Hill v. County of Montgomery et al

Filing 259

ORDER that Plaintiffs are directed to file the revised Notice of Class Settlement and the revised Summary Notice by September 25, 2020. Signed by Judge Brenda K. Sannes on 9/15/2020. (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PERRY HILL and JAMES ROGERS, both individually
and on behalf of a class of others similarly situated,
9:14-cv-00933 (BKS/DJS)
Plaintiffs,
v.
COUNTY OF MONTGOMERY, MICHAEL AMATO and
MICHAEL FRANKO,
Defendants.
Appearances:
For Plaintiffs:
Law Offices of Elmer Robert Keach, III, P.C.
Elmer Robert Keach, III
Maria K. Dyson
One Pine West Plaza, Suite 109
Albany, NY 12205
Migliaccio & Rathod LLP
Nicholas A. Migliaccio
412 H Street N.E., Suite 302
Washington, DC 20002
For Defendants:
Goldberg Segalla LLP
Jonathan M. Bernstein
8 Southwoods Boulevard, Suite 300
Albany, NY 12211
Leary Bride Mergner & Bongiovanni, P.A.
William H. Mergner
7 Ridgedale Avenue
Cedar Knolls, NJ 07927

Hon. Brenda K. Sannes, United States District Judge:
ORDER PRELIMINARILY APPROVING CLASS ACTION
SETTLEMENT AND AUTHORIZING NOTICE OF
PROPOSED SETTLEMENT AND HEARING THEREON
I.

INTRODUCTION AND BACKGROUND
Plaintiffs Perry Hill and James Rogers bring this conditions-of-confinement class action

under 42 U.S.C. § 1983 against Defendants County of Montgomery, Michael Amato, and
Michael Franko. (Dkt. No. 136). Presently before the Court is Plaintiffs’ unopposed1 motion for
preliminary approval of proposed class action settlement (the “Settlement”) under Federal Rule
of Civil Procedure 23(e). (Dkt. No. 243). On August 19, 2020, the Court held a telephone
conference to discuss the proposed settlement. Plaintiffs’ motion for preliminary approval and
conditional certification is granted, but Plaintiffs are directed to submit revised Notices of
Settlement, as described in this Order.
The Court previously recounted, at length, the nature of Plaintiffs’ claims and the
relevant facts in ruling on the parties’ motions for, among other things, class certification,
amendment of the complaint, and summary judgment.2 The Court assumes general familiarity

1
Plaintiffs filed a letter motion indicating that Plaintiffs intended, as part of the “Notice campaign to address the
proposed settlement,” “to employ television, billboard and social media advertising to reach as many class members
as possible.” (Dkt. No. 245). Defendants opposed Plaintiffs’ proposal as “unnecessary” because Plaintiffs had “the
information they need to contact the [class] members” and Defendants had, in any event, “agreed to provide
assistance” in contacting class members. (Dkt. No. 247, at 1). After additional briefing, (Dkt. No. 249), and
discussions with counsel, including the Class Administrator William Wickersham, the Court granted Plaintiffs’
request to post the notice on Facebook and Instagram but denied their request to post notice on a billboard or to use
television advertising. (Text Minute Entry, Aug. 19, 2020). The Court directed the parties to confer regarding the
content of the social media advertising, (id.), and on September 1, 2020, Plaintiffs advised the Court that the parties
had agreed upon the notices. (Dkt. No. 255).
2

Hill v. Cnty. of Montgomery (Hill I), No. 14-cv-933, 2017 WL 9249663, 2017 U.S. Dist. LEXIS 221081 (N.D.N.Y.
Sep. 29, 2017) (denying motion for class certification); Hill v. Cnty. of Montgomery (Hill II), No. 14-cv-433, 2018
WL 2417839, 2018 U.S. Dist. LEXIS 88884 (N.D.N.Y. May 29, 2018) (dismissing declaratory and injunctive relief
claims and granting in part and denying in part motions to amend and intervene); Hill v. Cnty. of Montgomery (Hill
III), No. 14-cv-933, 2018 WL 3979590, 2018 U.S. Dist. LEXIS 140305 (N.D.N.Y. Aug. 20, 2018) (granting motion
for class certification of liability class); Hill v. Cnty. of Montgomery (Hill IV), 2019 WL 5842822, 2019 U.S. Dist.
LEXIS 193658 (N.D.N.Y. Nov. 07, 2019) (denying motion for summary judgment); Hill v. Cnty. of Montgomery

