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  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
  • LAURA S LEHMAN VS. TRANSBAY JOINT POWERS AUTHORITY ET AL EMINENT DOMAIN document preview
						
                                

Preview

1 Daniel L. Rottinghaus, Esq., California State Bar No. 131949 Scott M. Mackey, Esq., California State Bar No. 222217 2 Seema N. Kadaba, Esq., California State Bar No. 304952 BERDING & WEIL LLP ELECTRONICALLY 3 2175 N. California Blvd., Suite 500 F I L E D Walnut Creek, California 94596 Superior Court of California, 4 Telephone: 925/838-2090 County of San Francisco Facsimile: 925/820-5592 04/08/2020 5 Clerk of the Court Allan Steyer, Esq., California State Bar No. 100318 BY: ANNIE PASCUAL 6 D. Scott Macrae, Esq., California State Bar No. 104663 Deputy Clerk STEYER LOWENTHAL BOODROOKAS 7 ALVAREZ & SMITH LLP 235 Pine Street, 15th Floor 8 San Francisco, California 94104 Telephone: (415) 421-3400 9 Facsimile: (415) 421-2234 10 Attorneys for Plaintiffs MAUI PEAKS CORPORATION, NGMII LLC, and IAN KAO 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN FRANCISCO 14 15 LAURA S. LEHMAN, et al., Lead Case No. CGC-16-553758 16 Plaintiffs, PLAINTIFFS’ SEPARATE STATEMENT IN SUPPORT OF MOTION FOR PRELIMINARY 17 v. APPROVAL OF CLASS ACTION SETTLEMENT 18 TRANSBAY JOINT POWERS AUTHORITY, et al., 19 Defendants. 20 Date: And Related & Consolidated cases. Time: 21 Location: Courtroom 303 This document applies to 22 Maui Peaks Corporation, et al. v. Mission 23 Street Development, et al. – CGC17-17- 560322 24 25 26 27 28 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 Pursuant to this Court’s March 25, 2020 Tentative Ruling, Plaintiffs respectfully submit 2 the following Separate Statement in Support of Preliminary Approval of Class Action Settlement 3 reproducing the Tentative Ruling, and citing to the sections of the brief, declarations and exhibits 4 filed herewith, that address the points in the Tentative Ruling. TENTATIVE RULING 5 6 Plaintiffs' motion for preliminary approval was set for a hearing on March 24, 2020. Due to the public health issues presented by the COVID-19 pandemic, on March 18, 2020, the Court 7 vacated the hearing. In the interest of moving the unopposed motion along to a prompt resolution during the Court's significantly reduced operations, the Court issues the tentative ruling below. The 8 parties are hereby authorized to submit a supplemental filing responding to the issues raised in this tentative ruling on or before May 5, 2020. 1 Unless otherwise ordered, no supplemental filings will 9 be accepted after May 5, 2020 (or such earlier date noticed by counsel). Upon receipt and review 10 of the supplemental filing, the Court will set a continued hearing date consistent with Court operations in light of the health issues presented by the COVID-19 pandemic. Although the 11 departmental email inbox (d303@sftc.org) will not be monitored daily, the Court will respond as soon as practicable. 12 The Court's concerns regarding the motion are summarized in more detail below. 2 13 14 At the outset, the Court appreciates the complexity of this matter, and the parties' diligent efforts to achieve a global settlement, of which this Class Action is an integral part. The Court also 15 notes it is likely that the settlement will be preliminarily approved in some form. However, as noted infra, several issues must be addressed so the Court may conduct its independent review of the 16 settlement. 17 I. Class Certification 18 A. Numerosity and Ascertainability 19 The class definition clearly sets forth an identifiable group of persons - individuals who own(ed) or purchas(ed) units in the Millennium Tower prior to or after May 10, 2016 - using 20 objective criteria identified through "public records and the records of the Developer Defendants 21 and the Millennium Tower Association." (MPA, 19:13-19.) The putative class includes approximately 161 unit purchasers. (Id.) 22 • While these elements will likely be satisfied, Plaintiffs include only argument. (Id.) 23 Plaintiffs must provide the relevant evidence in connection with the preliminary approval motion. 