Bulen et al v. Realogy Corporation et al

Filing 159

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION AND HEARING ON PROPOSED SETTLEMENT. Fairness Hearing is set for 10/6/2014 at 9:00 AM in Reno Courtroom 6 before Judge Robert C. Jones. Signed by Judge Robert C. Jones on 5/30/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
JANITH MARTINEZ,
Plaintiff,
v.
REALOGY CORPORATION; and
REALOGY FRANCHISE GROUP, LLC,

Case No. 3:10-CV-00755-RCJ-VPC

Defendants.

NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
AND HEARING ON PROPOSED SETTLEMENT
YOU HAVE BEEN IDENTIFIED AS A PERSON WHO IS OR WAS A REALOGY
BRAND AFFILIATED BROKER, SALES ASSOCIATE OR EMPLOYEE, OR A
FAMILY MEMBER OF SAME, WHO, BETWEEN JULY 2007 AND JULY 2010, MAY
HAVE PURCHASED AND/OR PAID PREMIUMS FOR A HEALTH INSURANCE
PROGRAM SOLD BY AFID, LLC AND/OR ASSOCIATION OF FRANCHISE AND
INDEPENDENT DISTRIBUTORS, LLC THAT WAS MARKETED BY A REALOGY
BRAND DURING THAT TIME PERIOD. Realogy is the parent company of franchisors
Century 21 Real Estate, LLC, Coldwell Banker Real Estate, LLC, ERA Franchise Systems, LLC,
Sotheby’s International Realty Affiliates, LLC, and Better Homes and Gardens Real Estate,
LLC.
THIS NOTICE MAY AFFECT YOUR RIGHTS. PLEASE NOTE THAT BECAUSE
YOU ARE INCLUDED IN THE CLASS ACTION, YOU MAY BE ENTITLED TO
SHARE IN THE PROPOSED SETTLEMENT DESCRIBED IN THIS NOTICE AND
YOU MAY BE REQUIRED TO RELEASE CERTAIN CLAIMS AGAINST
DEFENDANTS. PLEASE READ IT CAREFULLY.
This notice is given pursuant to Federal Rule of Civil Procedure 23(e)(1) and the Order of
the Court entered May 30, 2014,

, 2014, to inform you of (a) the proposed

settlement of the above entitled class action (the “Action” and the “Settlement”); and (b) the
fairness hearing to be held by the United States District Court for the District of Nevada to
consider (1) the fairness, reasonableness, and adequacy of the Settlement, (2) the award of fees

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and expenses to Plaintiff’s counsel (“Class Counsel”), and (3) the award of the class
represenative’s fee, and (4) such other matters as the Court may deem appropriate (the “Fairness
Hearing”).
NOTICE IS HEREBY GIVEN THAT:
A.

On March 6th, 2013, plaintiff Janith Martinez (“Plaintiff”) and defendants

Realogy Corporation and Realogy Franchise Group LLC (“Defendants”) (Plaintiff and
Defendants collectively referred to herein as the “Parties”), entered into a Stipulation and
Agreement of Settlement (the “Settlement Agreement”) settling this Action, upon certain terms
and conditions, as to claims against Defendants. Subsequently, on January 29, 2014 and on
February 20, 2014, the Parties entered into Addendums to the Settlement Agreement.
B.

Pursuant to an Order of the Court dated

May 30, 2014,

, 2014,

and pursuant to Rule 23(e)(2) of the Federal Rules of Civil Procedure, a Fairness Hearing will be
held in the United States District Court for the District of Nevada, 400 South Virginia Street,
Reno, Nevada, on _____________________, 2014 (the “Hearing Date”) at __:00 a.m./p.m., for
09:00 A.M., Monday, October 6, 2014, Courtroom 6, for
the purpose of determining whether the terms of the Settlement are fair, reasonable, and adequate
and should be approved by the Court, and the amount, if any, that should be awarded to Class
Counsel in attorneys’ fees and reimbursement of litigation expenses, and the amount, if any, that
should be awarded to Janith Martinez for acting as the class representative.
The Fairness Hearing may be adjourned by the Court from time to time without any
further notice.
DESCRIPTION OF THE LITIGATION
There is presently pending in the United States District Court for the District of Nevada a
lawsuit against Defendants. The action alleges that Defendants marketed unlawful or illusory

