Borton v. Interstate Acquisitions, LLC et al

Filing 62

ORDER Granting 60 Plaintiff's Unopposed Motion for Preliminary Approval of WARN Class Settlement. Final Fairness Hearing set for 11/4/2013 10:00 AM in Courtroom to be determined before Judge Miranda M. Du. See Order for details. Signed by Judge Miranda M. Du on 07/10/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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EVE BORTON, individually and on behalf Case No. 2:11-cv-01580-MMD-NJK
of all others similarly situated,
ORDER PRELIMINARILY APPROVING
Plaintiffs,
CLASS ACTION SETTLEMENT
(dkt. no. 60)
v.

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INTERSTATE ACQUISITIONS, LLC, a
Delaware
limited
liability
company;
INTERSTATE
PLUMBING
&
AIR
CONDITIONING, LLC, a Nevada limited
liability company; PIPEWRENCH II, INC.,
a Delaware Corporation; G-2 CAPITAL
ADVISORS, LLC, a Delaware limited
liability company; SANKATY ADVISORS,
LLC, a Delaware limited liability company;
and DOES 1-100, inclusive,

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Defendant.

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Before the Court is Plaintiff Eve Borton’s Unopposed Motion for Preliminary

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Approval of WARN Class Action Settlement (dkt. no. 60). In her Motion, Plaintiff seeks

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an order (1) conditionally certifying the class for settlement purposes, (2) appointing Eve

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Borton as Class Representative, (3) appointing Wingert Grebing Brubaker & Juskie,

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LLC as Class Counsel, (4) preliminarily approving the Settlement under FRCP 23,

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(5) approving the notice of the Settlement to the Settlement Class, and (6) establishing

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a hearing date for final Settlement approval and approval of class counsel fees and

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costs. (Dkt. no. 60.)

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Having considered the papers on the motion, the arguments of counsel, and the

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law governing approval of class actions settlements, the Court now enters this

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Preliminary Approval Order and FINDS, CONCLUDES, and ORDERS as follows:

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A.

Certification of Settlement Class, Appointment of Class Representative and
Class Counsel

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For settlement purposes only, the Court conditionally certifies a settlement Class

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defined as follows:
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All employees of Interstate Plumbing who worked in the Las Vegas

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area and who were terminated on or after July 10, 2011, but

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excluding (a) employees known to have been terminated for cause,

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as stated in the data provided by Defendants to Plaintiff, and (b) the

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Construction Site Workers.

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Workers” are defined as those workers coded in Interstate

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Plumbing’s payroll data as Department Code 10 (Direct Job Cost),

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provided that employees coded as Direct Job Cost are nonetheless

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included as Settlement Class members if they were doing any of

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the following types of work (as shown by the employee’s job title

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and/or cost center description in Interstate Payroll’s payroll data):

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supervisor, engineer, project manager, service worker, shop and

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warehouse laborer, and administrator.

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workers coded as Department Code 10 (Direct Job Cost) with job

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titles of site foreman are not included, and will not be included, as

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Settlement Class members. (The Settlement Class shall exclude

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any persons who opt out of the Settlement Class in accordance

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with the terms of the Settlement Agreement and the notice to the

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class.)

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2.

The excluded “Construction Site

For avoidance of doubt,

The Court appoints Eve Borton as the Class Representative.

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3.

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counsel for the Class.

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The Court appoints Wingert Grebing Brubaker & Juskie LLP as

B.

Preliminary Approval of Settlement
1.

The Court grants preliminary approval of the settlement on the terms set

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forth in the Settlement Agreement attached to this Order as Exhibit A. The

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Court finds and concludes that the Settlement is the result of arm’s-length

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negotiations between the Parties conducted after Class Counsel had

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adequately investigated and litigated Plaintiff’s claims and become familiar

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with their strengths and weaknesses. Based on all of these factors, the

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Court concludes that the proposed Settlement meets the criteria for

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preliminary settlement approval. The Settlement has no obvious defects

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and falls within the range of possible approval as fair, adequate, and

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reasonable, such that notice to the Class Members is appropriate.

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Accordingly, the Settlement is hereby preliminarily approved.

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2.

All discovery and other proceedings in this action are hereby stayed and

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suspended until further order of the Court, except such actions as may be

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necessary to implement the Settlement and this Order.

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3.

