West et al v. Continental Automotive, Inc. et al
ORDER re 50 Joint MOTION for Settlement Motion for Preliminary Approval of Class Action Settlement, ( Fairness Hearing set for 2/5/2018 02:00 PM in Courtroom 1-1, 401 W Trade St, Charlotte, NC 28202 before Chief Judge Frank D. Whitney.). Signed by Chief Judge Frank D. Whitney on 9/12/17. (clc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
DOCKET NO. 3:16-cv-00502-FDW-DSC
MARK WEST, RICKIE DON BASH,
SHARLENE KNIGHT, ANNA MARIE
THOMPSON, MICHAEL MCMANUS,
STEVEN PRICE, CARL HARVELL,
STACIA ANDREA WILKES, and all others
CONTINENTAL AUTOMOTIVE, INC., et )
THIS MATTER is before the Court on the Parties’ Joint Motion for Preliminary Approval
of a Settlement (the “Settlement”) of this Class Action (the “Action”) (Doc. No. 50). This Action
was brought by Plaintiffs Mark West, Rickie Don Bash, Raynard Stewart Moore, Anne Marie
Ross, Bruce Adams, Brian Thompson, Michael McManus, Steven Price, and Carl Harvell,1 on
behalf of themselves and all others similarly situated, asserting claims for alleged violations of the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq.
(“ERISA”) against Continental Automotive, Inc. (“Continental”) and the Pension Plan for HourlyPaid Employees of Continental Automotive, Inc. and Certain Affiliated Companies (the “Plan”)
(collectively, “Defendants”) (“Plaintiffs” and “Defendants” collectively are the “Parties”). The
Plaintiffs dismissed Stacia Andrea Wilkes and Sharlene Knight as named plaintiffs on April 13, 2017 and August
10, 2017, respectively. (Doc. Nos. 43 and 47.)
terms of the Settlement are set out in a fully executed Settlement Agreement (the “Settlement
Agreement”), which has been signed on behalf of the Class Representatives by Plaintiff Mark West
and by Defendants. (Doc. No. 50-1.) Capitalized terms not otherwise defined in this Order shall
have the same meaning as ascribed to them in the Settlement Agreement.
The Court having considered the Parties’ Joint Motion for Preliminary Approval and the
Settlement Agreement attached thereto in order to determine, among other things, whether the
Settlement is sufficient to warrant the issuance of notice to the Class Members, hereby GRANTS
the Parties’ Joint Motion for Preliminary Approval, as more fully explained below.
IT IS THEREFORE HEREBY ORDERED THAT:
Jurisdiction. The Court has jurisdiction over the subject matter of this Action and over
all Parties to this Action, including all Members of the Class.
Preliminary Approval of Settlement. The Settlement documented in the Settlement
Agreement is hereby PRELIMINARILY APPROVED, as the Court preliminarily finds that: (a)
the proposed Settlement resulted from arm’s-length negotiations; (b) the Settlement Agreement
was executed only after Class Counsel had conducted a thorough examination and review of the
relevant law, facts, and allegations to assess the merits of Plaintiffs’ claims; (c) there is a genuine
controversy between the Parties involving Plaintiffs’ entitlement to benefits and Defendants’
compliance with the requirements of ERISA; (d) the Settlement appears on its face to be fair,
reasonable, and adequate; and (e) the Settlement evidenced by the Settlement Agreement is
sufficient to warrant sending notice of the Settlement to the Class.
Fairness Hearing. A hearing (the “Fairness Hearing”) pursuant to Rule 23(e), FED. R.CIV.
P., is hereby SCHEDULED to be held before the Court on February 5, 2018 at 2:00 PM
in Courtroom #1-1, United States District Court for the Western District of North Carolina, Charles
R. Jonas Federal Building, 401 West Trade Street, Charlotte, North Carolina 28202 to determine
finally, among other things:
(a) Whether the Settlement should be approved as fair, reasonable, and adequate;
(b) Whether a Final Approval Order should be entered;
(c) Whether Defendants should be released of and from the Class’ claims, as provided in
the Settlement Agreement;
(d) Whether the Notices sent (i) were reasonably calculated, under the circumstances, to
apprise Class Members of the pendency of the Settlement, their right to object to the
Settlement, and their right to appear at the Fairness Hearing; (ii) were reasonable and
constituted due, adequate, and sufficient notice to all persons entitled to notice; and (iii)
met all applicable requirements of the Federal Rules of Civil Procedure, and any other
(e) Whether the Settlement has been negotiated at arm’s length by Class Counsel on behalf
of the Class and whether Plaintiffs have acted independently; and
(f) Any other issues necessary for approval of the Settlement.
Class Notice. The Parties have presented to the Court a proposed Supplemental Class
Action Notice which is appended to the Joint Motion for Preliminary Approval as Exhibit 2. (Doc.
No. 50-2.) The Court APPROVES the form and content of the Supplemental Class Action Notice
finding that it fairly and adequately: (1) describes the terms and effect of the Settlement Agreement
and of the Settlement; (2) gives notice to the Class of the time, place, and location of the Fairness
Hearing; (3) describes how Class Members may object to approval of the Settlement; (4) gives
notice that Class Members may enter an appearance through counsel if the member so desires; and
(5) the binding effect of a class judgment on Class Members. The Parties have proposed
communicating the notice to Class Members via certified U.S. Mail, and the Court finds that such
proposed manner is adequate. The Court further finds that the mailing of the Supplemental Class
Action Notice in addition to the Class Notice that was previously approved by the Court and mailed
by Defendants on August 7, 2017, is the only notice required, and that such notice satisfies the
requirements of due process and Rule 23 of the Federal Rules of Civil Procedure.