2

with the background of this case. Having reviewed the parties’ submissions, including the
Settlement Agreement, (Dkt. No. 241), and the proposed Notice of Proposed Settlement and
Hearing (the “Notice”), (Dkt. No. 241, at 32–42), and having considered the parties’ positions, as
articulated during the telephone conference, the Court makes the findings and grants the relief set
forth below preliminarily approving the Settlement upon the terms and conditions set forth in this
Order.
II.

STANDARD OF REVIEW
Preliminary approval of a proposed settlement is the first in a two-step process required

[by Federal Rule of Civil Procedure 23(e)] before a class action may be settled.” In re NASDAQ
Mkt.-Makers Antitrust Litig., 176 F.R.D. 99, 102 (S.D.N.Y. 1997). “At this stage, [the court]
need only decide whether the terms of the Proposed Settlement are ‘at least sufficiently fair,
reasonable and adequate to justify notice to those affected and an opportunity to be heard.’” In re
LIBOR-Based Fin. Instruments Antitrust Litig., No. 11 MD 2262, 2018 WL 3475465, at *1, 2018
U.S. Dist. LEXIS 120856, at *6 (S.D.N.Y. July 19, 2018) (quoting NASDAQ, 176 F.R.D. at
102). “This analysis is ‘a determination that there is what might be termed ‘probable cause’ to
submit the proposal to class members and hold a full-scale hearing as to its fairness.’” Id., 2018
U.S. Dist. LEXIS 120856, at *6–7 (quoting In re Traffic Exec. Ass’n E. R.Rs., 627 F.2d 631, 634
(2d Cir. 1980)).
III.

DISCUSSION
A.

Settlement Class

“Before approving a class settlement agreement, a district court must first determine
whether the requirements for class certification in Rule 23(a) and (b) have been satisfied.” In re

(Hill V), No. 14-cv-933, 2020 WL 819225, 2020 U.S. Dist. LEXIS 27844 (N.D.N.Y. Feb. 19, 2020) (granting in
part and denying in part motions in limine).

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Am. Int’l Grp., Inc. Sec. Litig. (In re AIG), 689 F.3d 229, 238 (2d Cir. 2012). However, “because
the litigation is being settled, rather than litigated, the Court need not consider the manageability
issues that litigation would present.” Berkson v. Gogo LLC, 147 F. Supp. 3d 123, 159 (E.D.N.Y.
2015) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997)). “The district court
must also determine whether the action can be maintained under Rule 23(b)(1), (2), or (3).” In re
AIG, 689 F.3d at 238. Here, Plaintiffs seek certification of the settlement class under Rule
23(b)(3), “which permits certification where ‘the court finds that the questions of law or fact
common to class members predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.’” Id. (quoting Fed. R. Civ. P. 23(b)(3)). While trial management
concerns “drop out of the predominance analysis,” when considering a settlement class, “the
certifying court must still determine whether the ‘the legal or factual questions that qualify each
class member’s case as a genuine controversy’ are sufficiently similar as to yield a cohesive
class.” Id. at 240 (quoting Amchem, 521 U.S. at 623).
1.

Rule 23(a)(1)
a.

Numerosity

Rule 23(a)(1) requires that the proposed class be “so numerous that joinder of all
members is impracticable.” In general, numerosity is presumed where a putative class has 40 or
more members. Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 252 (2d Cir.
2011). The proposed class satisfies the numerosity requirement—there are approximately 2,300
class members. (Dkt. No. 243-1, at 17).
b.

