Fangman et al v. Emery Federal Credit Union

Filing 359

ORDER granting 350 Motion for Attorney Fees; granting 355 Motion for Settlement. This order is deemed a final Judgment against Emery. Signed by Judge Susan J. Dlott. (wam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Frank A. and Shelly Palombaro, Jr.,
Plaintiffs,
v.
Emery Federal Credit Union,
Defendant.

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Case No. 1:15-cv-792
Judge Susan J. Dlott
Order Approving Settlement Agreement
and Granting Attorneys’ Fees, Expenses,
and Service Awards

This matter is before the Court on Class Counsel’s and Class Representatives’
Unopposed Petition for Attorneys’ Fees and Expenses and for Class Representatives’ Service
Awards for Emery Federal Credit Union Settlement (Doc. 350) and Plaintiffs’ Motion for Final
Approval of Emery Federal Credit Union Class Action Settlement (Doc. 355). For the reasons
that follow, the Court will GRANT both Motions.
I.

Background
This case involves an alleged mortgage kickback scheme in which Genuine Title, LLC

(“Genuine Title”) by itself and through sham companies, provided cash payments, marketing
materials, and other benefits to mortgage brokers employed by Emery Federal Credit Union
(“Emery”). In return, the Emery mortgage brokers referred clients to Genuine Title for title and
settlement services. This scheme is alleged to violate the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. § 2601.
The Court previously detailed the extensive procedural history of this case in its July 1,
2016 Order Denying Defendant’s Motion to Dismiss and Granting Defendant’s Motion to Strike.
(Doc. 242.) Briefly stated, this action was severed and transferred from a larger action in the
United States District Court for the District of Maryland to the United States District Court for

the Southern District of Ohio. On August 10, 2017, the Court granted Plaintiffs’ second
amended motion for class certification. (Doc. 338.) On November 14, 2017, the parties filed a
Motion for Preliminary Approval of the Settlement of All Claims Asserted Against Emery
Federal Credit Union (Doc. 341), and the Court granted Preliminary Approval of the parties’
Class Action Settlement Agreement (“Settlement Agreement”) (Doc. 341-2) on January 25,
2018. (Doc. 344.) The Settlement Agreement provides for a $9,000,000 common fund, from
which settlement benefits and other distributions are to be made.
On May 11, 2018, Plaintiffs filed their Unopposed Petition for Attorneys’ Fees and
Expenses and for Class Representatives’ Service Awards, seeking attorneys’ fees in the amount
of 30% of the common fund, or $2,700,000, reimbursement of expenses incurred in the amount
of $81,450.31, and service awards of $5,000 to each class representative, for a total of $35,000 in
service awards. (Doc. 350/353.) Responding, Defendant objects not to the awards requested
but to “gratuitous and incorrect assertions in the Petition, as well as to Plaintiffs’ decision to
reveal part of the confidential settlement negotiations in a footnote.” (Doc. 354 at PageID
13042.)
On June 8, 2018, Plaintiffs filed a Motion for Final Approval of the Settlement
Agreement. (Doc. 355.) The Court held a final fairness hearing on July 10, 2018. No objectors
attended the hearing, and no objections to the Settlement Agreement were filed. The matter is
now ripe for decision.
II.

Final Approval of the Settlement Agreement
A. Settlement Agreement Terms
The Court will first consider final approval of the Settlement Agreement, which includes

the following key provisions. First, the Settlement Agreement modifies the definition of the
2

“Emery Class.” During settlement negotiations, the parties became aware of a technical aspect
of the class definition that required clerical modification to avoid potential ambiguities. The
modified class definition is as follows:
All individuals in the United States who were borrowers on a federally related
mortgage loan (as defined under the Real Estate Settlement Procedures Act, 12
U.S.C. § 2602) originated or brokered by Emery for which Genuine Title provided
a settlement service, as identified on the borrower’s HUD-1, between January 1,
2009, and December 31, 2014. Exempted from this class is any person who, during
the period of January 1, 2009, through December 31, 2014, was an employee,
officer and/or agent of Defendant Emery Federal Credit Union, Genuine Title LLC,
Brandon Glickstein, Inc., Competitive Advantage Media Group LLC, and/or Dog
Days Marketing, LLC.
(hereinafter the “Emery Class”)1 (Doc. 341-2 at PageID 12059.)
The Settlement Agreement establishes a $9,000,000 common fund of which the Emery
Class will receive a proportionate share after the deduction for payment of a settlement
administrator, payment of class counsel’s costs, expenses, and fees, and payment of class
representatives’ service awards. Class counsel may petition the court for approval of attorneys’
fees and expenses not to exceed 30% of the common fund and for expenses actually incurred,
and class representatives may petition the Court for service awards not to exceed $5,000 per
award. Plaintiffs estimate that taking all the deductions into consideration, class members are
projected to recover approximately $1,160 per loan.

1

The class previously was defined as follows, with the now-omitted language in bold:
All individuals in the United States who were borrowers on a federally related mortgage loan (as
defined under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2602) originated or
brokered by Emery for which Genuine Title provided a settlement service, as identified in Section
1100 on the borrower’s HUD-1, between January 1, 2009, and December 31, 2014. Exempted
from this class is any person who, during the period of January 1, 2009, through December 31,
2014, was an employee, officer, member and/or agent of Defendant Emery Federal Credit Union,
Genuine Title LLC, Brandon Glickstein, Inc., Competitive Advantage Media Group LLC, and/or
Dog Days Marketing, LLC.
(See Doc. 338 at PageID 11989.) The Court finds that the changes to the class definition are clerical and do not alter
the Emery Class or its members pursuant to Rule 23. Accordingly, these changes are approved pursuant to Fed. R.
Civ. P. 23(c)(1)(C).
3