The Court directs that Defendants shall within ten (10) calendar days of the entry of this
Order cause the Supplemental Class Action Notice, with such non-substantive modifications
thereto as may be agreed upon by the Parties, to be disseminated to the last known address of each
Class Member who can be identified by reasonable effort.
At or before the Fairness Hearing, Defendants shall file with the Court a proof of timely
compliance with the foregoing mailing requirements.
Objections to Settlement. “Objector” shall mean any Class Member who wishes to object
to the fairness, reasonableness, or adequacy of the Settlement or to any term of the Settlement
Agreement. Any Objector must file with the Court all papers and briefs they propose to discuss at
the Fairness Hearing, including a written statement setting forth: (a) the name, address, and
telephone number of the Class Member asserting the objection (and, if applicable, the name,
address, and telephone number of the Objector’s attorney); (b) a statement of each objection
asserted; (c) a detailed description of the facts underlying each objection; (d) a detailed description
of the legal citations, authorities, and evidence supporting each objection; and (e) a list of the
exhibits that the objector may offer during the Fairness Hearing, along with copies of such exhibits.
Any objection must be signed by the Class Member. The Objector must also mail the objection
and all supporting law and/or evidence to counsel for the Parties, as stated below. The addresses
for filing objections with the Court and service on counsel are as follows:
Clerk, U.S. District Court
Charles R. Jonas
401 West Trade Street
Charlotte, NC 28202
Norris A. Adams, II
Essex Richards, P.A.
1701 South Boulevard
Charlotte, NC 28203
Susan P. Dion
201 N. Tryon Street Suite 3000
Charlotte, NC 28202
The Objector, or, if represented by counsel, his, her, or its counsel, must both effect service
of the objection on counsel listed above and file the objection with the Court at least twenty-one
(21) calendar days prior to the Fairness Hearing, or by no later than January 15, 2018. Any
Member of the Class or other person who does not timely file and serve a written objection
complying with the terms of this paragraph shall be deemed to have waived, and shall be
foreclosed from raising, any objection to the Settlement and any untimely objection shall be
barred. An Objector does not have to attend the Fairness Hearing for his, her, or its objection to be
considered by the Court. If the objection is timely filed and consistent with the requirements of
this paragraph, it will be considered by the Court.
Appearance at Fairness Hearing. An Objector who files and serves a timely, written
objection in accordance with the paragraph above may appear at the Fairness Hearing, either in
person or through counsel retained at the Objector’s expense. Objectors or their attorneys
intending to appear at the Fairness Hearing must effect service of a “Notice of Intention to
Appear” setting forth, among other things, the name, address, and telephone number of the
Objector (and, if applicable, the name, address, and telephone number of the Objector’s attorney)
and a statement of how long the Objector anticipates needing to present the objection to the Court,
and file it with the Court at least twenty-one (21) calendar days prior to the Fairness Hearing, or
by no later than January 15, 2018. The Objector must also mail the “Notice of Intention to
Appear” to counsel for the Parties. Any Objector who does not timely file and serve a “Notice of
Intention to Appear” in accordance with this paragraph shall not be permitted to appear at the
Fairness Hearing, except for good cause shown. The Parties’ counsel shall promptly furnish each
other with copies of any and all objections that come into their possession.
Response to Objectors. The Parties shall respond to any Objector at least seven (7)
calendar days prior to the Fairness Hearing, or by no later than January 29, 2018.
Class Action Notice and Class Action Notice Expenses. All expenses incurred in
disseminating the Supplemental Class Action Notice and locating corrected addresses for any
Supplemental Class Action Notices returned as undeliverable shall be paid by Defendants, as set
forth in the Settlement Agreement.
Motion for Final Approval of Settlement. Class Counsel shall file a Motion for Final
Approval of the Settlement, application for an award of fees and costs, and all briefs and
supporting papers, at least twenty-eight (28) calendar days prior to the Fairness Hearing, or by no
later than January 8, 2018.
Injunction. Pending final determination of whether the Settlement should be approved, all
Class Members are each hereby BARRED AND ENJOINED from instituting or prosecuting any
action that asserts any released claim against any of the Continental Releasees or the Plan
Releasees, as those terms are defined in the Settlement Agreement.
Termination of Settlement. In the event that this Settlement does not become Final under
the terms of the Settlement Agreement, or is not finally approved by the Court, or for any other
reason, this Order shall become null and void, and shall be without prejudice to the rights of the
Parties, all of whom shall be restored to their respective positions existing immediately before the
Parties entered into the Settlement Agreement.
Use of Order. In the event this Order becomes of no force or effect, no part of it shall be
construed or used as an admission, concession, or declaration by or against Defendants of any
fault, wrongdoing, breach, or liability, nor shall the Order be construed or used as an admission,
concession, or declaration by or against Plaintiffs or the Class that their claims lack merit or that
the relief requested in the Action is inappropriate, improper, or unavailable, or as a waiver by any
party of any defenses or claims said Class Member may have. Nor may the Settlement Agreement
be offered in evidence as, received in evidence as, and/or seemed to be evidence of a presumption,
concession, indication or an admission by any party of the truth of any fact alleged or the validity
of any claim or defense which has been, could have been, or in the future might be asserted in the
Continuance of Hearing. The Court reserves the right to continue the Fairness Hearing
without further written notice.
IT IS SO ORDERED.
Signed: September 12, 2017
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