Commonality and Typicality

Next, a plaintiff seeking class certification must show “questions of law or fact common
to the class.” Fed. R. Civ. P. 23(a)(2). A question of law or fact is common to the class if the
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question is “capable of classwide resolution—which means that its truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011). The common questions must generate “common answers apt
to drive the resolution of the litigation.” Mazzei v. Money Store, 829 F.3d 260, 272 (2d Cir.
2016) (quoting Dukes, 564 U.S. at 350). “Where the same conduct or practice by the same
defendant gives rise to the same kind of claims from all class members, there is a common
question.” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015) (quoting
Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 756 (7th Cir. 2014)).
Typicality “requires that the claims of the class representatives be typical of those of the
class, and is satisfied when each class member’s claim arises from the same course of events, and
each class member makes similar legal arguments to prove the defendant’s liability.” Cent.
States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504
F.3d 229, 245 (2d Cir. 2007) (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147,
155 (2d Cir. 2001)). But typicality “does not require that the factual background of each named
plaintiff’s claim be identical to that of all class members; rather, it requires that the disputed
issue of law or fact occupy essentially the same degree of centrality to the named plaintiff’s
claim as to that of other members of the proposed class.” Caridad v. Metro-N. Commuter R.R.,
191 F.3d 283, 293 (2d Cir. 1999). “The commonality and typicality requirements tend to merge
into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3).”
Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997). The commonality and typicality
requirements are met given the allegations, and evidence during discovery, of routine
undernourishment of inmates at Montgomery County Jail.

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c.

Adequacy of Representation

“Generally, adequacy of representation entails inquiry as to whether: 1) plaintiff’s
interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys
are qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin &
Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000). Regarding named Plaintiffs’ adequacy, the
requirement is twofold: the named plaintiffs must be “prepared to prosecute fully the action and
have no known conflicts with any class member.” Shahriar, 659 F.3d at 253; accord Denney v.
Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006) (stating that “the proposed class
representative must have an interest in vigorously pursuing the claims of the class, and must have
no interests antagonistic to the interests of other class members”). Accordingly, “the named
plaintiffs must ‘possess the same interest[s] and suffer the same injur[ies] as the class
members.’” In re Literary Works in Elec. Databases Copyright Litig., 654 F.3d 242, 249 (2d Cir.
2011) (alterations in original) (quoting Amchem, 521 U.S. at 625–26). Further, “class
certification is inappropriate where a putative class representative is subject to unique defenses
which threaten to become the focus of the litigation.”3 Baffa, 222 F.3d at 59 (quoting Gary
Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d
Cir. 1990)).
There is no indication that Plaintiffs Hill or Rodgers have interests that are in any way at
odds with, or antagonistic to, the Putative Class Members. To the contrary, each has actively
participated in this lawsuit. The Court further finds, based on Plaintiffs’ Counsel’s extensive
experience in litigating civil rights cases and class actions, and success to date in handling this

3

Courts have also addressed unique defenses as going to commonality or typicality. See Vargas v. Howard, 324
F.R.D. 319, 327 n.1 (S.D.N.Y. 2018); Lapin v. Goldman Sachs & Co., 254 F.R.D. 168, 179 (S.D.N.Y. 2008)
(collecting cases).

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case, that Plaintiffs’ Counsel are adequate Class Counsel. Accordingly, Counsel for the Class
(“Class Counsel”) are as follows:
Elmer Robert Keach, III, Esquire
Maria K. Dyson, Esquire
LAW OFFICES OF ELMER ROBERT KEACH, III, PC
One Pine West Plaza, Suite 109
Albany, NY 12205
Nicholas A. Migliaccio, Esquire
Jason S. Rathod, Esquire
Ashley M. Pileika, Esquire
MIGLIACCIO & RATHOD LLP
412 H Street N.E., Suite 302
Washington, DC 20002
2.

Rule 23(b)(3)
a.

Predominance

In addition to meeting all Rule 23(a)’s requirements, a class proponent must satisfy at
least one of Rule 23(b)’s three categories. Goldemberg v. Johnson & Johnson Consumer Cos.,
Inc., 317 F.R.D. 374, 385 (S.D.N.Y. 2016). Here, Plaintiffs move under Rule 23(b)(3). For
certification under that subsection, Plaintiffs must establish that “questions of law or fact
common to class members predominate over any questions affecting only individual members.”
Fed. R. Civ. P. 23(b)(3).
The predominance requirement “tests whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.” Mazzei, 829 F.3d at 272. It is satisfied when
(1) resolution of any material legal or factual questions can be achieved through generalized
proof, and (2) these common issues are more substantial than the issues subject only to
individualized proof. Superannuation Scheme Ltd. v. Petróleo Brasileiro S.A. (In re Petrobras
Sec.), 862 F.3d 250, 270 (2d Cir. 2017)). “The distinction between ‘individual’ and ‘common’
questions is thus central to the predominance analysis.” Petrobras, 862 F.3d at 270. An