Consistent with Paragraph 25 of the Settlement Agreement, neither this

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Order, nor the fact or substance of the Settlement Agreement, shall be

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considered a concession or admission, nor shall they be used as evidence

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in any proceeding for the purpose of establishing any Defendants’ liability

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or wrongdoing.

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4.

In the event that the Settlement Agreement does not become effective in

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accordance with the terms of the Settlement Agreement, or the Settlement

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Agreement is not finally approved, or the Settlement Agreement is

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terminated, canceled, or fails to become effective for any reason, this

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Order shall be vacated and rendered null and void, the Settlement Class

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shall be decertified, and all claims and defenses previously asserted by
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the parties shall be reinstated and the Court shall enter further appropriate

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orders governing the proceedings and establishing a case schedule in this

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matter.

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C.

Approval of the Form of Notice to the Class & Notice Plan
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The Court approves, as to form and content, the Notice to Class (“Notice”)

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attached to this Order as Exhibit B. The Notice fairly, plainly, accurately,

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and reasonably informs Class Members of: (1) the nature of this action,

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the identity of Class Counsel, and the essential terms of the Settlement;

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(2) the allocation of the Settlement fund, including the formula for

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calculation of settlement shares; (3) how Class Counsel Attorney’s Fees

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are to be determined and how they are to be funded; (4) how to participate

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in the Settlement; (5) how to opt out of the Settlement; (6) how to

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comment on or object to the Settlement; (7) how the Claims Administrator

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will be selected and compensated, as well as how it will administer the

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settlement payments; (8) this Court’s procedures for final approval of the

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Settlement; and (9) how to obtain additional information regarding this

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action and the Settlement.

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2.

The Court approves the proposed plan for circulating the Notice. The

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proposed plan for distributing the Notice is a reasonable method

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calculated to reach all individuals who would be bound by the Settlement.

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Promptly following the entry of this Order, Class Counsel, after review and

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approval of counsel for the Defendants (which shall not be unreasonably

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withheld), will prepare final versions of the Notice, incorporating the

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relevant dates and deadlines set forth in this Order. Class Counsel shall

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also ensure that all blanks and placeholders in the Notice are completed.

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Notice shall be sent within the deadlines set forth in the Implementation

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Schedule attached hereto as Exhibit C.

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3.

The Complete Notice Plan, including the manner and time within which

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Class Members can opt out and file written objections, is set forth in the

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Implementation Schedule attached hereto as Exhibit C.

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4.

Any person who is eligible to exclude him or herself from the Settlement

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Class under the terms of the Settlement Agreement must do so by

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following the instructions for requesting exclusion from the Settlement

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Class as set forth in the Notice to the class. All requests for exclusion

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from the Settlement Class must be mailed to Class Counsel and

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postmarked no later than 30 days after the date of the Notice, in

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accordance with the instructions in the Notice to the class and the terms

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and requirements of the Settlement Agreement, or they shall be deemed

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void and ineffective. Any Settlement Class member who fails to submit a

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request for exclusion by that time shall be deemed a member of the

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Settlement Class.

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5.

Only Settlement Class Members who object to the Settlement Agreement

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in writing, in accordance with the procedures set forth in this Order, the

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Notice to the class, and the Settlement Agreement, shall be permitted to

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appeal or otherwise seek review of this Court’s decision approving or

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rejecting the Settlement Agreement. Failure to follow the procedures for

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objecting set forth therein shall constitute a waiver of a Settlement Class

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Member’s right to object to the Settlement Agreement.

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6.

Any Settlement Class member who timely files and serves a written

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objection may also appear at the Final Settlement Approval Hearing,

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either in person or through counsel hired at the Settlement Class

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member’s expense to express the Settlement Class Member’s views

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regarding the Settlement Agreement. Any Settlement Class member who

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does not timely file and deliver a written objection within 30 days of the

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date of the notice to the class shall not be permitted to object or appear at
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the Final Settlement Approval Hearing, shall be deemed to have waived

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and forfeited any objection at the Final Settlement Approval Hearing, and

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shall be bound by all proceedings, orders and judgments of the Court.

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Any Settlement Class member who wishes to be heard orally at the final

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settlement hearing, either personally or through an attorney, must so state

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explicitly in the Settlement Class member’s written notice of objection, or

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the Settlement Class member will not be heard orally.

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D.

Final Fairness Hearing
1.