A cy pres is established for any amounts remaining in the common fund after a certain
amount of time has elapsed and attempts have been made to reissue unclaimed checks. In
addition, the Settlement Agreement describes a plan to notify class members of the Settlement
Agreement, provides for time to object and opt-out of the Settlement, and sets forth a release,
waiver, and covenant not to sue.
B. Final Approval Under Federal Rule of Civil Procedure 23(e)
Pursuant to Rule 23(e), the claims, issues, or defenses of a certified class may be settled
only with the Court’s approval, through which the following procedures apply:
(1) The court must direct notice in a reasonable manner to all class members who
would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve it only after
a hearing and on finding that it is fair, reasonable, and adequate.
(3) The parties seeking approval must file a statement identifying any agreement
made in connection with the proposal.
(4) If the class action was previously certified under Rule 23(b)(3), the court may
refuse to approve a settlement unless it affords a new opportunity to request
exclusion to individual class members who had an earlier opportunity to request
exclusion but did not do so.
(5) Any class member may object to the proposal if it requires court approval
under this subdivision (e); the objection may be withdrawn only with the court’s
approval.
Fed. R. Civ. P. 23(e). In determining whether the terms of the settlement are “fair, reasonable,
and adequate” under Rule 23, the Court considers several factors, including: (1) the risk of fraud
or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the amount of
discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions
of class counsel and class representatives; (6) the reaction of absent class members; and (7) the
public interest. UAW v. Gen. Motors Corp., 497 F.3d 615, 631 (6th Cir. 2007).
The Court finds that all of these criteria are met here, for the reasons set forth by class
counsel in their brief and as stated on the record at the final approval hearing. First, the risk of
4

fraud or collusion is low, as the parties’ negotiations were at arms-length and preceded by
adversarial litigation, including disputed briefing over dismissal and class certification.
Plaintiffs spent months investigating Genuine Title’s practices and developing their claims
through extensive discovery practice. Settlement was reached after a full-day conference with
Magistrate Judge Stephanie K. Bowman, which reflect the arms-length nature of such
negotiations. Finally, the structure of the settlement is for a substantial, maximized benefit, as
settlement benefits are directly payable to class members without the time and expense of a
claims process, and a cy pres is established for residual amounts. Class counsel estimate that the
amount each class member receives will be approximately 65% of the title and settlement
charges related to Emery loans.2
Second, the complexity, expense and likely duration of the underlying litigation supports
approval as well. Taking this case to trial presented serious risks to both class members and
Emery. Discovery and motion practice have been contentious, and Emery raised limitations and
other affirmative defenses. In addition, both parties faced the complexity and logistical difficulty
of trying a 5,000-member class action to a jury. Emery’s petition to the Sixth Circuit also was
pending at the time the parties reached settlement. Plaintiffs’ expert advised that if Plaintiffs
succeeded on appeal and recovered a judgment greater than the settlement amount, such a
judgment would have likely resulted in Emery’s involuntary liquidation by its regulator, the
National Credit Union Administration (“NCUA”), and rendered the judgment uncollectible.

2

Class counsel originally estimated at the preliminary approval stage that class members would receive nearly 100%
of title and settlement charges related to their Emery loans. Since preliminary approval, class counsel identified
approximately 890 more class loans, raising the total number from 4,400 to 5,290. In addition, the estimated
average settlement charge of $1,500 is now known to be approximately $1,835. Despite these changes, the Court is
still satisfied that the average recovery is very good, as class members’ settlement costs ranged from below $800 to
$4,000. (See Doc. 355-1 at PageID 13055 n.4.)
5

Thus, this Settlement Agreement secures a tangible recovery while avoiding the significant
regulatory risk Plaintiffs faced if they succeeded at trial. In addition, the settlement avoids the
additional fees, costs, and delay of an appeal to the Sixth Circuit, which likely would have added
years to recovery.
Third, the discovery engaged in by the parties to date has been extensive and weighs in
favor of final approval. Discovery involved tremendous efforts to uncover the size and scope of
the alleged scheme, which was detailed at length at the final fairness hearing. Class counsel
represent that they served 39 third-party records subpoenas, reviewed tens of thousands of bank
records and loan documents, conducted thirteen depositions, and conducted land records research
across more than twenty-five states. This discovery was instrumental in allowing Plaintiffs to
evaluate the strengths and weaknesses of the claims and defenses to make an informed decision
regarding settlement.
Fourth, the settlement provides relief to class members and eliminates the risks of trial.
Although success at trial could have yielded treble damages, class members faced a risk of not
being able to recover any potential judgment, as previously noted. Fifth, class counsel and class
representatives find the settlement to be fair and favorable, which weighs in favor of approval.
Sixth, there have been no objections to the settlement, and one exclusion request has been
submitted by Dean and Dolores Bakken. The class members on 5,289 out of 5,290 class loans
have sought to participate in the settlement, which the Court interprets as demonstrating
satisfaction among class members. Thus, factors four, five, and six weigh in favor of approval.
Finally, seventh, the settlement serves the public interest by ensuring a real recovery to
the maximum number of affected consumers, conserving resources of the parties and the Court,

6

eliminating the risk of non-recovery, and protecting consumers from the harm of unnecessarily
high settlement charges and abusive practices. This factor, too, weighs in favor of approval.
In all, the Court is satisfied that the settlement is certainly “fair, reasonable, and
adequate” under Rule 23.
C. Notice and Objections
The Court concludes that the settlement administrator has timely completed the notice
plan described in the Settlement Agreement by the timely mailing of the Court-approved mailed
notice to the members of the Emery Class and by establishing the settlement website. Further,
Emery has complied with 28 U.S.C. § 1715 and Section 17.2 of the Settlement Agreement by
sending a Notice of Proposed Class Action Settlement to all required federal agencies under the
Class Action Fairness Act, and none of the notice recipients have filed objections to the
settlement.
III.

Attorneys’ Fees, Expenses, and Service Awards
Having found the settlement to be fair, reasonable, and adequate, the Court will next

consider the matter of attorneys’ fees, expenses, and service awards. Class counsel move the
Court to approve an award of attorneys’ fees in the amount of 30% of the $9,000,000 common
fund, for a $2,700,000 fee award, and for reimbursement of $81,450.31 in expenses. Class
representatives seek Court approval of service awards for each of seven named class
representatives, for a total of $35,000. As the parties agreed to a clear-sailing clause, the request

