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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
MARLENA ROSADO, on behalf of herself CASE NO. 20-cv-21813-JEM and all others similarly situated,
Plaintiff,
v.
BARRY UNIVERSITY, INC,
Defendant. ______/
PLAINTIFF’S MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AND APPLICATION FOR SERVICE AWARD, ATTORNEYS’ FEES AND EXPENSES, AND INCORPORATED MEMORANDUM OF LAW
This Action1 is one of many novel class actions that arose when universities and colleges
ceased in-person instruction in response to the ongoing COVID-19 pandemic without issuing pro-
rata refunds to Students who paid to attend in-person and on-campus university programs. During
the course of vigorously contested litigation involving claims asserted by Plaintiff on behalf of
approximately 6,000 Students who were forced to transition from in-person, on-campus instruction
to solely online instruction when Barry closed its campus, the Parties negotiated the Class
Settlement Agreement and Release attached as Exhibit A. The Settlement—which consists of
Barry’s payment of $2,400,000.00, inclusive of attorneys’ fees and expenses to be awarded to
Class Counsel, a Service Award to the Class Representative, and payment of all fees and costs of
the Settlement Administrator—is an outstanding result.
The Parties now seek Final Approval of the Settlement, a Service Award to the Class
Representative, whose willingness to represent the Settlement Class and participation in the Action
1 All capitalized defined terms used herein have the same meanings ascribed in the Settlement.
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helped make the Settlement possible, and an award of attorneys’ fees and the reimbursement of
certain costs incurred in prosecuting the Action. In further support of this Motion, the Parties
submit a Joint Declaration of Class Counsel Jeff Ostrow, Anna Haac, and Daniel Warshaw,
attached as Exhibit B (“Joint Decl.”), and a Declaration of Jennifer M. Keough, the Settlement
Administrator, attached as Exhibit C (“Keough Decl.”).
The Parties respectfully request that the Court: (1) grant Final Approval of the Settlement;
(2) certify for settlement purposes the Settlement Class, pursuant to Fed. R. Civ. P. 23(b)(3) and
(e); (3) appoint the Plaintiff as Class Representative; (4) appoint as Class Counsel the attorneys
listed in paragraph 1(c) of the Settlement; (5) approve the Plaintiff’s requested Service Award; (6)
award Class Counsel attorneys’ fees and reimbursement of certain costs; and (7) enter Final
Judgment dismissing the Action with prejudice.
Based on the controlling Eleventh Circuit standards, and supporting facts, the Settlement
is fair, adequate, and reasonable and should therefore be finally approved.
I. INTRODUCTION
In March 2020, in response to the COVID-19 pandemic, Barry moved all of its learning to
remote platforms for the remainder of the Spring 2020 Semester, encouraged Students living in
on-campus housing to vacate, and limited other on-campus facilities and services. As a result,
Students no longer received in-person instruction and many Students were unable to access campus
housing, dining, and other on-campus resources for which they had paid or for which they had
been charged prior to the start of the semester. Despite the move to remote education and the
closing of some campus facilities, Barry did not issue a full prorated refund of Tuition Fees or Fees
for the Spring 2020 Semester. Plaintiff sued Barry for such refunds, asserting claims for breach of
contract, or in the alternative, unjust enrichment. After losing a motion to dismiss, Barry denied
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liability and asserted affirmative defenses. The Parties undertook discovery and motion practice.
During the course of conducting discovery, the Parties participated in a mediation with well-
respected mediator, D. Andrew Byrne, Esq. Following a full-day mediation session, and additional
settlement discussions, the Parties agreed to settle the Action to avoid the risks and uncertainties
associated with continued litigation.
On March 30, 2021, the Court entered its Order Preliminarily Approving Class Action
Settlement and Certifying the Settlement Class (the “Preliminary Approval Order”), which further
directed that Notice be provided to the Settlement Class and established a deadline for filing this
Motion and for opt-outs and objections.
II. MOTION FOR FINAL APPROVAL
A. Procedural History
On May 1, 2020, Plaintiff filed a class action complaint on behalf of herself and all others
similarly situated seeking a prorated refund of Tuition Fees and Fees paid towards the Spring 2020
Semester. [DE #1]. On June 12, 2020, Barry filed a Motion to Dismiss. [DE #12]. Plaintiff filed
an Amended Complaint on June 26, 2020. [DE #15]. The Amended Complaint alleged claims for
breach of contract, or in the alternative, unjust enrichment because Barry moved in-person
instruction online and restricted access to housing, dining, and on campus resources without
providing a refund. Defendant filed a Motion to Dismiss Plaintiff’s Amended Complaint on July
10, 2020, which was fully briefed by both Parties, including the filing of several Notices of
Supplemental Authority. [DE #21, #23, #27, #29, #34-#37, #41, #44-#45, #49-#50]. Defendant
also filed a Motion to Strike Class Allegations on October 16, 2020. [DE #46]. On October 30,
2020, this Court denied Defendant’s Motion to Dismiss, and on November 2, 2020, the Court
denied Defendant’s Motion to Strike. [DE #51, #55]. Defendant filed an Answer and Affirmative
Defenses on November 13, 2020. [DE #56]. The Parties commenced discovery as to Plaintiff’s
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claims and Defendant’s defenses. Joint Decl. ¶3.
Thereafter, the Parties began discussing the prospect of settlement and scheduled a January
7, 2020 mediation. Id. In advance, giving consideration to Plaintiff’s formal discovery requests,
the Parties exchanged informal discovery regarding the Plaintiff’s and the putative class’ damages
and had multiple telephonic conversations to clarify questions or obtain additional information.
Id. On January 7, 2021, the Parties participated in an all-day mediation under the supervision of
D. Andrew Byrne, an experienced mediator in complex litigation and class actions. Id. at ¶4. The
Parties did not settle the day of mediation; however, they continued to engage in settlement
discussions and ultimately reached an agreement in principle. Id. On February 9, 2021, the Parties
filed a Notice of Settlement and Joint Motion to Stay All Deadlines, which was granted on
February 10, 2021. Id. at ¶5. [DE #68-#70]. Thereafter, for the next few weeks, the Parties
negotiated the Settlement, resulting in signing the Settlement on March 17, 2021. Joint Decl. ¶6.
On March 17, 2021, Plaintiff and Class Counsel filed their Unopposed Motion for
Preliminary Approval. [DE #71]. On March 30, 2021, the Court entered the Preliminary Approval
Order that, inter alia, directed that Notice be given to the Settlement Class and established
deadlines for the filing of this Motion, the timely submission of objections or opt-outs, and set a
date for the Final Approval Hearing. [DE #73].
B. Summary of the Settlement Terms
The material Settlement terms, detailed in the Settlement, are the following:
1. The Settlement Class
The Settlement Class is defined as:
All Students who were enrolled during the Class Period as well as others who paid or were charged Tuition Fees, Room and Board Fees, Health Fees, Lab and Materials Fees, or Other Fees on behalf of such Students.
Settlement ¶1. Excluded from the Class are: (1) any Student who previously signed a release with
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Barry relative to their enrollment; (2) Barry, its parents, subsidiaries, affiliates, officers, and
directors; and (3) all judges assigned to this litigation and their immediate family members. Id.
2. Monetary Relief
Upon Final Approval, Barry is obligated to establish a $2,400,000.00 Settlement Fund
which shall be used to: (i) pay all payments to Settlement Class Members; (ii) pay all Court-ordered
awards of attorneys’ fees and costs to Class Counsel; (iii) pay the Court-ordered Service Award to
the Class Representative; (iv) pay all Taxes; (v) pay any costs of the Settlement administration;
and (vi) pay any additional fees, costs and expenses not specifically enumerated in paragraph 3 of
the Settlement, subject to approval of Settlement Class Counsel and Barry. Id. ¶3.
Although not required to participate in and receive benefits under the Settlement,
Settlement Class Members may choose to complete an electronic Election Form to indicate
whether they prefer a cash payment or a Tuition Credit. Id. ¶11. The Notice directed Settlement
Class Members to a link to the Settlement Website to submit an Election Form.
Settlement Class Members who complete the Election Form, will receive the Settlement
Class Member Benefit allocated to them in accordance with what they elected on their Election
Form after Barry exercises its option to first apply the Settlement Class Member Benefit to any
outstanding balance owed to Barry. Id. ¶8. Those Settlement Class Members who do not complete
an Election Form will receive their Settlement Class Member Benefit as follows: (a) Former
Students will receive a cash payment to their address on file with Barry; and (b) Current Students
who have not graduated when payment of the Settlement Class Member Benefit is due will receive
a cash payment or a Tuition Credit, at Barry’s discretion. Id.
Within 15 business days after Final Approval, or if there are objections, within 15 business
days after the Effective Date, Settlement Class Member Benefits shall be distributed as follows:
a. Tuition Allocation: 78% of the Net Settlement Fund will be allocated towards a
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percentage of Settlement Class Members’ Tuition Fees for the Spring 2020 Semester. Barry shall determine the percentage of the net Tuition Fees it received for Spring 2020 from Full-Time Students and from Part-Time Students. The percentage of net Tuition Fees received from Full-Time Students will be the percentage of the Tuition allocation of the Net Settlement Fund to disburse to the Full-Time Students, divided equally among all Settlement Class Members who were Full-Time Students. The percentage of net Tuition Fees received from Part- Time Students will be the percentage of the Tuition allocation of the Net Settlement Fund to disburse to Part-Time Students divided equally among all Settlement Class Members who were Part-Time Students.
b. Room, Board, and Fee Allocation: 22% of the Net Settlement Fund will be allocated towards a percentage of Settlement Class Members’ Room and Board Fees, Health Fees, Lab & Material Fees, and Other Fees for the Spring 2020 Semester, and distributed according to the following schedule:
i. 18% of the Net Settlement Fund will be allocated towards a percentage of Settlement Class Members’ Room and Board Fees and divided equally among those Settlement Class Members who were Residential Students.
ii. 2% of the Net Settlement Fund will be allocated towards a percentage of Settlement Class Members’ Health Fees and divided equally among those Settlement Class Members who were charged or paid a Health Fee in Spring 2020.
iii. 2% of the Net Settlement Fund will be allocated towards a percentage of Settlement Class Members’ Lab and Materials Fees and Other Fees and divided equally among all Settlement Class Members who were charged or paid a Lab and Materials Fees and Other Fees.
Id. ¶9.
Settlement Class Members who receive cash refunds shall have 90 days from the date on
the checks to negotiate their Settlement Class Member Benefit. Any Settlement checks not
negotiated by Settlement Class Members within this time period shall be used by Barry for the
direct benefit of Students in a manner it sees fit in its discretion. Id. ¶10.
3. Class Release
In exchange for the benefits conferred by the Settlement, all Settlement Class Members
will be deemed to have released Barry from claims related to the subject matter of the Action. The
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detailed release language is found in paragraph 14 of the Settlement. Id. ¶14.
4. Settlement Notice
The Parties have successfully completed the Notice Program. Joint Decl. ¶7. The Notice
Program was designed to and did provide the best notice practicable and was tailored to take
advantage of the information Barry had available about Settlement Class members. See Settlement
¶11; Joint Decl. ¶8. All costs of the Settlement Administrator shall be paid out of the Settlement
Fund. Settlement ¶11. The Notice Program was reasonably calculated under the circumstances to
apprise the Settlement Class of the pendency of the Action, the terms of the Settlement, Class
Counsel’s Attorneys’ Fee application and request for Service Award for Plaintiff, and their rights
to opt-out of the Settlement Class or object to the Settlement. Keough Decl. ¶¶9-22; Joint Decl.
¶9. The Notices and Notice Program constituted sufficient notice to all persons entitled to notice,
and satisfied all applicable requirements of law including, but not limited to, Rule 23 and the
constitutional requirement of due process. Keough Decl. ¶9-22; Joint Decl. ¶10.
5. Settlement Termination
Either Party may terminate the Settlement if it is rejected or materially modified by the
Court or an appellate court. Settlement ¶17. Barry also has the right to terminate the Settlement
if more than 25 Settlement Class Members from among the total Settlement Class exercise their
right to opt-out of the Settlement. Id. ¶21. The Opt-Out Period ends 30 days before the Final
Approval Hearing. To date, there is only one (1) opt-out, making it unlikely the 25 required to
terminate the Settlement will be reached. Joint Decl. ¶11.
6. Service Award
Class Counsel are entitled to request, and Barry will not oppose, a Service Award of
$5,000.00 for the Class Representative. Settlement ¶3(a). If the Court approves it, the Service
Award will be paid from the Settlement Fund and will be in addition to any other relief to which
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the Class Representative is entitled as a Settlement Class Member. Id. The Service Award will
compensate the Class Representative for the risks she undertook in prosecuting the Action and for
the general release of all her potential claims against Barry, which is broader than the release
applicable to unnamed Settlement Class Members. Id. ¶14(c). The Settlement is not contingent on
Plaintiff receiving a Service Award and, thus, the Service Award does not constitute either a salary
or a bounty. See Joint Dec. ¶24.
7. Attorneys’ Fees and Costs
Class Counsel are entitled to request, and Barry will not oppose, attorneys’ fees of up to
33.33% of the Settlement Fund, plus reimbursement of litigation costs. Id. ¶3(b). The Parties
negotiated and reached an agreement regarding attorneys’ fees and costs only after reaching
agreement on all other material terms of the Settlement. Joint Decl. ¶¶12, 26.
C. Argument
Court approval is required for a class action settlement. Fed. R. Civ. P. 23(e). The federal
courts have long recognized a strong policy and presumption in favor of class settlements. The
Rule 23(e) analysis should be “informed by the strong judicial policy favoring settlements as well
as the realization that compromise is the essence of settlement.” In re Chicken Antitrust Litig. Am.
Poultry, 669 F.2d 228, 238 (5th Cir. 1982). In evaluating a proposed class settlement, the Court
“will not substitute its business judgment for that of the parties; ‘the only question . . . is whether
the settlement, taken as a whole, is so unfair on its face as to preclude judicial approval.’” Gevaerts
v. TD Bank, N.A., No. 11:14-cv-20744, 2015 WL 6751061, at *4 (S.D. Fla. Nov. 5, 2015) (quoting
Rankin v. Rots, No. 02-CV-71045, 2006 WL 1876538, at *3 (E.D. Mich. June 28, 2006)). Indeed,
“[s]ettlement agreements are highly favored in the law and will be upheld whenever possible
because they are a means of amicably resolving doubts and uncertainties and preventing lawsuits.”
Gevaerts, No. 11:14-cv-20744, 2015 WL 6751061, at *4 (quoting In re Nissan Motor Corp.
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Antitrust Litig., 552 F.2d 1088, 1105 (5th Cir. 1977)). Class settlements minimize the litigation
expenses of the parties and reduce the strain that litigation imposes upon already scarce judicial
resources. The Settlement here is more than sufficient under Rule 23(e) and Final Approval is
clearly warranted.
1. The Court Has Personal Jurisdiction Over the Settlement Class Because Settlement Class Members Received Adequate Notice and an Opportunity to Be Heard.
In addition to having personal jurisdiction over the Plaintiff, who is a party to this Action,
the Court also has personal jurisdiction over all members of the Settlement Class because they
received the Notice and due process. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12
(1985) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950)); see also
In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 306 (3d Cir. 1998).
a. The Best Notice Practicable Was Furnished.
The Notice Program was comprised of three parts: (1) Email Notice to reach those
Settlement Class Members identified as Current Students of Barry; (2) direct mail Postcard Notice
to Settlement Class Members identified as Former Students of Barry or Current Students of Barry
who do not have an active email address or the Email Notice is bounced back as undelivered; and
(3) a Long-Form Notice with more detail than the Email Notice or Postcard Notice, that has been
available on the Settlement Website or sent to Settlement Class Members by email or regular mail
by Barry or Class Counsel upon their request. Settlement ¶11; Keough Decl. ¶¶9-12.