The Final Fairness Hearing will take place on November 4, 2013, at 10:00

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a.m. [NOTE: PURSUANT TO CAFA, THIS DATE CAN BE NO SOONER

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THAN SEPTEMBER 30, 2013.]

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take place on November 4, 2013, at 10:00 a.m.

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The hearing on Class Counsel’s request for Attorney’s Fees & Costs shall

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The Motion in support of the Final Fairness Hearing and Motion for

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Attorney’s Fees shall be filed in accordance with the Implementation

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Schedule attached hereto as Exhibit C.

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4.

The Final Fairness Hearing, the hearing on Class Counsel’s request for

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Attorney’s Fees & Costs, and all dates provided for herein, may, without

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further notice to the Settlement Class, be continued or adjourned by order

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of this Court.

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DATED THIS 10th day of July 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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EXHIBIT A
SETTLEMENT AGREEMENT

EXHIBIT B
NOTICE TO CLASS

UNITEDSTATESDISTRICTCOURT
DISTRICT OF NEVADA
NOTICEOFPROPOSEDSETTLEMENTOFCLASSACTIONCONCERNING“WARNACT”CLAIMS
The United States District Court, District of Nevada, authorized this notice.
This is not a solicitation from a lawyer.
If You Are A Former Employee Of Interstate Plumbing & Air Conditioning, LLC, To Whom A Copy Of This Notice
Was Mailed, You Are Entitled To Benefits Under This Settlement.
Please Read This Notice Carefully. Your Legal Rights Are Affected Whether You Act or Not.
If You Wish To Participate In The Settlement Described In This Notice, You Do Not Have To Take Any
Action. You Will Automatically Be Included In The Settlement If You Do Nothing.
YOURLEGALRIGHTSANDOPTIONSINTHISSETTLEMENT
PARTICIPATE IN
THE
SETTLEMENT

If you agree with the proposed settlement, you do not have to take any action to be included in
the settlement. If the Court approves the settlement, you will be entitled to receive benefits under
the settlement, subject to the terms as explained below.

You may exclude yourself from the settlement. Sections 13 through 15 below explain
EXCLUDEYOURSELF this option. You will not be entitled to participate in the settlement if you choose this option.
You may write the Court about why you do, or do not, like the settlement. You must elect to
OBJECTORCOMMENT remain in the class and participate in the settlement to be able to comment in support of or in
opposition to the settlement.
ATTENDTHE
HEARING

You may file an objection or comments with the Court and request an opportunity to
speak to the Court about the fairness of the settlement.

These rights and options — and the deadlines to exercise them — are explained in this notice.
The Court in charge of this case still has to decide whether to approve the settlement. Payments will be made if the Court
approves the settlement and after the time to appeal has expired or any appeals are resolved.
BASIC INFORMATION
1. Why did I get this notice?
You have received this notice because the records of Interstate Plumbing & Air Conditioning, LLC (“Interstate
Plumbing”) indicate that you worked for Interstate Plumbing in the Las Vega area; that you were terminated from your
employment on or after July 10, 2011; that you were not known to have been terminated for cause; and that you were not a
“Construction Site Worker” as defined in the settlement.
The Court authorized us to send you this notice because you have a right to know about a proposed settlement of a class
action lawsuit, and about all of your options, before the Court decides whether to approve the settlement. If the Court
approves the settlement, and after the time to appeal has expired or any appeals are resolved, the payments that the
settlement provides will be made.

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This notice explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them,
and how to get them. This notice also explains how you may be excluded from the settlement if you wish to be
excluded.
The Court in charge of the case is the United States District Court for the District of Nevada, and the case is known as
Eve Borton v. Interstate Acquisitions, LLC, et al., Case No. 2:11-cv-01580-APG-NJK. The person who sued is called
“Plaintiff” or the “Settlement Class Representative,” and the companies she sued, Interstate Plumbing & Air
Conditioning, LLC, Interstate Acquisitions, LLC, Pipewrench II, Inc., G-2 Capital Advisors, LLC and Sankaty Advisors,
LLC, are collectively referred to as “Defendants.”
2. What is this lawsuit about?