24 1 The Court has selected May 5, 2020 in order to give counsel sufficient time given the societal restrictions posed 25 because of the COVID-19 pandemic. However, if counsel submit papers in advance of May 5, 2020, and advise the Court that their filings are complete in response to the tentative ruling, the Court will consider those papers earlier. 26 Conversely, if the parties need more time to file a response to the tentative ruling, counsel should so advise the Court via d303@sftc.org. 27 2 This summary is prepared to assist the parties in preparing further briefing. It may not identify every concern that will 28 be presented by subsequent briefing. 2 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 It is possible that this evidence was previously submitted in support of Plaintiffs' previously filed motion for class certification. 3 Supplemental Memorandum of Points and Authorities in 2 Support of Motion for Preliminary Settlement Approval (“Br.”) at II A, p. 8; Declaration of 3 D. Scott Macrae (“Macrae Decl.”) ¶ 10 and Ex. 11: Settlement Class Member Chart. 4 B. Commonality and Predominance With respect to commonality and predominance, Plaintiffs summarily argue that there are 5 common questions of law and fact, including "[1] whether the Settling Parties caused the Class any harm, [2] whether this was a failure to disclose material facts to Class Members and/or have 6 indemnity obligations to Class Members under the Easement Agreement, [and] [3] issues that 7 would be discussed as to the cross-claims." (Id. 19:20-20:6.) However, Plaintiffs fail to articulate the evidence that shows (at least tangentially) that common questions predominate. 8 • While these elements will likely be satisfied, Plaintiffs include only argument. 9 Plaintiffs must provide the relevant evidence in connection with the preliminary approval motion. It is possible that this evidence was previously submitted in support of Plaintiffs' previously filed 10 motion for class certification. 4 Br. at II B, (1)-(3), pp. 8-12; Macrae Decl. ¶¶ 12-18, and Ex. 13: 11 Risberg Declaration; Ex. 14: Easement Agreement between TJPA and Mission Street Development; Ex. 15: Final Public Reports for The Millennium Tower; Ex. 16: Deposition of 12 Richard Baumert at 585:8-587:2; Ex. 17: Deposition of Jennifer Iles at 138:18-139:9; Ex. 18: Deposition of Carrie Leung at 187:11-16, 188:2-189:8; and Ex. 19: Deposition of Bryant 13 Kowalczyk at 354:24-357:7. 14 • Plaintiffs must also explain the commonality/predominance "issues that would be 15 discussed as to the cross-claims." Br. at II B, 1, p. 9-10; Macrae Decl. ¶¶ 19, 20 and Ex. 9: Case Management Orders; Ex. 21: Mission Street Development LLC’s and Millennium Partners 16 Management LLC’s Consolidated Verified Petition for Writ of Mandate; and Ex. 22: TJPA’s Amended Cross-Complaint; Declaration of Allan Steyer ¶ 10. 17 18 C. Typicality and Adequacy Class Counsel summarily argues typicality and adequacy. (MPA, 20:7-21:8.) With respect 19 to typicality, as with the class, Class Counsel contends that Plaintiffs purchased units in the Millennium Tower and include the same allegations of harm. (Id.) With respect to Plaintiffs' 20 adequacy, Class Counsel asserts that Plaintiffs do not have any conflicts with the Class, have vigorously prosecuted this action, and seek monetary relief under the same set of facts and legal 21 theories. (Id.) With respect to Class Counsel's adequacy, Class Counsel argues that they are 22 sufficiently experienced in "class actions and construction defect litigation." (Id.) 23 • While these elements will likely be satisfied, Plaintiffs include only argument. Plaintiffs must provide the relevant evidence in connection with the preliminary approval motion. 