement.

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39.

The Court dismisses, on the merits and with prejudice, all claims currently

pending before it belonging to Settlement Class Members who did not request
exclusion from the Settlement Class in time and manner provided for in the
Settlement Class Notice.
40.

The Court dismisses, on the merits and with prejudice, all claims currently

pending before it belonging to Class Members, certified by this Court’s Order [47]
of March 3, 2014, who do not meet the definition of the Settlement Class as
defined by this Order.
41.

If this Order is set aside, materially modified, or overturned by this Court or

on appeal, and is not fully reinstated on further appeal, this Order shall be deemed
vacated and shall have no force or effect whatsoever.
42.

If this Order is set aside, materially modified, or overturned by this Court or

on appeal, and is not fully reinstated on further appeal, the Release and Settlement
Agreement of the Settling Parties shall be deemed vacated and shall have no force
or effect whatsoever.
IT IS SO ORDERED.
Dated: March 29, 2016
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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