Dryer et al v. National Football League
Memorandum and Order Granting Plaintiff's Motion for Preliminary Approval 259 . (Written Opinion). Signed by The Hon. Paul A. Magnuson on 04/05/2013. (LLM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
John Frederick Dryer, James
Lawrence Marshall, Joseph
Michael Senser, Elvin Lamont
Bethea, Dante Anthony Pastorini,
Edward Alvin White, Fred Lee
Barnett, Tracy Anthony Simien,
Darrell Alexander Thompson,
Jim Ray Smith, Irvin Acie Cross,
Bruce Allan Laird, Brian Duncan,
Reginald Joseph Rucker, Billy
Joe Dupree, Mark Gregory Clayton,
Preston Pearson, Reginald
McKenzie, Joseph Barney Lemuel,
Jackie Larue Smith, Paul James
Krause, James Nathaniel Brown,
and Michael James Haynes,
on behalf of themselves and all
others similarly situated,
Civil No. 09-2182 (PAM/AJB)
MEMORANDUM AND ORDER
National Football League,
This matter is before the Court on Plaintiffs’ Motion for Preliminary Approval of
Settlement. For the reasons that follow, the Motion is granted.
In brief, this case involves former professional football players who contend that the
NFL is violating their common-law and statutory rights of publicity.
This litigation has been contentious from the outset. However, after months of
negotiations, and due to the yeoman’s efforts of a group of Plaintiffs, their counsel, the NFL,
and the Magistrate Judge assigned to this case, Chief Magistrate Judge Arthur J. Boylan, the
parties reached a settlement. This settlement provides for a fund overseen by a panel of
former players (the “Common Good Entity”) that will distribute payments to assist former
players and their families, and for a licensing agency to market former players’ publicity
rights, with the blessing (and the use of some trademarks and copyrights) of the NFL. Thus,
for example, a former player may, under the settlement and through the licensing agency, sell
to the public a jersey from his former team with his name emblazoned on the back.
Despite the benefits of the settlement, a group of Plaintiffs opposes the agreement.
These Plaintiffs contend that the settlement is not appropriate because it does not directly
benefit them, ignoring the fact that the settlement in fact directly benefits those in whose
name this lawsuit was purportedly brought: the players who toiled in obscurity and now are
destitute. The opposing Plaintiffs contend that this Court faces reversal if it approves the
settlement, because the settlement requires an impermissible cy pres distribution of
In addition, the opposing Plaintiffs contend that the Plaintiffs
supporting the settlement have failed to maximize the money the NFL will pay by failing to
determine the monetary value of the rights Plaintiffs will assign to the licensing agency under
the terms of the settlement.
Approval of a class action settlement under Federal Rule of Civil Procedure 23(e) is
a two-step process; first, the Court must enter a preliminary approval order, and second, after
providing notice of the proposed settlement to the class and a final fairness hearing is
conducted, the Court must enter a final approval order.
The Court analyzes “four factors in determining whether a settlement is fair,
reasonable, and adequate: (1) the merits of the plaintiff’s case, weighed against the terms of
the settlement; (2) the defendant’s financial condition; (3) the complexity and expense of
further litigation; and (4) the amount of opposition to the settlement.” In re Wireless Tel.
Fed. Cost Recovery Fees Litig., 396 F.3d 922, 932 (8th Cir. 2005). “The most important
consideration in deciding whether a settlement is fair, reasonable, and adequate is [the first
factor.]” Id. at 933 (citation omitted). The last of these factors is analyzed at the final
approval stage, following class notification.
Despite the opposing Plaintiffs’ belief in the merits of their case, a realistic view of
this matter reveals serious difficulties both with Plaintiffs’ claims and with their chosen
vehicle for redressing their claims. This Court has held that the statute of limitations for
Plaintiffs’ claims is 6 years, thus severely limiting the time period for which damages might
apply. More noteworthy, however, are the problems with class treatment of this action. The
Court has stated on more than one occasion that the certification of a class action in this
matter is highly doubtful, at best. And absent class treatment, it is unlikely that any single
Plaintiff’s claim is so valuable as to warrant engaging in the protracted litigation that is likely
to follow if this case is not resolved. The merits of the case weigh very heavily in favor of
the settlement before the Court.
This litigation has been protracted and contentious for more than three years, and is
not likely to be less so should the settlement fall by the wayside. Thus, the complexity and
expense of further litigation of this matter weigh heavily in favor of the settlement.