Plaintiff alleges that Defendants violated a federal law known as the WARN Act by ordering plant closings and/or mass
layoffs on or about August 15, 2011, without providing 60 days’ advance notice of termination to the employees, and
that as a consequence of this failure, employees like you have a claim against Defendants consisting of your wages and
benefits for the 60-day period beginning on August 15, 2011.
Defendants deny all of Plaintiff’s allegations and have asserted numerous defenses against these claims, including
their belief that Defendants were not obligated to provide 60 days’ notice under the applicable law, and that the
Defendants other than Interstate Plumbing were not your “employer” for purposes of the WARN Act. Defendants
are entering into this settlement, among other reasons, to avoid burdensome and costly litigation. The settlement is
not an admission of wrongdoing or an indication that any law was violated.
3. Why is this a class action?

Plaintiff filed this case as a class action because she alleges numerous employees were affected by Defendants’
alleged violation of the WARN Act and have claims similar to her own. The people with similar claims are referred to
as class members. In a class action, one court resolves the issues for all class members, except for those who exclude
themselves from the class. The Court has certified this case as a class action, but only for purposes of the proposed
settlement. The Court has not decided whether this case should be certified as a class action for purposes of deciding
the merits of the case. If the Court decides not to grant final approval of the settlement for any reason, the Settlement
Class will be decertified (voided), and the parties will proceed with litigation of the case.
4. Why is there a settlement?

Litigation is costly, risky, takes a long time, and neither side in this case could predict the outcome or guarantee
victory. This case was investigated by both sides. The Court did not decide in favor of Plaintiff or Defendants.
Rather, the parties, after lengthy negotiations, agreed to settle the case instead of going forward with litigation and a
trial, which would create many risks and delays. One risk is that even if Plaintiff was ultimately successful at trial,
there may not be any funds to pay the whole judgment or any part of it because Interstate Plumbing and Interstate
Acquisitions, LLC, have filed for bankruptcy. Also, if the case were to go to trial, the losing party might appeal,
which could delay the case for years. This settlement avoids the costs and risks associated with trial and an appeal,
while providing significant cash benefits to members of the class soon.
The Settlement Class Representative and her attorneys, who have been appointed as class counsel by the
Court (“Class Counsel”), think that the settlement is the best course for the Settlement Class Members.
The Court has also granted preliminary approval of the settlement.
5. Why did I receive a Notice to Creditors in addition to this Notice of Proposed Settlement?

Interstate Plumbing and Interstate Acquisitions have filed bankruptcy. Because you are a WARN Act
claimant against those entities, you have been listed as a contingent creditor in their bankruptcy
proceeding. The Bankruptcy Trustee is obligated to provide notice to all creditors of settlements that
affect the assets of the bankruptcy estate, which includes this WARN Act settlement. If you agree with
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the WARN Act settlement described in this notice, you do not need to do anything in response to the
Notice to Creditors.
WHOISINTHESETTLEMENT
6. How do I know if I am part of the settlement?

You are receiving this Notice because Interstate Plumbing’s employment records reveal you qualify as a
member of the “Settlement Class.” The “Settlement Class” consists of all employees of Interstate
Plumbing who worked in the Las Vegas area and who were terminated on or after July 10, 2011, but
excluding (a) employees known to have been terminated for cause, as stated in the data provided by
Defendants to Plaintiff, and (b) the Construction Site Workers. The excluded “Construction Site
Workers” are defined as those workers coded in Interstate Plumbing’s payroll data as Department Code
10 (Direct Job Cost), provided that employees coded as Direct Job Cost are nonetheless included as
Settlement Class members if they were doing any of the following types of work (as shown by the
employee’s job title and/or cost center description in Interstate Plumbing’s payroll data): Supervisor,
engineer, project manager, service worker, shop and warehouse labor and administrative jobs. For
avoidance of doubt, workers coded as Department Code 10 (Direct Job Cost) with job titles of site
foreman are not included, and will not be included, as Settlement Class members. If you are not a
“Construction Site Worker” and you otherwise fall within the foregoing definition of the Settlement Class, then you
are a Settlement Class Member and you are part of the settlement, unless you take action to opt out of the class. If
you are unsure whether you fall within this definition, please contact Class Counsel at the phone numbers provided
in Sections 13 and 18 below.
7. Are there exceptions to being included?

All people who timely request exclusion will not be included in the settlement. See Sections 13 and 15 below.
THE SETTLEMENT BENEFITS
8. What does the settlement provide?