Each facet of the Notice Program was timely and properly accomplished. Keough Decl.
¶¶9-14. The Settlement Administrator received data from Barry that identified the names, mailing
addresses, email addresses, student ID’s, and amounts of tuition paid of 6,077 individuals
identified as Settlement Class Members. Keough Decl. ¶¶7, 8. Prior to mailing Notice, the
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Settlement Administrator ran the addresses through the National Change of Address Database. Id.
¶8. On April 29, 2021, the Settlement Administrator sent Email Notice to 3,486 Settlement Class
Members and mailed the Postcard Notice via USPS first class mail to 2,595 Settlement Class
Members. Id. ¶¶9, 10. As of July 8, 2021, Email Notice to four Settlement Class Members
“bounced back” as undeliverable, prompting four Postcard Notices to be mailed. Id. ¶11. As of
July 8, 2021, 100% of the 6,077 Settlement Class Members received Email Notice or Postcard
Notice. Id. at ¶12.
The Settlement Website, www.BarrySpring2020Refund.com, went active on April 29,
2021, hosting copies of important case documents, answers to frequently asked questions, contact
information for Class Counsel and the Settlement Administrator, the link to electronically file the
Election Form, and all information required by paragraph 9 of the Preliminary Approval Order.
Id. As of July 8, 2021, the Settlement Website has tracked 7,260 unique users who registered
21,938 page views. Id. at ¶15. In addition, a toll-free number, 1-833-358-1846, was established
and has been operational since April 29, 2021. Id. at ¶16. By calling, Settlement Class Members
are able to obtain Settlement information, 24 hours a day, 7 days a week. Id. As of July 8, 2021,
the toll-free number has received 107 calls. Id.
b. The Notice Program Was Reasonably Calculated to Inform Settlement Class Members of Their Rights.
The Court-approved Notice Program satisfied due process requirements because they
described “the substantive claims . . . [and] contain[ed] information reasonably necessary to make
a decision to remain a class member and be bound by the final judgment.” In re Nissan Motor
Corp. Antitrust Litig., 552 F.2d at 1104-05. The Notices, among other things, defined the
Settlement Class, described the release to Barry under the Settlement, as well as the amount and
proposed distribution of the Settlement Fund, and informed Settlement Class members of their
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right to opt-out or object, the procedures for doing so, and the time and place of the Final Approval
Hearing. It also notified Settlement Class members that a final judgment would bind them unless
they opted-out, and told them where they could get more information – for example, at the
Settlement Website that has a copy of the Settlement and Long Form Notice, as well as other
important documents. Further, the Notice described Class Counsel’s intention to seek attorneys’
fees of up to 33.33% the Settlement Fund, plus expenses, and a Service Award for the Class
Representative. Hence, Settlement Class members were provided with the best practicable notice
that was “reasonably calculated, under [the] circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.” Shutts, 472
U.S. at 812 (quoting Mullane, 339 U.S. at 314-15); see Keough Decl., Exhibits B and C.
As of July 13, 2021, the Settlement Administrator had received only one opt-out request
and no objections to the Settlement had been filed. Joint Decl. ¶11; Keough Decl. at ¶¶19, 21.
Updated information will be supplied after the deadline to opt-out or object and prior to the Final
Approval Hearing, if needed.
2. The Settlement Should Be Approved as Fair, Adequate and Reasonable.
In deciding whether to approve the Settlement, the Court will analyze whether it is “fair,
adequate, reasonable, and not the product of collusion.” Leverso v. Southtrust Bank, 18 F.3d 1527,
1530 (11th Cir. 1994); see also Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). A
settlement is fair, reasonable and adequate when “the interests of the class as a whole are better
served if the litigation is resolved by the settlement rather than pursued.” In re Lorazepam &
Clorazepate Antitrust Litig., MDL No. 1290, 2003 WL 22037741, at *2 (D.D.C. June 16, 2003)
(quoting Manual for Complex Litigation (Third) § 30.42 (1995)). Importantly, the Court is “not
called upon to determine whether the settlement reached by the parties is the best possible deal,
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nor whether class members will receive as much from a settlement as they might have recovered
from victory at trial.” In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, 1014 (N.D. Ill.
2000) (citations omitted).
The Eleventh Circuit has identified six factors to be considered in analyzing the fairness,
reasonableness and adequacy of a class settlement under Rule 23(e):
(1) the existence of fraud or collusion behind the settlement;
(2) the complexity, expense, and likely duration of the litigation;
(3) the stage of the proceedings and the amount of discovery completed;
(4) the probability of the plaintiffs’ success on the merits;
(5) the range of possible recovery; and
(6) the opinions of the class counsel, class representatives, and the substance and amount of opposition to the settlement.
Leverso, 18 F.3d at 1530 n.6; see also Bennett, 737 F.2d at 986. Additionally, effective December
1, 2018, Rule 23(e) was amended to add a mandatory, but not exhaustive, list of similar final
approval factors:
(A) the class representatives and class counsel have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and (iv) any ¶required to be identified under Rule 23(e)(3); and (D) the proposal treats class members equitably relative to each other.
Fed. R. Civ. P. 23(e)(2). The analysis set forth below shows this Settlement to be eminently fair,
adequate and reasonable.
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a. There Was No Fraud or Collusion and the Settlement Was Negotiated at Arm’s Length.
This Court is aware of the vigor with which the Parties litigated before reaching Settlement.
The sharply contested nature of the proceedings in this Action demonstrates the absence of fraud
or collusion behind the Settlement. See, e.g., In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323,
1329 n.3 (S.D. Fla. 2001); Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693 (N.D. Ga. 2001) (court
had “no doubt that this case has been adversarial, featuring a high level of contention between the
parties”); Warren v. City of Tampa, 693 F. Supp. 1051, 1055 (M.D. Fla. 1988) (no evidence of
collusion, but to the contrary record showed “that the parties conducted discovery and negotiated
the terms of settlement for an extended period of time”), aff’d, 893 F.2d 347 (11th Cir. 1989).
Class Counsel negotiated the Settlement with similar force. Plaintiff and the Settlement
Class were represented by experienced counsel throughout the negotiations. Class Counsel and
Barry engaged in formal mediation with Mr. Byrne. All negotiations were arm’s-length and
extensive. Joint Decl. ¶4; see also Perez v. Asurion Corp., 501 F. Supp. 2d 1360, 1384 (S.D. Fla.
2007) (class settlement was not collusive because it was overseen by “an experienced and well-
respected mediator”).
b. The Settlement Will Avert Years of Complex and Expensive Litigation.
The claims and defenses are complex; litigating them is both difficult and time-consuming,
and recovery by any means other than settlement would require years of litigation. Joint Decl.
¶13. See also In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992) (noting that complex
litigation “can occupy a court’s docket for years on end, depleting the resources of the parties and
taxpayers while rendering meaningful relief increasingly elusive”); United States v. Glens Falls
Newspapers, Inc., 160 F. 3d 853, 856 (2d Cir. 1998) (noting that “a principal function of a trial
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judge is to foster an atmosphere of open discussion among the parties’ attorneys and
representatives so that litigation may be settled promptly and fairly so as to avoid the uncertainty,
expense and delay inherent in a trial”). The Settlement provides immediate and substantial benefits
to a Settlement Class of over 6,000 members. Joint Decl. ¶13.
As stated in In re Shell Oil Refinery, 155 F.R.D. 552, 560 (E.D. La. 1993):
The Court should consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after protracted and expensive litigation. In this respect, “[i]t has been held proper to take the bird in the hand instead of a prospective flock in the bush.”
(alterations in original and citation omitted). Because the “demand for time on the existing judicial
system must be evaluated in determining the reasonableness of the settlement,” Ressler v.
Jacobson, 822 F. Supp. 1551, 1554 (M.D. Fla. 1992) (citation omitted), the Settlement’s adequacy
under Rule 23(e)(2)(C), providing reasonable Settlement benefits, should not be doubted.
c. The Factual Record Is Sufficiently Developed to Enable Class Counsel to Make a Reasoned Judgment.
Courts also consider “the degree of case development that class counsel have accomplished
prior to settlement” to ensure that “counsel had an adequate appreciation of the merits of the case
before negotiating.” In re General Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55
F.3d 768, 813 (3d Cir. 1995). At the same time, “[t]he law is clear that early settlements are to be
encouraged, and accordingly, only some reasonable amount of discovery should be required to
make these determinations.” Ressler, 822 F. Supp. at 1555.
Class Counsel negotiated the Settlement with the benefit of meaningful litigation. Joint
Decl. ¶14. Specifically, dealing with novel litigation, they researched and drafted the Complaint
and Amended Complaint, fully briefed Barry’s Motion to Dismiss, drafted portions of an
opposition to Barry’s Motion to Strike (which ultimately was denied before the response deadline),
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issued discovery, reviewed and analyzed information regarding the Plaintiff’s and Settlement
Class Members’ damages, and engaged in the mediation process and other settlement negotiations.
Id. Class Counsel’s analysis and understanding of the various legal obstacles, as well as the
damage analysis, positioned them to evaluate with confidence the strengths and weaknesses of the
claims and defenses through the conclusion of the litigation, as well as the range and amount of
damages that were potentially recoverable if the Action successfully proceeded to judgment on a
class-wide basis. Id.
d. Plaintiff and the Class Faced Significant Obstacles to Prevailing.
The “likelihood and extent of any recovery from the defendants absent . . . settlement” is
another important factor in assessing the reasonableness of a settlement. In re Domestic Air
Transp. Anitrust Litig., 148 F.R.D. 297, 314 (N.D. Ga. 1993); see also Ressler, 822 F. Supp. at
1555 (“A Court is to consider the likelihood of the plaintiff’s success on the merits of his claims
against the amount and form of relief offered in the settlement before judging the fairness of the
compromise.”).
Class Counsel believe that Plaintiff had a strong case against Barry. Joint Decl. ¶16. Even
so, Class Counsel are mindful that Barry advanced significant defenses in novel litigation that
would have been required to overcome in the absence of the Settlement. Id. This Action involved
several major litigation risks that loomed in the absence of settlement, including, but not limited
to class certification, a probable motion for summary judgment, Daubert motions, trial, as well as
appellate review following a final judgment. Id. at ¶17. Additionally, Section 768.39, Florida
Statutes (which, among other things, prohibits educational institutions from being held civilly
liable for certain actions taken to diminish the impact or spread of COVID-19) was recently
enacted and went into effect on July 1, 2021. Id. While Class Counsel believe the statute would
be inapplicable to this already-filed Action (and that it may be unconstitutional), it clearly presents
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an additional obstacle the Plaintiff would have to overcome in the absence of the Settlement. Id.
Apart from the risks, continued litigation would have involved substantial delay and
expense, which further counsels in favor of Final Approval. Id. at ¶18. The uncertainties and
delays from this process would have been significant. Id.
Given the myriad risks attending these claims, as well as the certainty of substantial delay
and expense from ongoing litigation, the Settlement cannot be seen as anything except a fair
compromise. See, e.g., Haynes v. Shoney’s, No. 89-30093-RV, 1993 WL 19915, at *6 (N.D. Fla.
Jan. 25, 1993) (“The risks for all parties should this case go to trial would be substantial. . . . It is
possible that trial on the merits would result in … no relief for the class members. . . . Based on . .
. the factual and legal obstacles facing both sides should this matter continue to trial, I am
convinced that the settlement . . . is a fair and reasonable compromise.”); Bennett v. Behring Corp.,
96 F.R.D. 343, 349-50 (S.D. Fla. 1982), aff’d, 737 F.2d 982 (11th Cir. 1984) (plaintiffs faced a
“myriad of factual and legal problems” creating “great uncertainty as to the fact and amount of
damage,” making it “unwise [for plaintiffs] to risk the substantial benefits which the settlement
confers . . . to the vagaries of a trial”).
e. The Benefits Provided by the Settlement Are Fair, Adequate and Reasonable Compared to the Range of Possible Recovery.
In determining whether a settlement is fair given the potential range of recovery, the Court
should be guided by “the fact that a proposed settlement amounts to only a fraction of the potential
recovery does not mean the settlement is unfair or inadequate.” Behrens v. Wometco Enters., Inc.,
118 F.R.D. 534, 542 (S.D. Fla. 1988), aff’d, 899 F.2d 21 (11th Cir. 1990). Indeed, “[a] settlement
can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the
potential recovery.” Id. “[T]he court must remember that “compromise is the essence of
settlement. A just result is often no more than an arbitrary point between competing notions of
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reasonableness.” Raines v. Florida, 987 F. Supp. 1416, 1418 (N.D. Fla. 1997) (citing Bennett, 737
F.2d at 986) (internal annotations omitted). This is because fairness of a settlement must be
evaluated in light of “the likelihood of success on the merits, the complexity, expense, and duration
of litigation, the judgment and experience of trial counsel, and objections raised to the settlement.”
Id. Thus, courts regularly find settlements to be fair where “[p]laintiffs have not received the
optimal relief.” Warren, 693 F. Supp. at 1059.
Class Counsel were well-positioned to evaluate the strengths and weaknesses of Plaintiff’s
claims, as well as the appropriate basis upon which to settle them. Joint Decl. ¶19. Through this
Settlement, Plaintiff and the Settlement Class have achieved a recovery of approximately 60% of
Settlement Class Members’ total likely recoverable damages for the portion of the Spring 2020
Semester following Barry’s COVID-19 campus closure and transition to online learning, without
further risks or delays. Id.
This Settlement thus provides an extremely fair and reasonable recovery to the Settlement
Class in light of Barry’s defenses, as well as the challenging, unpredictable path of novel litigation
that Plaintiff would otherwise have continued to face in the trial and appellate courts. Id. at ¶20.
The automatic distribution process without the need to submit a claim further supports Final
Approval. Id.
f. The Opinions of Class Counsel, the Plaintiff, and Absent Settlement Class Members Favor Approval of the Settlement.
Class Counsel strongly endorse the Settlement. Id. at ¶19. The Court should give “great
weight to the recommendations of counsel for the parties, given their considerable experience in
this type of litigation.” Warren, 693 F. Supp. at 1060; see also Domestic Air, 148 F.R.D. at 312-
13 (“In determining whether to approve a proposed settlement, the Court is entitled to rely upon
the judgment of the parties’ experienced counsel. ‘[T]he trial judge, absent fraud, collusion, or the
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like, should be hesitant to substitute its own judgment for that of counsel.’” (citations omitted)).
There has been no opposition to the Settlement. As of July 13, 2021, there has been only
one opt-out and no objections. Joint Decl. ¶11; Keough Decl. at ¶¶19, 21. This is another
indication that the Settlement Class is satisfied with the Settlement. Even if there were some
objections, it is settled that “[a] small number of objectors from a plaintiff class of many thousands
is strong evidence of a settlement’s fairness and reasonableness.” Association for Disabled
Americans v. Amoco Oil Co., 211 F.R.D. 457, 467 (S.D. Fla. 2002); also Mangone v. First USA
Bank, 206 F.R.D. 222, 227 (S.D. Ill. 2001) (“In evaluating the fairness of a class action settlement,
such overwhelming support by class members is strong circumstantial evidence supporting the
fairness of the Settlement.”).
3. The Court Should Certify the Settlement Class.
Plaintiff and Class Counsel respectfully request that the Court certify the Settlement Class.
“Confronted with a request for settlement-only class certification, a district court need not inquire
whether the case, if tried, would present intractable management problems . . . for the proposal is
that there be no trial.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997).
Certification under Fed. R. Civ. P. 23(a) requires numerosity, commonality, typicality, and
adequacy of representation. Under Rule 23(b)(3), certification is appropriate if the questions of
law or fact common to the Settlement Class Members predominate over individual issues of law
or fact and if a class action is superior to other available methods for the fair and adjudication of
the controversy.