The final factor that the Court is required to consider at the preliminary approval stage
is the financial condition of the NFL. This factor is not at issue here—the NFL is able to pay
any judgment against it. Thus, this factor does not weigh for or against the settlement.
Although generally a matter for the final approval stage, the Court must here address
the opposition to the settlement, in the form of opposing Plaintiffs’ contentions regarding the
settlement’s shortcomings. The most vociferous of these contentions is that the settlement
constitutes an impermissible cy pres distribution of the settlement funds, with the subtext that
cy pres distributions are against public policy and thus that this settlement is likely to be
overturned on appeal.
This settlement is not a cy pres distribution of funds. Rather, the settlement merely
creates an administrative vehicle, overseen and directed wholly by members of the Plaintiff
class, to fairly and directly distribute the proceeds of the settlement to the class. This is not
a case where the Court is directing that settlement proceeds be paid to a third party; rather,
the settlement proceeds will be paid to members of the Plaintiff class, and specifically to
those members of the class who need it most. It is double-speak for the opposing Plaintiffs
to complain about the establishment of a fund that class members will control and also
complain that there is no “outsider” on the board of the fund to ensure that the fund is run in
a businesslike, economical way.
It bears repeating: the individuals who originally brought this lawsuit and who now
oppose the settlement rode into Court on the banner of saving their downtrodden brethren,
those who had played in the NFL yet today were penniless and, often, suffering from injuries
or illnesses directly related to their playing days. It is the height of disingenuousness for
these same Plaintiffs to now complain, like children denied dessert, that the settlement does
not benefit enough the individuals who brought the lawsuit. The benefits of this settlement
to the class are plain: it will assist those who most need assistance, and will resolve the very
problem that this lawsuit seeks to address by allowing former players true access to the value
of their rights of publicity.
Every hour of attorney time spent opposing the settlement only diminishes the value
of that settlement to the members of the class. The Court urges the opposing Plaintiffs to
consider their less fortunate teammates before deciding to mount further opposition such a
thoughtful, beneficial resolution to this case.
To effectuate the Settlement, the Court hereby conditionally certifies the Settlement
Class, pursuant to Fed. R. Civ. P. 23(b)(3), defined as follows:
All individuals who, prior to or as of the date of this Order, were or are on the
roster of any Member Club and who, as of the date of this Order, (a) have
retired, formally or informally, from playing professional football with the
NFL or any Member Club, or (b) were formerly on any roster of any Member
Club and are no longer under contract to a Member Club and are not seeking
active employment as an NFL player with any Member Club (collectively,
“Retired Players”); and for Retired Players who are deceased, all of their
respective heirs, executors, administrators, beneficiaries, successors, and
assigns who own or control their Publicity Rights.
In support of the conditional certification, the Court finds, solely for purposes of the
The Settlement Class is so numerous that joinder of all members is
There are questions of law or fact common to the Settlement Class;
The claims of the representatives of the Settlement Class are typical of
the claims of the Settlement Class;
The representatives of the Settlement Class will fairly and adequately
protect the interest of the Settlement Class; and
The questions of law or fact common to the Settlement Class
predominate over any questions affecting only individual members and
a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.
Darrell Anthony Thompson, Fred Lee Barnett, Tracy Anthony Simien, Lemuel Joseph
Barney, James Nathaniel Brown, Mark Gregory Clayton, Irvin Acie Cross, Brian Duncan,
Billy Joe Dupree, Michael James Haynes, Paul James Krause, Bruce Allan Laird, Reggie
McKenzie, Preston Pearson, Reginald Joseph Rucker, Jackie Larue Smith, and Jim Ray
Smith (the “Settling Plaintiffs”) are selected to be representatives for the Settlement Class.
On December 12, 2012, the Court appointed Daniel E. Gustafson of the law firm
Gustafson Gluek PLLC as Plaintiffs’ Lead Settlement Counsel for the Class (Docket No.
250). On January, 12, 2103, the Court further clarified Mr. Gustafson’s duties as Plaintiffs’
Lead Settlement Counsel (Docket No. 252) and, on February 25, 2013 (Docket No. 256), the
Court announced that a settlement had been reached and instructed Mr. Gustafson to take the
appropriate steps to seek approval of the proposed Settlement.