24 Br. at II C, pp. 12-14. It is possible that this evidence was previously submitted in support of 25 26 27 3 However, since the motion for class certification was taken off calendar, the papers filed for that motion were not reviewed by the Court and cannot provide support for the present motion. 28 4 See footnote 3, supra. 3 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 Plaintiffs' previously filed motion for class certification. 5 2 ○ Plaintiffs' counsel must submit a declaration confirming their adequacy as 3 counsel. Br. at II C, p. 13; Declaration of Daniel Rottinghaus (“Rottinghaus Decl.”) ¶¶ 2-15, and Ex. 1: Berding & Weil LLP Firm Resume; Steyer Decl. ¶¶ 2-15, and Ex. 1: Steyer 4 Lowenthal Boodrookas Alavrez & Smith LLP Firm Resume. 5 ○ Each Plaintiff must provide a declaration setting forth the basic material facts about Plaintiffs' unit ownership/purchase demonstrating adequacy to represent a settlement class, 6 and typicality. Br. at II C, pp. 12-14; Declaration of Ian K. Kao (“Kao Decl.”) ¶¶ 2-3; 7 Declaration of Yan Shamis (“Shamis Decl.”) ¶¶ 2-3; Declaration of Dr. Ge Li (“Li Decl.”) ¶¶ 2-4. 8 II. Basic Settlement Terms 9 Settlement Class Members Definition: The Settlement Class definition may be different 10 than the class definition within the Third Amended Complaint. (Compare Class Action Settlement 11 Agreement, ¶2.47 ("Proposed Settlement") with Third Amended Complaint ("TAC") ¶71.) The TAC alleges grievances against Developer Defendants on behalf of "[a]ll individuals or entities 12 who own one or more condominium units in The Millennium Tower which they purchased from the Developer Defendant's and are members of one of the three Residences Associations [''the 13 nondisclosure class"]." (Id.) The TAC also alleges grievances on behalf of "[a]ll individuals or entities who own one or more condominium units in The Millennium Tower that they purchased 14 prior to May 10, 2016, and are members of one of the three Residences Associations ['the indemnity 15 class']." (ld.) While the TAC definition references the three Residences Associations, the settlement class definition does not. The difference between the class definition as pled, if any, and the 16 settlement class definition, must be explained (i.e. clarify the genesis of the settlement class definition). Br. at III A, pp. 14-15. To the extent the settlement class definition is substantially the 17 same as the class definition as pled, the Court will not require modification. 18 Class Representatives: The Joint Stipulation and Order Granting Leave to File Third 19 Amended Complaint states that Plaintiff Maui Peaks Corporations sold its units in Millennium Tower, and therefore could no longer serve as class representative. (Joint Stipulation and Order 20 Granting Leave to File Third Amended Complaint (June 27, 2019).) Thus, the TAC was amended to reflect that (1) Maui Peaks Corporation is no longer a class representative, and (2) Ian Kai would 21 be added as a class representative. (TAC ¶¶71-81.) Thus, why should Maui Peaks be entitled to a 22 class representative service award, or be included in the Class Representative definition in the Proposed Settlement? (Proposed Settlement, ¶¶2.15-2.16; see also MPA, 16:20-17:8.) While 23 service awards are typically evaluated at final approval, for efficiencies sake, the parties should address this now. Br. at III B, p. 15; Shamis Decl. ¶ 5. 24 25 26 27 28 5 See footnote 3, supra. 4 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 III. Kullar Analysis 6 2 A. Investigation and Discovery 3 Prior to mediation, "Class Counsel reviewed thousands of pages of documents produced in the litigation, prepared for and attended dozens of depositions, and retained experts, including a 4 damages expert who prepared a report which was filed with the class certification motion." (MPA, 10, 17:9-23.) Plaintiffs must submit evidence to support these contentions in order to demonstrate 5 sufficient investigation and discovery. Br. at IV A, pp. 15-16; Rottinghaus Decl. ¶¶ 4-15; Steyer Decl. ¶¶ 4-15. 