Rule 23(a)(1) numerosity is satisfied because the Settlement Class consists of over 6,000
individuals, and joinder of all such persons is impracticable. See Kilgo v. Bowman Trans., 789
F.2d 859, 878 (11th Cir. 1986) (numerosity satisfied where plaintiffs identified at least 31 class
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members “from a wide geographical area”).
“Commonality requires the plaintiff to demonstrate that the class members ‘have suffered
the same injury,’” and the plaintiff’s common contention “must be of such a nature that it is capable
of classwide resolution—which means that determination of its truth or falsity will resolve an issue
that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2551 (2011) (citation omitted). Here, Rule 23(a)(2)
commonality is readily satisfied as there are multiple questions of law and fact – centering on
whether Students were owed reimbursements of Tuition Fees and Fees as a result of the change to
remote instruction and the closure of campus facilities and services – that are common to the
Settlement Class, that are alleged to have injured all Settlement Class Members in the same way,
and that would generate common answers.
For similar reasons, Plaintiff’s claims are reasonably coextensive with those of the absent
Settlement Class Members, satisfying Rule 23(a)(3) typicality. See Kornberg v. Carnival Cruise
Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (typicality satisfied where claims “arise from the
same event or pattern or practice and are based on the same legal theory”); Murray v. Auslander,
244 F.3d 807, 811 (11th Cir. 2001) (named plaintiffs are typical of the class where they “possess
the same interest and suffer the same injury as the class members”). Plaintiff is typical of absent
Settlement Class Members. She was moved to online-only instruction, lost access to some on-
campus housing, dining, and other resources, services, and amenities, suffered the same injuries
as them, and they will all benefit from the relief achieved.
Plaintiff and Class Counsel also satisfy the Rule 23(a)(4) adequacy of representation
requirement as the determinative factor “is the forthrightness and vigor with which the
representative party can be expected to assert and defend the interests of the members of the class.”
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Lyons v. Georgia-Pacific Corp. Salaried Employees Ret. Plan, 221 F.3d 1235, 1253 (11th Cir.
2000) (internal quotation marks omitted). Plaintiff’s interests are coextensive with, not
antagonistic to, the interests of the Settlement Class, because Plaintiff and the absent Settlement
Class Members have the same interest in the relief afforded by the Settlement, and the absent
Settlement Class Members have no diverging interests. Fabricant v. Sears Roebuck & Co., 202
F.R.D. 310, 314 (S.D. Fla. 2001). Further, Plaintiff and the Settlement Class are represented by
qualified and competent Class Counsel who have extensive experience and expertise prosecuting
complex class actions, and who devoted substantial time and resources to vigorous litigation of
the Action. Id; Joint Decl. ¶21, Exhibits 1-3.
Rule 23(b)(3) requires that “[c]ommon issues of fact and law . . . ha[ve] a direct impact on
every class member’s effort to establish liability that is more substantial than the impact of
individualized issues in resolving the claim or claims of each class member.” Sacred Heart Health
Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1170 (11th Cir. 2010)
(internal quotation marks omitted). Rule 23(b)(3)’s predominance requirement is readily satisfied
because liability questions common to all Settlement Class Members substantially outweigh any
possible issues that are individual to each member. Further, resolution of thousands of claims in
one action is far superior to individual lawsuits, because it promotes consistency and efficiency of
adjudication. See Fed. R. Civ. P. 23(b)(3).
Based on the foregoing, the Settlement is fair, adequate and reasonable and should
therefore be finally approved.
III. APPLICATION FOR SERVICE AWARD
Pursuant to the Settlement, Class Counsel respectfully request, and Barry does not oppose,
a Service Award for the Class Representative in the amount of $5,000.00. Settlement ¶3(a).
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“[T]here is ample precedent for awarding incentive compensation to class representatives at the
conclusion of a successful class action.” David v. American Suzuki Motor Corp., 2010 WL
1628362, at *6 (S.D. Fla. Apr. 15, 2010). However, recently, in Johnson v. NPAS Solutions, LLC,
975 F.3d 1244 (11th Cir. 2020), the Eleventh Circuit held that 19th century Supreme Court
precedent prohibits an incentive award that “compensates a class representative for his time and
rewards him for bringing a lawsuit.”2 Id. at 1260–61. In the two cases from the 1800s relied on
by the majority in Johnson, the named plaintiffs sought an actual salary for the time they expended
on the case and reimbursement for personal expenses like train fare they incurred while performing
work for the case. Id. at 1256–57.
This case is distinguishable from Johnson. First, unlike the service award in Johnson, the
Service Award here is not a “salary” or “bounty,” but rather is an award for the risk that Plaintiff
undertook in bringing the case on behalf of the class. See Pledger v. Reliance Trust Co., No. 15-
cv-4444, 2021 WL 2253497, at *8-9 (N.D. Ga. Mar. 8, 2021) (distinguishing Johnson and
approving $25,000.00 payments from the settlement fund to each of five class representatives in
the case where they “were not promised a ‘bonus’ or ‘salary,’ but undertook a considerable risk of
alienation and harm to their reputations for seeking to enforce their rights.”); Henderson v. Emory
University, No. 16-cv-2920-CAP (N.D. Ga. Nov. 4, 2020) (distinguishing Johnson and approving
incentive awards to class representatives where they faced considerable risk in pursuing the
lawsuit, the settlement agreement was not contingent on the class representatives receiving an
award, and the class representatives were integral to achieving the settlement which in turn
benefited the entire class.). Here, there was no discussion of attorneys’ fees or a Service Award
until all material terms of the Settlement were reached, Joint Decl. ¶¶ 24, 26, so this is not a pre-
2 No mandate in Johnson has been issued and a motion for rehearing en banc is pending.
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promised “salary” or “bounty” to pay for Plaintiff’s time or reward her for bringing the suit that
would have driven her to make decisions against the best interests of the class (a primary concern
in Johnson’s reasoning). Plaintiff also faced considerable risk, alienation, and reputational harm
in her community by leading a class action suit against her own school. Moreover, Plaintiff
provided substantial assistance that enabled Class Counsel to successfully prosecute the Action,
including submitting to interviews with Class Counsel, reviewing all material filings, approving
the Settlement, locating and forwarding responsive documents and information, and participating
in mediation. Plaintiff was also prepared to devote additional time to deposition and to be available
for trial, if necessary. In so doing, Plaintiff was integral to forming the theory of the case and
litigating it through settlement. Joint Decl. ¶22.
Second, because the Settlement includes a general release by Plaintiff of all potential
claims against Barry that is broader than the release applicable to the unnamed Settlement Class
Members (which releases claims arising from, relating to, or in connection with Tuition Fees,
Room and Board Fees, Health Fees, Lab and Materials Fees or Other Fees relating to or arising
out of the Spring 2020 Semester), the Service Award is independent compensation to Plaintiff for
her release of all of her claims against Barry. See Settlement ¶14; see also Holman v. Experian
Information Solutions, Inc., 2014 WL 7186207 (N.D. Cal. Dec. 12, 2014) (recognizing that a
service award may compensate a named plaintiff for releasing a broader range of claims than those
released by the unnamed class members). Accordingly, Johnson does not prevent the requested
Service Award.3
3 If this Court is not inclined to approve the requested Service Award based on Johnson, Class Counsel respectfully request that this Court approve the remainder of the Settlement and reserve jurisdiction to allow Class Counsel to renew the request for a service award should Johnson be reversed. See Janicijevic v. Classica Cruise Operator, Ltd., No. 20-cv-23223, 2021 WL 2012366 (S.D. Fla. May 20, 2021) (reserving jurisdiction to award service awards if Johnson is reversed).
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The end-result of Plaintiff’s efforts, coupled with those of Class Counsel, provided a
substantial benefit to the Settlement Class. Joint Decl. ¶23. The Service Award of $5,000.00 is
less than 0.208% of the Settlement Fund, a ratio that falls well below the range of what has been
deemed to be reasonable. Id. at ¶25; see, e.g., Papa v. Grieco Ford Fort Lauderdale, LLC, No.
18-cv-21897, 2019 WL 11623986, at *3 (S.D. Fla. June 5, 2019) (approving service award of
$10,000.00, or about .205% of a $4,871,160.00 settlement). Accordingly, the Service Award
requested here is reasonable and should be approved, and should otherwise be ordered paid to the
Plaintiff in exchange for her general release to Barry.
IV. APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES
Pursuant to the Settlement and the Notices, and consistent with recognized class action
practice and procedure, Class Counsel respectfully request an award of attorneys’ fees of
$800,000.00, which is equal to 33.33% of the $2,400,000.00 Settlement Fund. Joint Decl. ¶26.
Class Counsel also request reimbursement of limited out-of-pocket costs and expenses totaling
$8,494.79 incurred in connection with the prosecution of the Action and in connection with the
Settlement. Id. Class Counsel and Barry negotiated and reached agreement regarding attorneys’
fees and costs only after reaching agreement on all other material Settlement terms. Id. The
requested fee is within the range of reason under the factors listed in Camden I Condo. Ass’n. v.
Dunkle, 946 F.2d 768 (11th Cir. 1991). For the reasons detailed herein, Class Counsel submit that
the requested fee is appropriate, fair and reasonable and respectfully requests that it be approved
by the Court.
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A. The Law Awards Class Counsel Fees From the Common Fund Created Through Their Efforts.
It is well established that when a representative party has conferred a substantial benefit upon
a class, counsel is entitled to attorneys’ fees based upon the benefit obtained. Camden I, 946 F.2d
at 771; Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). The common benefit doctrine is an
exception to the general rule that each party must bear its own litigation costs. “The doctrine serves
the ‘twin goals of removing a potential financial obstacle to a plaintiff’s pursuit of a claim on behalf
of a class and of equitably distributing the fees and costs of successful litigation among all who
gained from the named plaintiff’s efforts.’” Gevaerts, No. 11:14-cv-20744, 2015 WL 6751061, at
*10 (quoting In re Gould Sec. Litig., 727 F. Supp. 1201, 1202 (N.D. Ill. 1989)). “The common
benefit doctrine stems from the premise that those who receive the benefit of a lawsuit without
contributing to its costs are ‘unjustly enriched’ at the expense of the successful litigant.” Gevaerts,
No. 11:14-cv-20744, 2015 WL 6751061, at *10 (citing Van Gemert, 444 U.S. at 478). “As a result,
the Supreme Court, the Eleventh Circuit, and courts in this District have all recognized that ‘[a]
litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his
client is entitled to a reasonable attorney’s fee from the fund as whole.’” Gevaerts, No. 11:14-cv-
20744, 2015 WL 6751061, at *10 (citations omitted); see also Camden I, 946 F.2d at 771 (“Attorneys
in a class action in which a common fund is created are entitled to compensation for their services
from the common fund, but the amount is subject to court approval.”). Courts have also recognized
that appropriate fee awards in cases such as this encourage redress for wrongs caused to entire classes
of persons and deter future misconduct of a similar nature. See Deposit Guar. Nat’l Bank v. Roper,
445 U.S. 326, 338-39 (1980). Adequate compensation promotes the availability of counsel for
aggrieved persons.
In the Eleventh Circuit, class counsel are awarded a percentage of the funds obtained
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through a settlement. In Camden I – the controlling authority regarding attorneys’ fees in common-
fund class actions – the Eleventh Circuit held that “the percentage of the fund approach [as opposed
to the lodestar approach] is the better reasoned in a common fund case. Henceforth in this circuit,
attorneys’ fees awarded from a common fund shall be based upon a reasonable percentage of the
fund established for the benefit of the class.” Camden I, 946 F.2d at 774.
The Court has discretion in determining the appropriate fee percentage. “There is no hard
and fast rule mandating a certain percentage of a common fund which may be awarded as a fee
because the amount of any fee must be determined upon the facts of each case.” Sunbeam, 176 F.
Supp. 2d at 1333 (quoting Camden I, 946 F.2d at 774). Nonetheless, “[t]he majority of common
fund fee awards fall between 20 percent to 30 percent of the fund” – though “an upper limit of 50
percent of the fund may be stated as a general rule.” Sunbeam, 176 F. Supp. 2d at 1333 (quoting
Camden I, 946 F.2d at 774-75); see also Waters v. Int’l Precious Metals Corp., 190 F.3d 1291
(11th Cir. 1999), cert. denied, 530 U.S. 1289 (2000) (approving fee award where the district court
determined that the benchmark should be 30 percent and then adjusted the fee award higher in
view of the circumstances of the case). Class Counsel’s fee request falls within this accepted
range.
B. Application of the Camden I Factors Supports the Requested Fee.
The Eleventh Circuit has provided a set of factors the Court should use to determine a
reasonable percentage to award as an attorney’s fee to class counsel in class actions:
(1) the time and labor required; (2) the novelty and difficulty of the relevant questions; (3) the skill required to properly carry out the legal services; (4) the preclusion of other employment by the attorney as a result of his acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the clients or the circumstances;
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(8) the results obtained, including the amount recovered for the clients; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and the length of the professional relationship with the clients; and (12) fee awards in similar cases.
Camden I, 946 F.2d at 772 n.3.
These twelve factors are guidelines and are not exclusive. “Other pertinent factors are the
time required to reach a settlement, whether there are any substantial objections by class members
or other parties to the settlement terms or the fees requested by counsel, any non-monetary benefits
conferred upon the class by the settlement, and the economics involved in prosecuting a class
action.” Sunbeam, 176 F. Supp. 2d at 1333 (quoting Camden I, 946 F.2d at 775). In addition, the
Eleventh Circuit has “encouraged the lower courts to consider additional factors unique to the
particular case.” Camden I, 946 F.2d at 775. Here, these factors support the requested fee.
1. The Claims Against Barry Required Substantial Time and Labor.
Prosecuting and settling these claims demanded considerable time and labor, making this
fee request reasonable. Joint Decl. ¶27. The organization of Class Counsel ensured that the work
was coordinated to maximize efficiency and minimize duplication of effort. Id. Class Counsel
devoted substantial time to investigating the claims against Barry. Id. Class Counsel also
expended resources researching and developing the legal claims at issue. Id. Substantial time and
resources were also dedicated to conducting discovery. Id. Class Counsel reviewed documents
produced by Barry and served written discovery. Id. Class Counsel also expended significant
resources researching and developing the arguments presented in opposition to Barry’s motions
and briefs. Id. As is evident by the docket, the case was vigorously contested during the time
before Settlement. Id.
Settlement negotiations consumed additional time and resources. Id. at ¶28. The mediation
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session and subsequent settlement discussions required substantial preparation and damage
analysis. Id. Finally, a significant time was devoted to negotiating and drafting of the Settlement
and the preliminary approval process, and to all actions required thereafter pursuant to the
Preliminary Approval Order. Id. All of this work consumed a substantial amount of time. Id.
Class Counsel will also spend time with Settlement administration after Final Approval. Id.
All told, Class Counsel’s coordinated work paid dividends for the Settlement Class. Id. at
¶29. Each of the above-described efforts was essential to achieving the Settlement before the
Court. Id. The time and resources Class Counsel devoted to prosecuting and settling this Action
readily justify the requested fee. Id.
2. The Issues Involved Were Novel and Difficult and Required the Skill of Highly Talented Attorneys.
This Court witnessed the quality of Class Counsel’s legal work, which conferred a
substantial benefit on the Settlement Class in the face of significant litigation obstacles. Id. at ¶
36. Class Counsel’s work required the acquisition and analysis of a significant amount of factual
and legal information. Id.
In any given case, the skill of legal counsel should be commensurate with the novelty and
complexity of the issues, as well as the skill of the opposing counsel. Litigation of this Action
required counsel trained in class action law and procedure. Id. at ¶37. Class Counsel possess these
attributes, and their participation added value to the representation of this Settlement Class. Id.
The record demonstrates that the Action involved complex and novel challenges, which Class
Counsel met at every juncture. Id.