Pursuant to Fed. R. Civ. P. 23(g), the Court now appoints Mr. Gustafson as Plaintiffs’
Lead Settlement Counsel for the Settlement Class. Mr. Gustafson is familiar with the claims
in this case and has done work investigating these claims. He has consulted with other
counsel in the case and has experience in handling class actions and other complex litigation.
He has knowledge of the applicable laws and the resources to commit to the representation
of these Class Members. At this time, Plaintiffs’ Lead Settlement Counsel shall have the
responsibility for overall case management and litigation responsibility on behalf of the
Plaintiffs’ Lead Settlement Counsel shall be the contact between Plaintiffs’ counsel
and Defendant’s counsel and shall direct and coordinate activities on behalf of the Settlement
Class. Plaintiffs’ Lead Settlement Counsel shall also be responsible for communicating with
the Court, filing any motions or pleadings on behalf of the Settlement Class, and for
receiving and, as appropriate, distributing to other Plaintiffs’ counsel Orders from the Court
and documents from opposing counsel. Service by the Defendant on Plaintiffs of any papers
shall be deemed to be complete for all purposes when a copy is served on Plaintiffs’ Lead
The proposed Notice Plan is hereby approved, including the form of Notice attached
to the Settlement Agreement, in accordance with the Notice Plan submitted by Plaintiffs’
Lead Settlement Counsel. The Court finds that notice given pursuant to the terms of the
Settlement Agreement and as set forth in the Notice Plan is reasonable and constitutes the
best notice practicable under the circumstances, constitutes due and sufficient notice of the
Settlement and the matters set forth to all persons entitled to receive notice, and fully satisfies
the requirements of due process and of Federal Rule of Civil Procedure 23.
By no later than May 31, 2013, the Court directs Plaintiffs’ Lead Settlement Counsel
to provide mailed notice to all Class Members with known addresses in accordance with the
Notice. Plaintiffs’ Lead Settlement Counsel shall also cause the publication of the Summary
Notice Plan to be completed by August 1, 2013. Counsel for Defendant is ordered to
provide notice to appropriate Federal and State officials, as required by 28 U.S.C. § 1715.
Any Class Member who wants to be excluded from the Settlement Class must submit
a written request for exclusion postmarked on or before August 30, 2013. The request for
exclusion must follow the procedures set forth in the Notice, and must include:
The individual’s full name, current address, and telephone number;
The individual’s e-mail address, if available;
The years the individual (or the deceased NFL Player) played in the
NFL or AFL and the name(s) of the Member Club(s) that individual (or
the deceased NFL Player) played for; and
The individual’s signature (even if represented by an attorney) and the
date on which the request for exclusion was signed.
The request must be sent to:
NFL Retired Players Publicity Rights Settlement Exclusion
P.O Box 2899
Faribault, MN 55021-8699
The Court hereby approves such procedures as fair and reasonable.
Any Class Member who does not submit a timely, written request to be excluded from
the Settlement Class will be bound by all proceedings, orders, and judgments relating to the
Settlement, whether favorable or unfavorable, including the dismissal of the case with
prejudice and the release of Defendant from liability to members of the Settlement Class with
respect to all of the Released Claims.
Objections and Intervention
Any Class Member who wishes to object to the fairness, reasonableness, or adequacy
of the proposed Settlement and show cause why the same should not be approved, must serve
and file the objection with the Court on or before August 30, 2013.
Any objection must comply with the following requirements. It must:
be made in writing and include a reference to the case by name and
contain the objector’s full name and current address and the name of
the retired NFL player (if not the objector);
declare that the objector either was formerly on the roster of a Member
Club and is now retired from the NFL or owns or controls the Publicity
Rights of a Retired Player;
state the specific reasons for the objection;
describe and attach copies of any evidence the objector intends to offer
in support of his or her objection at the Final Approval Hearing; and
state specifically whether the objector intends to appear in person at the
Final Approval Hearing.
The objector must sign and date the objection. Class Members who exclude themselves from
the Settlement Class are not eligible to object to the Settlement.
Copies of all materials filed with the Court must also be served by first class mail
upon the following counsel on or before the date on which they must be submitted to the
Daniel E. Gustafson, Esq.
Gustafson Gluek PLLC
Canadian Pacific Plaza
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Daniel J. Connolly, Esq.