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health insurance programs sold by the Association of Franchise and Independent Distributors,
LLC (a/k/a AFID, LLC) to Realogy brand affiliated brokers, sales associates, and employees.
DEFENDANTS’ DENIAL OF WRONGDOINGS
Defendants deny the substantive allegations of Plaintiff’s claims and deny any
wrongdoing or liability whatsoever to the members of the Class. Defendants contend that they
acted properly and lawfully at all times. Defendants desire to settle and terminate the Action so
as to avoid lengthy and time-consuming litigation and the substantial burden, inconvenience and
expense connected therewith, and to finally put to rest any and all claims that were or could have
been asserted in this Action or arising out of the matters set forth in the pleadings, without in any
way acknowledging any fault or liability on behalf of Defendants. The Settlement and all related
documents are not to be, and shall not be, construed as an admission by Defendants of any
damage to the members of the Class, or any wrongdoing or liability on the part of Defendants, or
any other person.
CLASS CERTIFICATION
Pursuant to the Settlement Agreement, the parties have stipulated to the certification of a
class (the “Class”) consisting of “all persons who are or were Realogy brand affiliated brokers,
sales associates or employees, and their family members as applicable, who, between July 2007
and July 2010, purchased and/or paid premiums for a health insurance program sold by AFID,
LLC and/or “Association of Franchise and Independent Distributors, LLC,” that was marketed
by a Realogy brand during that time period.
THE PROPOSED SETTLEMENT TERMS
After extensive document discovery in the Action, Plaintiff and Defendants entered into
the Settlement Agreement on March 6, 2013 and Addendums thereto, which, subject to Court
approval and certain other conditions, provide for the following: If the proposed Settlement is
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approved by the Court, and the Settlement becomes Final as provided in the Settlement
Agreement, then Defendant will pay a settlement amount of $1,000,000.00 (the “Settlement
Amount”). Defendants shall fund the Settlement Amount with an initial contribution in the
amount of $600,000 to be paid to a Settlement Account established by the Settlement
Administrator, Gilardi & Co., LLC, within ten (10) days from the Settlement becoming final.
Defendants will continue to contribute to the Settlement Account as necessary up to the value of
the Settlement Amount. The Settlement Amount will be distributed for an award of fees and
costs to Class Counsel, a class representative payment to Plaintiff, and distributions to the Class
members. Subject to proper proof of payment, the distribution to each Class members shall be
forty percent (40%) of the greater of: (a) the premiums paid by claiming Class members to
AFID, LLC minus the amount of medical insurance claim benefits received, or, at the election of
the Class Member and upon proper documentation (b) the amount of medical insurance claims
wrongfully not paid. The total amount paid to the entire class shall not exceed $694,500, and to
the extent forty percent (40%) of the total aggregated claims of Class members exceeds
$649,500, then Class members shall be paid on a pro rata basis. If you are a member of the
Class, you must submit a Claim Form by the Claim deadline and you must attach the required
documentation to share in the proceeds of the proposed Settlement. The Claim Form is
attached to this Notice. If you submit a Claim Form with the required documentation and
your Claim is verified by the Claims Administrator, and the proposed Settlement is approved
by the Court and becomes effective, you will automatically receive a distribution to be paid in
the Settlement.
If you have a claim for return of premiums, unpaid medical bills, loss of creditable
coverage, or some other form of damages relating to the AFID insurance, or you are in any