In evaluating the quality of representation by Class Counsel, the Court should also consider
opposing counsel. See Camden I, 946 F.2d at 772 n.3; Ressler, 149 F.R.D. at 654. Throughout
the litigation, Barry was represented by extremely capable counsel. Id. at ¶38. They were worthy,
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highly competent adversaries. Id.; Walco Invs. v. Thenen, 975 F. Supp. 1468, 1472 (S.D. Fla.
1997) (stating that “[g]iven the quality of defense counsel from prominent national law firms, the
Court is not confident that attorneys of lesser aptitude could have achieved similar results”).
3. Class Counsel Achieved a Successful Result.
Given the significant litigation risks Class Counsel faced, the Settlement represents a
successful result. Rather than facing years of costly and uncertain litigation, the Settlement Class
Members will receive an immediate cash benefit or Tuition Credit representing an approximate
60% reimbursement. Joint Decl. ¶30. Moreover, payments to eligible Settlement Class Members
will be forthcoming automatically (although Settlement Class Members may opt to complete the
electronic Election Form). Id.
4. The Claims Presented Serious Risk.
The Settlement is particularly noteworthy given the combined litigation risks. Joint Decl.
¶15. As discussed, Barry raised substantial and potentially meritorious defenses in highly novel
litigation prompted by the COVID-19 pandemic. Id. at ¶16. Success under these circumstances
represents a genuine milestone. Consideration of the “litigation risks” factor under Camden I
“recognizes that counsel should be rewarded for taking on a case from which other law firms
shrunk. Such aversion could be due to any number of things, including social opprobrium
surrounding the parties, thorny factual circumstances, or the possible financial outcome of a case.
All of this and more is enveloped by the term ‘undesirable.’” Sunbeam, 176 F. Supp. 2d at 1336.
Further, “[t]he point at which plaintiffs settle with defendants . . . is simply not relevant to
determining the risks incurred by their counsel in agreeing to represent them.” Skelton v. General
Motors Corp., 860 F.2d 250, 258 (7th Cir. 1988). “Undesirability” and relevant risks must be
evaluated from the standpoint of class counsel as of the time they commenced the suit – not
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retroactively, with the benefit of hindsight. Lindy Bros. Builders, Inc. v. American Radiator &
Standard Sanitary Corp., 540 F.2d 102, 112 (3d Cir. 1976); Walco, 975 F. Supp. at 1473.
Prosecuting the Action was risky from the outset. Joint Decl. ¶17. Given these risks, the
$2,400,000.00 cash recovery obtained through the Settlement is substantial in light of the
complexity of the litigation and the significant risks and barriers that loomed in the absence of
Settlement. Any of these risks could easily have impeded, if not altogether derailed, Plaintiff’s
and the Settlement Class’ successful prosecution of these claims.
The recovery achieved by this Settlement must be measured against the fact that any
recovery by Plaintiff and Settlement Class Members through continued litigation could only have
been achieved if: (i) Plaintiff was able to certify a class and establish liability and damages at trial;
and (ii) the final judgment was affirmed on appeal. The Settlement is an extremely fair and
reasonable recovery for the Settlement Class in light of Barry’s defenses, as well as given the
challenging and unpredictable path of litigation Plaintiff and the certified class would have faced
absent the Settlement. Joint Decl. ¶31.
5. Class Counsel Assumed Considerable Risk to Pursue This Action on a Pure Contingency Basis.
In undertaking to prosecute this complex case entirely on a contingent fee basis, Class
Counsel assumed a significant risk of nonpayment or underpayment. Id. at ¶32. That risk warrants
an appropriate fee. Indeed, “[a] contingency fee arrangement often justifies an increase in the
award of attorney’s fees.” Sunbeam, 176 F. Supp. 2d at 1335 (quoting Behrens, 118 F.R.D. at
548); Ressler, 149 F.R.D. at 656 (“Numerous cases recognize that the attorney’s contingent fee
risk is an important factor in determining the fee award.”).
Public policy concerns—in particular, ensuring the continued availability of experienced
and capable counsel to represent classes of injured plaintiffs holding small individual claims—
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also support the requested fee. Joint Decl. ¶33. In the Court’s words:
Generally, the contingency retainment must be promoted to assure representation when a person could not otherwise afford the services of a lawyer. . . . A contingency fee arrangement often justifies an increase in the award of attorney’s fees. This rule helps assure that the contingency fee arrangement endures. If this “bonus” methodology did not exist, very few lawyers could take on the representation of a class client given the investment of substantial time, effort, and money, especially in light of the risks of recovering nothing.
Behrens, 118 F.R.D. at 548.
The progress of the Action shows the inherent risk faced by Class Counsel in accepting
and prosecuting the Action on a contingency fee basis. Class Counsel remains completely
uncompensated for the time invested in the Action, in addition to the substantial expenses they
have advanced. Joint Decl. ¶34. There can be no dispute that this case entailed substantial risk of
nonpayment for Class Counsel.
6. The Requested Fee Comports With Fee Awards in Similar Cases.
The fee sought here is within the range of fees typically awarded in similar cases in the
Eleventh Circuit and in the Southern District. See, e.g., In re Checking Account Overdraft Litig.,
No. 1:09-MD-02036-JLK, 2020 WL 4586398, at *16 (S.D. Fla. Aug. 10, 2020) (awarding a 35%
fee); Morgan v. Public Storage, 301 F. Supp. 3d 1237, 1257-58 (S.D. Fla. 2016) (awarding
33.33%); Legg v. Laboratory Corp. of America, No. 14-cv-61543-RLR, 2016 WL 3944069, at *3
(S.D. Fla. Feb. 18, 2016) (awarding one-third of gross recovery for attorneys’ fees, plus expenses);
Reyes v. ATT&T Mobility Servs., LLC, No. 10-20837-Civ-COOKE, 2013 WL 12219252, at *3
(S.D. Fla. June 21, 2013) (awarding one-third of the total maximum settlement fund); Wolff v.
Cash 4 Titles, No. 03-22778-CIV, 2012 WL 5290155, at *5-6 (S.D. Fla. Sept. 26, 2012) (“The
average percentage award in the Eleventh Circuit mirrors that of awards nationwide—roughly one-
third.”) (citing Circuit case law and listing Southern and Middle District of Florida attorneys’ fees
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awards); In re: Terazosin Hydrochloride Antitrust Litigation, No. 99-1317-MDL-Seitz, 2005 U.S.
Dist. LEXIS 43082, at *20-21 (S.D. Fla. April 19, 2005) (awarding fees of 33.33 % of settlement);
Gutter v. E.I. Dupont De Nemours & Co., No. 95-2152-Civ-Gold, 2003 U.S. Dist. LEXIS 27238,
at *12-13 (S.D. Fla. May 30, 2003) (awarding fees of 33.33 % of settlement); Tapken v. Brown,
No. 90-0691-CIV-Marcus, 1995 U.S. Dist. LEXIS 22931, at *11-12 (S.D. Fla. 1995) (33% of $10
million settlement); see also Swift v. BancorpSouth Bank, No. 1:10-cv-00090-GRJ, 2016 WL
11529613, at *13 (N.D. Fla. July 15, 2016) (awarding fees of 35%); Waters v. Int’l Precious Metals
Corp., 190 F.3d 1291 (11th Cir. 1999) (affirming fee award of 33.33 % of settlement).
Class Counsel’s fee request also falls within the range of the private marketplace, where
contingency fee arrangements often approach or equal forty percent of any recovery. See In re
Cont’l Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992) (“The object in awarding a reasonable
attorneys’ fee . . . is to simulate the market.”); RJR Nabisco, Inc. Sec. Litig., Fed. Sec. L. Rep.
(CCH) ¶ 94, 268 (S.D.N.Y. 1992) (“[W]hat should govern [fee] awards is . . . what the market
pays in similar cases”). And, “[i]n tort suits, an attorney might receive one-third of whatever
amount the Plaintiff recovers. In those cases, therefore, the fee is directly proportional to the
recovery.” Blum v. Stenson, 465 U.S. 886, 904 (1984) (Brennan, J., concurring). Consequently,
the attorneys’ fee requested is appropriate and should be awarded.
7. The Expense Request Is Appropriate.
Class Counsel also request reimbursement for a total of $8,494.79 in litigation expenses.
Joint Decl. ¶35. This sum corresponds to certain actual out-of-pocket costs and expenses that
Class Counsel necessarily incurred and paid in connection with the prosecution of the Action and
the Settlement. Id. Specifically, these costs and expenses consist of filing fees, process server
fees, pro hac vice applications, mediator’s fees and expenses, and legal research. Id. These out-
of-pocket expenses were reasonably and necessarily incurred and paid in furtherance of the
000004/01338230_1 31
Case 1:20-cv-21813-JEM Document 78 Entered on FLSD Docket 07/13/2021 Page 32 of 33
prosecution of this Action. Id.
V. CONCLUSION
The Settlement with Barry securing $2,400,000.00 in cash compensation for the benefit of
the Settlement Class represents an excellent result given the obstacles confronted in this Action.
The Settlement more than satisfies the fairness, reasonableness and adequacy standard of Rule
23(e)(2), as well as the class certification requirements of Rules 23(a) and (b)(3). Further, Class
Counsel’s application for fees and expenses is reasonable under all the circumstances. The request
satisfies the guidelines of Camden I given the results achieved, the notable litigation risks, the
extremely complicated nature of the factual and legal issues, and the time, effort and skill required
to litigate claims of this nature to a satisfactory conclusion.
Accordingly, Plaintiff and Class Counsel respectfully request that this Court (1) grant Final
Approval of the Settlement; (2) certify for settlement purposes the Settlement Class pursuant to
Rule 23(a), 23(b)(3), and 23(e); (3) appoint Marlena Rosado as Class Representative; (4) appoint
as Class Counsel the law firms and attorneys listed in paragraph 1(c) of the Settlement; (5) approve
the requested Service Award in the amount of $5,000.00 (or, alternatively, as compensation in
exchange for the general release from Plaintiff to Barry); (6) award Class Counsel attorneys’ fees
in the amount of $800,000.00, and the reimbursement of expenses in the amount of $8,494.79; and
(7) enter Final Judgment dismissing the Action with prejudice. A proposed Final Approval Order
is attached hereto as Exhibit D.
000004/01338230_1 32
Case 1:20-cv-21813-JEM Document 78 Entered on FLSD Docket 07/13/2021 Page 33 of 33
Dated: July 13, 2021. Respectfully submitted,
/s/ Jeff Ostrow Jeff Ostrow FBN 121452 Jonathan M. Streisfeld FBN 117447 Kristen Lake Cardoso FBN 44401 KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT 1 West Las Olas Boulevard, Suite 500 Fort Lauderdale, FL 33301 Telephone: (954) 954-525-4100 Facsimile: (954) 525-4300 [email protected] [email protected] [email protected]
Daniel L. Warshaw (pro hac vice) PEARSON, SIMON & WARSHAW, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 [email protected]
Anna C. Haac (pro hac vice) TYCKO & ZAVAREEI LLP 1828 L Street NW, Suite 1000 Washington, D.C. 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 [email protected]
Counsel for Plaintiff and the Settlement Class
CERTIFICATE OF SERVICE
I hereby certify that on July 13, 2021, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on counsel of record via transmission of Notices of Electronic Filing generated by CM/ECF.
By: /s/ Jeff Ostrow Jeff Ostrow
000004/01338230_1 33
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EXHIBIT A Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 2 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 3 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 4 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 5 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 6 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 7 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 8 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 9 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 10 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 11 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 12 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 13 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 14 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 15 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 16 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 17 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 18 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 19 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 20 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 21 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 22 of 23 Case 1:20-cv-21813-JEM Document 78-1 Entered on FLSD Docket 07/13/2021 Page 23 of 23
s/Mendy Halberstam Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 1 of 76
EXHIBIT B Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 2 of 76
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
MARLENA ROSADO, on behalf of herself CASE NO. 20-cv-21813-JEM and all others similarly situated,
Plaintiff,
v.
BARRY UNIVERSITY, INC,
Defendant.
JOINT DECLARATION OF CLASS COUNSEL, JEFF OSTROW, ANNA C. HAAC, AND DANIEL L. WARSHAW, IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT, APPLICATION FOR SERVICE AWARD, ATTORNEYS’ FEES AND EXPENSES AND INCORPORATED MEMORANDUM OF LAW
Jeff Ostrow, Anna C. Haac, and Daniel L. Warshaw, declare as follows:
1. We are three of the attorneys designated as Class Counsel1 for Plaintiff under the
Settlement entered into with Barry. We submit this declaration in support of Plaintiff’s Motion for
Final Approval of Class Settlement and Application for Service Award, Attorneys’ Fees and
Expenses, and Incorporated Memorandum of Law. Except as otherwise noted, we have personal
knowledge of the facts set forth in this declaration and could testify competently to them if called
upon to do so.
2. The Settlement, which consists of Barry’s agreement to pay $2,4000,000.00 in
cash, is a great result for the Settlement Class. Barry is obligated to establish the Settlement Fund
upon Final Approval.
3. The Parties commenced discovery as to Plaintiff’s claims and Defendant’s defenses
1 All capitalized defined terms used herein have the same meanings as those defined in the Settlement Agreement.
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 3 of 76
and, thereafter, the Parties began discussing the prospect of settlement and scheduled a January 7,
2020 mediation. In advance, giving consideration to Plaintiff’s formal discovery requests, the
Parties exchanged informal discovery regarding the Plaintiff’s and the putative class’ damages and
had multiple telephonic conversations to clarify questions or obtain additional information.
4. On January 7, 2021, Class Counsel and Barry participated in a full day, formal
mediation under the supervision of D. Andrew Byrne, Esq., an experienced mediator in complex
litigation and class actions. The Parties did not settle the day of mediation; however, they
continued to engage in settlement discussions and ultimately reached an agreement in principle.
All negotiations were arm’s-length and extensive.
5. On February 9, 2021, the Parties filed a Notice of Settlement and Joint Motion to
Stay All Deadlines, which was granted on February 10, 2021.
6. Thereafter, for the next few weeks, the Parties negotiated the Settlement, resulting
in signing the Settlement on March 17, 2021.
7. The Parties have successfully completed the Notice Program.
8. The Notice Program was designed to and did provide the best notice practicable
and was tailored to take advantage of the information Barry had available about Settlement Class
Members.
9. The Notice Program was reasonably calculated under the circumstances to apprise
the Settlement Class of the pendency of the Action, the terms of the Settlement, Class Counsel’s
Attorneys’ Fee application and request for Service Award for Plaintiff, and their rights to opt-out
of the Settlement Class or object to the Settlement.
2
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 4 of 76
10. The Notices and Notice Program constituted sufficient notice to all persons entitled
to notice, and satisfied all applicable requirements of law including, but not limited to, Rule 23
and the constitutional requirement of due process.
11. The Opt-Out Period ends 30 days before the Final Approval Hearing. To date, there
has been no opposition to the Settlement. As of July 13, 2021, there is only one opt-out, making
it unlikely the 25 required to terminate the Settlement will be reached. Also, as of July 13, 2021,
no objections to the Settlement have been filed.
12. The Parties negotiated and reached an agreement regarding attorneys’ fees and
costs only after reaching agreement on all other material terms of the Settlement.
13. The claims and defenses asserted in this Action are complex; litigating them has
been and if the Action were to continue would be both difficult and time-consuming, and recovery
by any means other than settlement would require years of litigation. In contrast, the Settlement
provides immediate and substantial benefits to a Settlement Class of over 6,000 members.