Faegre Baker Daniels LLP
2200 Wells Fargo Center
90 S. Seventh Street
Minneapolis, MN 55402
Telephone: (612) 766-7806
No person is entitled to object to the Settlement, to the final judgment to be entered
in the case, to any award of Settling Plaintiffs’ Counsel’s fees, costs, expenses, and
disbursements or service awards to Settling Plaintiffs, or otherwise to be heard, except by
serving and filing the written statement in the form and manner, and by the date, required
herein. Any person who fails to object in the manner and by the date required will be
deemed to have waived any objections, and will be forever barred from raising such
objections in this or any other action or proceeding. Any papers not filed and served in the
prescribed manner and by the date required may not be considered at the Final Approval
Hearing. Any responses to objections and Settling Plaintiffs’ Motion for Final Approval and
supporting documents must be served and filed with the Court on or before September 6,
Attorney’s Fees, Expenses, and Service Awards
Settling Plaintiffs’ Counsel must serve and file their applications for attorneys’ fees
and expenses no later than May 30, 2013. Each application for attorneys’ fees and/or
expenses must include an affidavit from a member of the law firm seeking attorneys’ fees
and expenses attaching detailed time and expense reports that are in compliance with the
requirements set forth below:
Only time and expenses authorized and incurred on matters that advance the
litigation on behalf of all class members will be considered as compensable.
“Read and review” time will not be compensated unless the law firm was
assigned to work on the submission or otherwise had a compelling reason to
do so. No time or expense spent on developing or processing a case for an
individual client will be considered or should be submitted.
Although attorney fee requests will be viewed through the Johnson prism1, the
analysis first requires identifying “compensable” time through an illustrative
list of germane questions such as those that follow:
Was the time properly described?
Was it necessary?
Was it reasonable?
Was it excessive?
Was it duplicative?
Was the activity authorized?
Did the activity actually advance the litigation on behalf of the class?
Essentially, the only time that is compensable is:
Time which was authorized; and
Time which is properly and timely documented;
Time which was necessary, reasonable and actually advanced the
litigation on behalf of the class.
The following categories are examples of time that will not be compensated
absent extraordinary circumstances:
Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974). The Johnson factors
for determining the amount of an attorney fees award are: (1) the time and labor required;
(2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of other employment by the attorney due to acceptance
of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time
limitations imposed by the client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the political
undesirability of the case; (11) the nature and length of the professional relationship with the
client; and (12) awards in similar cases.
Time spent by each firm creating and compiling any monthly time and
All time and expense descriptions that are incomplete.
Clerical time related to file management.
Read and review time for persons not overseeing or directly
participating in a project.
Time billed by two or more people from the same firm unless both
people are required to attend the same court hearing or meeting or are
reasonably necessary to attend or work on a project together.
With regard to the submission and reimbursement of expenses:
Expense reports should itemize out-of-pocket, case-related expenses on
a month by month basis since inception. The report should have a
column for the monthly amounts and the column for the cumulative
amounts. If there is a “Miscellaneous/Other” expense item on a report,
the item must describe on that month’s report the nature of the
Routine office supplies are not compensable expenses. Good judgment
shall be used on travel and other expenses, and shall be kept within
reasonable limits. Personal expenses such as entertainment will not be
allowed. Airline travel is to be billed at coach fare; any upgrades will
be at the individual’s own expense.
Unless otherwise addressed below, each expense claim must be
properly documented by a receipt or some other form of proof of
payment acceptable for ultimate presentation and approval by the
Court. Copies of receipts should be attached to the monthly report for
which those expenses were incurred. Originals must be available for
production upon request. Cash advances will not be considered for
reimbursement without evidence of payment made with the case.
All costs of a substantial nature that fall under the following categories
qualify to be submitted for consideration for reimbursement. An
illustrative list includes:
1. Fax charges (only actual long distance charges):
Contemporaneous records should be maintained and
submitted showing faxes sent and received.
2. Postage, Shipping, Courier, Certified Mail: All claimed
expenses must be documented with bills showing the
sender, origin of the package, recipient, and destination of
the package. A contemporaneous postage log or other
supporting documentation must be maintained and
submitted. Postage charges are to be reported at actual cost.
3. Printing & Photocopying (in-house): A contemporaneous
photocopy log or other supporting documentation must be
maintained and submitted. The maximum copy charge is
$0.15 per page.
