Saltzman v. Pella Corporation et al

MOTION

N.D. Ill.March 11, 2013

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DR. LEONARD E. SALTZMAN, BRAD ZURN, TIM BASTIAANSE, JOSEPH PALMIOTTO, AND JUDITH MCCLOSKY, individually and on behalf of all others similarly situated, 06 CV 4481 Judge James Zagel JOINT MOTION FOR FINAL APPROVAL OF THE CLASS ACTION SETTLEMENT Plaintiffs, v. PELLA CORPORATION, an Iowa corporation, and PELLA WINDOWS AND DOORS, INC., a Delaware corporation, Defendants. Case: 1:06-cv-04481 Document #: 338 Filed: 03/11/13 Page 1 of 8 PageID #:5707 2 Plaintiffs Dr. Leonard E. Saltzman, Brad Zurn, Tim Bastiaanse, Joseph Palmiotto, and Judith McClosky, individually and on behalf of the Class, and Defendants Pella Corporation and Pella Windows and Doors, Inc. jointly and respectfully move this Court, pursuant to Federal Rule of Civil Procedure 23(e), for final approval of the proposed class action settlement (the “Settlement”), the Court preliminarily approved on November 1, 2012. (See Dkt. 301.) The terms of the Settlement are set forth in a Class Action Settlement Agreement (“the Settlement Agreement” or “Agreement”), which was attached as Exhibit 1 to the Joint Motion for Preliminary Approval of the Class Action Settlement. (See Dkt. 277-1.) For the reasons set forth in the parties’ preliminary approval briefing, dkts. 277, 280, 283, 284, 285, 289, 290, 291, 295, 297, and 305, and the Memoranda in Support of Joint Motion for Final Approval of the Class Action Settlement filed concurrently herewith, the Settlement reached between Plaintiffs and Defendants is fair, adequate, and reasonable and the Court should grant final approval of the Settlement. The Parties hereby request that the Court enter an Order under Rule 23(e) of the Federal Rules of Civil Procedure: 1. granting final approval of the certification of the Settlement Class, designation of the Named Plaintiffs as the representatives of the Settlement Class, and designation of Class Counsel as counsel for the Settlement Class; 2. granting final approval of the Settlement Agreement as fair, reasonable, and adequate to the Settlement Class; 3. adjudging that the Class Notice and Notice Plan implemented for the Settlement Class Members were performed in a reasonable manner, constituted the best notice practicable under the circumstances, constituted due and sufficient notice Case: 1:06-cv-04481 Document #: 338 Filed: 03/11/13 Page 2 of 8 PageID #:5708 3 of the Lawsuit and the Settlement, and fully satisfied the requirements of due process and Fed. R. Civ. P. 23; 4. ordering the dismissal with prejudice of all claims, causes of action, and counts alleged in the Lawsuit relating to Pella ProLine Casement Windows, and incorporate by reference the releases and covenant not to sue stated in this Agreement, with each of the Parties to bear its or his own costs and attorneys’ fees, except as provided in the Agreement; 5. ordering the dismissal without prejudice of all claims in the Lawsuit that do not relate to Pella ProLine Casement Windows; 6. providing for the release of all Released Claims and permanently enjoining the Settlement Class Members from asserting, filing, maintaining, or prosecuting any of the Released Claims in the future; 7. authorizing and directing the payment by Defendants of any such claim of attorneys’ fees and expenses, after having heard and considered any and all claims for attorneys’ fees, costs, expenses, and disbursements by any party’s counsel, and/or law firms as Ordered and awarded by the Court, which Order shall determine the extent of Defendants’ obligation for the payment of attorneys’ fees, costs, expenses, and disbursements; and shall provide that Defendants have no obligation for any attorneys’ fees, costs, expenses, or disbursements to any counsel or law firm, for any party, beyond that awarded in the Final Approval Order and consistent with the terms of the Agreement; Case: 1:06-cv-04481 Document #: 338 Filed: 03/11/13 Page 3 of 8 PageID #:5709 4 8. authorizing and directing the payment by Defendants of complete and valid Settlement Claims as approved by the Settlement Administrator as complete and valid Settlement Claims, in accordance with the terms of the Agreement; 9. preserving the Court’s continuing jurisdiction over the administration of the Settlement and enforcement of the Agreement; 10. determining that the Agreement and Settlement, and any proceedings taken pursuant thereto, are not, and should not in any event be offered, received, or construed as evidence of, a presumption of, concession of, or an admission by any Party of liability or non-liability or of the certifiability or non-certifiability of a litigation class, or of any alleged misrepresentation or omission in any statement or written document approved or made by any Party; provided, however, that reference may be made to the Agreement and the Settlement provided for therein in such proceedings as may be necessary to effectuate the provisions of the Agreement, as further set forth in the Agreement; 11. approving the Opt-Out List and determining that the Opt-Out List is a complete list of all