Interstate Plumbing has agreed to pay a total settlement amount of up to $950,000.00 in full settlement of the claims of
the Settlement Class. This amount includes all payments to the Settlement Class Members, Class Counsel’s attorneys’
fees and expenses, and costs of administration of the settlement. The Settlement Agreement provides payments made
to Class Members shall not exceed $773,000. No portion of the $773,000 shall be used for anything other than
payment of benefits to Class members pursuant to the settlement.
The settlement provides for an award of attorney’s fees and costs, subject to approval by the Court, which shall not
exceed $150,000.00. The amounts set aside for payment of attorney’s fees and costs are separate from, and do not
affect the total aggregate amount that may be paid to Class Members.
The settlement distribution will be administered by an independent claims administrator (“Claims Administrator”)
approved by the Court. The settlement provides the Claims Administrator will be engaged for a fixed fee that is not to
exceed $25,000.00. The amounts set aside for payment of the Claims Administrator are separate from, and do not
affect the total aggregate amount that may be paid to Class Members.
Each Class Member who does not choose to exclude him or herself from the settlement will receive 60-days straighttime pay, less any pay that was paid to the Class Member during the 60-day period beginning on August 15, 2011,
subject to the aggregate cap of $773,000 for all Class Members (the “Payments to Class Members”). The method of
calculation is set forth in Section 9 below.
The Payments to Class Members will be subject to income tax withholding.
9. What can I get from the settlement?
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The Payments to Class Members will be paid to Settlement Class Members who do not elect to be excluded from the
settlement. Those individuals are referred to as “Settlement Class Members.” The parties have endeavored to calculate the
Payments to Class Members in a fair way. They have created a formula based upon each Settlement Class Member’s
daily straight-time rate of pay. Each Settlement Class Member’s daily straight-time pay rate will be multiplied by 45
“work days,” because there were an estimated 45 actual workdays during the 60-day period Plaintiffs contend is the
appropriate WARN damages calculation period (August 15, 2011 through October 14, 2011). This amount is reduced by
the pay that was paid to you by Interstate Plumbing during that 60-day period. For the small number of Settlement Class
Members for whom this calculation results in a negative number, a nominal payment ($100) will be made.
Below is an example of how the formula works. This is an example only, not the amount of money you
will receive if you participate in the settlement.
Employee A’s average hourly rate is $20, she worked full time, and she received $1,000 in pay
during the 60-day period beginning August 15, 2011.
Predetermined Work Days
(Same for each Class Member)

45

Multiplied by Daily Rate

$160

Subtotal

$7,200

Minus Pay Received during 60-day period
beginning August 15, 2011

($1,000)

Employee A’s Settlement Payment*

$6,200*

Your settlement payment will be reduced by applicable payroll taxes and other required withholdings.
*This is only an example. Your actual payment will vary from this figure. Also, the final settlement payments are
subject to the aggregate cap of $773,000 for all Payments to Class Members. That aggregate cap is not expected to
reduce any Class Member’s settlement payment, however. The parties may make adjustments to the settlement
formula during the administration process.
HOW TO PARTICIPATE IN THE SETTLEMENT
10.

How can I get a payment?

If you are satisfied with the proposed settlement and want to participate in the settlement and receive
your distribution, you do not need to do anything.
11.

When would I get my payment?

Class action settlements require court oversight as well as notice to all class members. This takes time. Interstate
Plumbing is not required to pay the settlement until at least three things occur. First, notice must be provided to the
Settlement Class Members, so that they will have time to read this notice and respond (for example, by excluding
themselves, by objecting or by doing nothing). Notice must also be provided to the creditors in the Interstate
bankruptcies. After the notice period has expired, the Court will hold a Fairness Hearing and decide whether it
should grant final approval of the settlement. Assuming the settlement is finally approved, Interstate Plumbing will
not have to pay the settlement until the time for appeal has expired. If there is an appeal, it will add at least one year,
but probably more, to the time when you receive payment.
If 10% or more of the Settlement Class Members choose to be excluded from the settlement, Defendants have the
right to decide not to go forward with the settlement. If this were to happen, all of the Settlement Class Members
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would be in the same position as if the settlement never existed, meaning the litigation would move forward.
However, Class Counsel encourages Settlement Class Members to participate in the settlement.
12.

What am I giving up if I stay in the class?