7

is unopposed.3 The Court will first consider the request for attorneys’ fees and expenses and
then turn to the request for service awards.
A. Request for Attorneys’ Fees and Expenses
Class members are represented by counsel from three law firms: Smith, Gildea &
Schmidt, LLC (“SGS”), Joseph, Greenwald, and Laake, P.A. (“JGL”), and Keating, Muething, &
Klekamp, PLL (“KMK”). A member from each firm has submitted a declaration attesting to the
experience of its attorneys and billing records in this case. (See Doc. 350-1–350-3 (redacted)).4
Counsel argue that each firm’s lodestar–the number of hours expended multiplied by a
reasonable hourly rate–is reasonable. Class counsel totals the lodestar of all firms at $1,519,582
and $24,665 in anticipated future bills. They argue that these fees, multiplied by a cross-check
multiplier of 1.75, support the requested award of $2,700,000, or 30% of the common fund. The
Court will consider each firm’s lodestar and then consider the application of a cross-check
multiplier.
1. SGS
SGS, the lead firm in this case, has billed a total of 4,492.78 hours for a total lodestar of
$1,065,308.50. (Doc. 353-1 at PageID 12655.) SGS anticipates an additional 50 hours of time
following the filing of both the attorneys’ fees and final approval motions for preparing for and
attending the final fairness hearing and communicating regarding administration of settlement

3

As noted previously, Emery did file a response to object to “certain gratuitous and incorrect assertions” and
“Plaintiffs’ decision to reveal part of the confidential settlement negotiations in a footnote,” but the substance of the
request is not opposed. (Doc. 354 at PageID 13042.)

4

Because some billing records contain attorney-client privileged information, they were also filed in unredacted
form at Doc. 353-1–353-3 for the Court’s review.
8

benefits at an estimated expense of $14,875.5 (Id.) SGS has incurred $$49,527.78 in expenses,
which includes $710 in anticipated travel expenses for the final fairness hearing. (Id. at PageID
12655–56.)
Information about SGS’s billings, hourly rates, and qualification of its employees is
attested to by Michael Paul Smith, a member of SGS and lead counsel in this case. (Doc. 3501.) He attests that he received his J.D. from the University of Baltimore and was admitted to
practice in Maryland in 1992. (Doc. 350-1 at PageID 12175.) He has represented plaintiffs for
26 years and has tried over 50 cases in state and federal court. (Id. at PageID 12176.) Melissa
English is a senior associate at SGS who received her J.D. from the University of Arizona
Rogers College of Law and is admitted to the Maryland bar. (Id.) She is experienced in
complex commercial litigation and represents borrowers and lenders in mortgage-related actions.
(Id.) Sarah Zadrozny is an associate at SGS who received her J.D. from the University of
Baltimore and was admitted to practice in Maryland in 2013. (Id.) SGS first learned of the
Genuine Title kickback scheme by investigating rumors from industry sources, which led to
filing suit in December 2013 after investigation. (Id. at 12177.)
Mr. Smith has reviewed his firm’s billed time and expenses on this matter, which total
4,492.78 hours. (Id. at 12179–80.) A portion of the billed time and expenses were attributable to
all clients prior to the severance of this action from the United States District Court of Maryland.
SGS determined that Emery’s proportionate share of those generally-applicable hours was
determined by looking at the total number of kickback-tainted loans across all non-settled
lenders and determining the percentage of that total that was brokered or originated by Emery.

5

However, SGS does not break down its estimated total by attorney, task, hourly rate, and anticipated time spent on
the task.
9

(Id. at PageID 12180.) After the case was severed from the original action in Maryland and
transferred to this Court, only Emery-specific time is included in the fee calculation. (Id.) In
addition, Smith has calculated a proportionate share of expenses prior to the action being
transferred to this Court. (Id. at 12181.)
Mr. Smith attests that the following chart reflects the experience levels, hours spent, and
hourly rates applicable to the SGS employees who have worked on this case:
Hours6

Hourly
Rate7

Total Fee

Michael Paul Smith

Year
Years in
Admitted Practice
1992
26

67.78
391.90

$475

$218,348.00

Melissa English

2004

723.00

$350

$253,050.00

Attorney

14

6
As explained at the final fairness hearing, many billing employees have two separate sets of hours: the first is the
Emery-specific time using a proportional share calculation prior to this case being transferred and severed to this
Court, and the second is the Emery-only time since the transfer. The total number of hours for the firm includes
both sets of hours.
7

The parties also submitted the Rubin Committee rates for its attorneys. Judges in the Southern District of Ohio
often refer to the 1983 Rubin Committee rates and apply a 4% annual cost-of-living allowance to measure the
reasonableness of fees requested. Hunter v. Hamilton Cty. Bd. Of Elections, No. 1:10-cv-820, 2013 WL 5467751, at
*17 (S.D. Ohio Sept. 30, 2013). That committee arrived at the following categories and hourly rates for 1983:
Paralegals—$37.91/hour; Law Clerks—$23.96/hour; Young Associates (2 years of experience or less)—
$61.77/hour; Intermediate Associates (2 to 4 years of experience)—$71.62/hour; Senior Associates (4 to 5 years of
experience)—$82.81/hour; Young Partners (6 to 10 years of experience)—$96.39/hour; Intermediate Partners (11 to
20 years of experience)—$113.43/hour; and Senior Partners (21 or more years of experience)—$128.34/hour. Id. at
n.9. Counsel have calculated the following Rubin Committee rates for its billing attorneys and other employees:
Attorney
Michael Paul Smith

Category
Senior Partner

Melissa English,
Michael Bowman,
Lauren Dodrill
Sarah Zadrozny,
Natalie Mayo
Paralegals

Intermediate Partner

Young Associate
Intermediate Associate
N/A

Law Clerks

N/A

Rubin Committee Rate (Year)
$432.80 (2014), $450.08 (2015), $468.08 (2016), $486.81
(2017), and $506.28 (2018)
$382.51 (2014), $397.81 (2015), $413.73 (2016), $430.27
(2017), and $447.49 (2018)
$208.36 (2014), $216.69 (2015), $261.29 (2016), $271.75
(2017), and $282.62 (2018)
$127.88 (2014), $132.99 (2015), $138.31 (2016), $143.84
(2017), and $149.60 (2018)
$80.82 (2014), $84.05 (2015), $87.42 (2016), $90.91 (2017),
and $94.55 (2018)

(Doc. 350 at PageID 12159, n.11.)
10

Michael Bowman

2006

12

99.60

$350

$34,860.00

Sarah Zadrozny

2013

5

72.98
797.20

$225

$195,790.50

Natalie Mayo

2011

7

$225

$27,180.00

Lauren Dodrill

2008

10

114.2
6.6
13.96
1.8

$350

$5,516.00

Paralegals and
Law Clerks
TOTAL:

NIA

NIA

216.56
1987.20
4492.78

$150

$330,564.00
$1,065,308.50

(Id.)
2. JGL
JGL has billed 694.85 hours on this matter for a total lodestar of $247,813.75. JGL
anticipates spending 15 hours following the filing of the attorneys’ fees motion on final approval
documents, preparing for and attending the final fairness hearing, and communicating regarding
settlement benefits, for a total of $6,750, raising the total amount of fees, without a multiplier, to
$254,563.75.8 (Doc. 350-2 at PageID 12486.) JGL seeks $26,039.59 in expenses, $582 of
which is anticipated travel expenses for the final fairness hearing. (Id.)
JGL’s billing and expense records, along with the qualifications of counsel, are supported
by the Declaration of Veronica B. Nannis, a partner at JGL. (Doc. 350-2.) Ms. Nannis earned
her J.D. and Master’s degrees from The Catholic University of America in 2002 and was
admitted to the Maryland bar that year. (Id. at PageID 12482.) She is a partner in JGL’s
complex civil litigation department and has a national practice representing whistleblowers in

8

JGL allocates its anticipated future hours as follows: 12 hours to Timothy Maloney and 3 hours to Veronica
Nannis.
11

fraud cases in federal court, some involving complex kickback schemes. (Id.) She has
represented plaintiffs for over 15 years. (Id.)
Timothy Maloney is co-class counsel in this case and is a shareholder of JGL. He earned
his J.D. from the University of Baltimore and was admitted to the Maryland bar in 1986. (Id. at
PageID 12483.) Mr. Maloney has represented plaintiffs for over 30 years and has tried over 100
cases in state and federal court. (Id.) He regularly tries complex civil cases in the areas of
commercial litigation, fraud, and constitutional violations. (Id.) Megan Benevento is an
associate at JGL who earned her J.D. from Georgetown University Law Center in 2016 and was
admitted to the Maryland bar that year. (Id. at PageID 12484.)
Ms. Nannis attests that the following chart reflects the experience levels, hours spent, and
hourly rates of the JGL employees who have worked on this case:
Attorney
Timothy Maloney

Year
Admitted
1986

Years in
Practice
32

Veronica Nannis

2002

16

Joseph Creed
Matthew Bryant
Timothy Creed

2005
2007
2009

13
11
9

Hours9

Hourly Rate10

Total Fee

31.65
79.50
20.56
166.90
.16
.15
43.29
55.10

$475
$602
$350
$483
$300
$300
$225
$410

$15,033.75
$47,859.00
$7,196.00
$80,612.70
$48.00
$45.00
$9,740.25
$22,591.00

9

Like SGS, JGL’s billing records include two separate sets of hours: the first is the Emery-specific time using a
proportional share calculation prior to this case being transferred and severed to this Court, and the second is the
Emery-only time since the transfer. The total number of hours for the firm includes both sets of hours. In addition,
JGL also calculated a proportionate share of fees prior to the case being transferred.
10

JGL did not supply Rubin Committee rates to the Court and instead urges the Court to find its rates reasonable
because they are in line with those from the Laffey Matrix, which is a schedule of rates used in the District of
Columbia area originally used in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983) rev’d in
part on other grounds, 746 F.2d 4 (D.C. Cir. 1984). (See Doc. 357.) The Civil Division of the United States
Attorney’s Office for the District of Columbia has adopted the Laffey Matrix for its own use and publishes an
updated matrix adjusted for inflation. (See https://www.justice.gov/usao-dc/file/796471/download (last accessed
9/12/2018)). JGL argues that it frequently appears in cases throughout the country and works closely with the U.S.
Attorney’s Offices and Department of Justice, and as such, uses the rates published by the U.S. Attorney’s Office in
the Laffey Matrix as the basis for their fees in federal court.
12

Alyse Prawde
Megan Benevento
Hina Hussain
Paralegals and Law
Clerks
TOTAL:

2014
2016
2011
N/A

4
2
7
N/A

4.80
112.80
3.33
56.71
119.9
694.85

$334
$302
$255
$150
$164

$1,603.20
$34,065.60
$849.15
$8,506.50
$19,663.60
$247,813.75

(Id.)
3. KMK
KMK, local counsel in this case, has billed 538.95 hours in this case for a total lodestar of
$206,459.75. (Doc. 350-3 at PageID 12552.) KMK anticipates eight additional hours of work in
this action in preparing final approval documents and preparing for and attending the final
fairness hearing, for an additional amount of $3,040, bringing the total requested amount of fees,
without a multiplier, to $209,499.75.11 (Id.) KMK also seeks reimbursement of $5,882.94 in
expenses.
Information about KMK’s billings, hourly rates, and qualification of its employees is
attested to by Gregory M. Utter, a partner at KMK. (Doc. 350-3.) Mr. Utter earned his J.D.
from the University of Cincinnati College of Law and was admitted to practice in Ohio in 1981.
(Id. at PageID 12550.) He has practiced law for over 35 years, with a focus on class action and
commercial litigation. (Id.) Melissa Schaub is an associate at KMK who earned her J.D. from
The Ohio State University Moritz College of Law in 2015 and was admitted to practice in Ohio
that year. (Id. at PageID 12552.)
Mr. Utter attests that the following chart depicts the experience levels, hours billed, and
hourly rate applicable to the KMK employees who worked on this matter:

11

KMK allocates its future hours as follows: 4 hours to Gregory Utter and 4 hours to Melissa Schaub.
13

Hours

Hourly Rate12 Total Fee

Gregory Utter

Year
Years in
Admitted Practice
37
1981

283.75

$500 (2015)
$525 (2016)
$540 (2017)

$148,593.00

James R. Matthews

1985

33

13.25

$580

$7685.00

Kelley B. Tracey
Sophia R. Holley
Melissa Schaub

2010
2013
2015

8
5
3

2.50
10.00
200.70

$330
$225
$200 (2016)
$220 (2017)

$825.00
$2250.00
$41,638.00

Sarah A. Vonderbrink 2015
Samantha M.
2016
Casper
TOTAL:

3
2

1.20
27.55

$195
$190

$234.00
$5234.50

Attorney

538.95

$206,459 .75

(Id.)
B. Law
Class counsel argue that their requested fee of $2,700,000 is reasonable under a
percentage-of the fund method, with a lodestar/multiplier cross-check. “In common fund cases,
the award of attorney’s fees need only ‘be reasonable under the circumstances.’” Van Horn v.
Nationwide Prop. and Cas. Ins. Co., 436 F. App’x 496, 498 (6th Cir. 2011) (quoting Rawlings v.
Prudential-Bache Props., Inc., 9 F.3d 513, 516 (6th Cir. 1993)). Ascertaining the reasonableness
of a common fund settlement requires the Court to consider factors not present in statutory feeshifting cases:

12

KMK provides the following Rubin Rates:
Attorney
Gregory Utter

Category
Senior Partner

Melissa Schaub

Young Associate
Intermediate Associate

Rubin Committee Rate (Year)
$450.08 (2015), $468.08 (2016), $486.81
(2017), and $506.28 (2018)
$225.36 (2016), $271.75 (2017), and $282.62
(2018)
14

The interest of class counsel in obtaining fees is adverse to the interest of the class
in obtaining recovery because the fees come out of the common fund set up for
the benefit of the class. In addition, there is often no one to argue for the interests
of the class (that their recovery should not be unfairly reduced), since it is to be
expected that class members with small individual stakes in the outcome will not
file objections, and the defendant who contributed to the fund will usually have
scant interest in how the fund is divided between the plaintiffs and class counsel.
Rawlings, 9 F.3d at 516. In this case, class members have not objected, nor does Defendant raise
any substantive objections to the amount of fees requested. Accordingly, it is up to the Court to
ensure that the proposed settlement is both fair to class members and fairly compensates class
counsel for the amount of work done and the results achieved.
There are two methods for calculating attorney fees: the lodestar and the percentage of
the fund. Van Horn, 436 F. App’x at 498. The “lodestar” is the number of hours reasonably
expended on litigation multiplied by a reasonable hourly rate. Gonter v. Hunt Valve Co., Inc.,
510 F.3d 610, 616 (6th Cir. 2007). The percentage-of-the-fund method is when the Court
determines a percentage of the settlement to award to class counsel. In re Telectronics Pacing
Sys., Inc., 137 F. Supp. 2d 1029, 1041 (S.D. Ohio 2001). District courts have discretion to select
the more appropriate method for calculating attorney fees in light of the circumstances of the
actual case before it. Id. at 1044. Consistent with the preference of many courts within the
Southern District of Ohio, the Court finds the circumstances of this case render the most
appropriate method to be to award a reasonable percentage of the fund with reference to the
lodestar and resulting multiplier. See Connectivity Sys. Inc. v. Nat’l City Bank, No. 2:08-cv1119, 2011 WL 292008, at *13 (S.D. Ohio Jan. 26, 2011).
1. Percentage of the Fund
Under the percentage-of-the-fund method for analyzing a request for attorney fees, the
court determines a percentage of the settlement to award class counsel based on case-specific
15

factors. See Godec v. Bayer Corp., No. 1:10-cv-224, 2013 WL 1089549, at *2 (N.D. Ohio Mar.
14, 2013) (citing Rawlings, 9 F.3d at 516). An award of one third of a common fund is within
the percentage range that courts have awarded in class action settlements in the Sixth Circuit. In
re Nat. Century Fin. Enters., Inc. Inv. Litig., Nos. 2:03-md-1565, 3:03-cv-467, 3:03-cv-656,
2009 WL 1473975, at *3 (S.D. Ohio May 27, 2009). However, it remains incumbent upon the
Court to evaluate the propriety of the fee award in this case based on the circumstances of this
case, not necessarily what has been appropriate in other cases.
To determine whether the fee requested by class counsel is appropriate, the Court will
refer to six factors identified by the Sixth Circuit in Ramey v. Cincinnati Enquirer, Inc.: (1) the
value of the benefit rendered to the class; (2) society’s stake in rewarding attorneys who produce
such benefits in order to maintain an incentive to others; (3) whether the services were
undertaken on a contingent fee basis; (4) the value of the services on an hourly basis; (5) the
complexity of the litigation; and (6) the professional skill and standing of counsel involved on
both sides. 508 F.2d 1188, 1196 (6th Cir. 1974). There is no formula for weighing these factors;
rather, the Court must consider the facts and circumstances of the case. Godec, 2013 WL
1089549, at *2. However, many courts consider the first Ramey factor to be the most
important—the value of the benefit to the class. Lonardo v. Travelers Indem. Co., 706 F. Supp.
2d 766, 795 (N.D. Ohio 2010).
a. Benefit to Class
As previously discussed, the value of the settlement benefits is high; class counsel
estimate that class members will recover approximately $1,160 per loan through a direct pay
structure designed to provide settlement benefits as quickly as possible with less administrative
costs. Class counsel assert this amount is equal to nearly 65% of the title and settlement charges
16

related to class members’ loans. Furthermore, the amount is collectible. Although RESPA
allows for treble damages, class counsel have provided evidence that collectability of a judgment
against Emery would have been uncertain due to the risk of regulatory action. Accordingly, the
Court is confident that the value of the benefits is high.
b. Society’s Stake in Rewarding Attorneys Who Produce Benefits
The second Ramey factor also weights in favor of reasonableness. The present lawsuit,
an off-shoot of a larger action, has provided a vehicle for recovery for 5,289 class members.
Only one class member has opted out. Individually, it would have been difficult for each class
member to pursue an action. Reasonable attorneys’ fees provide an important incentive in
attracting competent counsel and deterring abusive conduct.
c. Contingent Fee Basis and Value of Services
The third Ramey factor, whether class counsel undertook the litigation on a contingent fee
basis, accounts for the substantial risk involved in taking this case. Class counsel took this case
on a contingent-fee basis and incurred considerable risk of non-payment, investing 5,726.58
hours in this action. Thus, they undertook significant risk if this action did not proceed to a
successful resolution.
d. Complexity of the Litigation and Skill of Counsel
The fifth and sixth Ramey factors deal with the complexity of the litigation and the skill
and performance of class counsel. The alleged mortgage loan kickback scheme is part of a
broader series of cases, but Emery’s role was as the second largest number of loans of all lenders
involved in the scheme. As has been previously discussed, the case involved complex discovery
and motion practice, with the fate of this action resting on disputed motions. There is no doubt
this is a complex case involving complex legal issues.
17