6 7 B. Experience of Counsel Class Counsel appears experienced. (MPA, 13:10-14:14, 21:3-4.) However, as stated supra, 8 Plaintiffs must provide evidence of Class Counsel's experience, which may be in the form of a firm resume and declaration of counsel as to the individual attorney's relevant background and 9 experience. Br. at IV B, pp. 16; Rottinghaus Decl. ¶ 2-3, Exhibit 1: Berding & Weil LLP Firm Resume; Steyer Decl. ¶ 2-3, Exhibit 1: Steyer Lowenthal Boodrookas Alavrez & Smith LLP 10 Firm Resume. 11 C. Claim Value 12 Plaintiffs' motion is devoid of any evidence to support an independent finding that the $29,844,000.00 figure is reasonable. Plaintiffs' Counsel estimates $29,844,000.00 reflects 30% of 13 the verdict value/maximum damages for pre-May 10, 2016 Class Members only. (Motion, 16 & fn. 8.) However, Plaintiffs' Counsel does not provide a maximum value of the case/verdict value in 14 general or on a claim-by-claim basis. 7 Br. at IV C, pp. 18-20; Macrae Decl. ¶¶12, 26 and Ex. 15 13: Risberg Declaration. Nor does Plaintiffs' counsel provide a percentage of the maximum value recovered here for post-May 10, 2016 class members. Br. at IV C, p. 19; Steyer Decl. ¶ 17. This 16 information must be provided. 17 The Court requires such information so the Court can be independently satisfied that the 18 $29,844,000.00 is reasonable. Thus, Plaintiffs must walk through the "reasonableness" argument with evidence. Br. at IV C, pp. 16-20; Macrae Decl. ¶¶12, 26 and Ex. 13: Risberg Declaration; 19 Exhibits 23-25: Defendants’ Answers to Second Amended Complaint; Steyer Decl. ¶ 17. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95 ["The court has a fiduciary responsibility 20 as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement."].) This could include expert evidence, or evidence from Class Counsel. 21 (MPA, 16, fn. 8 [discussing appraisal expert], 10:16-17 [discussing a "damages expert who 22 prepared a report which was filed with the class certification motion."].) 23 24 25 26 6 Kullar v. Footlocker Retail, Inc. (2008) 168 Cal.App.4th 116. The Court of Appeal held that the Court has a fiduciary duty to have sufficient information before it determines if the proposed class action settlement is fair, adequate, and 27 reasonable. 7 If calculations were not completed on a claim-by-claim basis, the parties should explain why this is so.” Br. at IV C, 28 p. 18. fn. 6. 5 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 D. Recovery 2 1. Monetary Relief 3 The monetary component of this settlement is $29,844,000.00. That is about 30% of the maximum amount pre-May 10, 2016 Class Members could have recovered. (MPA, 14:15-16:9.) 4 Plaintiffs insist settling for $29,844,000.00 is reasonable as a result of (i) "a number of defenses asserted by the Settling Parties present serious threats to the claims of the Plaintiffs and the other 5 Class Members"; (ii) the risk of class certification denial (specifically regarding the hurdles on individualized damages, and superiority 8); (iii) the risk of not recovering diminution-in-value 6 damages; (iv) the risks of trial; and (v) the risk of depleting insurance policies. (ld.) 7 While some discount is certainly appropriate to account for the each of the items discussed 8 supra, each of Plaintiffs' justifications must be explained in more detail (and be supported by case law) for the Court to assess the reasonableness of the settlement. Br. at IV C, pp. 16-20; Macrae 9 Decl. ¶¶12, 26 and Ex. 13: Risberg Declaration; Exhibits 23-25: Defendants’ Answers to Second Amended Complaint; Steyer Decl. ¶ 17. In sum, Plaintiffs must demonstrate why it was 10 reasonable that Plaintiffs were unable to obtain