Unless you elect to exclude yourself, you are staying in the Settlement Class and accepting the settlement. You will
be deemed to have entered into a “Release of Claims” that is part of the written settlement in this case, and you
would be subject to and legally bound by all of the Court’s orders. You should understand that the “Release of
Claims” is broad, and releases all claims against the Defendants and any and all other persons and entities that are
alleged, or that reasonably arise out of the facts alleged, in the action filed in District Court and the related action filed
in the Bankruptcy Court (which has now been consolidated with the District Court action).
In addition, if you filed a proof of claim asserting claims for your employer’s alleged failure to provide adequate
notice under the WARN Act or for severance, back pay or benefits arising out of the termination of your
employment by Interstate Plumbing, whether based on the WARN Act or any other federal, state or local law,
regulation or ordinance, and you participate in the settlement, your proof of claim relating to such claims will be
deemed withdrawn and/or disallowed.
The Release of Claims means that you cannot sue, continue to sue, or be part of any other lawsuit against the
Defendants in this case, or against anyone else, about the legal issues that arose because of Defendants’ alleged
violation of the WARN Act or for back pay, severance or benefits arising out of the termination of your employment.
The following “Release of Claims” describes the legal claims you are giving up:
Upon the Settlement becoming Final (and except as to such rights or claims as are created by this Settlement
Agreement) the Settlement Class, each member of the Settlement Class, and the Plaintiff fully release and
discharge any and all persons and entities from any and all claims, debts, penalties, liabilities, demands,
obligations, guarantees, costs, expenses, attorneys’ fees, damages, action or causes of action of whatever kind
or nature, whether known or unknown, that were alleged, or that reasonably arise out of the facts alleged, in
the District Court Action [Borton v. Interstate Acquisitions, LLC, et al., U.S. District Court for Nevada, Case
No. 2:11-cv-01580] and the Adversary Action [Borton v. Interstate Plumbing & Air Conditioning LLC, U.S.
Bankruptcy Court, District of Nevada, Adv. Proceeding No. 12-1017]. The scope of the persons and entities
released includes specifically, and without limitation, Interstate Plumbing [& Air Conditioning, LLC];
Interstate Acquisitions[, LLC]; William A. Leonard, Jr., Chapter 7 Trustee of the Interstate entities;
Pipewrench [II, Inc.]; G2 [Capital Advisors, LLC]; Sankaty [Advisors, LLC]; and each of their respective
present and former subsidiaries, shareholders, officers, directors, employees, agents, servants, registered
representatives, attorneys, insurers, affiliates, successors and assigns.
The “Release of Claims” is also set forth in full in the Settlement Agreement. (See Section 24 below for
how you may obtain a copy.)
EXCLUDING YOURSELF FROM THE SETTLEMENT
If you do not want to receive payment under this settlement, and you want to keep the right to assert your claim(s) against
Defendants on your own that are related to the legal issues in this case or your claims for alleged WARN or severance
damages, then you must take steps to exclude yourself from the class. This is sometimes referred to as “opting out” of the
class.
13.

How do I opt out of the class and the settlement?

If you do not wish to be part of the settlement, you must mail a letter to the address below, postmarked
no later than ________________, that says you want to be excluded from the Settlement Class in Borton
v. Interstate Acquisitions, LLC, Case No. 2:11-cv-01580. Include your name, address, social security
number, and telephone number, and sign your request.
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Wingert Grebing Brubaker & Juskie, LLP
c/o Amy L. Simonson, Esq.
600 West Broadway, Suite 1200
San Diego, CA 92101
619-232-8151
If you elect to opt out you will not receive any payment as a result of the settlement, and you cannot object to the
settlement. Also, you will not be legally bound by the settlement or anything else that happens in this lawsuit.
Instead, you may still be able to sue (or continue to sue) or pursue your proof of claim through the bankruptcy case.
14.

If I don’t exclude myself, can I sue Defendants for the same thing later?

No. Unless you exclude yourself now, you give up any right to sue Defendants and others for the claims that this
settlement resolves. If you have a pending lawsuit, speak to your lawyer in that case immediately. You must exclude
yourself from the Settlement Class to be able to continue your own lawsuit against Defendants or others in connection
with any claims included within the Release of Claims.
15. If I exclude myself, can I get money from this settlement?

No. If you exclude yourself, you cannot participate in the settlement. However, you will then be able to pursue your
own lawsuit, if you choose, and if you filed a proof of claim seeking damages for an alleged violation of the WARN
Act in the bankruptcy case, you may continue to pursue that proof of claim at your own expense. If you opt out of
the settlement, Defendants reserve their right to defend any separate lawsuit, and to object to your proof of claim, on
any available grounds, including the defenses raised in this class action.
THE LAWYERS REPRESENTING YOU
16.

