Gregory et al v. EBF & Associates, L.P.

Filing 151

ORDER PRELIMINARILY APPROVING CLASS SETTLEMENT. Final Settlement Hearing will be held on September 22, 2011 @ 10:00 a.m. before Judge Paul A. Magnuson, Courtroom 7D, St. Paul, Minnesota. Signed by Judge Paul A. Magnuson on May 25, 2011. (smr)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

CHERYL GREGORY, JAMES
J. PEREZ, PAUL ROSENKRANZ,
DAVID NEFF and MARY HEBIG,
Court File No. 09-cv-00691(PAM/LIB)
Plaintiffs,

On behalf of themselves and
all others similarly situated,
ORDER PRELIMINARILY
v.

APPROVING CLASS
SETTLEMENT

EBF & ASSOCIATES, L.P.,
a Delaware Limited Partnership,

Defendant.
_____________________________________

This matter came before the Court upon motion under Fed.R.Civ.P. 23 for
preliminary approval of the proposed settlement (“Proposed Settlement”)
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[DOCKET No. 148], set forth in a Settlement Agreement and General Release of
All Claims signed by Plaintiffs and Defendant, through their counsel of record, and
dated various dates in May, 2011 (hereinafter referred to as, the “Settlement
Agreement”). Appearances were as noted in the record.
The Court has heard arguments of counsel, reviewed the Settlement
Agreement, its exhibits and other submissions of the parties, and it has considered
all of the files, records and pleadings in this action.
IT IS HEREBY ORDERED under Fed.R.Civ.P. 23 that:
1.

The representations, agreements, terms and conditions of the parties’
Proposed Settlement, as embodied in the Settlement Agreement and the
exhibits attached thereto, are preliminarily approved as being fair,
reasonable and adequate to the Plaintiffs and the Class Members,
pending a final hearing on the Proposed Settlement as provided herein.
The Parties and shall proceed to implement the Proposed Settlement in
accordance with the terms of the Settlement Agreement and this Order.
Pursuant to the terms of the Settlement Agreement, Class Counsel, Mark
J. Berkowitz, is to act as the Claims Administrator.

2.

A majority of the named Plaintiffs are authorized to enter into the
Settlement Agreement on behalf of the Class Members, and to bind each
of the Class Members to all of the duties and obligations contained

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herein, subject to final approval by the Court following the Final
Settlement Hearing described below.
3.

Pursuant to the Settlement Agreement, Class Counsel, Mark J.
Berkowitz, is responsible for administering the terms of the Settlement,
for the purpose of executing the duties and responsibilities set forth in
the Settlement Agreement and any other agreement between the
Plaintiffs, EBF & Associates, L.P., and Class Counsel, subject to
supervision by the Court.

4.

Class Counsel, acting as the Claims Administrator, shall open and
maintain an Escrow Account to receive and hold the Settlement Fund
and other funds described in the Settlement Agreement. Class Counsel,
acting as the Claims Administrator, shall not disburse or cause to be
disbursed any funds in the Escrow Account, except pursuant to an order
issued by the Court.

5.

After reviewing the proposed form of Notice of Proposed Settlement of
Class Action and Hearing, submitted by the parties as EXHIBIT A to
the AFFIDAVIT of Mark J. Berkowitz in Support of the Motion for
Preliminary Approval of Settlement (“Settlement Notice”), the Court
hereby approves such Settlement Notice. The Court hereby directs that
Class Counsel, acting as Claims Administrator, shall mail or cause the
Settlement Notice to be mailed, to all Class Members. Class Counsel,

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acting as Claims Administrator, is hereby authorized to use reasonable
efforts to update or correct the original mailing list with respect to
addresses that Class Counsel, acting as Claims Administrator, has
reasonable cause to believe are inaccurate or incomplete. In the event
that a notice is returned as undeliverable and a forwarding address is
provided, the Class Counsel, acting as Claims Administrator, shall
forward any such returned Notice to the forwarding address within five
days of receipt. Class Counsel, acting as Claims Administrator, shall
have no obligation for any further mail forwarding after that point.

6.

The Court finds and determines that the mailing of the Settlement
Notice constitutes the best notice to the Class Members, which is
practicable under the circumstances, and constitutes due as well as
sufficient notice of the matters set forth to all persons entitled to receive
such notice and the providing of such notice fully satisfies the
requirements of due process and the requirements of Fed.R.Civ.P. 23.

7.

A hearing will be held before the Honorable Paul A. Magnuson at the
United States Courthouse, 316 N. Robert Street, Courtroom 7D, St.
Paul, Minnesota 55101, on September 22, 2011, at 10:00 a.m. (“Final
Settlement Hearing”), to determine: (a) whether the Proposed Settlement

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should be finally approved as fair, reasonable, adequate and in the best
interests of the Class: (b) whether a final judgment should be entered
dismissing the claims of Plaintiffs and of the Class Members with
prejudice and on the merits, as required by the Settlement Agreement,
and releasing claims as required by the Settlement Agreement; and (c)
whether, and in what amount, to award attorneys’ fees and expenses to
Class Counsel (from the Total Payment by EBF) and an incentive fee to
the Class Representatives (from the Total Payment by EBF). The Final
Settlement Hearing is subject to continuation or adjournment by the
Court without further notice.
8.

