Hill et al v. Hill Brothers Construction Company, Inc. et al
ORDER granting 265 Motion to Certify Class and Preliminary Approval of Class Action Settlement. Signed by District Judge Sharion Aycock on 5/9/2017. (adm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
R.K. HILL, et al.,
HILL BROTHERS CONSTRUCTION
COMPANY, INC., et al.,
)Civil Action No.: 3:14-cv-00213-SA-RP
ORDER ON PLAINTIFFS’ UNOPPOSED PRELIMINARY MOTION FOR APPROVLA
OF CLASS ACTION SETTLEMENT AND PRELIMINARY CERTIFICATION OF
Plaintiffs Robert K. Hill, Donald Byther, Sandy Byther, Keith Clark, Samuel Copeland,
B.T. Erve, Percy Evans, George Flakes, Scott Goolsby, Sheila Kelly, Paul Leonard, Fred Smith,
Dewayne Toliver, Ulysses Wiley, and Warlfoyd Winters (hereinafter “Plaintiffs”) filed their
Unopposed Motion for Approval of Class Actions Settlement and Preliminary Certification of
the Settlement Class on March 23, 2017 (hereinafter “Motion”). A hearing was held before this
Honorable Court on May 3, 2017, and Counsel for defendants Hill Brothers Construction
Company, Inc., HBC Board of Directors, Kenneth W. Hill, Kenneth W. Hill, Jr., Gerald C. Hill,
Jimmy Hill, John F. Hill, Jr., Sterling Aker, Danny McAllister, Clyde R Robertson, Donald
Bates, Jane H. Childs, Beth Lockhart, Mark Robertson, Doug Horton, David Horton, and the Hill
Brothers Construction Company, Inc. Employee Stock Ownership and 401(K) Plan and Trust
Plan Administrative Committee were present.
The capitalized terms used herein shall have the same meaning as defined in the
Settlement Agreement which is attached as Appendix A to Plaintiff’s Motion for Preliminary
Approval (the “Settlement Agreement”). Having considered Plaintiffs’ motion, brief and
supporting documents, the signed Settlement Agreement and all other evidence submitted
concerning Plaintiffs’ motion, and being duly advised in the premises, this Court hereby finds
(a) The settlement proposed in the Settlement Agreement (“the Settlement”) has been
negotiated in good faith at arm’s length and is preliminarily determined to be fair,
reasonable, adequate, and in the best interests of the Settlement Class (as defined
(b) The class notice, as described in the Settlement Agreement, Plaintiffs’ brief, and as
described during the preliminary hearing, fully complies with Federal Rule of Civil
Procedure 23(c)(2)(B) and due process, constitutes the best notice practicable under
the circumstances, and is due and sufficient notice to all persons entitled to notice of
the settlement of the Action.
(c) With respect to the Settlement Class, this Court finds that, for settlement purposes
only, certification is appropriate under Federal Rule of Civil Procedure 23(a) and
(b)(3). This Court finds that members of the Settlement Class will receive notice of
the settlement through the notice program described below.
(d) This Court finds that the class notice described below constitutes the best notice
practicable under the circumstances and fully complies with Federal Rule of Civil
IT IS THEREFORE ORDERED THAT:
1. For the reasons stated on the record, and in Plaintiffs’ Motion, the settlement
proposed in the Settlement Agreement has been negotiated in good faith at arm’s length, and is
preliminarily determined to be fair, reasonable, adequate, and in the best interests of the
Settlement Class in light of the factual, legal, practical and procedural considerations raised by
2. The following class (the “Settlement Class”) is preliminarily certified solely for the
purpose of settlement pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3):
All participants, beneficiaries, and alternate payees of the ESOP reflected on the
records of the ESOP as of August 15, 2013.
The Court makes a preliminary finding that this action satisfies the applicable
prerequisites for class action treatment under Fed. R. Civ. P. 23(a) and (b). The Settlement Class
is ascertainable, so numerous that joinder of all members is not practicable, there are questions of
law and fact common to the Settlement Class, the claims of the Class Representative (as defined
below) are typical of the claims of the Settlement Class, and the Class Representative will fairly
and adequately protect the interests of the Settlement Class. Questions of law and fact common
to the members of the Settlement class predominate over any questions affecting only individual
members, and a class action is superior to other available methods for the fair and efficient
adjudication of the controversy.
3. The Court preliminarily appoints Plaintiffs Robert K. Hill, Donald Byther, Sandy
Byther, Keith Clark, Samuel Copeland, B.T. Erve, Percy Evans, George Flakes, Scott Goolsby,
Sheila Kelly, Paul Leonard, Fred Smith, Dewayne Toliver, Ulysses Wiley, and Warfloyd
Winters as class representatives of the Settlement Class (“Class Representative”), and finds that
they meet the requirements of Fed. R. Civ. P. 23.
4. The Court preliminarily appoints the following lawyers as Settlement Class Counsel
and finds that they meet the requirements of Fed. R. Civ. P. 23: Matthew Y. Harris of Harris
Law, PLLC, New Albany, MS; Diandra S. Debrosse Zimmermann, of Zarzaur Mujumdar &
Debrosse, Birmingham, Alabama; Edgar C. Gentle of Gentle Turner Sexton & Harbison, LLC,
Hoover, AL; L. Chandler Rogers of the Rogers Law Group, P.A. New Albany, MS, and Sterling
DeRamus of Birmingham, AL.