Do I have a lawyer in the case?

Settlement Class Members are represented by James A. Mangione, Stephen C. Grebing and Amy L. Simonson of
Wingert Grebing Brubaker & Juskie, LLP, One America Plaza, 600 West Broadway, Suite 1200, San Diego, CA
92101. They are counsel for the Settlement Class, and they are called Class Counsel. You are free to hire a different
lawyer at your own expense.
17.

How will the lawyers be paid?

Class Counsel will request from the Court an award of attorney’s fees and costs as approved by the court in an amount
not to exceed $150,000.00. The Court may award less than these amounts. The amounts awarded by the Court will
not be paid from the Payments to Class Members described in Sections 8 and 9 above.
OBJECTING TO OR COMMENTING ON THE SETTLEMENT You can tell the Court that you do or do not
agree with the settlement or some part of it.
18.

How do I tell the Court that I do or don’t like the settlement?

If you do not opt out and, therefore, you are a Settlement Class Member, you can object to or comment on the
settlement if you do or do not like any part of it. You can give reasons why you think the Court should or should not
approve it. The Court will consider your views. To object or comment, you must send a written statement explaining
your views on the settlement. The statement must state that you are submitting it in the case of “Eve Borton, et al. v.
Interstate Acquisitions, LLC, et al., Case No. 2:11-cv-01580-APG-NJK.” Be sure to include your name, address,
telephone number, and your signature. Your objection or comment will not be heard unless it is mailed to the
addresses below, postmarked no later than _____________:

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6

THE COURT:
Clerk of the United States District Court for
the District of Nevada
333 Las Vegas Blvd., South
Las Vegas, NV 89101
[phone]
CLASS COUNSEL:
James A. Mangione, Esq.
Stephen C. Grebing, Esq.
Amy L. Simonson, Esq.
Wingert Grebing Brubaker & Juskie LLP
600 West Broadway, Suite 1200
San Diego, CA 92101
1-619-232-8151
DEFENDANTS’ COUNSEL
Daniel L. Thieme, Esq.
Rachelle Wills, Esq.
LITTLER MENDELSON, P.C.
One Union Square
600 University St., Suite 3200
Seattle, WA 98101-3122
[phone]
Counsel for Defendants Other Than the
Interstate Entities.
DEBTOR’S COUNSEL
Thomas H. Fell, Esq.
3960 Howard Hughes Pky, 9th Floor
Las Vegas, NV 89169
TRUSTEE’S COUNSEL
Elizabeth E. Stephens, Esq.
Sullivan Hill Lewin Rez & Engel
228 S. Fourth Street, First Floor
Las Vegas, NV 89101
[phone]

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Only Settlement Class Members who object to the proposed settlement in accordance with these procedures will be
permitted to appeal or otherwise seek review of any decision by the Court approving the proposed settlement.
Settlement Class Members who fail to present objections to the proposed settlement in that manner shall be deemed to
have waived any such objections and shall be forever foreclosed from making any objections (by appeal or otherwise)
to the proposed settlement.
19.
What’s the difference between objecting and excluding myself?
Objecting is simply telling the Court that you don’t like something about the settlement. You can object only if you stay
in the Settlement Class. Excluding yourself is telling the Court that you don’t want to be part of the Settlement Class. If
you exclude yourself, you have no basis to object because the case no longer affects you.