Settlement Class Members who have timely and properly requested exclusion from the Settlement Class and, accordingly, shall neither share in nor be bound by the Final Approval Order and Judgment; 12. authorizing the Parties, without further approval from the Court, to agree to and adopt such amendments, modifications, and expansions of the Agreement and all Exhibits thereto as (1) shall be consistent in all material respects with the Final Approval Order and Judgment and (2) do not limit the rights of the Settlement Class Members. Case: 1:06-cv-04481 Document #: 338 Filed: 03/11/13 Page 4 of 8 PageID #:5710 5 A proposed order entitled “Final Approval Order” is attached hereto as Ex. 1.1 This motion is based on the Agreement and exhibits thereto, upon all the files, records, and proceedings herein, and upon the memoranda in support to be filed pursuant to the scheduling order to be set by the Court. EDWARDS WILDMAN PALMER LLP John A. Roberts 225 West Wacker Drive, 30th Floor Chicago, IL 60606-1229 Phone: (312) 201-2121 March 11, 2013 FAEGRE BAKER DANIELS LLP s/ John P. Mandler James A. O’Neal John P. Mandler Amy R. Fiterman Aaron Van Oort 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 Phone: (612) 766-7000 Attorneys for Defendants March 11, 2013 COMPLEX LITIGATION GROUP LLC s/ Richard J. Burke Richard J. Burke Paul M. Weiss Julie D. Miller 513 Central Avenue, Suite 300 Highland Park, IL 60035 Attorneys for Plaintiffs and Settlement Class 1 The attached draft Final Approval Order sets forth only those provisions which, by the terms of the Agreement, are required to be in the Order so as to avoid the Settlement becoming null and void. (See Agreement, ¶¶ 50, 114. Dkt. 277-1.) The attached draft Final Approval Order, for example, does not contain the more detailed analysis required by the Seventh Circuit for a Memorandum Opinion in support of the Court’s determination that the Settlement is fair, reasonable, and adequate. Plaintiffs’ and Defendants’ analysis in support of such a finding can be found at dkts. 277, 280, 283, 284, 285, 289, 290, 291, 295, and 297, and the Memorandum in Support of Joint Motion for Final Approval of the Class Action Settlement filed concurrently herewith. Case: 1:06-cv-04481 Document #: 338 Filed: 03/11/13 Page 5 of 8 PageID #:5711 6 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION DR. LEONARD E. SALTZMAN, BRAD ZURN, TIM BASTIAANSE, JOSEPH PALMIOTTO, and JUDITH MCCLOSKY , individually and on behalf of all others similarly situated, 06 CV 4481 Judge James Zagel Plaintiffs, v. PELLA CORPORATION, an Iowa corporation, and PELLA WINDOWS AND DOORS, INC., a Delaware corporation, Defendants. CERTIFICATE OF SERVICE I hereby certify that on March 11, 2013, I caused the following:  Joint Motion for Final Approval of the Class Action Settlement to be served on the following attorneys by Electronic Court Filing:  Hall Adams , III hall@adamslegal.net  Tod N. Aronovitz ta@aronovitzlaw.com  Eric C. Brunick ebrunick@brunickllc.com  Richard J. Burke richard@complexlitgroup.com,debs@complexlitgroup.com  Mark S. Fistos mark@pathtojustice.com  Amy Rae Fiterman amy.fiterman@faegrebd.com  Scott A. George sgeorge@seegerweiss.com,lgriffith@seegerweiss.com,klaukaitis@seegerweiss.com  Peter F. Higgins phiggins@lipkinhiggins.com,sandra@lipkinhiggins.com  Steven R. Jaffe steve@pathtojustice.com,beth@pathtojustice.com  George K. Lang langlawoffice@att.net Case: 1:06-cv-04481 Document #: 338 Filed: 03/11/13 Page 6 of 8 PageID #:5712 7  John P. Mandler john.mandler@faegrebd.com,barbara.nallick@faegrebd.com,shane.anderson@faegrebd.c om,kristin.mitchell@faegrebd.com  James A O'Neal james.oneal@faegrebd.com  David Max Oppenheim doppenheim@andersonwanca.com,buslit@andersonwanca.com,ptatak@andersonwanca.c om  Joseph Darrell Palmer darrell.palmer@palmerlegalteam.com,maria.carapia@palmerlegalteam.com  John Jacob Pentz , Iii jjpentz3@gmail.com  Douglas L. Prochnow dprochnow@edwardswildman.com,lkachurik@edwardswildman.com,ecffilings@edward swildman.com  John A. Roberts jroberts@edwardswildman.com,vhanlon@edwardswildman.com,ecffilings@edwardswil dman.com  Benjamin A. Schwartzman bas@andersenbanducci.com,kas@andersenbanducci.com,mer@andersenbanducci.com,k cr@andersenbanducci.com,ajg@andersenbanducci.com,cme@andersenbanducci.com  Jonathan Shub jshub@seegerweiss.com,lgriffith@seegerweiss.com,klaukaitis@seegerweiss.com  Hillard M. Sterling hsterling@lbbslaw.com,ggnolfo@lbbslaw.com  William M Sweetnam wms@sweetnamllc.com  Paul M. Weiss paul@complexlitgroup.com,juliem@complexlitgroup.com  John A. Yanchunis jyanchunis@forthepeople.com and I certify that I caused a copy of the same to be mailed by U.S. mail to the following attorney: Christopher A. Bandas Bandas Law Firm, P.C. 500 N. Shoreline Blvd., Ste. 1020 Corpus Christi, TX 78401 Dated: March 11, 2013 s/ John P. Mandler John P. Mandler FAEGRE BAKER DANIELS, LLP 2200 Wells Fargo Center 90 South Seventh Street Case: 1:06-cv-04481 Document #: 338 Filed: 03/11/13 Page 7 of 8 PageID #:5713 8 Minneapolis, MN 55402-3901 (612) 766-7000 Attorneys for Defendants Case: 1:06-cv-04481 Document #: 338 Filed: 03/11/13 Page 8 of 8 PageID #:5714