the maximum value (for both pre-May 10, 2016 11 and post May 10, 2016 class members) through settlement. This should include the factual and legal basis for each claim, and the strength of material claims and defenses. Br. at IV C, pp. 16- 12 20; Macrae Decl. ¶¶12, 26 and Ex. 13: Risberg Declaration; Exhibits 23-25: Defendants’ Answers to Second Amended Complaint; Steyer Decl. ¶ 17. Specifically: 13 • What are the defenses outlined in (i), and what case law supports Defendants' 14 defenses? Br. at IV C, pp. 16-19; Macrae Decl. Exhibits 23-25: Defendants’ Answers to Second 15 Amended Complaint. 16 • For (ii), how would the damages to each Class Member's property create individual issues which would have defeated predominance and made the case unmanageable? Br. at IV C, 17 p. 16-17. Usually, individualized damages do not preclude certification. (City of San Jose v. 18 Superior Court (1974) 12 Cal.3d 447, 463 ["While we have held in several cases the failure of the class judgment to establish individual damage would not be fatal, in each the class judgment to be 19 rendered would have established the basic issue of liability to the class"].) 20 • For (iii), plaintiffs must explain how the following applies here: "Defendants would argue that property owners with tort claims may only recover either the cost of repairs or diminution 21 in value damages; not both. See Safeco Ins. Co. v. J & D Painting, 17 Cal.App.4th 1199, 1202 22 (1993) (granting summary judgment on diminution-in-value claim where the property had already been repaired.)." Br. at IV C, p. 17. For example, did some property owners already repair their 23 units? Br. at IV C, pp. 17. 24 • No further information is needed for (iv)-(v). 25 • Plaintiffs may also point to analogous cases where similar percentages of the 26 maximum damages/verdict value were approved. Br. at IV C, p. 19-20. 27 28 8 There does appear to be some risk here, as each Class Member's recovery will be large. (Basurco v. 21st Century Ins. Co. (2003) 108 Cal.App.4th 110, 120-121.) 6 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 2. Other Relief "In addition to receiving monetary compensation, the global settlement provides for the 2 [perimeter pile] Upgrade of The Millennium Tower under the control of the Millennium Tower 3 Association, which will benefit all unit owners including Class Members." (MPA, 7; Weinstein Decl., 7; Proposed Settlement ¶¶2.56-2.59, 12.1-12.3.) In short, Plaintiffs, among other parties in 4 the Lehman consolidated proceedings, have provided significant value to the class 9 by remedying the underlying harm at-issue in this action: the settlement and tilt of the Tower. (Global Settlement 5 Agreement, ¶¶2.1-2.42 [detailing the Upgrade plans and their projected success].) Further, there will also be Non-Upgrade Repairs, ''to address any defects or damages to the Subject Property," 6 and Ongoing Operations. (Global Settlement Agreement, ¶¶1.21-1.22.) This other relief favors 7 approval. However, the following must be addressed: 8 • What is the estimated value of the Upgrade and Non-Upgrade repairs, and Ongoing Operations? Br. at IV C, p. 19 fn. 8; Br. at IX C (4), p. 34; Declaration of Charles Litt (“Litt 9 Decl.”) ¶¶ 9-12. 10 • What are the Non-Upgrade Repairs? "Defects" and "damages" are impermissibly 11 vague. (Global Settlement Agreement, ¶1.21.) Br. at IV C, p. 19 fn. 8, Litt Decl. ¶¶ 10, 11. 12 • What are the Ongoing Operations? As defined, it is unclear. (Global Settlement Agreement, ¶1.22.) Br. at IX C (4), p. 34, Macrae Decl. Ex. 2, Global Settlement Agreement § 13 1.22. 14 IV. Distribution 15 The distribution process presents the following concerns: 16 • The Court requires further explanation as to why the distribution formula is the most 17 appropriate in this case. (Proposed Settlement ¶6.6.) Br. at V, pp. 20-22; Macrae Decl. ¶ 26 and 18 Ex. 13: Risberg Decl. ¶ 9; Steyer Decl. ¶ 17. 