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“individual question is one where members of a proposed class will need to present evidence that
varies from member to member, while a common question is one where the same evidence will
suffice for each member to make a prima facie showing [or] the issue is susceptible to
generalized, class-wide proof.” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016)
(alteration in original) (internal quotation marks omitted). The predominance requirement is “far
more demanding” than Rule 23(a)’s commonality requirement, and it is not satisfied “simply by
showing that the class claims are framed by the common harm suffered by potential plaintiffs.”
Amchem, 521 U.S. at 624.
Here, Plaintiffs contend that all members of the Putative Class are unified by common
factual allegations: all class members allege that Defendants failed to provide the inmates of
Montgomery County Jail adequate nutritional sustenance in violation of the Eighth and
Fourteenth Amendments. Concerned that evidence regarding damages would necessitate
individualized proof, the Court certified a liability class only. This concern, however, is absent
where, as here, there will be no trial and the parties have overcome the issue of individualized
damages through their proposal to measure and calculate damages calculation based on the
length of time each class member spent in Montgomery County Jail. Accordingly, the Court
concludes the predominance test is satisfied.
b.

Superiority

In order to certify a class under Rule 23(b)(3), the Court must determine whether “a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). In doing so, the Court considers factors including:
(1) “the class members’ interests in individually controlling the prosecution or defense of
separate actions”; (2) “the extent and nature of any litigation concerning the controversy already
begun by or against members of the class”; (3) “the desirability or undesirability of concentrating
8

the litigation in the particular forum”; and (4) “the likely difficulties in managing a class action.”
Fed. R. Civ. P. 23(b)(3)(A)–(D).
Here, the Named Plaintiffs and Putative Class Members have limited financial resources
with which to prosecute individual actions, and neither Plaintiffs’ counsel nor the Named
Plaintiffs are aware of any pending individual lawsuits filed by the Putative Class Members
arising from the same allegations. Regarding the forum, concentrating the litigation in this Court
is desirable because the allegedly wrongful conduct occurred within the jurisdiction of this
Court. Whether the case would be manageable as a class action at trial is not of consequence here
in the context of a proposed settlement. Frank v. Eastman Kodak Co., 228 F.R.D. 174, 183
(W.D.N.Y. 2005) (“The court need not consider the [manageability] factor, however, when the
class is being certified solely for the purpose of settlement.”).
For these reasons, and for the reasons the Court laid out in Hill III, when certifying the
class for litigation purposes, the Court concludes Plaintiffs meet all the requirements for class
certification under Rules 23(a) and (b)(3) and conditionally certifies, for settlement purposes
only, the following class under Rule 23(e):
All persons who have been placed into the custody of the
Montgomery County Jail and were detained for at least two
consecutive weeks from July 25, 2011 to December 31, 2018.
B.

Preliminary Approval of Settlement

Defendants Montgomery County, former Sheriff Michael Amato and former Jail
Administrator Michael Franco and Plaintiffs have entered into a Settlement Agreement intended
to resolve the litigation pending in this Court. (Dkt. No. 241). The Settlement Agreement,
together with supporting materials, sets forth the terms and conditions for a proposed settlement
and dismissal with prejudice of this action against the Defendants. (Dkt. No. 241). The Court has
reviewed the parties’ Joint Motion for Preliminary Approval of Settlement and Joint
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Memorandum in Support of Motion for Preliminary Approval of Settlement, together with the
Settlement Agreement and supporting materials. (Dkt. Nos. 241, 243). The Court has also
considered the parties’ representations during the August 19, 2020 telephone conference
regarding the settlement and the manner in which it was reached. The Court is satisfied that the
terms and conditions set forth in the Settlement Agreement were the result of good faith, arm’s
length settlement negotiations between competent and experienced counsel for both Plaintiffs
and Defendants, who are well-versed in the litigation of civil rights actions under 42 U.S.C. §
1983.
The terms of the Settlement Agreement4 are hereby preliminarily approved, subject to
further consideration thereof at the Fairness Hearing provided for below. The Court finds that the
settlement is sufficiently within the range of reasonableness and that notice of the proposed
settlement, (Dkt. No. 241, at 32–42), should be given as provided in this Order.
C.