14. Class Counsel negotiated the Settlement with the benefit of meaningful litigation.
Specifically, dealing with novel litigation, they researched and drafted the Complaint and
Amended Complaint, fully briefed Barry’s Motion to Dismiss, drafted portions of an opposition
to Barry’s Motion to Strike (which ultimately was denied before the response deadline), issued
discovery, reviewed and analyzed information regarding the Plaintiff’s and Settlement Class
Members’ damages, and engaged in the mediation process and other settlement negotiations. Class
Counsel’s analysis and understanding of the various legal obstacles, as well as the damage
analysis, positioned them to evaluate with confidence the strengths and weaknesses of the claims
and defenses through the conclusion of the litigation, as well as the range and amount of damages
3
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 5 of 76
that were potentially recoverable if the Action successfully proceeded to judgment on a class-wide
basis.
15. The Settlement is particularly noteworthy given the combined litigation risks.
16. Class Counsel believe that Plaintiff had a strong case against Barry. Even so, Class
Counsel are mindful that Barry advanced significant defenses in novel litigation that would have
been required to overcome in the absence of the Settlement.
17. Prosecuting the Action was risky from the outset and involved several major
litigation risks that loomed in the absence of settlement, including, but not limited to class
certification, a probable motion for summary judgment, Daubert motions, trial, as well as appellate
review following a final judgment. Additionally, Section 768.39, Florida Statutes (which, among
other things, prohibits educational institutions from being held civilly liable for certain actions
taken to diminish the impact or spread of COVID-19) was recently enacted and went into effect
on July 1, 2021. While Class Counsel believe the statute would be inapplicable to this already-
filed Action (and that it may be unconstitutional), it clearly presents an additional obstacle the
Plaintiff would have to overcome in the absence of the Settlement.
18. Apart from the risks, continued litigation would have involved substantial delay
and expense, which further counsels in favor of Final Approval. The uncertainties and delays from
this process would have been significant.
19. Class Counsel strongly endorse the Settlement. Class Counsel were well-positioned
to evaluate the strengths and weaknesses of Plaintiff’s claims, as well as the appropriate basis upon
which to settle them. Through this Settlement, Plaintiff and the Settlement Class have achieved a
recovery of approximately 60% of Settlement Class Members’ total likely recoverable damages
4
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 6 of 76
for the portion of the Spring 2020 Semester following Barry’s COVID-19 campus closure and
transition to online learning, without further risks or delays.
20. This Settlement thus provides an extremely fair and reasonable recovery to the
Settlement Class in light of Barry’s defenses, as well as the challenging, unpredictable path of
novel litigation that Plaintiff would otherwise have continued to face in the trial and appellate
courts. The automatic distribution process without the need to submit a claim further supports
Final Approval.
21. Plaintiff and the Settlement Class are represented by qualified and competent Class
Counsel who have extensive experience and expertise prosecuting complex class actions, and who
devoted substantial time and resources to vigorous litigation of the Action. The firm resume of
Kopelowitz Ostrow P.A., including the biographies of Jeff Ostrow, Jonathan Streisfeld, and
Kristen Cardoso, is attached as Exhibit 1 to this declaration. The firm resume of Tycko & Zavareei
LLP, including the biography of Anna C. Haac, is attached as Exhibit 2 to this declaration. The
firm resume of Pearson, Simon & Warshaw, LLP, including the biography of Daniel L. Warshaw,
is attached as Exhibit 3 to this declaration.
22. Plaintiff provided substantial assistance that enabled Class Counsel to successfully
prosecute the Action, including submitting to interviews with Class Counsel, reviewing all
material filings, approving the Settlement, locating and forwarding responsive documents and
information, and participating in mediation. Plaintiff was also prepared to devote additional time
to deposition and to be available for trial, if necessary. In so doing, Plaintiff was integral to
forming the theory of the case and litigating it through settlement.
23. The end-result of Plaintiff’s efforts, coupled with those of Class Counsel, provided
a substantial benefit to the Settlement Class.
5
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 7 of 76
24. The Settlement is not contingent on Plaintiff receiving a Service Award and, thus,
the Service Award does not constitute either a salary or a bounty. There was also no discussion
between the Parties regarding a Service Award until all material terms of the Settlement were
reached.
25. The requested Service Award of $5,000.00 to Plaintiff, the Class Representative, is
reasonable. It is less than 0.208% of the Settlement Fund, a ratio that falls well below the range of
what has been deemed to be reasonable in this Circuit.
26. Pursuant to the Settlement and the Notices, and consistent with recognized class
action practice and procedure, Class Counsel respectfully request an award of attorneys’ fees of
$800,000.00, which is equal to 33.33% of the $2,400,000.00 Settlement Fund. Class Counsel also
request reimbursement of limited out-of-pocket costs and expenses totaling $8,494.79 incurred in
connection with the prosecution of the Action and in connection with the Settlement.
27. Prosecuting and settling these claims demanded considerable time and labor,
making this fee request reasonable. The organization of Class Counsel ensured that the work was
coordinated to maximize efficiency and minimize duplication of effort. Class Counsel devoted
substantial time to investigating the claims against Barry. Class Counsel also expended resources
researching and developing the legal claims at issue. Substantial time and resources were also
dedicated to conducting discovery. Class Counsel reviewed documents produced by Barry and
served written discovery. Class Counsel also expended significant resources researching and
developing the arguments presented in opposition to Barry’s motions and briefs. As is evident by
the docket, the case was vigorously contested during the time before Settlement.
28. Settlement negotiations consumed additional time and resources. The mediation
session and subsequent settlement discussions required substantial preparation and damage
6
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 8 of 76
analysis. Finally, a significant time was devoted to negotiating and drafting of the Settlement and
the preliminary approval process, and to all actions required thereafter pursuant to the preliminary
approval order. All of this work consumed a substantial amount of time. Class Counsel will also
spend time with Settlement administration after Final Approval.
29. All told, Class Counsel’s coordinated work paid dividends for the Settlement Class.
Each of the above-described efforts was essential to achieving the Settlement before the Court.
The time and resources Class Counsel devoted to prosecuting and settling this Action readily
justify the requested fee.
30. Given the significant litigation risks Class Counsel faced, the Settlement represents
a successful result. Rather than facing years of costly and uncertain litigation, the Settlement Class
Members will receive an immediate cash benefit or Tuition Credit representing an approximate
60% reimbursement. Moreover, payments to eligible Settlement Class Members will be
forthcoming automatically (although Settlement Class Members may opt to complete the
electronic Election Form).
31. The Settlement is an extremely fair and reasonable recovery for the Settlement
Class in light of Barry’s defenses, as well as given the challenging and unpredictable path of
litigation Plaintiff and the certified class would have faced absent the Settlement.
32. In undertaking to prosecute this complex case entirely on a contingent fee basis,
Class Counsel assumed a significant risk of nonpayment or underpayment.
33. Public policy concerns—in particular, ensuring the continued availability of
experienced and capable counsel to represent classes of injured plaintiffs holding small individual
claims—also support the requested fee.
7
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 9 of 76
34. Class Counsel remains completely uncompensated for the time invested in the
Action, in addition to the substantial expenses they have advanced.
35. Class Counsel also request reimbursement for a total of $8,494.79 in litigation
expenses. This sum corresponds to certain actual out-of-pocket costs and expenses that Class
Counsel necessarily incurred and paid in connection with the prosecution of the Action and the
Settlement. Specifically, these costs and expenses consist of legal research, filing fees, process
server fees, pro hac vice applications, and mediator’s fees and expenses. These out-of-pocket
expenses were reasonably and necessarily incurred and paid in furtherance of the prosecution of
this Action.
36. This Court witnessed the quality of Class Counsel’s legal work, which conferred a
substantial benefit on the Settlement Class in the face of significant litigation obstacles. Class
Counsel’s work required the acquisition and analysis of a significant amount of factual and legal
information.
37. Litigation of this Action required counsel trained in class action law and procedure.
Class Counsel possess these attributes, and their participation added value to the representation of
this Settlement Class. The record demonstrates that the Action involved complex and novel
challenges, which Class Counsel met at every juncture.
38. Throughout the litigation, Barry was represented by extremely capable counsel.
They were worthy, highly competent adversaries.
8
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 10 of 76
I declare under penalty of perjury that the foregoing is true of my own personal knowledge.
Executed in Fort Lauderdale, Florida, on July 13, 2021.
/s/ Jeff Ostrow JEFF OSTROW
I declare under penalty of perjury that the foregoing is true of my own personal knowledge.
Executed in Washington, D.C., on July 13, 2021.
/s/ Anna C. Haac ANNA C. HAAC
I declare under penalty of perjury that the foregoing is true of my own personal knowledge.
Executed in Sherman Oaks, California, on July 13, 2021.
/s/ Daniel L. Warshaw DANIEL L. WARSHAW
9
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 11 of 76
EXHIBIT 1 Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 12 of 76
FIRM RESUME
One West Las Olas Boulevard, Suite 500 Fort Lauderdale, Florida 33301
Telephone: 954.525.4100 Facsimile: 954.525.4300 Website: www.kolawyers.com
Miami – Fort Lauderdale – Boca Raton Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 13 of 76 OUR For over two decades, Kopelowitz Ostrow Ferguson Weiselberg Gilbert FIRM (KO) has provided comprehensive, results-oriented legal representation to individual, business, and government clients throughout Florida and the rest of the country. KO has the experience and capacity to represent its clients effectively and has the legal resources to address almost any legal need. The firm’s 26-plus attorneys have practiced at several of the nation’s largest and most prestigious firms and are skilled in almost all phases of law, including consumer class actions, multidistrict litigation involving mass tort actions, complex commercial litigation, and corporate transactions. In the class action arena, the firm has experience not only representing individual aggrieved consumers, but also defending large institutional clients, including multiple Fortune 100 companies.
WHO The firm has a roster of accomplished attorneys. Clients have an WE ARE opportunity to work with some of the finest lawyers in Florida and the United States, each one committed to upholding KO’s principles of professionalism, integrity, and personal service. Among our roster, you’ll find attorneys whose accomplishments include: being listed among the “Legal Elite Attorneys” and as “Florida Super Lawyers”; achieving an AV® Preeminent™ rating by the Martindale-Hubbell peer review process; being Board Certified in their specialty; serving as in-house counsel for major corporations, as a city attorney handling government affairs, as a public defender, and as a prosecutor; achieving multi-millions of dollars through verdicts and settlements in trials, arbitrations, and alternative dispute resolution procedures; successfully winning appeals at every level in Florida state and federal courts; and serving government in various elected and appointed positions.
KO has the experience and resources necessary to represent large putative classes. The firm’s attorneys are not simply litigators, but rather, experienced trial attorneys with the support staff and resources needed to coordinate complex cases. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 14 of 76 Since its founding, KO has initiated and served as co-lead counsel and liaison CLASS counsel in many high-profile class actions. Currently, the firm serves as liaison ACTION counsel in a multidistrict class action antitrust case against four of the largest PLAINTIFF contact lens manufacturers pending before Judge Schlesinger in the Middle District of Florida. See In Re: Disposable Contact Lens Antitrust Litigation, MDL 2626 as well as co-lead counsel in In re Zantac (Ranitidine) Prods. Liab. Litig., 9:20-md-02924-RLR (S.D. Fla.).
Further, the firm has served or is currently serving as lead or co-lead counsel in dozens of certified and/or proposed class actions against national and regional banks involving the unlawful re-sequencing of debit and ATM transactions resulting in manufactured overdraft fees, and other legal theories pertaining to overdraft fees and insufficient funds (NSF) fees. The cases are pending, or were pending, in various federal and state jurisdictions throughout the country, including some in multidistrict litigation pending in the Southern District of Florida and others in federal and state courts dispersed throughout the country. KO’s substantial knowledge and experience litigating overdraft class actions and analyzing overdraft damage data has enabled the firm to obtain about a dozen multi-million dollar settlements (in excess of $400 million) for the classes KO represents.
Additionally, other current cases are being litigated against automobile insurers for failing to pay benefits owed to insureds with total loss vehicle claims; data breaches; false advertising; defective consumer products and vehicles; antitrust violations; and suits on behalf of students against colleges and universities arising out of the COVID-19 pandemic.
The firm has in the past litigated certified and proposed class actions against Blue Cross Blue Shield and United Healthcare related to their improper reimbursements of health insurance benefits. Other insurance cases include auto insurers failing to pay benefits owed to insureds with total loss vehicle claims. Other class action cases include cases against Microsoft Corporation related to its Xbox 360 gaming platform, ten of the largest oil companies in the world in connection with the destructive propensities of ethanol and its impact on boats, Nationwide Insurance for improper mortgage fee assessments, and several of the nation’s largest retailers for deceptive advertising and marketing at their retail outlets and factory stores. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 15 of 76 The firm also brings experience in successfully defended many class CLASS actions on behalf of banking institutions, mortgage providers and ACTION servicers, an aircraft maker and U.S. Dept. of Defense contractor, a manufacturer of breast implants, and a national fitness chain. DEFENSE
MASS TORT The firm also has extensive experience in mass tort litigation, including the handling of cases against Bausch & Lomb in connection with its Renu with LITIGATION MoistureLoc product, Wyeth Pharmaceuticals related to Prempro, Bayer Corporation related to its birth control pill YAZ, and Howmedica Osteonics Corporation related to the Stryker Rejuvenate and AGB II hip implants. In connection with the foregoing, some of which has been litigated within the multidistrict arena, the firm has obtained millions in recoveries for its clients.
OTHER AREAS In addition to class action and mass tort litigation, the firm has extensive OF PRACTICE experience in the following practice areas: commercial and general civil litigation, corporate transactions, health law, insurance law, labor and employment law, marital and family law, real estate litigation and transaction, government affairs, receivership, construction law, appellate practice, estate planning, wealth preservation, healthcare provider reimbursement and contractual disputes, white collar and criminal defense, employment contracts, environmental, and alternative dispute resolution.