Any Class Member who wishes to:
(a) Object to the settlement;
(b) Object to the award of attorneys’ fees and expenses to Class Counsel
under the Fees, Costs and Expense Petition;
(c) Object to the award of an Incentive Payment to the Class
Representatives; and/or
(d) Appear at the Final Settlement Hearing and show cause, if any, why
the same should not be approved as fair, reasonable, adequate and in
the best interests of the Class, or why a final judgment should not be
entered thereon,
must serve and file a written objection and/or notice of intention to
appear in the form and manner required by the Settlement Notice. Any
such objection or notice of intention to appear must be addressed to the
Clerk of the District Court; it must refer to the action entitled, Cheryl

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Gregory, et al. v. EBF & Associates, L.P., Case No. 09-cv-00691; it
must be received by the Clerk of the District Court no later than 30
calendar days prior to the Final Settlement Hearing; it must provide a
detailed statement of such person’s specific objections to any matter
before the Court and the grounds therefore; and it must include all
documents and other writings such person wishes the Court to consider.
Copies of all materials also must be served upon the following counsel
on or before the same date:
Mark J. Berkowitz, Class Counsel, 1620 W. Oakland Park Blvd., Suite
300, Ft. Lauderdale, FL 33311, Telephone [phone], Telecopier
[phone].
Patrick Martin, Counsel for Defendant, EBF & Associates, L.P. Ogletree
Deakins, et al., 90 S. 7th Street, Suite 3800 Wells Fargo Center,
Minneapolis, Minnesota 55402, Telephone [phone], Telecopier
[phone].
Any party wishing to file a response to an objection to the settlement
and/or the award of attorneys’ fees and expenses to Class Counsel under
the Fees, Costs and Expense Petition and/or the award of an Incentive
Payment to the Class Representatives shall file a written response no
later than seven days prior to the Final Settlement Hearing and serve a
copy of said response upon counsel listed above and on the party or
counsel objecting to the settlement and/or the award of fees and
expenses.

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9.

Any Class Member wishing to “opt out” or be excluded from the
settlement must send a letter to Class Counsel and Defense counsel for
EBF & Associates, L.P., at the following addresses:
Mark J. Berkowitz, Class Counsel, 1620 W. Oakland Park Blvd., Suite
300, Ft. Lauderdale, FL 33311, Telephone [phone], Telecopier
[phone].
Patrick Martin, Counsel for Defendant, EBF & Associates, L.P. Ogletree
Deakins, et al., 90 S. 7th Street, Suite 3800 Wells Fargo Center,
Minneapolis, Minnesota 55402, Telephone [phone], Telecopier
[phone].
The letter must include the Class Member’s name, address, telephone
number and signature, and it must be postmarked no later than 30
calendar days after Class Counsel, acting as Claims Administrator, mails
the Settlement Notice to the Class Members (the “Opt-Out Deadline”).
Class Members may not opt out or exclude themselves from the
settlement by telephone or e-mail.

10.

No person shall be entitled to object to the Proposed Settlement, to the
Final Judgment to be entered in this action, or to any award of attorneys’
fees and expenses to Class Counsel or award of incentive payments to
the Class Representatives, or otherwise to be heard, except by serving
and filing a written notice of intention to appear and written objections
in the form and manner, by the date, required by the Settlement Notice.
Any person who fails to object in the manner and by the date required
shall be deemed to have waived any objections, and shall be forever

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barred from raising such objections in this or any other action or
proceeding.
11.

From this date until the Court enters its order determining whether a
Final Judgment should be entered on the terms required by the
Settlement Agreement, Plaintiffs and all Class Members are barred and
enjoined from bringing, joining, or continuing to prosecute any Settled
Claims against EBF & Associates, L.P.

12.

Upon the entry of Final Judgment after the Final Judgment Hearing, the
Plaintiffs and all Class Members shall forever be barred from asserting
any Settled Claims (as defined in the Settlement Agreement) against
EBF & Associates, L.P.

13.

On or before 14 days prior to the Final Settlement Hearing, Class
Counsel shall file and serve upon counsel of record a petition in support
of an award of attorneys’ fees, costs and expenses to class counsel and a
petition in support of an award of any incentive payment to the Class
Representatives. In addition, on or before 14 days prior to the Final
Settlement Hearing, Class Counsel shall submit a final approval
memorandum discussing the fairness of the settlement, any comments
received by Class Counsel regarding the settlement, and any filed
objections to the settlement. The final approval memorandum shall also
set forth the method that Class Counsel, acting as the Claims

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Administrator, will use in calculating the payment to be made to each
Class Member.
14.

The Court reserves the right to adjourn or continue the Final Settlement
Hearing, and any adjournment or continuance may be without further
notice of any kind other than oral announcement at the Final Settlement
Hearing or at any later hearing.

Date:

May 25 , 2011.
BY THE COURT
s/Paul A. Magnuson
Hon. Paul A. Magnuson
United States District Court Judge

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