19 ○ How many of the 161unit holders fall into the post-May 10, 2016 and pre- May 10, 2016 category? Br. at V, pp. 20-21; Macrae Decl. ¶ ¶ 10, 26 and Ex. 11: Settlement 20 Class Member Chart. 21 ○ Does this formula result in pre-May 10, 2016 owners receiving more or less 22 than $10,000? Br. at II C, p. 19, fn. 7; Br. at V, pp. 20-21; Macrae Decl. ¶ 24 and Ex. 1: Class Agreement §§ 6.1, 6.6, 6.7; Steyer Decl. ¶ 17. 23 • If a settlement check is returned as undeliverable, will the Settlement Administrator 24 make an attempt to re-mail the settlement check if (1) the undeliverable mail has a forwarding address; or (2) the Settlement Administrator can locate a more current address through skip tracing? 25 Br. at V, p. 21; Macrae Decl. Ex. 1: Class Agreement § 7.4(b). 26 • Though not expressly stated, Plaintiffs designate the MTA as the cy pres recipient 27 28 9 Though, arguably, this value inures primarily to the benefit of current and future owners only. 7 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 under C.C.P. §384(b). (Proposed Settlement ¶6.7 [all checks uncashed after 120 days will revert to the MTA].) 2 3 ○ Why is a cy pres recipient is needed, i.e. why can the funds not be re- distributed to class members via a second round of checks? Br. at V, pp. 21-22; Code of Civil 4 Proc. §384(b). 5 ■ If a cy pres is needed, and the parties wish to consider issuing a second round of checks to Class Members prior to distribution to the cy pres, the administrator 6 should only make a further distribution of checks to the class members if the amount of remaining 7 funds exceeds the administrative costs so as to make that distribution economically feasible (i.e. the "break-even dollar point"). Br. at V, p. 22; Macrae Decl. Ex. 1: Class Agreement § 6.7; Ex. 8 3, Long Form Class Notice at pp. 5-6. 9 ○ Pursuant to C.C.P. § 384(b), a "nonprofit organizations or foundations to support projects that will benefit the class or similarly situated persons, or that promote the law 10 consistent with the objectives and purposes of the underlying cause of action ..." should be 11 designated. Br. at V, pp. 21-22; Litt Decl. ¶¶ 3, 13. 12 ■ Given the potential interests or involvement by counsel or parties in the governance or work of the MTA, and the fact that the MTA is a party in the Subject Action, 13 Plaintiffs should address why the MTA is an appropriate cy pres. 10 Br. at V, pp. 21-22; Litt Decl. ¶¶ 3, 13. 14 15 • MTA, or any alternative cy pres (if used), must also be identified in the Notice. Macrae Decl. Ex. 3, Long Form Class Notice at pp. 5-6. 16 • Have the parties considered reminder postcards to cash their checks (for Class 17 Members who submit valid claims/are issued payment), since, presently, the remainder will simply 18 be redistributed to the cy pres and not the Class Members? Br. at V, p. 22; Macrae Decl. ¶ 9 and Exs. 9 and 10. 19 ○ The Court is concerned that Class Members have enough time to obtain the 20 significant monetary relief they are entitled to, and that as much of the Common Fund is distributed to the Class Members as possible. Br. at V, p. 22; ; Declaration of Cameron R. Azari, Esq., 21 (“Azari Decl.”) ¶ 19, fn. 6; Macrae Decl. ¶ 9 and Exhibits 7-10. 22 • Based on the records currently in the parties' possession, is it possible to estimate 23 the pro rata shares for pre-May 10, 2016 owners? Br. at V, pp. 20-21; Macrae Decl. ¶ 24 and Ex. 11: Settlement Class Member Chart. 24 V. Notice – Procedures 25 26 The notice procedure raises the following concerns: 27 28 10 The Court is also confused as to whether MTA is one of three residence associations, or is a consortium of three separate residence associations. The structure of MTA needs to be explained. Br. at V, p. 22; Litt Decl. ¶¶ 3, 13. 