FIND US To learn more about KO, or any of the firm’s other attorneys, please visit www.kolawyers.com. ONLINE Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 16 of 76 CLASS ACTION AND MASS TORT SETTLEMENTS
FINANCIAL Roberts v. Capital One, N.A., 16 Civ. 4841 (LGS) (S.D.N.Y 2020) - $17 million INSTITUTIONS Lloyd v. Navy Federal Credit Union, 17-cv-01280-BAS-RBB (S.D. Ca. 2019) - $24.5 million Farrell v. Bank of America, N.A., 3:16-cv-00492-L-WVG (S.D. Ca. 2018) - $66.6 million
Bodnar v. Bank of America, N.A., 5:14-cv-03224-EGS (E.D. Pa. 2015) - $27.5 million
Morton v. Green Bank, 11-135-IV (20th Judicial District Tenn. 2018) - $1.5 million
Hawkins v. First Tennessee Bank, CT-004085-11 (13th Judicial District Tenn. 2017) - $16.75 million
Payne v. Old National Bank, 82C01-1012 (Cir. Ct. Vanderburgh 2016) - $4.75 million
Swift. v. Bancorpsouth, 1:10-CV-00090 (N.D. Fla. 2016) - $24.0 million
Mello v. Susquehanna Bank, 1:09-MD-02046 (S.D. Fla. 2014) – $3.68 million
Johnson v. Community Bank, 3:11-CV-01405 (M.D. Pa. 2013) - $1.5 million
McKinley v. Great Western Bank, 1:09-MD-02036 (S.D. Fla. 2013) - $2.2 million
Blahut v. Harris Bank, 1:09-MD-02036 (S.D. Fla. 2013) - $9.4 million
Wolfgeher Commerce Bank, 1:09-MD-02036 (S.D. Fla. 2013) - $18.3 million
Case v. Bank of Oklahoma, 09-MD-02036 (S.D. Fla. 2012) - $19.0 million Settlement
Hawthorne v. Umpqua Bank, 3:11-CV-06700 (N.D.Ca. 2012) - $2.9 million Settlement
Simpson v. Citizens Bank, 2:12-CV-10267 (E.D. Mi. 2012) - $2.0 million
Nelson v. Rabobank, RIC 1101391 (Riverside County, Ca. 2012) - $2.4 million
Harris v. Associated Bank, 1:09-MD-02036 (S.D. Fla. 2012) - $13.0 million
LaCour v. Whitney Bank, 8:11-CV-1896 (M.D. Fla. 2012) - $6.8 million
Orallo v. Bank of the West, 1:09-MD-202036 (S.D. Fla. 2012) - $18.0 million
Taulava v. Bank of Hawaii, 11-1-0337-02 (1st Cir. Hawaii 2011) - $9.0 million
Trevino v. Westamerica, CIV 1003690 (Marin County, CA 2010) - $2.0 million Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 17 of 76 Gattinella v. Michael Kors (USA), 14-Civ-5731 (WHP) (S.D. NY 2015) - $4.875 million FALSE Stathakos v. Columbia Sportswear, 4:15-cv-04543-YGR (N.D. Ca. 2018) - Injunctive relief PRICING prohibiting deceptive pricing practices
CONSUMER Walters v. Target Corp., 3:16-cv-1678-L-MDD (S.D. Cal. 2020) – $8.2 million PROTECTION Papa v. Grieco Ford Fort Lauderdale, LLC, 18-cv-21897-JEM (S.D. Fla. 2019) - $4.9 million Bloom v. Jenny Craig, Inc., 18-cv-21820-KMM (S.D. Fla. 2019) - $3 million
DiPuglia v. US Coachways, Inc., 1:17-cv-23006-MGC (S.D. Fla. 2018) - $2.6 million
Masson v. Tallahassee Dodge Chrysler Jeep, LLC, 1:17-cv-22967-FAM (S.D. Fla. 2018) - $850,000
In re Zantac (Ranitidine) Prods. Liab. Litig., 9:20-md-02924-RLR (S.D. Fla.) - MDL No. MASS 2924 – Co-Lead Counsel
TORT In re: Stryker Rejuvenate and ABG II PRODUCTS LIABILITY LITIGATION, 13-MD- 2411 (17th Jud. Cir. Fla. Complex Litigation Division)
In re: National Prescription Opiate Litigation, 1:17-md-02804-DAP (N.D. Ohio) - MDL 2804
In re: Smith and Nephew BHR Hip Implant Products Liability Litigation, MDL-17-md-2775
Yasmin and YAZ Marketing, Sales Practivces and Products Liability Litigation, 3:09-md-02100- DRH-PMF (S.D. Ill.) – MDL 2100
In re: Prempro Products Liability Litigation, MDL Docket No. 1507, No. 03-cv-1507 (E.D. Ark.) Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 18 of 76 JEFF OSTROW Managing Partner
Bar Admissions The Florida Bar
Court Admissions Supreme Court of the United States U.S. Court of Appeals for the Eleventh Circuit U.S. District Court, Southern District of Florida U.S. District Court, Middle District of Florida U.S. District Court, Northern District of Florida U.S. District Court, Northern District of Illinois U.S. District Court, Eastern District of Michigan U.S. District Court, Western District of Tennessee U.S. District Court, Western District of Wisconsin
Education Nova Southeastern University, J.D. - 1997 University of Florida, B.S. – 1994
Email: [email protected]
Jeff Ostrow is the Managing Partner of Kopelowitz Ostrow P.A. He established his own law practice immediately upon graduation from law school in 1997, co-founded the current firm in 2001, and has since grown it to nearly 50 attorneys in 3 offices throughout South Florida. In addition to overseeing the firm’s day-to-day operations and strategic direction, Mr. Ostrow practices full time in the areas of consumer class actions, sports and business law. He is a Martindale-Hubbell AV® Preeminent™ rated attorney in both legal ability and ethics.
Mr. Ostrow is an accomplished trial attorney who represents both Plaintiffs and Defendants, successfully trying many cases to verdict involving multi-million dollar damage claims in state and federal courts. Currently, he serves as lead counsel in nationwide and statewide class action lawsuits against many of the world’s largest financial institutions in connection with the unlawful assessment of fees. To date, his efforts have successfully resulted in the recovery of over $400,000,000 for tens of millions of bank customers, as well as monumental changes in the way banks assess fees. In addition, Mr. Ostrow has litigated consumer class actions against some of the world’s largest clothing retailers, health insurance carriers, technology companies, and oil conglomerates, along with serving as class action defense counsel for some of the largest advertising and marketing agencies in the world, banking institutions, real estate developers, and mortgage companies. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 19 of 76 Mr. Ostrow often serves as outside General Counsel to companies, advising them in connection with their legal and regulatory needs. He has represented many Fortune 500® Companies in connection with their Florida litigation. He has handled cases covered by media outlets throughout the country and has been quoted many times on various legal topics in almost every major news publication, including the Wall Street Journal, New York Times, Washington Post, Miami Herald, and Sun-Sentinel. He has also appeared on CNN, ABC, NBC, CBS, FoxNews, ESPN, and almost every other major national and international television network in connection with his cases, which often involve industry changing litigation or athletes in Olympic Swimming, the NFL, NBA and MLB.
In addition to the law practice, he is the President of ProPlayer Sports LLC, a full-service sports agency and marketing firm. He represents both Olympic swimmers and select NFL athletes and is licensed by both the NFL Players Association and the NBA Players Association as a certified Contract Advisor. Mr. Ostrow handles all player-team negotiations of contracts, represents his clients in legal proceedings, negotiates all marketing engagements, and oversees public relations and crisis management. He has extensive experience in negotiating, mediating and arbitrating a wide-range of issues on behalf of clients with the NFL Players Association, the International Olympic Committee, the United States Olympic Committee, USA Swimming and the United States Anti-Doping Agency.
He is the founder and President of Class Action Lawyers of American, a member of the Public Justice Foundation, and a lifetime member of the Million Dollar Advocates Forum. The Million Dollar Advocates Forum is the most prestigious group of trial lawyers in the United States. Membership is limited to attorneys who have won multi-million dollar verdicts. Additionally, he has been named as one of the top lawyers in Florida by Super Lawyers® for several years running, honored as one of Florida’s Legal Elite Attorneys, recognized as a Leader in Law by the Lifestyle Media Group®, and nominated by the South Florida Business Journal® as a finalist for its Key Partners Award. Mr. Ostrow is a recipient of the Gator 100 award for the fastest growing University of Florida alumni- owned law firm in the world.’
When not practicing law, Mr. Ostrow serves on the Board of Governors of Nova Southeastern University’s Wayne Huizenga School of Business and is a Member of the Broward County Courthouse Advisory Task Force. He is also the Managing Member of One West LOA LLC, a commercial real estate development company. Mr. Ostrow is a founding board member for the Jorge Nation Foundation, a 501(c)(3) non-profit organization that partners with the Joe DiMaggio Children’s Hospital to send children diagnosed with cancer on all-inclusive Dream Trips to destinations of their choice. He has previously sat on the boards of a national banking institution and a national healthcare marketing company. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 20 of 76 ROBERT C. GILBERT Partner
Bar Admissions The Florida Bar District of Columbia Bar
Court Admissions Supreme Court of the United States U.S. Court of Appeals for the 11th Circuit U.S. District Court, Southern District of Florida U.S. District Court, Middle District of Florida
Education University of Miami School of Law, J.D. - 1985 Florida International University, B.S. - 1982
Email: [email protected]
Robert C. “Bobby” Gilbert has over three decades of experience handling class actions, multidistrict litigation and complex business litigation throughout the United States. He has been appointed lead counsel, co-lead counsel, coordinating counsel or liaison counsel in many federal and state court class actions. Bobby has served as trial counsel in class actions and complex business litigation tried before judges, juries and arbitrators. He has also briefed and argued numerous appeals, including two precedent-setting cases before the Florida Supreme Court.
Bobby was appointed as Plaintiffs’ Coordinating Counsel in In re Checking Account Overdraft Litig., MDL 2036, class action litigation brought against many of the nation’s largest banks that challenged the banks’ internal practice of reordering debit card transactions in a manner designed to maximize the frequency of customer overdrafts. In that role, Bobby managed the large team of lawyers who prosecuted the class actions and served as the plaintiffs’ liaison with the Court regarding management and administration of the multidistrict litigation. He also led or participated in settlement negotiations with the banks that resulted in settlements exceeding $1.1 billion, including Bank of America ($410 million), Citizens Financial ($137.5 million), JPMorgan Chase Bank ($110 million), PNC Bank ($90 million), TD Bank ($62 million), U.S. Bank ($55 million), Union Bank ($35 million) and Capital One ($31.7 million).
Bobby has been appointed to leadership positions is numerous other class actions and multidistrict litigation proceedings. He is currently serving as co-lead counsel in In re Zantac (Ranitidine) Prods. Liab. Litig., 9:20-md-02924-RLR (S.D. Fla.), as well as liaison counsel in In re Disposable Contact Lens Antitrust Litig., MDL 2626 (M.D. Fla.); liaison counsel in In re 21st Century Oncology Customer Data Security Beach Litig., MDL 2737 (M.D. Fla.); and In re Farm- Raised Salmon and Salmon Products Antitrust Litig., No. 19-21551 (S.D. Fla.). He previously served as liaison counsel for indirect purchasers in In re Terazosin Hydrochloride Antitrust Litig., MDL 1317 (S.D. Fla.), an antitrust class action that settled for over $74 million. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 21 of 76 For the past 18 years, Bobby has represented thousands of Florida homeowners in class actions to recover full compensation under the Florida Constitution based on the Florida Department of Agriculture’s taking and destruction of the homeowners’ private property. As lead counsel, Bobby argued before the Florida Supreme Court to establish the homeowners’ right to pursue their claims; served as trial counsel in non-jury liability trials followed by jury trials that established the amount of full compensation owed to the homeowners for their private property; and handled all appellate proceedings. Bobby’s tireless efforts on behalf of the homeowners resulted in judgments exceeding $93 million.
Bobby previously served as an Adjunct Professor at Vanderbilt University Law School, where he co-taught a course on complex litigation in federal courts that focused on multidistrict litigation and class actions. He continues to frequently lecture and make presentations on a variety of topics.
Bobby has served for many years as a trustee of the Greater Miami Jewish Federation and previously served as chairman of the board of the Alexander Muss High School in Israel, and as a trustee of The Miami Foundation. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 22 of 76 JONATHAN M. STREISFELD Partner
Bar Admissions The Florida Bar
Court Admissions Supreme Court of the United States U.S. Court of Appeals for the First, Second, Fourth, Fifth Ninth, and Eleventh Circuits U.S. District Court, Southern District of Florida U.S. District Court, Middle District of Florida U.S. District Court, Northern District of Florida U.S. District Court, Northern District of Illinois U.S. District Court, Western District of Michigan U.S. District Court, Western District of New York U.S. District Court, Western District of Tennessee
Education Nova Southeastern University, J.D. - 1997 Syracuse University, B.S. - 1994 Email: [email protected]
Jonathan M. Streisfeld joined KO as a partner in 2008. Mr. Streisfeld concentrates his practice in the areas of consumer class actions, business litigation, and appeals nationwide. He is a Martindale- Hubbell AV® Preeminent™ rated attorney in both legal ability and ethics.
Mr. Streisfeld has vast and successful experience in class action litigation, serving as class counsel in nationwide and statewide consumer class action lawsuits against the nation’s largest financial institutions in connection with the unlawful assessment of fees. To date, his efforts have successfully resulted in the recovery of over $400,000,000 for millions of bank and credit union customers, as well as profound changes in the way banks assess fees. Additionally, he has and continues to serve as lead and class counsel for consumers in many class actions involving false advertising and pricing, defective products, and data breach. In addition, Mr. Streisfeld has litigated class actions against some of the largest health and automobile insurance carriers and oil conglomerates, and defended class and collective actions in other contexts.
Mr. Streisfeld has represented a variety of businesses and individuals in a broad range of business litigation matters, including contract, fraud, breach of fiduciary duty, intellectual property, real estate, shareholder disputes, wage and hour, and deceptive trade practices claims. He also assists business owners and individuals with documenting contractual relationships. Mr. Streisfeld also provides legal representation in bid protest proceedings.
Mr. Streisfeld oversees the firm’s appellate and litigation support practice, representing clients in the appeal of final and non-final orders, as well as writs of certiorari, mandamus, and prohibition. His appellate practice includes civil and marital and family law matters.
Previously, Mr. Streisfeld served as outside assistant city attorney for the City of Plantation and Village of Wellington in a broad range of litigation matters.
As a member of The Florida Bar, Mr. Streisfeld served for many years on the Executive Council of the Appellate Practice Section and is a past Chair of the Section’s Communications Committee. Mr. Streisfeld currently serves as a member of the Board of Temple Kol Ami Emanu-El. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 23 of 76 DANIEL TROPIN Partner
Bar Admissions The Florida Bar
Court Admissions U.S. District Court, Southern District of Florida U.S. District Court, Middle District of Florida
Education University of Virginia, J.D. - 2012 Emory University, B.A. - 2008
Email: [email protected]
Daniel Tropin is a litigator who specializes in complex commercial cases and class action litigation. Mr. Tropin joined the law firm as a partner in 2018, and has a wealth of experience across the spectrum of litigation, including class actions, derivative actions, trade secrets, arbitrations, and product liability cases.
Mr. Tropin graduated from the University of Virginia law school in 2012, and prior to joining this firm, was an associate at a major Miami law firm and helped launch a new law firm in Wynwood. He was given the Daily Business Review’s Most Effective Lawyers, Corporate Securities award in 2014. His previous representative matters include: • Represented a major homebuilder in an action against a former business partner, who had engaged in a fraud and defamation scheme to extort money from the client. Following a jury trial, the homebuilder was awarded $1.02 billion in damages. The award was affirmed on appeal.
• Represented the former president and CEO of a cruise line in a lawsuit against a major international venture capital conglomerate, travel and entertainment company, based on allegations of misappropriation of trade secrets, breach of a non-disclosure agreement, and breach of a partnership agreement.
• Represented the CEO of a rapid finance company in an action seeking injunctive relief to protect his interest in the company.
• Represented a medical supply distribution company an action that involved allegations of misappropriation and breach of a non-circumvention agreement.
• Represented a mobile phone manufacturer and distributor in a multi-million-dollar dispute regarding membership interests in a Limited Liability Company, with claims alleging misappropriation of trade secrets and breach of fiduciary duty.
• Represented a major liquor manufacturer in a products liability lawsuit arising out of an incident involving flaming alcohol. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 24 of 76 JOSH LEVINE Partner Bar Admissions The Florida Bar
Court Admissions U.S. Court of Appeals for the Fifth Circuit U.S. Court of Appeals for the Sixth Circuit U.S. Court of Appeals for the Eleventh Circuit U.S. District Court, Southern District of Florida U.S. District Court, Middle District of Florida U.S. District Court, Northern District of Illinois
Education University of Miami School of Law, J.D. - 2011 University of Central Florida, B.A. - 2006 Email: [email protected]
Josh Levine is a litigation attorney, and his practice takes him all over the State of Florida and the United States. Mr. Levine focuses on civil litigation and appellate practice, primarily in the areas of class actions and commercial litigation.
Mr. Levine has handled over 175 appeals in all five of Florida’s District Courts of Appeal and the Florida Supreme Court, as well as multiple federal appellate courts. Mr. Levine has represented both businesses and individuals in litigation matters, including contractual claims, fraud, breach of fiduciary duty, negligence, professional liability, enforcement of non-compete agreements, trade secret infringement, real estate and title claims, other business torts, insurance coverage disputes, as well as consumer protection statutes.
Mr. Levine is a member of the Florida Bar Appellate Court Rules Committee, currently serving as the vice-chair of the Civil Practice Subcommittee and is an active member of the Appellate Practice Section of the Florida Bar and the Broward County Bar Association. Mr. Levine recently completed a four-year term as a member of the Board of Directors of the Broward County Bar Association Young Lawyers Section.