Class Notice

When a Rule 23(b)(3) class is certified for purposes of settlement, Rule 23 requires first,
the provision of “the best notice that is practicable under the circumstances, including individual
notice to all members who can be identified through reasonable effort,” Fed. R. Civ. P.
23(c)(2)(B); and second, that the Court “direct notice in a reasonable manner to all class
members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1).
1.

Notice Content

According to Rule 23, the “best notice . . . practicable” “must clearly and concisely state
in plain, easily understood language:”
The notice must clearly and concisely state in plain, easily understood language:
4
Unless otherwise noted in this Order, any defined terms used in the Order have the same meaning as set forth in the
parties’ Settlement Agreement.

10

(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an
attorney if the member so desires;
(v) that the court will exclude from the class any member who
requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule
23(c)(3).
Fed. R. Civ. P. 23(c)(2)(B). The Class Notice of Settlement: (1) describes of the nature of the
action, (2) contains the class definition, (3) describes the class claims and defenses, and (4) states
that class members may appear via an attorney, (5) instructs class members that they may request
exclusion, (6) instructs how and when to request exclusion, and (7) informs that the Court’s
orders and judgments are binding. (Dkt. No. 241, at 32–42). Some revisions are, however,
required.
First, Plaintiffs need to complete the missing information on the Notice, including the
phone number and address on page one, and the missing date in Section XXIV, add the claim
form, and correct the following typographical errors: the word “member” is missing in the third
line of the Section “VIII (It should read “class member.”); the word “of” is missing from the
second line of the Section XI (It should read “of felonies.”) (Dkt. No. 257-1, at 10, 14, 15, 18).
Second, the class definition in the Class Notice, (Dkt. No. 257-1, at 13), is inconsistent
with the class definition the Court approved above, which originated from Plaintiffs’ proposed
preliminary order, (Dkt. No. 241, at 54). Therefore, Plaintiffs must revise the class definition in
the Class Notice to reflect the class definition the Court has approved.
Finally, in light of the COVID-19 pandemic, the Fairness Hearing will be held
telephonically on February 26, 2021 at 10:00 a.m. Accordingly, Plaintiffs are to modify the “Go

11

to a Hearing” section of “Your Legal Rights and Options in this Settlement” table on page 2 of
the Class notice, (Dkt. No. 257-1, at 11) as follows—changes are underlined:
Call in to a Telephonic Hearing

You may ask to speak to the Court during a telephonic
hearing about the fairness of the Settlement or the request
for fees and costs.

Plaintiffs are further directed to modify “The Court’s Fairness Hearing” Section and Sections
XXII and XXIV of the Class Notice, (Dkt. No. 257-1, at 18), as follows—changes are
underlined:
THE COURT’S FAIRNESS HEARING
The Court will hold a telephonic hearing to decide whether to approve the Settlement.
You may call in and you may ask to speak, but you do not have to do so.
XXII. WHEN AND WHERE WILL THE COURT DECIDE WHETHER TO
APPROVE THE SETTLEMENT?
On February 26, 2021, at 10:00 a.m., the Hon. Brenda K. Sannes, United States District
Judge for the U.S. District Court for the Northern District of New York will hold a fairness
hearing telephonically to determine whether the Class was properly certified and whether the
proposed Settlement is fair, adequate, and reasonable. The call in information is as follows:
Toll Free Number: 877-336-1274
Access Code: 7605766
Password: 02262021
The Court will listen to people who have asked to speak at the telephonic hearing. The Court
may also decide how much to pay Class Counsel. This telephonic hearing may be continued or
rescheduled by the Court without further notice. We do not know how long it will take the Court
to give its decision.
XXIII. DO I HAVE TO CALL IN TO THE TELEPHONIC HEARING?
No. Class Counsel will answer questions the District Court may have about the

