Bilewicz v. FMR LLC et al

MOTION for Order

D. Mass.July 3, 2014

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS LORI BILEWICZ, et al., ) and all others similarly situated, ) ) Plaintiffs, ) vs. ) ) FMR LLC; FMR LLC INVESTMENT ) COMMITTEE; ) and John and Jane Does 1-25, ) ) Defendants. ) Civil Action No. 13-10636-DJC AIDEN YEAW, ALEX C. BROWN, ) and all others similarly situated, ) ) Plaintiffs, ) Civil Action No. 14-10035-DJC vs. ) ) FMR LLC; FMR LLC RETIREMENT ) COMMITTEE; ) and John and Jane Does 1-25, ) ) Defendants. ) PLAINTIFFS’ UNOPPOSED MOTION FOR AN ORDER: (1) CONSOLIDATING THE ACTIONS; (2) CONDITIONALLY CERTIFYING THE SETTLEMENT CLASS AS A NON- OPT OUT CLASS AND APPOINTING CLASS COUNSEL; (3) PRELIMINARILY APPROVING THE PROPOSED CLASS ACTION SETTLEMENT; (4) DIRECTING NOTICE TO SETTLEMENT CLASS MEMBERS AND APPROVING THE PLAN AND FORM OF NOTICE; (5) APPOINTING A SETTLEMENT ADMINISTRATOR; (6) SCHEDULING A FAIRNESS HEARING; AND (7) SCHEDULING A HEARING ON PLAINTIFFS’ MOTION FOR FEES AND COSTS AND THE PAYMENT OF SERVICE AWARDS Case 1:13-cv-10636-DJC Document 52 Filed 07/03/14 Page 1 of 5 2 ACTIVE/73932530.3 Plaintiffs in Bilewicz, et al. v. FMR LLC, et al., No. 13-10636-DJC (D. Mass.) (“Bilewicz Action”), Lori Bilewicz, Jason Arcelay, Hassan Baami, Virginia G. Cherry, Carol A. Corner-Dolloff, Kevin Desrosiers, Paul Dinicola, Robert Dugdale, Mark Evangelista, Dominic Farinella, Joseph E. Friend, Elizabeth Cathe Harris, Ajua Cynthia Johnson, Michael W. Jones, Kevin M. Judd, Sr., Robert Massoud, Jason Mora, Joseph L. Otero, Paula M. Parrish, Deborah Pontes, Janet C. Prifti, Heath Racine, Darren J. Rillovick, Mary J. Rusiecki, Krista Schepanovsky, Robert Visconti, and Jacqueline M. Wheeler (collectively, “Bilewicz Plaintiffs”), and Plaintiffs in Yeaw, et al. v. FMR LLC, et al., No. 14-10035-DJC (D. Mass.) (“Yeaw Action”), Aiden Yeaw and Alex C. Brown (collectively, “Yeaw Plaintiffs”), having negotiated a Settlement Agreement in these two cases on behalf of themselves and a proposed Settlement Class with Defendant FMR LLC (“FMR”), hereby move the Court for an Order: (1) consolidating these two Actions; (2) conditionally certifying the proposed Settlement Class1 as a non-opt-out class and appointing Class Counsel; (3) preliminarily approving the Settlement; (4) directing notice to Settlement Class Members and approving the plan and form of notice; (5) appointing KCC Class Action Services LLC as Settlement Administrator; (6) scheduling a Fairness Hearing; and (7) scheduling a hearing on Plaintiffs’ motion for fees and costs and the payment of service awards (“Preliminary Approval Order”). Good cause exists for granting this motion, as the Settlement is well within the range of reasonableness and is the result of arm’s-length negotiations following hard-fought litigation and not the product of collusion, and Plaintiffs and Plaintiffs’ counsel have had the opportunity to assess thoroughly the strengths and weaknesses of their case and have also conditioned the settlement on confirmatory discovery. Certification of the proposed settlement class is warranted as all of the 1 Capitalized terms herein and in the accompanying Memorandum in support of this motion have the definitions set forth in the Class Action Settlement Agreement submitted herewith as Ex. 1 to the Memorandum of Law in Support of this Motion. Case 1:13-cv-10636-DJC Document 52 Filed 07/03/14 Page 2 of 5 3 ACTIVE/73932530.3 elements of Federal Rule of Civil Procedure 23(a) are satisfied and certification of a non-opt out class is appropriate under Rule 23(b)(1). Good cause exists for approving the proposed form and manner of giving notice of the settlement agreement because it is the best notice practicable under the circumstances and constitutes due and sufficient notice of the Settlement and the Fairness hearing to all persons affected by or entitled to participate in the Settlement, the hearing on the motion for fees or the Fairness Hearing, in full compliance with the requirements of due process and the Federal Rules of Civil Procedure. Finally, good cause exists for approving the remaining aspects of this motion because they are reasonably necessary to the establishment of a process for final approval of the proposed settlement and providing an opportunity to proposed Settlement Class Members to object to or to comment on the proposed settlement and Class Counsel’s request for an award of reasonable attorneys’ fees. Dated: July 3, 2014 Respectfully submitted, Todd M. Schneider Mark T. Johnson SCHNEIDER WALLACE COTTRELL BRAYTON KONECKY LLP 180 Montgomery Street, Suite 2000 San Francisco, CA 94104 Tel: (415) 421-7100 Fax: (415) 421-7105 Garrett W. Wotkyns Michael C. McKay SCHNEIDER WALLACE COTTRELL KONECKY LLP 8501 North Scottsdale Rd., Suite 270 Scottsdale, AZ 85253 Tel: (480) 428-0142 Fax: (866) 505-8036 /s/ Gregory Porter Gregory Y. Porter admitted pro hac vice BAILEY & GLASSER LLP 910 17th Street, NW Suite 800 Washington, DC 20006 Tel: (202) 463-2101 Fax: (202) 463-2103 John Roddy, BBO No. 424240 BAILEY & GLASSER LLP 125 Summer Street Suite 1030 Boston, MA 02110 Tel: (617) 439-6730 Fax: (617) 951-3954 Case 1:13-cv-10636-DJC Document 52 Filed 07/03/14 Page 3 of 5 4 ACTIVE/73932530.3 Peter Mougey Laura Dunning LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY & PROCTOR 316 S. Baylen Street, Suite 600 Pensacola, FL 32502 Tel: (850) 435-7121 Fax: (850) 436-6147 Joseph C. Peiffer Daniel J. Carr PEIFFER ROSCA ABDULLAH CARR & KANE, LLC 201 St. Charles Avenue, Suite 4610 New Orleans, LA 70170 Tel: (504) 523-2434 Fax: (504) 523-2464 Attorneys for Plaintiffs Case 1:13-cv-10636-DJC Document 52 Filed 07/03/14 Page 4 of 5 1 ACTIVE/73932530.3 LOCAL RULE 7.1(A)(2) CERTIFICATION AND CERTIFICATE OF SERVICE I, Gregory Y. Porter, hereby certify that plaintiffs’ counsel conferred with opposing counsel in an effort to resolve or narrow the issues presented in this motion prior to filing, and opposing counsel does not oppose the request for relief sought herein. I, Gregory Y. Porter, hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on July 3, 2014. /s/ Gregory Y. Porter Case 1:13-cv-10636-DJC Document 52 Filed 07/03/14 Page 5 of 5