Regarding the skill of counsel and quality of work performed, the lawyers involved in
this action have strong reputations and extensive experience, as has been outlined in the
declarations submitted to this Court. Overall, class counsel have demonstrated skill and
expertise in litigating this action. The substantial dollar amount of the negotiated settlement and
the fact that this settlement has a direct-pay structure also speaks to the expertise of counsel.
And, class counsel’s work did not stop when a settlement was reached: counsel have located
even more class members who will benefit from the settlement through extensive efforts since
reaching resolution of this matter, which is commendable.
The Court is satisfied that class counsel’s request for 30% of the settlement fund is
supported by the Ramey factors. Similar percentages from common funds have been awarded in
similar and far less complex cases. See Vigna v. Emery, 15-cv-51, 2016 WL 7034237 (S.D. Ohio
Dec. 2., 2016) (awarding 25% of the settlement fund and applying a cross-check multiplier of
1.47 in an FLSA action that was not particularly complex); Underwood v. Carpenters Pension
Trust Fund- Detroit and Vicinity, No. 13-cv-14464, 2017 WL 655622 (E.D. Mich. Feb. 17,
2017) (complex ERISA class action with meaningful recovery to class; awarding 28% of the
common fund; conducting a lodestar cross-check and applying a multiplier of 3).
2. Lodestar Cross-Check
The Court will now cross check class counsel’s fee request with the lodestar—the
number of hours reasonably expended on litigation multiplied by the hourly rate of counsel. The
result of this calculation “produces an award that roughly approximates the fee that the
prevailing party would have received if he or she had been representing a paying client who was
billed by the hour in a comparable case.” Perdue v. Kenny A., 559 U.S. 542, 551 (2010)
(emphasis in the original). The lodestar usually is strongly presumed to yield a reasonable fee.
18

City of Burlington v. Dague, 505 U.S. 557, 562 (1992). A reasonable fee is one which is
adequate to attract competent counsel but does not produce a windfall to attorneys. See Gonter,
510 F.3d at 616.
a. Hours Reasonably Expended
SGS is lead counsel on this case and began working on this action in 2013 when it
involved many defendants, including Emery. JGL began working on this action in December
2015, and also performed work generally applicable to the many defendants originally involved
in the Maryland action. Since this action was severed from the original action in Maryland and
transferred to this Court, both firms have spent many hours on time specific to Emery. All hours
have been well-documented in billing records, which the Court has carefully examined. KMK
was engaged as local counsel in this action in December 2015 and has only worked on the case
as it pertains to Emery. The Court has also carefully examined KMK’s billing records.
Although the Court finds that overall, the hours spent were reasonable, the time billed for
class certification briefing was high. There were several issues with the filing of documents,
which resulted in additional filings and conferences with the Court. However, the Court will not
strike any hours because Plaintiffs were successful in obtaining class certification. Furthermore,
that issue aside, the work performed on this case, and the results achieved, otherwise have been
excellent.
b. Reasonable Hourly Rate
“When determining a reasonable hourly rate, ‘courts use as a guideline the prevailing
market rate . . . that lawyers of comparable skill and experience can reasonably expect to
command within the venue of the court of record.’” Van Horn, 436 F. App’x at 498–99 (quoting
Gonter, 510 F.3d at 618). “A district court may rely on a party’s submissions, awards in
19

analogous cases, state bar association guidelines, and its own knowledge and experience in
handling similar fee requests.” Id.
As discussed supra, Courts in this district often refer to the 1983 Rubin Committee rates
as a basis for comparison, applying a 4% annual cost-of-living allowance to the original rates.
Hunter, 2013 WL 5467751, at *17. However, the Court is not bound by the Rubin Committee
rate. In recent years, the practice of law has become an increasingly national practice. Thus, the
Court will consider the nature of the case and attorneys involved in assessing the reasonableness
of attorney hourly rates, keeping in mind that the party seeking attorneys’ fees bears the burden
of proving the reasonableness of the hourly rates claimed. Van Horn, 436 F. App’x at 498 (party
seeking fee bears burden of proving reasonableness of the hourly rate requested); Schumacher v.
AK Steel Corp. Ret. Acc. Pension Plan, 995 F. Supp. 2d 835, 845 (S.D. Ohio 2014) (compiling
cases in which courts have awarded fees exceeding the Rubin rate); Hunter, 2013 WL 5467751,
at *17 (approving hourly rate higher than Rubin Committee rate).
The Court finds that the hourly rates requested by SGS, ranging from $475 for lead
counsel to $150 for paralegals and law clerks, to be in line with Rubin Committee rates and
reasonable for the venue and nature of this case. The Court has no modification to SGS’s rate
and finds that they are reasonable.
Overall, KMK’s rates are within the range of the applicable Rubin Committee rates, but
the rates requested for Gregory Utter and James Matthews are high at $540/hour and $580/hour,
respectively. Mr. Utter listed three billing rates, ranging from $500 to $525 to $540 per hour,
depending upon the year. The Court will take the average of the high and low rates for a blended
rate of $520/hour applicable to all time, finding that the blended rate best comports with and is in
the range of applicable Rubin Committee rates, while still being on the high end of the request.
20

The Court will apply the same rate to Mr. Matthews, who has less experience than Mr. Utter and
for whom the Court has no justification for a significantly higher rate. Otherwise, KMK’s rates
are within the range of the Rubin Committee rates and the Court finds them to be reasonable.
With the applicable modifications, the Court finds the following rates to be reasonable and
appropriate:
Hours

Hourly Rate13 Total Fee

Gregory Utter

Year
Years in
Admitted Practice
37
1981

283.75

$520

$147,550.00

James R. Matthews
Kelley B. Tracey
Sophia R. Holley
Melissa Schaub

1985
2010
2013
2015

33
8
5
3

13.25
2.50
10.00
200.70

$520
$330
$225
$200 (2016)
$220 (2017)

$6,890.00
$825.00
$2250.00
$41,638.00

3
2

1.20
27.55

$195
$190

$234.00
$5234.50

Attorney

Sarah A. Vonderbrink 2015
Samantha M.
2016
Casper
TOTAL:

538.95

$204,621 .50

JGL’s rates are higher and deviate from comparable Rubin Committee rates the most.
The rates are also two-tiered for some attorneys who have been on this case longer: a lower rate,
more in line with the Cincinnati billing rates, and a higher rate, in line with D.C. rates. As
explained at the final fairness hearing, JGL applied a lower billing rate prior to this case being