8 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 • Deadlines: ○ The objections, opt-out, and claim form deadlines should all be postmarked 2 deadlines (or in the case of claim forms, electronic submission deadlines). This is clarified in some 3 portions of the Proposed Settlement, and not others (and must be clarified). It must also be clarified in the Notice, infra. Br. at VI, pp. 22-23; Macrae Ex. 1: Class Agreement §§ 2.34, 2.36, 6.7, 6.8, 4 9.1, 9.3; Ex. 3: Long Form Class Notice at pp. 1, 2, 6, 8, 9; Ex. 4: Email Class Notice. 5 • Claim Forms: ○ Why is a claim form necessary? The Court is not presently convinced one is 6 needed. Indeed, it seems that "public records and the records of the Developer Defendants and the 7 Millennium Tower Association" may suffice in lieu of a claim form. (MPA, 19:13 -19.) Plaintiffs do not explain why the claims process is not unduly burdensome for the Class, nor do they provide 8 a rationale for any burden if a Claim Form is not used (i.e. the parties do not have access to the sale and purchase price, the fact there are multiple owners, etc.). Br. at VI A at pp. 22-23; Azari Decl. 9 ¶ 15. 10 ○ Plaintiffs do not provide an anticipated claims rate, considering the 11 experience of counsel and/or the Claims Administrator. This must be provided. Br. at VI A, pp. 24-25; Azari Decl. ¶ 30. 12 ■ If Plaintiffs have this information, this figure should be used to 13 calculate the average pro rata share of recovery for pre-May 10, 2016 owners. Br. at V, pp. 20-21; Macrae Decl. ¶ 24 and Ex. 11: Settlement Class Member Chart. 14 15 ○ What steps will Plaintiffs take to encourage submission of claims? Br. at V, p. 22; Br. at VI A and B, pp. 22-27; Br. at VII 27-28; Macrae Decl. ¶ 9 and Exs. 7 and 8; Azari 16 Decl. ¶¶ 11-32. 17 ■ Are there other useful mechanisms for encouraging claim 18 submissions? Perhaps reminder postcards can be sent to encourage claim submissions? Br. at V, p. 22; Br. at VI A and B, pp. 22-27; Br. at VII 27-28; Macrae Decl. ¶ 9 and Exhibits 7 and 8; 19 Azari Decl. ¶¶ 11-32. 20 ○ The dispute process for (1) Claim Forms and (2) distribution issues, should be disclosed in the Notice. (Proposed Settlement ¶6.8.) Br. at VI A, p. 25; Macrae Decl. Ex. 3: 21 Long Form Class Notice at pp. 6-7. 22 ■ Will Class Members receive a notice explaining the distribution 23 method used to calculate their settlement share, along with their check? If so, the Court must review a template. The Court must approve all forms of Notice. (ld.) Br. at VI A, p. 25. 24 ○ For (1) how promptly will Class Members be notified of their rejected (in 25 whole or in part) Claim Forms? Will notification be in writing? (ld.) Br. at VI, A, p. 25; Macrae 26 Decl. Ex. 1: Class Agreement § 6.8; Ex. 3: Long Form Class Notice at p. 6. 27 ■ This should be in the Proposed Settlement and described in the notice. Br. at VI, A, p. 25; Macrae Decl. Ex. 1: Class Agreement § 6.8; Ex. 3: Long Form 28 Class Notice at p. 6. 9 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 ■ All dates should also be included in the Overall Timeline, infra. Br. 2 at X, p. 34; Proposed Order Granting Preliminary Settlement Approval at pp. 6-8. 3 ■ The 30-day calendar deadline for Class Members to submit their 4 "notice and statement of reasons" contesting the determination should be a postmarked deadline. This must be clarified. Br. at VI A, pp. 22, 25; Macrae Decl. Ex. 1: Class Agreement § 6.8; Ex. 5 3: Long Form Class Notice at p. 6. 6 ○ For (2), all dates should also be included in the Overall Timeline, including 7 the date that distribution is anticipated, and the 30-day deadline for disputes. Br. at X, p. 34; Proposed Order Granting Preliminary Settlement Approval at pp. 6-8. 8 ■ The 30-day calendar deadline for Class Members to submit their 9 "notice and statement of reasons" contesting the determination should be a postmarked deadline. This must be clarified. Br. at VI A, pp. 22, 25; Macrae Decl. Ex. 1: Class Agreement § 6.8; Ex. 10 3: Long Form Class Notice at p. 6. 