Mr. Levine received a Juris Doctor degree, Magna Cum Laude, from the University of Miami School of Law. While attending law school, he served as an Articles and Comments Editor on the University of Miami Inter-American Law Review and was on the Dean’s List, and a Merit Scholarship recipient. Mr. Levine also was awarded the Dean’s Certificate of Achievement in Legal Research and Writing, Trusts & Estates, & Professional Responsibility classes.
Before joining KO, Mr. Levine worked at an Am Law 100 firm where he also focused on civil litigation and appellate practice, primarily representing banks, lenders, and loan servicers in consumer finance related litigation matters. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 25 of 76 KRISTEN LAKE CARDOSO Partner
Bar Admissions The Florida Bar
Court Admissions U.S. District Court, Southern District of Florida U.S. District Court, Middle District of Florida
Education Nova Southeastern University, J.D., 2007 University of Florida, B.A., 2004
Email: [email protected]
Kristen Lake Cardoso is a litigation attorney focusing on complex commercial cases and consumer class actions. She has gained valuable experience representing individuals and businesses in state and federal courts at both the trial and appellate levels in a variety of litigation matters, including contractual claims, fraud, breach of fiduciary duty, negligence, professional liability, real estate claims, enforcement of non-compete agreements, trade secret infringement, shareholder disputes, deceptive trade practices, other business torts, as well as consumer protection statutes.
Mrs. Cardoso’s class action cases have involved, amongst other things, data breaches, violations of state consumer protection statutes, and breaches of contract. Mrs. Cardoso has represented students seeking reimbursements of tuition, room and board, and other fees paid to their colleges and universities for in-person education, housing, meals, and other services not provided when campuses closed during the COVID-19 pandemic. Ms. Cardoso has also represented consumers seeking recovery of gambling losses from tech companies that profit from illegal gambling games offered, sold, and distributed on their platforms.
Mrs. Cardoso is admitted to practice law throughout the State of Florida, as well as in the United States District Courts for the Southern District of Florida and the Northern District of Florida. Mrs. Cardoso attended the University of Florida, where she received her Bachelor's degree in Political Science, cum laude. She received her law degree from Nova Southeastern University, magna cum laude. While in law school, Mrs. Cardoso served as an Articles Editor for the Nova Law Review, was on the Dean's List, and was the recipient of a scholarship granted by the Broward County Hispanic Bar Association for her academic achievements. When not practicing law, Mrs. Cardoso serves as a volunteer at Saint David Catholic School. She has also served on various committees with the Junior League of Greater Fort Lauderdale geared towards improving the local community through leadership and volunteering. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 26 of 76 RACHEL GLASER Associate
Bar Admissions The Florida Bar
Education Nova Southeastern University, J.D., 2020 Florida State University, B.S., 2017
Email: [email protected]
Rachel Feder Glaser is an attorney in KO’s Fort Lauderdale office and is an active member of the Florida Bar. Her practice focuses primarily on class action litigation. Ms. Glaser litigates consumer class action lawsuits, including cases against some of the largest financial institutions in Florida and around the United States, challenging their unlawful assessment and collection of account fees. She has also assisted the firm in class actions targeting auto insurance companies across the country, in connection with the failure to provide proper coverage in the event of a total vehicular loss.
Ms. Glaser earned her Juris Doctor, summa cum laude, from Nova Southeastern University, Shepard Broad College of Law, where she served as an Executive Board Member of the Nova Trial Association, Senior Associate for the Nova Law Review, and as a teaching assistant for the Legal Research and Writing department. Ms. Glaser was consistently placed on the Dean’s List and received the Book Awards in Legal research and Writing, Evidence, and Trial Advocacy.
While in law school, Ms. Glaser participated in national competitions for both the Nova Trial Association and the Moot Court Honor Society, winning a National Championship at the 2019 Buffalo-Niagara Mock Trial Competition. For her excellence in advocacy, Ms. Glaser was inducted into the Order of the Barristers.
Ms. Glaser received a Bachelor of Science in both Accounting and Finance from Florida State University. While attending Florida State, she interned for the University’s Office of Inspector General Services where she assisted internal auditors in investigating allegations related to compliance, fraud, and abuse of university resources. Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 27 of 76
EXHIBIT 2 Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 28 of 76
Firm Resume Jonathan Tycko and Hassan Zavareei founded Tycko & Zavareei LLP in 2002 when they left a large national firm to form a private public interest law firm. Since then, a wide range of clients have trusted the firm with their most difficult problems. Those clients include individuals fighting for their rights, tenants’ associations battling to preserve decent and affordable housing, consumers seeking redress for unfair business practices, whistleblowers exposing fraud and corruption, and non-profit entities and businesses facing difficult litigation. The firm’s practice focuses on complex litigation, with a particular emphasis on consumer and other types of class actions, and qui tam and False Claims Act litigation. In its class action practice, the firm represent consumers who have been victims of corporate wrongdoing. The firm’s attorneys bring a unique perspective to such litigation because many of them trained at major national defense firms where they obtained experience representing corporate defendants in such cases. This unique perspective enables the firm to anticipate and successfully counter the strategies commonly employed by corporate counsel defending class action litigation. Tycko & Zavareei LLP’s attorneys have successfully obtained class certification, been appointed class counsel, and obtained approval of class action settlements with common funds totaling over $500 million. Tycko & Zavareei LLP’s sixteen attorneys graduated from some of the nation’s finest law schools, including Yale Law School, Harvard Law School, Columbia Law School, and the University of Michigan Law School. They have served in prestigious clerkships for federal and state trial and appellate judges and have worked for low-income clients through competitive public interest fellowships. The firm’s diversity makes it a leader amongst its peers, and the firm actively and successfully recruits attorneys who are women, people of color, and LGBTQ. To support its mission of litigating in the public interest, Tycko & Zavareei LLP’s offers a unique public interest fellowship for recent law graduates. Tycko & Zavareei LLP’s attorneys practice in state and federal courts across the nation.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Jonathan Tycko Partner 202.973.0900 [email protected]
In his 25 years of practice, Jonathan Tycko has represented a wide range of clients, including individuals, Fortune 500 companies, privately-held Education business, and non-profit associations, in both trial and appellate courts Columbia University Law School, around the country. Although he continues to handle a variety of cases, 1992 his current practice is focused primarily on helping whistleblowers expose fraud and corruption through qui tam litigation under the False Claims Act The Johns Hopkins University, 1989, and other similar whistleblower statutes. Mr. Tycko’s whistleblower with honors clients have brought to light hundreds of millions of dollars in fraud in cases involving healthcare, government contracts, customs and import Bar Admissions duties, banking and tax. District of Columbia Prior to founding Tycko & Zavareei LLP in 2002, Mr. Tycko was with Maryland Gibson, Dunn & Crutcher LLP, one of the nation’s top law firms. He New York received his law degree in 1992 from Columbia University Law School, Supreme Court of the United States and earned a B.A. degree, with honors, in 1989 from The Johns Hopkins University. After graduating from law school, Mr. Tycko served for two Memberships years as law clerk to Judge Alexander Harvey, II, of the United States District Court for the District of Maryland. American Association for Justice (AAJ) In addition to his private practice, Mr. Tycko is an active participant in other law-related and community activities. He currently serves on the Public Justice Conference Committee of the Taxpayers Against Fraud Education Fund, Taxpayers Against Fraud Education charged with planning the premier annual conference of whistleblower Fund (TAFEF) attorneys and their counterparts at the United States Department of Justice and other government agencies. He has taught as an Adjunct Professor at Awards the George Washington University Law School. He is a former member and Chairperson of the Rules of Professional Conduct Review Committee Stone Scholar (all three years), of the District of Columbia Bar, where he helped draft the ethics rules Columbia Law School governing members of the bar. And Mr. Tycko is a member of the Board Thomas E. Dewey Prize for Best of Trustees of Studio Theatre, one of the D.C. area’s top non-profit Brief, Harlan Fiske Stone Moot Court theaters. Competition, Columbia Law School Mr. Tycko is admitted to practice before the courts of the District of Award of Litigation Excellence, Columbia, Maryland and New York, as well as before numerous federal CARECEN-The Central American courts, including the Supreme Court, the Circuit Courts for the D.C. Resource Center Circuit, Third Circuit, Fourth Circuit, Fifth Circuit, Seventh Circuit, Ninth Super Lawyers, 2012-current Circuit, Eleventh Circuit and Federal Circuit, the District Courts for the Member of the D.C. Bar Leadership District of Columbia and District of Maryland, the Southern District of Academy New York, the Northern District of New York, the Western District of New York, and the Court of Federal Claims.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Hassan A. Zavareei Partner 202.973.0900 [email protected]
Mr. Zavareei has devoted the last eighteen years to recovering hundreds of millions of dollars on behalf of consumers and workers. He has served Education in leadership roles in dozens of class action cases and has been appointed UC Berkeley School of Law, 1995 Class Counsel on behalf of numerous litigation and settlement classes. An Order of the Coif accomplished and experienced attorney, Mr. Zavareei has litigated in state Duke University, 1990 and federal courts across the nation in a wide range of practice areas; tried cum laude several cases to verdict; and successfully argued numerous appeals, including in the D.C. Circuit, the Fourth Circuit, and the Fifth Circuit. Bar Admissions After graduating from UC Berkeley School of Law, Mr. Zavareei joined California the Washington, D.C. office of Gibson, Dunn & Crutcher LLP. There, he District of Columbia managed the defense of a nationwide class action brought against a major Maryland insurance carrier, along with other complex civil matters. In 2002, Mr. Supreme Court of the United States Zavareei founded Tycko & Zavareei LLP with his partner Jonathan Tycko. Mr. Zavareei has served as lead counsel or co-counsel in dozens of class Memberships actions involving deceptive business practices, defective products, and/or Public Justice, Board Member privacy. He has been appointed to leadership roles in multiple cases. As Lead Counsel in an MDL against a financial services company that American Association for Justice provided predatory debit cards to college students, Mr. Zavareei spearheaded a fifteen-million-dollar recovery for class members. He is Awards currently serving as Co-Lead Counsel in consolidated proceedings against Washington Lawyers Committee, Fifth Third Bank, and on the Plaintiffs’ Executive Committee in MDL Outstanding Achievement Award litigation against TD Bank. As Co-Lead Counsel in Farrell v. Bank of America, a case challenging Bank of America’s punitive overdraft fees, Mr. Super Lawyer Zavareei secured a class settlement valued at $66.6 million in cash and debt Lawdragon 500 relief, together with injunctive relief forcing the bank to change a practice that will save millions of low-income consumers approximately $1.2 billion Presentations & Publications in overdraft fees. In his Order granting final approval, Judge Lorenz of the Witness Before the Subcommittee on U.S. District Court for the Southern District of California described the the Constitution and Civil Justice, outcome as a “remarkable” accomplishment achieved through “tenacity 115th Congress and great skill.” Witness Before the Civil Rules Advisory Committee, 2018, 2019 Editor, Duke Law School Center for Judicial Studies, Guidance on New Rule 23 Class Action Settlement Provisions
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Anna Haac Partner 202.973.0900 [email protected]
Anna C. Haac is a Partner in Tycko & Zavareei LLP’s Washington, D.C. office. She focuses her practice on consumer protection class Education actions and whistleblower litigation. Her prior experience at University of Michigan Law School, Covington & Burling LLP, one of the nation’s most prestigious 2006, cum laude defense-side law firms, gives her a unique advantage when representing plaintiffs against large companies in complex cases. Since University of North Carolina at arriving at Tycko & Zavareei LLP, Ms. Haac has represented Chapel Hill, 2006, highest honors consumers in a wide range of practice areas, including product liability, false labeling, deceptive and unfair trade practices, and predatory Bar Admissions financial practices. Her whistleblower practice involves claims for District of Columbia fraud on federal and state governments across an equally broad Maryland spectrum of industries, including health care fraud, customs fraud, and government contracting fraud. Memberships
Ms. Haac has helped secure multimillion-dollar relief on behalf of the Antitrust & Consumer Protection classes and whistleblowers she represents. Ms. Haac also serves as the Section of District of Columbia Bar, D.C. Co-Chair of the National Association of Consumer Advocates Co-Chair and as Co-Chair of the Antitrust and Consumer Law Section Steering National Association of Consumer Committee of the D.C. Bar. Advocates, District of Columbia Co-Chair Ms. Haac earned her law degree cum laude from the University of Michigan Law School in 2006 and went on to clerk for the Honorable Awards Catherine C. Blake of the United States District Court for the District of Maryland. Prior to law school, Ms. Haac graduated with a B.A. in Super Lawyers, Rising Star, 2015 political science with highest distinction from the Honors Program at the University of North Carolina at Chapel Hill. Presentations & Publications
Ms. Haac is a member of the District of Columbia and Maryland state Discussion Leader, “Practical Ideas bars. She is also admitted to the United States Court of Appeals for about Properly Framing the Issues the Second, Third, and Fourth Circuits and the United States District and Educating the Court and Public Courts for the District of Columbia, District of Maryland, and the in Filings Responding to Increasing Eastern District of Michigan, among others. Attacks on Class Action Settlements and Fees,” Invitation-Only Cambridge Forum on Plaintiffs’ Class Action Litigation (October 2020)
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Andrea R. Gold Partner 202.973.0900 [email protected]
Andrea Gold has spent her legal career advocating for consumers, employees, and whistleblowers. Ms. Gold has litigated numerous complex Education cases, including through trial. Her extensive litigation experience benefits University of Michigan Law School, the firm’s clients in both national class action cases as well as in qui tam 2004 whistleblower litigation. University of Michigan, Ross School She has served as trial counsel in two lengthy jury trials. of Business, 2001 In her class action practice, Ms. Gold has successfully defended dispositive motions, navigated complex discovery, worked closely with leading Bar Admissions experts, and obtained contested class certification. Her class action cases District of Columbia have involved, amongst other things, unlawful bank fees, product defects, Illinois violations of the Telephone Consumer Protection Act, and deceptive Maryland advertising and sales practices. Ms. Gold also has significant civil rights experience. She has represented Memberships individuals and groups of employees in employment litigation, obtaining American Association for Justice substantial recoveries for employees who have faced discrimination, harassment, and other wrongful conduct. In addition, Ms. Gold has National Associate of Consumer Advocates appellate experience in both state and federal court. National Employment Lawyers Prior to joining Tycko & Zavareei LLP, Ms. Gold was a Skadden fellow. Association The Skadden Fellowship Foundation was created by Skadden, Arps, Slate, Meagher & Flom LLP, one of the nation’s top law firms, to support the Public Justice work of new attorneys at public interest organizations around the country. Taxpayers Against Fraud Education Fund Ms. Gold earned her law degree from the University of Michigan Law School, where she was an associate editor of the Journal of Law Reform, Awards co-President of the Law Students for Reproductive Choice, and a student attorney at the Family Law Project clinical program. Ms. Gold graduated National Trial Lawyers, Top 100 Civil with high distinction from the University of Michigan Ross School of Plaintiff Lawyers, 2020 Business in 2001, concentrating her studies in Finance and Marketing. Super Lawyers, Rising Star Skadden Fellow, Skadden Arps Slate Meagher & Flom LLP, 2004-2006
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Kristen G. Simplicio Partner 202.973.0900 [email protected]
Kristen G. Simplicio has devoted her career to representing victims of false advertising and corporate fraud. Prior to joining Tycko & Zavareei LLP’s Education D.C. office in 2020, she spent ten years at a boutique class action firm in American University, Washington California. While there, she successfully litigated over a dozen false College of Law, 2007 cum laude advertising cases against manufacturers of a variety of consumer products, McGill University, 1999 including olive oil, flushable wipes, beverages, and chocolate. In connection with this work, she helped to obtain millions of dollars in refunds to consumers, as well as changed practices. Bar Admissions In addition to her product labeling work, Ms. Simplicio has represented California plaintiffs in a wide variety of areas. For example, she was the lead associate District of Columbia