13

KMK provides the following Rubin Rates:
Attorney
Gregory Utter

Category
Senior Partner

Melissa Schaub

Young Associate
Intermediate Associate

Rubin Committee Rate (Year)
$450.08 (2015), $468.08 (2016), $486.81
(2017), and $506.28 (2018)
$225.36 (2016), $271.75 (2017), and $282.62
(2018)
21

transferred and severed. Thereafter, counsel applied their generally-applicable D.C.-area rates,
which comport with the Laffey matrix. For example, Timothy Maloney lists two rates: $475 and
$602; Veronica Nannis, senior partner level, lists rates of $350 and $483. In some cases, the
higher billing rates within the firm are disproportionate to the level of experience and rates of
other billing attorneys.
JGL argues in favor of its higher rates on the basis that they are generally-accepted rates
in the D.C.-area in which the firm is located. The Court is mindful that it must award a
reasonable hourly rate for the venue in which it is situated. The Northeast Ohio Coalition for the
Homeless v. Husted, 831 F.3d 686, 715 (6th Cir. 2016); Schumacher, 995 F. Supp. 2d at 856.
The Court already has deviated from Rubin Committee rates to account for the national practice
of the attorneys involved, but JGL’s rates are still in excess of the rates of co-counsel. The Court
is not persuaded that it should apply higher D.C.-area rates solely to JGL, where it has already
considered the national practice of all the attorneys involved to justify rates in excess of the
applicable Rubin Committee rates.
The Court finds that consideration of JGL’s two requested rates together justifies a
blended rate, achieved by adding the two rates together and dividing by two. The blended rate is
in line with the rates requested by the other counsel and within the range of comparable Rubin
Committee rates which are accepted in this venue. In addition, the blended rate is also a higher
rate that accounts for the national practice needed to prosecute a complex case such as this.
Some attorneys, however, only billed at one rate, which in some cases is too high. The rates for
Alyse Prawde (admitted to the bar in 2014) and Megan Benevento (admitted to the bar in 2016)
are disproportionately high compared to similarly-experienced attorneys. Accordingly, because
no blended rate can be applied to these two attorneys, the Court will apply the rates used for
22

comparable attorneys Sarah Zadrozny (admitted to the bar in 2013) and Samantha Casper
(admitted to the bar in 2016), respectively. The Court does not have any compelling reason to
justify significantly higher rates. The Court therefore finds that the following rates are
reasonable and appropriate:
Attorney

Year
Admitted

Years in
Practice

Hours

Hourly Rate Total Fee

Timothy Maloney
Veronica Nannis
Joseph Creed
Matthew Bryant
Timothy Creed
Alyse Prawde
Megan Benevento
Hina Hussain
Paralegals and
Law Clerks
TOTAL:

1986
2002
2005
2007
2009
2014
2016
2011
N/A

32
16
13
11
9
4
2
7
N/A

111.15
187.46
.16
.15
98.39
4.80
112.80
3.33
176.61

$538.50
$416.50
$300
$300
$317.50
$225
$190
$255
$157

694.85

$59,854.28
$78,077.09
$48.00
$45.00
$31,238.83
$1,080.00
$21,432.00
$849.15
$27,727.77
$220,352.12

c. Multiplier
A multiplier is, “[b]y its very nature, . . . a ‘bonus’ to the attorneys, compensating them
beyond what they would otherwise have earned from a paying client.” Van Horn, 2010 WL
1751995, at *5. Whether to enhance a lodestar calculation with a multiplier is within the sound
discretion of the district court. Wells v. U.S. Steel, 76 F.3d 731, 737 (6th Cir. 1996). However,
the Supreme Court has cautioned that courts should hesitate to employ a multiplier, especially
when the factors supporting a multiplier already have been considered in the underlying lodestar
calculation. Perdue, 559 U.S. at 554. Although Perdue was decided in the context of statutory
fee shifting under 42 U.S.C. § 1988 and did not address the propriety of multipliers in class
actions, the case nonetheless cautions that enhancements are atypical and should not be used
when the circumstances do not warrant it.
23

The parties ask the Court to approve a 1.75 cross-check multiplier on their lodestar. With
the changes to hourly rates, the new total lodestar is: $1,492,120.37,14 which yields a 1.81 crosscheck multiplier to achieve an award of 30% of the common fund.15 Overall, the legal work
performed and results obtained in this case have been exceptional. The Court finds that a 1.81
multiplier to the lodestar is within the range of multipliers this Court and others have found
reasonable. See, e.g., Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (upholding the
district court’s award of a 1.75 multiplier where the results achieved were extraordinary and the
case was highly controversial); Michel v. WM Healthcare Solutions, Inc., No. 1:10-cv-638, 2014
WL 497031, at *18 (S.D. Ohio Feb. 7, 2014) (1.8 multiplier, viewed as “generous” under the
circumstances in a junk fax case); AK Steel v. Lowther, No. 1:11-cv-877, 2012 WL 6676131
(S.D. Ohio Dec. 21, 2012) (lodestar multiplier of 3.06 in ERISA action was appropriate in light
of the circumstances of the case and extraordinary service rendered by counsel on behalf of the
class); Bower v. MetLife, Inc., No. 1:09-cv-351, 2012 WL 12991199, at *8 (S.D. Ohio Oct. 17,
2012) (finding a 1.75 multiplier on counsel’s $1.3 million lodestar to be within the range of
multipliers applied to lodestars in the Southern and Northern Districts of Ohio and collecting
cases); Underwood, No. 13-cv-14464, 2017 WL 655622 (ERISA class action; awarding 28% of
the common fund; conducting a lodestar cross-check and applying a multiplier of 3); but see Van

14

The total lodestar is calculated by adding the following total fees: $1,065,308.50 (SGS) + $204,621 .50 (KMK) +
$220,352.12 (JGL) = $1,490,282.12.
15

Although all three firms requested time for future hours, the Court will exclude these hours and finds that the
multiplier employed in its lodestar cross-check accounts for future work. Here, SGS, with the bulk of the requested
future hours (50 hours) did not breakdown its anticipated future lodestar by attorney and billing rate, which makes it
difficult for the Court to evaluate. The additional future hours requests were negligible and would not have a
significant impact on the overall fee request. In addition, the Court would not be inclined to award a multiplier on
future fees, as the risk of litigation is removed post-settlement. With these factors in mind, therefore, the Court will
instead base its lodestar cross-check only on time actually spent, with the understanding that there is still some
anticipated work to be done.
24