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way unsatisfied with the terms of the settlement, you may request exclusion from the class
(“opt out”) and pursue your claims on an individual basis against Defendants. If, however,
you choose to remain in this class action you FORFEIT your right to claim damages for
unpaid medical bills, a return of premium, loss of creditable coverage, and/or other
damages relating to the AFID insurance from Defendants.
DISMISSAL OF THE ACTION AND CLASS RELEASE/AMENDMENT
If the Settlement is approved, and the Settlement becomes “final,” as that term is defined
in the Settlement Agreement, the claims against the Defendants and the Action will be dismissed,
with prejudice, and Plaintiff and each and every member of the Class (other than those persons
or entities who timely and validly request exclusion from the Class) will release and discharge all
of their claims against Defendants relating to the subject matter of the Action, regardless of
whether the class member submitted a claim form.
EFFECTIVENESS OF THE SETTLEMENT
The effectiveness of the Settlement and Defendants’ obligations thereunder, are subject to
a number of conditions which may or may not be satisfied. These include, but are not limited to:
(a) the Settlement being approved by the Court as fair, reasonable or adequate; and (b) the
Settlement becoming “final” (as defined in the Settlement Agreement) at the District Court or
appellate court level. There can be no assurance that any or all of these conditions to the
effectiveness of the Settlement can be met. In the event the Settlement is not approved by the
Court or does not become effective for any reason whatsoever, all findings, releases, orders and
judgments related to the Settlement shall be vacated and become null and void, except as
expressly provided in the Settlement Agreement, and the parties and the claims against the
Defendants shall be restored to their respective positions on the date immediately preceding the
date the proposed Settlement was reached.
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THE FOREGOING IS A SUMMARY OF THE TERMS AND CONDITIONS SET
FORTH IN THE SETTLEMENT AGREEMENT. CLASS MEMBERS AND OTHER
INTERESTED PERSONS WHO WISH TO REVIEW ALL TERMS AND CONDITIONS
OF THE SETTLEMENT ARE URGED TO REVIEW THE SETTLEMENT
AGREEMENT.
THE FAIRNESS HEARING
The Fairness Hearing will be held before the Honorable Robert C. Jones at the United
States District Court for the District of Nevada, 400 South Virginia Street, Reno, Nevada, on
____________________, 2014 at __:00 6
09:00 A.M., October 6, 2014, Courtrooma.m./p.m., (or at any such adjourned date or time as the
Court may direct without further notice), (a) to determine whether the proposed Settlement, on
the terms and conditions provided for in the Settlement Agreement, is fair, reasonable and
adequate, and should be approved by the Court, and (b) to consider the application by Class
Counsel for an award of attorneys’ fees and reimbursement of litigation expenses.
If you are a member of the Class, if you submit a Claim form, and if you did not
previously request exclusion from the Class, you will receive the benefits provided by the
proposed Settlement if it is approved by the Court, and you do not need to appear at this hearing
or take any action. If the Settlement becomes “Final,” as that term is defined in the Settlement
Agreement, and is effectuated, you will receive a distribution from the Settlement Account, and
your claims against the Defendants will be automatically dismissed with prejudice and released
as provided in the Settlement Agreement.
RIGHT TO BE EXCLUDED FROM THE CLASS
If you do not wish to remain a member of the Class, you must request exclusion from the
Class (sometimes referred to as an “opt out”) by mailing, via first class United States mail, a
written, signed request for exclusion clearly stating that you wish to be excluded from the Class,
postmarked no later than August 1, 2014, ________________2014, directed to the Claims
_______________
Administrator, Claims Administrator, c/o Gilardi & Co., LLC,3301 P.O. Box 8060, San Rafael
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CA 94912-8060. If you timely and validly request exclusion from the Class: (1) you will not be
entitled to share in any recovery that may be obtained in this Action; (2) you will not be bound
by any further order(s) or judgment(s) in the Action, whether favorable or not; and (3) you may
pursue any claims you may have against Defendants, at your own expense, with respect to the
claims asserted on behalf of the Class.
CLASS MEMBERS’ RIGHT TO APPEAR
Any member of the Class who does not timely and properly request exclusion from the
Class may appear at the Fairness Hearing, in person or through counsel, solely at such Class
member’s personal expense, to be heard in support of, or in opposition to, the proposed
Settlement, the application of Class Counsel for an award of attorneys’ fees and reimbursement
of litigation expenses, the application for the award to Plaintiff as the class representative, and/or
such other matters relevant to the Action and the Settlement, provided that no person or entity
shall be heard or entitled to be heard at the Fairness Hearing unless on or before
_____________________________, 2014 (or unless the Court shall otherwise direct) that person
September 22, 2014
or entity shall file with the Clerk of the Court and serve by hand or via first-class United States
mail, a notice of his, her, or its intent to appear, personally or through counsel, with a written
statement of the basis for the appearance, and any supporting papers and briefs relating to such
support or objection(s) that such Class member wishes the Court to consider, on Class Counsel,
addressed to Patrick R. Leverty, Esq., Leverty & Associates Law Chtd., 832 Willow Street,
Reno, Nevada 89502 and to Defendants’ Counsel, addressed to Edward R. Spalty, Esq.,
Armstrong Teasdale LLP, 2345 Grand Boulevard, Suite 1500, Kansas City, Missouri 64108.
Any member of the Class who fails to appear and/or object in the manner prescribed
herein shall be deemed to have waived such objection, and shall be barred from raising any
objections to the fairness, adequacy or reasonableness of the Settlement Agreement, Class
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Counsel’s request for an award of attorneys’ fees and reimbursement of expenses, the application
for the award to Plaintiff as the class representative, and/or any other matters related to the
Action or the Settlement.
THE APPLICATION OF CLASS COUNSEL FOR FEES AND EXPENSES
If the Court approves the proposed Settlement, then Class Counsel will petition the Court
for an award of Counsel Fees and Expenses in an amount not to exceed $250,500, for services
rendered in connection with the Action and Settlement, to be paid from the Settlement Amount.
This amount includes $245,000 for Counsel Fees and up to $5,500 for Expenses. Defendants
will not object to Class Counsel’s application to the Court for such an award for the prosecution
of this Action. To the extent Expenses exceed $5,500 said costs shall be borne by Class Counsel.
To the extent Expenses are less than $5,500, the remainder shall be paid to Defendants.
LIMITATION OF FURTHER ACTION AND BAR ORDER
Pending final determination of whether the Settlement should be approved, the Court has
ordered that no member of the Class may commence or prosecute, directly, representatively, or
in any capacity, any of the “Settled Claims,” as defined in the Settlement Agreement, including
any claim which has been or could have been asserted in the Action and which arises out of or is
in any way related to the “Settled Claims,” in these proceedings or in any other proceedings in
this or any other forum. Following the Court’s determination of the matters presented to it at the
Fairness Hearing, a Class member who has filed a timely and valid Request for Exclusion from
the Class, shall no longer be subject to this restriction. Upon the Settlement becoming “final,” as
that term is defined in the Settlement Agreement, all Class members who have not validly and
timely requested exclusion from the Class, will be permanently barred and enjoined from
instituting or prosecuting any action or proceeding against Defendants based upon, related to, or
in connection with, the “Settled Claims,” in this or any other forum.
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EFFECT OF DISAPPROVAL OR TERMINATION OF SETTLEMENT
In the event that fifty (50) or more Class members exclude themselves from the Class,
then Defendants may terminate the Settlement Agreement. Likewise, in the event that the court
or, in the event of an appeal, the highest appellate court to which the Settlement Agreement is
presented, refuses to approve the Settlement Agreement (other than Class Counsel’s request for
attorneys’ fees and/or reimbursement of litigation expenses), then Defendants may terminate the
Settlement Agreement.
If for any reason the Settlement Agreement does not become “Final,” as that term is
defined in the Settlement Agreement, or the Settlement is terminated pursuant to the provisions
of the Settlement Agreement, the Settlement Agreement shall have no further force and effect
with respect to any Party in the Action or member of the Class, and shall not be used in the
Action or in any other proceeding for any purpose; all negotiations, proceedings and statements
made in connection therewith shall be without prejudice to any person or Party thereto, shall not
be deemed or construed to be an admission by any Party of any act, matter or proposition, and
shall not be used in any manner or for any purpose in any subsequent proceeding in the Action or
in any other action or proceeding, including but not limited to the right of any Party to move for
or oppose class certification; all findings, orders, releases and judgments by the Court shall
become null and void; the Parties shall revert to their respective positions as of March 6, 2013;
and the Parties shall proceed in all respects as though the Settlement Agreement had never been
executed.
The Settlement Agreement and any related documents are not and shall not be construed
as an admission by the Defendants of the truth or validity of any claim which has or could have
been asserted in the Action, or of any fault or liability or wrongdoing whatsoever on the part of
Defendants, nor shall they be deemed or construed as an admission by Plaintiff of a lack of merit
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to any of their allegations or claims against Defendant or that the Class damages do not exceed
the amount of the Settlement.
SCOPE OF THIS NOTICE
THE ABOVE DESCRIPTION OF THE MATTERS INVOLVED IN THE ACTION
AND THE PROPOSED SETTLEMENT ARE ONLY A SUMMARY AND NOT ALL
INCLUSIVE.