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settlement. But you are welcome to call in to the telephonic hearing. If you send an objection,
you do not have to call in to the telephonic hearing 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 call
in and attend the hearing telephonically, but it is not required.
The “Summary Notice,” “for publication,” which is significantly shorter than the Class
Notice describes the nature of the action, contains a definition of the class, and advises class
members that they may exclude themselves. (Dkt. No. 241, at 8, 54; Dkt. No. 257-1, at 21–22). It
does not, however, advise class members of their right to appear through an attorney, how to
request exclusion, or of the binding effect of a class judgment. In addition, the toll-free number
and “MCJ Settlement” address that can be contacted “for more information” need to be
completed on this form. (Dkt. No. 257-1, at 22). And Plaintiffs must modify the last paragraph,
(Dkt. No. 257-1, at 22), to include the call-in information for the telephonic hearing. Plaintiffs
are directed to file the revised Notice of Class Settlement and the revised Summary Notice by
September 25, 2020.
The Social Media Notices appear to contain a link to the class action website,
www.montgomerycountyclassaction.net, (Dkt. No. 257-1, at 24–25). While this appears
appropriate, see, e.g., In re Grand Theft Auto Video Game Consumer Litig., 251 F.R.D. 139, 145
(S.D.N.Y. 2008) (noting that court had approved, as part of notice process, “posting a link to the
full and summary settlement notices on websites maintain by the plaintiffs’ attorneys”), Plaintiffs
have not provided information regarding the content of the website. At present, it contains
information about the Court’s certification of the litigation class. See
www.montgomerycountyclassaction.net (last visited Sept. 15, 2020). The Court directs Plaintiffs
to post the full Class Notice, once it has been approved by the Court, to the website beginning no

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later than October 1, 2020 and further directs Plaintiffs not to begin the social media notices until
after the website contains the approved Class Notice.
2.

Notice Procedure

Beginning no later than October 1, 2020, Class Counsel shall cause to be disseminated
the notices, as approved by the Court, in the manner set forth in the Settlement Agreement.
Notice should be disseminated expeditiously pursuant to the terms of the Settlement Agreement.
Class members will have Sixty days (60) from the Notice Date to opt out or object and OneHundred Twenty days (120) from the Notice Date to file claims. Fourteen days prior to the
Fairness Hearing, Plaintiffs or the Claims Administrator shall serve and file a sworn statement
attesting to compliance with the provisions of this paragraph.
The notice to be provided as set forth in the Settlement Agreement is hereby found to be
the best means practicable of providing notice under the circumstances and, when completed,
shall constitute due and sufficient notice of the proposed settlement and the telephonic Fairness
Hearing to all persons and entities affected by and/or entitled to participate in the settlement, in
full compliance with the notice requirements of Fed. R. Civ. P. 23, due process, the Constitution
of the United States, the laws of New York and all other applicable laws. The Notices, with the
revisions directed by the Court, are accurate, objective, informative and provide Class Members
with all of the information necessary to make an informed decision regarding their participation
in the Settlement and its fairness.
Further, Class Counsel are authorized to retain RG/2 Claims Administration LLC as a
Claims Administrator in accordance with the terms of the Settlement Agreement and this Order.
3.

Requests for Exclusion from the Settlement Class

As set forth in the Class Notice, any member of the Settlement Class that wishes to be
excluded (“opt out”) from the Settlement Class must send a written Request for Exclusion to
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Class Counsel postmarked on or before December 1, 2020.5 The Request for Exclusion shall
fully comply with the requirements set forth in the Settlement Agreement. Members of the
Settlement Class may not exclude themselves by filing Requests for Exclusion as a group or
class, but must in each instance individually and personally execute a Request for Exclusion and
timely transmit it to Class Counsel.
Any member of the Settlement Class who does not properly and timely request exclusion
from the Settlement Class shall be bound by all the terms and provisions of the Settlement
Agreement, including but not limited to the releases, waivers and covenants described in the
Settlement Agreement, whether or not such person objected to the Settlement and whether or not
such person made a claim upon, or participated in, the Settlement Fund created pursuant to the
Settlement Agreement.
D.

