Opinion
Cause of Action No: 04-2018-CM.
June 23, 2005
The Plaintiffs and Defendants have entered into Stipulation and Settlement Agreement ("Settlement Agreement") dated May 13, 2005. The Court has reviewed and considered the terms of the Settlement Agreement and presentation by counsel of the reasons underlying the Settlement contemplated thereby, and the appropriateness of conditional certification of the Settlement Class. The Court determines, preliminarily, without prejudice to the rights of Settlement Class Members to object to the Settlement, that all the requirements of Rule 23(a), Rule 23(b)(2), and Rule 23(b)(3) have been satisfied with respect to the conditional maintenance of this action as a Class Action solely for the purpose of considering and acting on the Settlement; that the terms of the Stipulation and Settlement Agreement are fair, adequate and reasonable and that they have been negotiated at arms' length and without collusion; that certification of a Settlement Class, conditioned upon final approval of the Settlement Agreement, is appropriate; that the Notice to class members proposed by plaintiffs in their Motion for Class Certification for Settlement Purposes is appropriate in form and content; that mailing such Notice by first class mail to all members of the class whose names and addresses are known by Class Counsel will adequately inform such class member of their rights; that publication of a summary of such Notice in the weekend edition of USA Today, and placing such Notice on the Money Tree Mortgage website for thirty (30) consecutive days beginning on the date of the first publication of Notice in USA Today, will adequately inform absent Settlement Class Members of their rights; and, that such Notice constitute the best practicable notice under the circumstances and comport with due process.
IT IS HEREBY ORDERED:
1. Class Certification. This action is certified as a class action on behalf of the Settlement Class, as defined in the Settlement Agreement, under subparagraphs (a), (b)(2) and (b)(3) of Rule 23 solely for the purpose of considering and acting on the proposed Settlement. For Settlement purposes, this action shall be maintained as a Class Action on behalf of the following Class of Plaintiffs:
"All persons, or entities, who were contacted through the internet by Money Tree Mortgage, Inc., or Todd Webster, Randy Webster, Leslie Webster, or any of them, to whom Money Tree Mortgage, Inc., or Todd Webster, Randy Webster, Leslie Webster, or any of them, offered to provide home loan brokerage services for a fee, including, but not limited to, all such persons or entities who have filed complaints with the Better Business Bureau, wherever located, the Johnson County Kansas District Attorney's office, the Kansas Attorney General's office, the Georgia Attorney General's office, the Kansas Banking Commission, or any other state or federal regulatory or law enforcement agency."
2. Class Representatives. The Court approves for settlement purposes the following individuals as Class Representatives in this case: Theodore C. Wells, Jr., Dennis R. Chase, and Timothy and Heather Risinger, on Behalf of Themselves and All Others Similarly Situated.
3. Class Counsel. The Court has approved the following attorneys and Law Firms as Counsel to represent the Class in this action:
GRISSOM LAW OFFICE Barry R. Grissom #10866 7270 W. 98th Terrace Building 7, Suite 220 Overland Park, KS 66212 (913) 341-6616/(913) 341-4780 Fax Attorney for Plaintiffs and all others similarly situated
4. Proposed Settlement. The Proposed Settlement between the Plaintiff Class and Defendants appears, upon preliminary review, to be within the range of reasonableness and accordingly shall be submitted to the Class Members for their consideration and for a hearing under Fed.R.Civ.P. 23(e).
5. Hearing. A hearing shall be held on December 5, 2005, at 2:00 p.m. to determine any objections to this case being a class action, and any objection to class representation, and to determine the lawfulness, reasonableness, adequacy and fairness of the Settlement, whether the Settlement should be finally approved, and whether an Order granting Final Judicial Approval should be entered thereon. At that time or as soon thereafter as practicable, the Court will also consider and rule upon all objections, if any, to the proposed Settlement, any pending disputes as to settlement allocations, and any pending Applications for award of Attorney's fees, expenses, class representative compensation, and for reimbursement of costs, and any objections thereto, all subject to the following:
(a) Objections by Class Members (who do not timely exclude themselves from the Class) to the proposed Settlement, to this case being maintained as a class action, to class representation, to proposed settlement allocations, and/or to any pending application for award of attorney fees, expenses, class representative compensation, or for reimbursement of costs, will be considered only if submitted in writing and mailed to the Clerk of the United States District Court for the District of Kansas at 500 State Avenue, Kansas City, Kansas 66101 postmarked on or before November 7, 2005.
(b) At the hearing, Class Members (who do not timely exclude themselves from the Class) may be heard orally in support of or in opposition to the proposed Settlement, to this case being maintained as a class action, to class representation, to proposed settlement allocations, any Application for Attorneys Fees, class representative compensation, and/or reimbursement of expenses, provided such persons mail to the Clerk of the United States District Court for the District of Kansas at 500 State Avenue, Kansas City, Kansas 66101 postmarked on or before November 7, 2005, a written notification of the desire to appear personally, indicating briefly the nature of the objection or the nature of the matter on which they otherwise wish to be heard;
(c) Class Counsel and counsel for the Defendants shall file or otherwise provide to the Court all written objections, summaries of opt-out notices, and other material pertinent to the subject-matter of the hearing or final approval of the Settlement in a timely fashion so as to enable the Court to give due consideration to such matters and the arguments pertaining thereto before and/or at the time of the hearing. Counsel for the Class and for the Defendants should be prepared at the hearing to respond to objections, if any, filed by Class Members and to provide other information, as appropriate, bearing on whether or not the Proposed Settlement, Applications, and proposed distribution of settlement proceeds should be approved.
6. Notice. The mailing of Notice to all persons and entities whose addresses are known to Class Counsel, and the publication of Notice in USA Today and on the Money Tree Mortgage, Inc. website, as provided herein, constitutes the best Notices practical under the circumstances to the Settlement Class; and such Notices comport with due process and are due and sufficient notice for all purposes to all persons entitled thereto.
(a) Consistent with the Parties' Stipulations and Settlement Agreement, the Court orders Class Counsel to mail Notice in the form attached hereto as Exhibit B, by first class mail to all members of the class whose names and addresses are known to Class Counsel; such Notice shall be mailed on the date which is the later of a date within twenty (20) days from the date of entry of this Order or the date the name and address of the Class Member becomes known to Class Counsel;
(b) Consistent with the Parties' Stipulations and Settlement Agreement, the Court orders Class Counsel to post Notice in the form attached hereto as Exhibit B on the Money Tree Mortgage, Inc. website for a period of thirty (30) consecutive days beginning on the date of first publication of Notice in USA Today.
(c) Consistent with Parties' Stipulation and Settlement Agreement, the Court further orders that Notice in the form attached hereto as Exhibit A be published in the weekend edition of USA Today with the first day of such publication being within twenty (20) days from the date of entry of this Order.
7. Exclusion. Class Members may exclude themselves from the Class by filing a notice of such exclusion with the Court in this case, and serving a copy of such request for exclusion upon plaintiff's class counsel and defendants' counsel.
8. List of Class Members. Class Counsel will file with the Clerk by August 1, 2005, an Affidavit certifying notice has been mailed by first class mail, and has been published in USA Today and on the Money Tree Mortgage, Inc. website as provided. Class Counsel is authorized to respond to inquiries from Settlement Class members concerning the Settlement and the status of the case.
IT IS THEREFORE ORDERED that the parties' Joint Motion for Preliminary Approval of Settlement (Doc. 33) and Plaintiffs' Motion for Class Certification for Settlement Purposes (Doc. 35) are granted.