5. If the Settlement Agreement is terminated pursuant to its terms prior to the Effective
Date, then all other provisions of the Settlement Agreement shall be deemed null and void ab
initio and without force or effect. In such event, the Settlement Agreement shall not be offered in
evidence or used in this or any other lawsuit for any purpose, including the existence, suitability
for certification, or maintenance of any purported class. In such event, the Settlement Agreement
and all negotiations, statements, proceedings, and documents prepared in connection therewith or
in connection with this motion (including all legal briefs and exhibits thereto) shall not be
deemed or construed to be an admission or confession by any party of any fact, matter, or
proposition of law and shall not be offered by anyone adverse to any of the Defendants for any
purpose whatsoever in any Suit. In the event of such termination, all Parties to this Action shall
stand in the same position as if the Settlement Agreement had not been negotiated, signed, or
filed with the Court.
6. Defense Counsel is to work with Plaintiffs’ Counsel to comply with the terms of the
Settlement Agreement as they pertain to notice, and to develop a list of Class Members
(hereinafter “Notice List”) for notice purposes within thirty (30) days of this notice.
7. Class Counsel shall give notice to the Settlement Class of the Settlement, its terms,
the right to opt out, the right to appear, and the right to object to the settlement as set forth in
Exhibits 3 and 4 of Plaintiffs’ Brief in support of their Motion. The Settlement Agreement’s plan
for class notice is the best notice practicable under the circumstances and satisfies the
requirements of due process and Fed. R. Civ. P. 23. That plan is approved and adopted and
Settlement Class Counsel is order to ensure notice is issued to the Settlement Class as set forth in
the Settlement Agreement.
8. The form of notice that the Class Counsel will provide is attached as Exhibit 3 and 4
of Plaintiffs’ Brief in support of their Motion. By June 8, 2017, Plaintiffs’ Counsel is ordered to
send the notice substantially in the form hereinabove, as approved by the Court. Within twentyone (21) days of the date that notice was first sent by mail, Class Counsel shall send the Class
Notice and Claim Form by mail and/or electronic mail to each Class Member identified on the
Class Notice who did not submit a Claim Form or otherwise respond to the Class Notice by that
date (“Supplemental Notice”). Class Counsel shall create a website which allows for the
electronic submission of opt-outs and exclusions. The website, created by Class Counsel, shall
also post Exhibit 3 and 4 of Plaintiffs’ Brief in support of their Motion, this Order, the Settlement
Agreement (excluding exhibits), and Plaintiffs’ Counsel’s Petition for Attorney’s Fees. This
combined notice program fully complies with the requirements of Federal Rule of Civil
Procedure 23 (c)(2)(B) and due process, constitutes the best notice practicable under the
circumstances, and is due and sufficient notice to all persons entitled to notice of the settlement
of this Litigation. The Court finds that no other notice is necessary. Plaintiffs’ Counsel shall
provide the Class Notice and/or the Claim Form to Settlement Class Members who request it.
9. To effectuate the settlement, the Court established the following deadlines for the
events set forth in the Settlement Agreement and directs the Parties to incorporate the deadlines
in the Notice and Claim Form:
(a) Objections of Settlement Class Members or any appearance of an attorney on
behalf of a Settlement Class Member shall be filed in this Court and served by
mail postmarked to Plaintiffs’ Counsel and Defendants’ Counsel on or before
July 26, 2017, or shall be forever barred. Each objection must contain the
following information: (a) the objector’s name (or business name, if the
objector is an entity) and address, (b) your phone number; (c) a statement of
the objection to the Settlement Agreement; (d) an explanation of the legal and
factual basis for the objection; and (e) whether you intend to appear at the
hearing that will be held on August 15, 2017.
(b) All memoranda filed by any Settlement Class Member in connection with
objections must be filed in this Court and served on Settlement Class Counsel
and Defendants’ Counsel by mail postmarked on or before July 26, 2017, or
shall be forever barred. A notice of intention to opt out must contain the
following information: (a) the Settlement Class Member’s name, address, and
the fax number at which it was sent any fax from Defendants; and (b) a
statement to the effect that the Settlement Class Member does not want to
participate in the settlement.
10. Class Counsel shall file an affidavit attesting to the fact that notice was issued in
accordance with the Settlement Agreement by July 26, 2017.
11. Within three (3) days after expiration of the deadline for Class Members to request
exclusion from the Settlement Class, Plaintiff’s Counsel or the Settlement Administrator shall
file with the Court and serve on Defendants’ Counsel the Opt-Out List.
12. Defendants’ Counsel shall file proof of compliance with the notice requirements of
the Class Action Fairness Act of 2005, 28 U.S.C. §1715(b), no later than July 26, 2017.
13. The final hearing to determine whether the settlement is fair, reasonable, and
adequate and whether it should be finally approved by the Court, will be conducted on August
15, 2017 at 1:00 PM at the United States District Court for the Northern District of
Mississippi, Thomas G. Abernathy Federal Building, United States Courthouse, 301 West
Commerce St, Aberdeen, MS 39730.
14. All papers in support of final approval of the class action settlement discussed herein
shall be filed no later than August 1, 2017.
15. Plaintiff’s Counsel shall file an attorneys’ fee petition on or before July 11, 2017.
16. Each of the Defendants will have the option to terminate this Settlement, in its sole
and absolute discretion, if the number of requests for exclusion from the Settlement exceeds 5%
of the Persons on the Notice List, as set forth in the Settlement Agreement.
17. Pending the Final Judgment and Order, neither Plaintiffs nor any Class Member shall
directly, representatively, or in any other capacity, commence or prosecute any action or
proceeding in any court or tribunal asserting any Released Claims against any Released Parties
unless such person has opted out of the Action according to terms of the Settlement or this
18. The Court may, for good cause, extend any of the deadlines set forth in this Order or
adjourn or continue the final approval hearing without further notice to the Settlement Class.
Dated: May 9, 2017
/s/ Sharion Aycock
United States District Judge
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