11 ■ This should be in the Proposed Settlement and described in the 12 notice. Br. at VI A, pp. 22, 25; Macrae Decl. Ex. 1: Class Agreement § 6.8; Ex. 3: Long Form Class Notice at p. 6. 13 ○ What happens after Lead Counsel submits a Class Members' notice and statement of reasons for contesting the Settlement Administrators' determinations for Court 14 Review? Is the Class Member notified, and a hearing date set? Br. at VI A, p. 25; Macrae Decl. 15 Ex. 1: Class Agreement § 6.8; Ex. 3: Long Form Class Notice at pp. 6-7. 16 ■ This should be in the Proposed Settlement and described in the notice. Br. at VI A, p. 25; Macrae Decl. Ex. 1: Class Agreement § 6.8; Ex. 3: Long Form Class 17 Notice at p. 6-7. 18 ■ All dates should also be included in the Overall Timeline, infra. Br. at X, p. 34; Proposed Order Granting Preliminary Settlement Approval at pp. 6-8. 19 ○ In sum, Plaintiffs must detail the Claim Form dispute process step-by-step, 20 and include pertinent information in the Notice. Br. at VI A, p. 25; Macrae Decl. Ex. 1: Class Agreement § 6.8; Ex. 3: Long Form Class Notice at pp. 6-7. 21 22 • General: ○ What confidentiality steps will the Settlement Administrator take to protect 23 class members' private information? Br. at VI B, pp. 25-26; Azari Decl. ¶¶ 39-40. 24 ○ Will the long-form class notice dissemination via mail also include the claim form, and request for exclusion form? It appears so, but this is unclear. (Proposed Settlement, ¶7.4.) 25 Br. at VI B, p. 26; Macrae Decl. Ex. 3: Long Form Class Notice at pp. 6-7; Azari Decl. ¶ 25. 26 ○ Before mailing a Notice, will the Settlement Administrator run a change of 27 address search through the National Change of Address database (and update the addresses accordingly)? Br. at VI B, p. 26; Azari Decl. ¶ 18. 28 10 PLAINTIFF’ SUBMISSION OF CLASS SETTLEMENT AGREEMENT OPT OUT LIMIT INFORMATION 1668914.1 - MILLENNIUM.TOWER 1 ○ Why is it conclusively presumed that Notice has been delivered if not returned within 30 days of mailing? Br. at VI B, p. 26. Azari Decl. ¶¶ 3-9. 2 3 ○ If Notice is re-mailed, will that Class Member have additional time to object, opt-out, and/or submit a claim form? Br. at VI B, p. 26; Azari Decl. ¶¶ 19, 44. It is the Court's 4 position they should. 5 ○ If mail is returned as undeliverable, how promptly will a notice be re-mailed? (Id.) There must be a date certain (which should be included in the Overall Timeline, infra). Br. at 6 VI, B, p. 26; Azari Decl. ¶ 19. 7 • Objections: The requirements for objecting are too onerous. Such onerous 8 requirements discourage objections. The requirements should be no more onerous than the requirements for opting out. 9 ○ First, objectors are not required to file anything with the Court. They should 10 be directed to send their objections to the administrator in the same manner as is required for opt 11 outs. Br. at VI C, p. 27; Macrae Decl. Ex. 1: Class Agreement § 9.1; Ex. 3: Long Form Class Notice at p. 9. 12 ○ Second, the Court does not intend to approve a notice plan that would discard 13 an objection as invalid because the objector failed to specify whether she, or her attorney, would attend the final approval hearing or because an objector's counsel did not sign the objection. Br. at 14 VI C, p. 27; Macrae Decl. Ex. 1: Class Agreement § 9.1; Ex. 3: Long Form Class Notice at p. 15 9. 16 ■ If an objector does not include an intent to appear at the hearing, and 17 subsequently appears, will the parties argue the objector is barred from speaking? Br. at VI C, p. 18 27; Macrae Decl. Ex. 1: Class Agreement § 9.1; Ex. 3: Long Form Class Notice at p. 9. 19 ■ What if a Class Member retains counsel between the date they mail their objection, and the hearing? Will that Class Members' objection be rejected? Br. at VI C, p. 20 27; Macrae Decl. Ex. 1: Class Agreement § 9.1; Ex. 3: Long Form Class Notice at p. 9. 21 ○ In sum, how strictly will the requirements for objections be enforced? For 22 example, will an o