4. Computerized research - Lexis/Westlaw: Claims for
Lexis, Westlaw, and other computerized legal research
expenses should be in the exact amount charged to the firm
for these research services. Copies of all computerized
research bills must be submitted with notations as to which
charges relate to this litigation.
5. Telephone - local and long distance: Long distance and
cellular telephone charges must be documented. Copies of
the telephone bills must be submitted with notations as to
which charges relate to this litigation.
6. Airfare (Coach rate).
7. Reasonable ground transportation.
8. Reasonable hotel.
9. Reasonable meals.
Reasonable other (e.g., parking).
Car rentals, cabs, etc.
On or before June 30, 2013, Plaintiffs’ Lead Settlement Counsel shall review each
application for attorneys’ fees and reimbursement of expenses and make a comprehensive
audit to assure that the application complies with the requirements set forth above and make
recommended adjustments to the Court, if any, to the requested attorneys’ fees and expenses
for each law firm. Plaintiffs’ Lead Settlement Counsel shall also recommend to the Court
a specific amount that he believes should be awarded to each law firm depending on the
quantity and quality of that firm’s contribution to the overall outcome of the litigation.
Any objection to the applications for attorneys’ fees, expenses or to the adjustments
and/or recommendations of Plaintiffs’ Lead Settlement Counsel must be served and filed
with the Court on or before August 30, 2013. In connection with the Final Approval
Hearing, the Court or its designee will, based on its review of such objections and
recommendations, make awards to Settling Plaintiffs’ Counsel.
On or before June 30, 2013, Plaintiffs’ Lead Settlement Counsel shall also serve and
file any requests for service awards for the Settling Plaintiffs. Such requests shall set out the
amount of service award requested for any Settling Plaintiff, if such a request is made, and
set forth in detail the basis for each such request. Any objections to these requested service
awards shall be served and filed on or before August 30, 2013. In connection with the Final
Approval Hearing, the Court or its designee will, based on its review of such
recommendations and objections, make awards based on such applications.
Pursuant to the proposal set forth in the motion for preliminary approval,
Rust/Kinsella is designated as the Settlement Administrator. The Administrator shall:
implement the notice plan in conjunction with Plaintiffs’ Lead Settlement
mail the Notice on or before May 31, 2013 (the “Initial Notice Date”) to all
Class Members for whom the parties have addresses, using first class mail, and
having first updated the addresses using the National Change of Address
on or before May 31, 2013, post the Notice and the Agreement, along with
other documents as agreed to by Plaintiffs’ Lead Settlement Counsel and the
NFL, on a website with the domain name
complete publication of the summary notice attached to the Settlement
Agreement by no later than August 1, 2013 pursuant to the Notice Plan;
process requests for exclusion from the Settlement in accordance with the
terms of this Order;
file with the Court proof of mailing of the Notice and proof of compliance with
the Notice Plan submitted by Plaintiff’s Lead Settlement Counsel by
September 6, 2013, along with a list of the persons and entities who have
validly and timely requested exclusion from the Settlement Class; and
establish and staff with representatives knowledgeable about the Settlement
Agreement a toll-free telephone number and associated call-in service for
responding to inquiries from Class Members about the Settlement Agreement
and any issues relating to the case and operating the call-in service consistent
with industry standards.
Declaration of Compliance
By no later than September 6, 2013, Plaintiffs’ Lead Settlement Counsel shall file
with the Court a declaration of compliance with the notice requirements, including the notice
requirements under the Class Action Fairness Act, 28 U.S.C. § 1715, after notice has been
given following the terms of the Agreement and this Order.
Settlement Escrow Account
Pursuant to Section II.B.2 of the Settlement Agreement, Plaintiffs’ Lead Settlement
Counsel shall establish a separate escrow fund that shall quality as a “qualified settlement
fund” with the meaning of Treasury Regulation Section 1.468B-1 or any other relevant
statutes, regulations or published rulings now or hereafter enacted or promulgated. Plaintiffs’
Lead Settlement Counsel or his designee shall be the “administrator” of the Settlement Fund
within the meaning of Treasury Regulation Section 1.468B-2(k)(3). Plaintiffs’ Lead
Settlement Counsel or his designee shall apply, or shall cause application to be made, to the
Internal Revenue Service for an employer identification number on behalf of the Settlement
Fund and shall further cause to be prepared on behalf of the Settlement Fund any and all
required tax returns. Plaintiffs’ Lead Settlement Counsel or his designee shall file such tax
returns with all appropriate tax authorities and shall cause any taxes shown due on such
returns or otherwise and payable by the Settlement Fund to be paid to the United States
Treasury or other taxing authority on behalf of the Settlement Fund from the funds on deposit
in the Settlement Fund. Plaintiffs’ Lead Settlement Counsel or his designee shall do or cause
to be done any and all other acts as may be reasonably required to cause the Settlement Fund
to qualify and remain qualified as a “qualified settlement fund” as described above for all
taxable years of the Settlement Escrow Account, beginning with the date of its establishment.