THE COURT’S FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the settlement. You may attend, and you may
ask to speak, but you don’t have to.
20.
When and where will the Court decide whether to approve the settlement?
The Court will hold a Fairness Hearing on ____________ at ______ p.m., in Courtroom No. ___, United States
District Court for the District of Nevada, 333 Las Vegas Blvd., South, Las Vegas, NV 89101. At this hearing, the
Court will consider whether the settlement is fair, reasonable, and adequate. The Court may also decide how much to
pay to Class Counsel at this hearing. If there are objections to the settlement, the Court will consider them. The judge
hearing the case will listen to people who have filed a Notice of Intention to Appear at the hearing, as explained in
Section 22 below. The date and time of the Fairness Hearing is subject to change without further notice. After the
hearing, the Court will decide whether to approve the settlement. We do not know how long these decisions will
take.
21.
Do I have to come to the hearing?
No. Class Counsel will answer any questions the judge may have. But you are welcome to come at your own expense.
If you send an objection, you don’t have to come to court to talk about it. As long as you mailed your written objection
on time, the Court will consider it. You may also pay your own lawyer to attend, but that is not required.
22.
May I speak at the hearing?
You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that it
is your “Notice of Intention to Appear in Eve Borton, et al. v. Interstate Acquisitions, LLC, et al., Case No. 2:11-cv01580.” Be sure to include your name, address, telephone number, and your signature. Your Notice of Intention to
Appear must be postmarked no later than __________, and must be sent to (1) the Clerk of the United States District
Court for the District of Nevada, (2) Class Counsel, (3) Debtors’ Counsel, and (4) Defendants’ Counsel at the
addresses listed in Section 18 above. You cannot speak at the hearing if you opt out of the settlement.

IF YOU DO NOTHING
23.
What happens if I do nothing at all?
If you do nothing, you’ll receive your cash payment under the terms of the settlement if the Court approves the settlement. But
unless you opt out, you won’t be able to start a lawsuit, continue with a lawsuit, pursue a proof of claim for alleged WARN
damages or be part ofanyother lawsuit against Defendants orothers about the legal issues in this case.

GETTINGMOREINFORMATION
24.
Are there more details about the settlement?
This notice summarizes the settlement. More details of the settlement are contained in the Settlement Agreement.
Copies of the Settlement Agreement and the pleadings and other documents relating to the case are on file at the United
States District Court for the District of Nevada and may be examined and copied at any time during regular office hours
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8

at the Office of the Clerk, at the address listed in Section 18 above. You may also contact Class Counsel identified
above and they will send or email you copies.
25.
How do I get more information?
If you have questions, please contact one of the Class Counsel identified in Section 18.

Dated this ____ day of ________, 2013.
DONOTCALLTHECOURTORTHEOFFICEOFTHEUNITEDSTATESTRUSTEEREGARDINGTHISMATTER.

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9

EXHIBIT C
IMPLEMENTATION SCHEDULE

EXHIBIT C
IMPLEMENTATION SCHEDULE
Deadline for Defendants to submit Class
Information to Class Counsel.

5 business days from Order granting
Preliminary Approval

Deadline for Class Counsel to mail Notice to
Class Members

10 business days from entry of Order granting
Preliminary Approval

Deadline for Class Members to postmark Opt
Out notice to Class Counsel

Deadline for Class Counsel to provide
Defendants with Opt Out information

30 calendar days from date of mailing Class
Notice (to be specified by date in Notice prior
to mailing)
30 calendar days from date of mailing Class
Notice (to be specified by date in Notice prior
to mailing)
35 calendar days from date of mailing Class
Notice

Deadline for Defendants to rescind settlement
(if applicable)

10 business days from Defendants’ receipt of
Opt Out information from Class Counsel

Deadline for Class Counsel to file Motion for
Attorney Fees & Costs

[insert specific date]
October 28, 2013, 7 calendar days prior to
hearing on Class Counsel’s Motion for
Attorney’s Fees & Costs
___________ 2013 @ 10:00
November 4,[insert exact date] a.m.

Deadline for Class Members to file written
objections

Hearing on Class Counsel’s Motion for
Attorney’s Fees & Costs
Deadline to provide identity of Claims
Administer to Class Counsel

14 calendar days prior to hearing on Class
Counsel’s Motion for Final Approval

Deadline for Class Counsel to file Final
Approval/Fairness Motion

[insert specific date]
October 28, 2013, 7 calendar days prior to
hearing on Class Counsel’s Motion for Final
Approval
____________ [insert exact date]
November 4, 2013 @ 10:00 a.m.

Hearing on Motion for Final Approval
Defendants to establish settlement fund in the
amount of up to $950,000.00
Deadline for Settlement Fund Administrator to
issue Class Counsel payment
Deadline for Settlement Fund Administrator to
verify correct mailing information for each
Class Member
Deadline for Settlement Fund Administrator to
mail Class Member payment

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30 calendar days plus 15 business days from
date of entry of Final Approval Order, if no
appeal is filed.
As soon as reasonably practicable after date
Settlement Fund is established
As soon as reasonably practicable after date
Settlement Fund is established
As soon as reasonably practicable after date
Settlement Fund is established