In the event of any conflict between this Notice and the Stipulation, and

Agreement of Settlement, the Stipulation shall control. Members of the Class are referred to the
pleadings, Settlement Agreement, and the other documents filed in the Action for a complete
description of the terms thereof, all of which are available for inspection by contacting Class
Counsel. Capitalized terms not otherwise defined in this Notice have the meaning given to them
in the Settlement Agreement.
THIS NOTICE IS NOT AN EXPRESSION OF ANY OPINION BY THE COURT
AS TO THE MERITS OF THE RESPECTIVE CLAIMS OR DEFENSES AS TO ISSUES
OF LIABILITY OR DAMAGES. THIS NOTICE IS SENT ONLY TO ADVISE YOU OF
THE PROPOSED SETTLEMENT DESCRIBED HEREIN AND OF CERTAIN RIGHTS
YOU MAY HAVE WITH RESPECT THERETO.
FURTHER INQUIRIES
Any inquiries regarding this Notice or the Action may be directed to the following:
to Class Counsel:
Patrick Leverty
Leverty & Associates
832 Willow Street
Reno, NV 89502
Telephone: [phone]
or to the Claims Administrator:

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Gilardi & Co., LLC
P.O. Box 8060
San Rafael CA 94912-8060
[phone]
[e-mail]
PLEASE DO NOT CONTACT THE COURT OR THE CLERK’S OFFICE
DIRECTLY FOR SUCH INFORMATION.
BY ORDER OF THE COURT:
Dated: May 30, 2014.

, 2014
____________________________________
United States District Court

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