Final Approval Hearing
A hearing (the “Final Approval Hearing”) will be held by this Court in Courtroom 7D,
316 N. Robert Street, St. Paul, MN on Thursday, September 19, 2013 at 10:00 a.m. to
(a) determine whether the Settlement should be finally approved as fair, reasonable, and
adequate; (b) determine whether final judgment should be entered dismissing with prejudice
all claims against Defendant pursuant to the Agreement; and (c) consider Settling Plaintiffs’
Counsel’s applications for attorneys’ fees and expenses and Plaintiffs’ Lead Counsel’s
requests for service awards for Settling Plaintiffs.
The Court will also consider any objections during the Final Approval Hearing. The
Court may adjourn or continue the Final Approval Hearing without further notice to the
Settlement Class. The Court may also approve the Settlement at or after the Final Approval
Hearing with or without modification without further notice to the Settlement Class.
All Class Members and their legally authorized representatives, unless and until they
have timely and properly excluded themselves from the Settlement Class, are preliminarily
Filing, commencing, prosecuting, intervening in, or participating as plaintiff,
claimant, or class member in any other lawsuit or administrative, regulatory,
arbitration, or other proceeding in any jurisdiction based on, relating to, or arising out
of the Claims and causes of action, or the facts and circumstances at issue, in the case
and/or the Released Claims;
Disseminating to members of the Settlement Class or publishing in any form or by
any means, any materially false or misleading information regarding the terms of this
Settlement or Settlement Agreement. Any such communication to members of the
Settlement Class must be consistent with the notice approved by the Court and any
person disseminating information inconsistent with the approved notice may be
required to provide corrective notice.
Designation of Members of the Boards of Directors of the Common Good Entity
and the Licensing Agency
The Court, on application of Plaintiffs’ Lead Settlement Counsel, hereby designates
the following as the initial members of the Boards of Directors of the Common Good Entity
and of the Licensing Agency:
James Nathaniel Brown
Irvin Acie Cross
Billy Joe Dupree
The names of these initial Directors will be set forth in the Notice.
Effect of Settlement Agreement
Plaintiffs’ Lead Settlement Counsel, on behalf of the Settlement Class, the Settling
Plaintiffs and the NFL entered into the Settlement Agreement solely for the purpose of
compromising and settling disputed claims. Defendant has at all times denied, and continues
to deny, any wrongful act or omission alleged in this case and any liability of any sort to any
member of the Settlement Class. The Settlement Agreement, the documents relating to the
Settlement Agreement, or this Order are not, and should not in any event be, (a) construed,
deemed, offered or received as evidence of a presumption, concession or admission on the
part of any of the Settling Plaintiffs, Defendant, any member of the Settlement Class or any
other person; or (b) offered or received as evidence of a presumption, concession or
admission by any person of any liability, fault, wrongdoing or other dereliction of duty for
any purpose in any judicial or administrative action or proceeding, whether in law or in
If, for any reason, the Settlement Agreement does not become effective, Defendant’s
conditional withdrawal of its objections to the certification of a settlement class will be null
and void in its entirety; this Order conditionally certifying a class for purposes of the
Settlement will be vacated; all Plaintiffs and Defendant will return to their respective
positions in this case as those positions existed immediately before the execution of the
Settlement Agreement; any balance of funds left in the Settlement Escrow Account will be
returned promptly to Defendant; and nothing stated in the Settlement Agreement or in this
Order will be deemed an admission or waiver of any kind by any Plaintiffs or Defendant or
used as evidence against, or over the objection of, any Plaintiffs or Defendant for any
purpose in this case or in any other action or proceeding of any kind.
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Preliminary
Approval (Docket No. 259) is GRANTED as more fully set forth above.
Dated: April 5, 2013
s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge
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