The Fairness Hearing

A telephonic hearing on final settlement approval (the “Fairness Hearing”) is hereby
scheduled to be held before this Court on February 26, 2021 at 10:00 a.m. by telephone, to
consider the fairness, reasonableness, and adequacy of the proposed settlement, and the entry of
final judgment in the Class Action. Class Counsel’s application for award of attorneys’ fees and
costs shall be heard at the time of the telephonic Fairness Hearing. The date and time of the
telephonic Fairness Hearing shall be subject to adjournment by the Court without further notice
to the members of the Settlement Class other than that which may be posted by the Court.
Any person or entity that does not elect to be excluded from the Settlement Class may,
but need not, enter an appearance through his or her own attorney. Settlement Class

5
Plaintiffs are directed to take into account the letters that have been submitted by Dean Steppello, (Dkt. Nos. 251,
258).

15

members who do not enter an appearance through their own attorneys will be represented by
Class Counsel.
Any person who does not elect to be excluded from the Settlement Class may, but
need not, submit comments or objections to the proposed Settlement. Any Class member may
object to the proposed Settlement, entry of the Final Order and Judgment approving the
settlement, and Class Counsel’s application for fees and expenses by filing and serving a written
objection.
Any Class member making the objection (an “objector”) must sign the objection
personally. An objection must state why the objector objects to the proposed Settlement and
provide the basis to support such position. If an objector intends to speak at the telephonic
Fairness Hearing, the objector must include with the objection a notice of the objector’s intent to
call in and speak at the hearing.
Objections, along with any notices of intent to call in and speak, must be filed no later
than December 1, 2020. If Counsel is appearing on behalf of more than one Class member,
counsel must identify each such Class member and each Class member must have complied with
the requirements of this Order. These documents must be filed with the Clerk of the Court at the
following address:
Clerk of the Court
United States District Court for the Northern District of New York
James M. Hanley Federal building & U.S. Courthouse
100 S. Clinton Street
Syracuse, NY 13261
Objections, along with any notices of intent to appear, must also be mailed to Class
Counsel and counsel for Defendant at the addresses listed below:
Elmer R. Keach, Esq.
Law Offices of Elmer Robert Keach, III, PC

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One Pine West Plaza, Suite 109
Albany, NY 12205
Jonathan M. Bernstein, Esq.
Goldberg Segalla
8 Southwoods Boulevard, Suite 300
Albany, NY 12211-2364
Only Class members who have filed and served valid and timely notices of objection
shall be entitled to be heard at the telephonic Fairness Hearing. Any Class member who does not
timely file and serve an objection in writing to the Settlement, entry of Final Order and
Judgment, or to Class Counsel’s application for fees, costs and expenses, in accordance with the
procedure set forth in the Class Notice and mandated in the Order, shall be deemed to have
waived any such objection by appeal, collateral attack, or otherwise. Settlement Class members
need not call into the hearing or take any other action to indicate their approval.
All members of the Settlement Class who do not personally and timely request to
be excluded from the Class are enjoined from proceeding against the Defendants.
E.

Other Provisions

Upon approval of the settlement provided for in this Settlement Agreement, each
and every provision thereof shall be deemed incorporated herein as if expressly set forth and
shall have the full force and effect of an Order of this Court.
All reasonable costs incurred in notifying members of the Settlement Class, as
well as administering the Settlement Agreement, shall be paid as set forth in the Settlement
Agreement.
Counsel for the parties are authorized to jointly use all reasonable procedures in
connection with approval and administration of the settlement that are not materially inconsistent
with this Order or the Settlement Agreement, including making without further approval of the
Court minor changes to the form or content of the Notice, and other exhibits that they jointly
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agree are reasonable and necessary.
If the Settlement Agreement is terminated or is not consummated for any reason
whatsoever, the conditional certification of the Settlement Class shall be void. Defendants shall
reserve all arguments, defenses and issues that they would have been able to raise absent the
settlement of this action, including the right to contest the allegations made by the Plaintiffs.
Additionally, Plaintiffs shall reserve all of their rights, absent the settlement of this action.
IV.

CONCLUSION
For these reasons it is hereby
ORDERED that Plaintiffs are directed to file the revised Notice of Class Settlement and

the revised Summary Notice by September 25, 2020.
IT IS SO ORDERED.
Date: September 15, 2020
Syracuse, New York

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