Horn, 436 F. App’x at 499 (court did not abuse its discretion in applying a reduced 1.2 multiplier
where class members had not received an especially good benefit, the claims rate was low, and
the case not based on a novel legal theory, factors not applicable here).
Accordingly, the Court will apply a 1.81 multiplier to the lodestar cross-check, which
demonstrates the reasonableness of class counsel’s requested fee of 30% of the common fund.
d. Expenses
Counsel request $81,450.31 in expenses, broken down as follows: SGS expenses:
$49,527.78; JGL expenses: $26,039.59; KMK expenses: $5,882.94. The Court has reviewed the
billed and anticipated expenses and finds that they are reasonable. Accordingly, it will award the
requested amount in expenses.
C. Service Awards
Frank and Shelly Palombaro, Kevin and Jennifer McAlpin, Gary Ratcliff, and David and
Melinda Alvarado seek Court approval of service awards in the amount of $5,000 per
representative. Under the Settlement Agreement, service awards are paid from the common fund
and are in addition to class representatives’ other settlement benefits. There are no objections to
the service awards.
District courts have approved incentive fund payments to named plaintiffs, but the Sixth
Circuit has been skeptical of such payments citing a fear that “incentive awards may lead named
plaintiffs to expect a bounty for bringing suit.” Roland v. Convergys Customer Mgmt. Grp., Inc.,
No. 1:15-CV-00325, 2017 WL 4873343, at *4 (S.D. Ohio Jan. 10, 2017) (citing Shane Grp.,
Inc., v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 310–11 (6th Cir. 2016) (citation
omitted)); see also, e.g., In re Dry Max Pampers Litig., 724 F.3d 713, 722 (6th Cir. 2013)
(stating that courts should be dubious of incentive awards that make the named plaintiff whole or
25

greater than whole because such named plaintiffs have less incentive to protect the interests of
class members). To ensure that amounts are not a bounty, the Sixth Circuit has instructed that
counsel must provide the court with specific documentation, in the manner of time sheets, of
time spent on the case by each recipient of an incentive award. Shane, 825 F.3d at 311.
In support of the requested service awards, class counsel Mr. Smith has attested to the
involvement of each class representative. (Smith Decl., Doc. 350-1 at PageID 12182.) In
addition, each class representative submitted a declaration attesting to his or her time spent
participating in the case. (Docs. 358, 358-1–358-7.) Although they are not time sheets in the
manner of attorney billing records, the Court is satisfied that the declarations estimate the time
spent on the case and demonstrate that each class representative has contributed meaningfully to
this case through their involvement. Class representatives have answered interrogatories,
responded to requests for production of documents, prepared and sat for deposition, consulted
with counsel, and made themselves available to counsel during settlement negotiations.
Having considered these declarations, the Court will approve the seven incentive awards
to the named class representatives. Each class representative’s participation contributed to a
meaningful recovery in this case. The award of $5,000 is not so disproportionate to the average
recovery of each class member so as to render it a “bounty.” In addition, although some class
representatives are married, the Court is satisfied that each individual participated fully in the
case. Thus, the service awards appropriately incentivize active, effective, and meaningful
participation in class action litigation, which is necessary to move the case forward and, in this
case, reach a meaningful settlement.

26

IV.

Conclusion
The Court finds that the settlement is fair, reasonable, and adequate. It also finds that

class counsel’s attorneys’ fees and expenses are reasonable, as are the service awards to the
named class representatives. Based on the foregoing, IT IS HEREBY ORDERED THAT:
1. Plaintiffs’ Motion for Final Approval of Emery Federal Credit Union Class Action
Settlement (Doc. 355) is GRANTED;
2. Class Counsel’s and Class Representatives’ Unopposed Petition for Attorneys’ Fees and
Expenses and for Class Representatives’ Service Awards for Emery Federal Credit Union
Settlement (Doc. 350) is GRANTED. Class counsel shall be awarded attorneys’ fees in
the amount of 30% of the common fund, or $2,700,000.00, and reimbursement of out-ofpocket expenses in the amount of $81,450.31, which shall be paid out of the common fund,
in accordance with the Settlement Agreement;
3. Class representatives Frank Palombaro, Shelly Palombaro, Kevin McAlpin, Jennifer
McAlpin, Gary Ratcliff, David Alvarado, and Melinda Alvarado shall each receive a
service award of $5,000.00, for a total of $35,000.00, for their participation in the litigation
and settlement. The service awards will be paid out of the common fund and shall be paid
in addition to the settlement benefits available to them, in accordance with the Settlement
Agreement;
4. Within twenty-one (21) days after entry of this Order, Emery shall remit to the Settlement
Administrator $8,950,000.00 into the common fund account to fully fund the settlement
benefits and other fees and expenses awarded, in accordance with the Settlement
Agreement;

27

5. From the common fund, less the adjustments set forth in the Settlement Agreement, the
settlement administrator shall remit the settlement benefits payable to the Emery Class
members, in accordance with the Settlement Agreement. Any funds remaining in the
common fund account after the payment of settlement benefits in accordance with and
pursuant to the process described in the Settlement Agreement, shall be contributed to and
remitted by the settlement administrator to Habitat for Humanity International, in
accordance with the Settlement Agreement;
6. All claims asserted in this action against Emery are hereby dismissed with prejudice;
7. The class representatives and the members of the Emery Class are bound by the terms of
the Release, Waiver, and Covenant Not to Sue set forth in Section 16 of the Settlement
Agreement, and are permanently enjoined from filing suit or asserting any claims, demands
and/or counterclaims with respect to matters released in Section 16 of the Settlement
Agreement;
8. The Court finds that there is no just reason for delay and that this Order shall be deemed a
final judgment against Emery under Rule 54(b) of the Federal Rules of Civil Procedure;
and
9. Should the parties to the Settlement Agreement or the members of the Emery Class bound
thereby fail to honor the terms of this Order, the non-breaching party may petition the Court
for enforcement of this final judgment Order.
IT IS SO ORDERED.
S/Susan J. Dlott___________________
Judge Susan J. Dlott
United States District Court

28