on RICO case on behalf of small business owners against 18 defendants in the credit card processing industry. In connection with that case, she Memberships obtained a preliminary injunction halting an illegal $10 million debt collection scheme, and later, helped to secure refunds and changed National Association of Consumer practices for the victims. She has also represented victims of other debt Advocates collectors, as well as those harmed by unlawful background and credit American Association for Justice reporting, including a pro bono matter performed in conjunction with the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. Ms. Simplicio also worked on a lawsuit against government agencies, which were charging unconstitutional fines and fees in connection with toll collection. Ms. Simplicio graduated cum laude from American University, Washington College of Law in 2007. She holds a bachelor’s degree from McGill University. She began her legal career at the United States Department of Labor, where she advised on regulations pertaining to group health insurance plans. Before and during law school, Ms. Simplicio worked for other plaintiffs’ law firms. Ms. Simplicio serves as the D.C. Co-Chair of the National Association of Consumer Advocates. She is admitted to practice in California and the District of Columbia.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Renée Brooker Partner 202.417.3664 [email protected]
Bringing 30 years of practice, knowledge, and expertise as a former prosecutor in a senior leadership position at the United States Department Education of Justice, Renée Brooker is now representing whistleblowers. While at J.D., Georgetown University Law Center the Department of Justice for over two decades, Ms. Brooker was B.S., Temple University responsible for billions of dollars in recoveries under whistleblower laws. As an accomplished and experienced attorney, Ms. Brooker has advised Bar Admissions and represented whistleblowers under the False Claims Act (FCA), the Anti-Kickback Statute and Stark Law, FIRREA (bank fraud, mail, and wire District of Columbia fraud), the Financial Institutions Anti-Fraud Enforcement Act (FIAFE), Pennsylvania and the Whistleblower Programs of the SEC, the CFTC, and the IRS. As Assistant Director within the Civil Division of the United States Memberships Department of Justice, Ms. Brooker was responsible for sizeable recoveries and successful judgments under the False Claims Act, FIRREA, Taxpayers Against Fraud Education Fund (TAFEF) and civil RICO in almost every industry: pharmaceutical, health care, defense, financial services, government procurement, small business, Board Member, Federal Bar Association insurance, tobacco products, and higher education. Qui Tam Section Ms. Brooker received her law degree in 1990 from Georgetown University National Employment Lawyers Association Law Center, and a B.S. degree in 1987 from Temple University. After (NELA) graduating from Georgetown, Ms. Brooker served as a Law Clerk to Judge Noël Kramer in the District of Columbia for one year before joining the Awards United States Department of Education as an attorney. Ms. Brooker was Department of Justice Commendation hired as part of the enforcement response to Congressional investigations Award for recovering billions of dollars of fraud in federal student aid programs affecting consumers and under the Big Lender Initiative, 2016 taxpayers. Prior to joining Tycko & Zavareei LLP in 2020, Ms. Brooker Council of the Inspectors General on worked at another prominent whistleblower firm where she advised and Integrity and Efficiency Award for represented whistleblowers while expanding the firm’s whistleblower Excellence for $1.2 billion False Claims Act practice. Ms. Brooker also served as a member of the United States settlement with Wells Fargo, 2016 Department of Justice-appointed Independent Corporate Compliance Department of Justice Award for “a record Monitor and Auditor for Volkswagen under its Plea Agreement and of outstanding actions and Consent Decree with the United States Department of Justice. accomplishments,” 2015 Attorney General’s Award for Fraud Prevention, 2011 Department of Justice Award for prosecuting Big Tobacco under RICO, 2005
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd. Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Eva Gunasekera Partner 202.417.3655 [email protected]
Bringing 16 years of complex litigation experience practice, Eva Gunasekera, the former Senior Counsel for Health Care Fraud at the Education United States Department of Justice, is now representing whistleblowers. J.D., Georgetown University Law Ms. Gunasekera has spent the better part of her career enforcing the False Center, 2004 Claims Act and the Stark and Anti-Kickback laws. M.A., Ohio University, 2001 Highly strategic, Ms. Gunasekera has many notable successes under her B.A, Ohio University, 2000 belt, sizeable recoveries under the False Claims Act, and has held companies accountable for fraudulent conduct that harmed important Bar Admissions government programs such as Medicare and Medicaid. With deep health care fraud expertise, she has investigated, litigated, and settled cases District of Columbia involving all federal health care programs (Medicare, Medicaid, TRICARE, Ohio FEHB). Ms. Gunasekera is an expert on analyzing complex health care data sets, including Medicare and Medicaid payment data and trends, to Memberships identify potentially fraudulent practices. She has enforced anti-fraud laws and represented whistleblowers across industries: pharmaceutical Taxpayers Against Fraud Education manufacturers, health care providers, hospitals, physicians, physician Fund (TAFEF) groups, laboratories, managed care, pharmacies, hospice and nursing home Federal Bar Association Qui Tam providers, financial institutions, government suppliers, automotive, small Section businesses, and defense contractors. Many of her investigations involved Public Justice parallel criminal proceedings and compliance and whistleblower programs of health care organizations, including those subjected to Corporate Presentations & Publications Integrity Agreements and oversight by Independent Review Organizations, as required by the U.S. Department of Health and Human “Whistleblower Rewards 101” – Services, Office of Inspector General (HHS-OIG). Scottsdale (Arizona) Bar Association (March 9, 2021) After graduating with her Master’s in Public Administration from Ohio University, and from Georgetown University Law Center, Ms. Gunasekera “Should the False Claims Act be practiced law at two international law firms. She acted as second chair Amended to Define Falsity?” - Federal during administrative trials and handled complex commercial litigation. Bar Association, Qui Tam Section Ms. Gunasekera also played a significant role on the team that represented (February 17, 2021) the Enron Creditors Recovery Corp in the bankruptcy proceeding, Law review article: False Claims Act, successfully returning billions of dollars to creditors in the wake of the the opioid crisis, whistleblowing, Enron scandal. Further, Ms. Gunasekera represented clients in pro bono Emory University Law School, matters, including the successful defense of an individual seeking asylum February 26, 2019 and as guardian ad litem for three children.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd. Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Annick M. Persinger Partner 510.254.6808 [email protected]
Annick M. Persinger leads Tycko & Zavareei LLP’s California office as California’s Managing Partner. While at Tycko & Zavareei LLP, Ms. Education Persinger has dedicated her practice to utilizing California’s prohibitions University of California Hastings against unfair competition and false advertising to advocate for College of Law, 2010 Magna Cum consumers. Ms. Persinger has taken on financial institutions, companies Laude, Order of the Coif that take advantage of consumers with deceptive advertising, tech University of California San Diego, companies that disregard user privacy, companies that sell defective 2007 Cum Laude products, and mortgage loan servicers. Ms. Persinger also represents whistleblowers who expose their employer’s fraudulent practices. Bar Admissions Ms. Persinger graduated magna cum laude as a member of the Order of the Coif from the University of California, Hastings College of the Law in California 2010. While in law school, Ms. Persinger served as a member of Hastings Women’s Law Journal, and authored two published articles. In 2008, Ms. Memberships Persinger received an award for Best Oral Argument in the first year moot American Association for Justice court competition. In 2007, Ms. Persinger graduated cum laude from the University of California, San Diego with a B.A. in Sociology, and minors Plaintiffs’ Food Fraud Litigation, in Law & Society and Psychology. 2020 Steering Committee Member Following law school, Ms. Persinger worked as a legal research attorney Public Justice for Judge John E. Munter in Complex Litigation at the San Francisco Superior Court. Awards Ms. Persinger served as an elected board member of the Bay Area Lawyers Super Lawyer, Rising Star 2020 for Individual Freedom (BALIF) from 2017 to 2019, and as Co-Chair of UC Hastings, Best Oral Argument 2008 BALIF from 2018 to 2019. During her term on the BALIF Board of
Directors, Ms. Persinger advocated for LGBTQI community members with intersectional identities, and promoted anti-racism and anti- genderism. Ms. Persinger now serves as a Steering Committee member for the Cambridge Forum on Plaintiffs’ Food Fraud Litigation.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Sabita J. Soneji Partner 510.254.6808 [email protected]
In almost 20 years of practice, Sabita J. Soneji has developed extensive experience in litigation and legal policy at both the federal and state level and Education a passion for fighting consumer fraud. Now a Partner in Tycko & Zavareei Georgetown University Law Center, LLP’s Oakland office, she focuses on consumer protection class actions and magna cum laude whistleblower litigation. In addition to her success with novel Telephone Consumer Protection cases, False Claims Act cases involving insurance University of Houston, summa cum fraud, and deceptive and false advertising cases, Ms. Soneji serves in laude leadership on multi-district litigation against Juul, for its manufacture and marketing to youth of an addictive nicotine product. Ms. Soneji also Bar Admissions successfully represents consumers harmed by massive data breaches and by corporate practices that collect and monetize user data without consent. She District of Columbia serves as head of the firm’s Privacy and Data Breach Group. California Ms. Soneji began that work during her time with the United States Department of Justice, as Senior Counsel to the Assistant Attorney General. Memberships In that role, she oversaw civil and criminal prosecution of various forms of American Association for Justice financial fraud that arose in the wake of the 2008 recession. For that work, (AAJ) Ms. Soneji partnered with other federal agencies, state attorneys’ general, and consumer advocacy groups. Beyond that affirmative work, Ms. Soneji Public Justice worked to defend various federal programs, including the Affordable Care Taxpayers Against Fraud Education Act in nationwide litigation. Fund (TAFEF) Ms. Soneji has extensive civil litigation experience from her four years with international law firm, her work as an Assistant United States Attorney in the Awards Northern District of California, and from serving as Deputy County Counsel for Santa Clara County, handling civil litigation on behalf of the County Attorney General’s Award 2014 including regulatory, civil rights, and employment matters. She has successfully argued motions and conducted trials in both state and federal Presentations & Publications court and negotiated settlements in complex multi-party disputes. NITA Trial Skills Faculty 2010- Early in her career, Ms. Soneji clerked for the Honorable Gladys Kessler on present the United States District Court for the District of Columbia s, during which she assisted the judge in overseeing the largest civil case in American history, United States v. Phillip Morris, et al., a civil RICO case brought against major tobacco manufacturers for fraud in the marketing, sale, and design of cigarettes. The opinion in that case paved the way for Congress to authorize FDA regulation of cigarettes. Ms. Soneji is a graduate of the University of Houston, summa cum laude, with degrees in Math and Political Science, and Georgetown University Law Center, magna cum laude.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Mark A. Clifford Associate 202.973.0900 [email protected]
Mr. Clifford zealously represents plaintiffs in class action litigation challenging corporate greed and practices that place profits over people. Education He is actively litigating cases against financial institutions, big tobacco, and Georgetown University Law Center, the insurance industry over fraudulent, unfair, and unlawful conduct that 2015 magna cum laude has harmed millions of consumers. He also is litigating a number of data University of Georgia, 2009 breach cases, in which the personal information of millions of innocent victims was stolen due to the lax security practices of major corporations. Bar Admissions In addition to his consumer protection practice, Mr. Clifford represents whistleblowers who come forward with information about fraud on District of Columbia government programs. Maryland
Prior to joining Tycko & Zavareei LLP in 2019, Mr. Clifford was an Memberships Associate in the Washington, D.C. office of Covington & Burling LLP, one of the nation’s top defense-side firms. He uses his knowledge of how American Constitution Society the other side operates to advance the interests of clients harmed by LGBT Bar Association of the District corporate wrongdoing. During his time at Covington, Mr. Clifford of Columbia represented corporations in complex litigation and government Public Justice investigations, including matters involving whistleblower allegations in the healthcare and technology industries. He also maintained an active pro bono practice, representing indigent defendants in immigration and criminal Awards matters. Medina S. and John M. Vasily Endowed Scholarship (GULC) Mr. Clifford graduated magna cum laude from Georgetown University Law Law Center Scholar (GULC) Center in 2015. While in law school, he was an Executive Editor of the Georgetown Law Journal. Following law school, Mr. Clifford clerked for CALI Award – Contracts (GULC) the Honorable Catherine C. Blake of the United States District Court for the District of Maryland. Prior to law school, he worked on several Presentations & Publications political campaigns following his graduation with honors from the University of Georgia in 2009 with a Bachelor of Arts in International Georgetown Law Journal, Executive Affairs and a Master of Public Administration. Editor (2014 – 2015) Co-Author, “The LGBT Mr. Clifford is admitted to practice law in the District of Columbia, Community” in Divide, Develop, and Maryland, the United States District Court for the District of Maryland, Rule: Human Rights Violations in and the United States Court of Appeals for the Fourth Circuit. Ethiopia, UW College of Law (2018)
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Mallory Morales Associate 510.254.6808 [email protected]
Mallory Morales graduated magna cum laude from Boston University in 2013, with a degree in Anthropology and Religion. After graduation she Education worked at the Massachusetts Attorney General’s Office as a mediator for University of California, Berkeley its consumer advocacy division, and then as a paralegal in the division of School of Law, 2018 open government. Boston University, 2013, manga cum She earned her law degree from the University of California, Berkeley laude School of Law in 2018, where she was elected Editor-in-Chief of the California Law Review. While in law school Ms. Morales also participated Bar Admissions in La Raza Law Students’ Association, Women of Color Collective, La Raza Law Journal, and First Generation Professionals. She interned for California the East Bay Community Law Center and externed for the Honorable William H. Alsup on the United State District Court, Northern District of California. Prior to joining Tycko & Zavareei LLP in 2020, Ms. Morales practiced commercial litigation at Morrison & Foerster LLP in San Francisco. She maintained a pro bono practice in civil rights litigation and indigent criminal defense. Ms. Morales is admitted to the State Bar of California and the bars of the United States District Courts for the Northern District of California and Eastern District of California.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Allison W. Parr Associate 202.973.0900 [email protected]
Prior to joining Tycko & Zavareei in 2021, Allison W. Parr was an associate in the Washington, D.C. office of Mayer Brown LLP, Education where she represented corporations in complex commercial Georgetown University, 2018 litigation, including cases involving unfair competition and false advertising claims. Previously, Ms. Parr was a litigation associate in John Hopkins University, 2013 the New York office of Kramer Levin Naftalis & Frankel LLP, Dean’s List with High Honors where she maintained an active pro bono practice in LGBTQ civil rights. Bar Admissions Ms. Parr graduated from the Georgetown University Law Center in New York 2018, where she served as the Articles and Notes Editor for the District of Columbia Food and Drug Law Journal. During law school, Ms. Parr externed for the Commercial Litigation Branch, Fraud Section of the Memberships Department of Justice, where she assisted with cases involving Public Justice allegations of fraud against the government. Ms. Parr received her Bachelor of Music from the Peabody Institute of the Johns Hopkins Presentations & Publications University in 2013. Agribusiness and Antibiotics: A Ms. Parr is admitted to practice in New York and the District of Market-Based Solution, 73 Food & Columbia. Drug L.J. 338 (2018)
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Dia Rasinariu Associate 202.973.0900 [email protected]
Dia Rasinariu graduated cum laude from Harvard Law School in 2016. While in law school, Ms. Rasinariu served as an Executive Editor of Education the Harvard Law Review. She was also a member of HLS Harvard Law School, 2016 Lambda. Following law school, Ms. Rasinariu clerked for the Honorable cum laude Diana Gribbon Motz on the United States Court of Appeals for the Cornell University, 2011 Fourth Circuit. Ms. Rasinariu earned her Bachelor of Arts, with with distinction distinction, from Cornell University in 2011, with majors in Government and in Economics. Bar Admissions Prior to joining Tycko & Zavareei LLP in 2021, Ms. Rasinariu was a litigation associate in the Washington, D.C. office of Jones Day. Ms. Illinois District of Columbia Rasinariu maintained an active pro bono practice, representing clients on civil rights, asylum, and domestic violence matters. Memberships Ms. Rasinariu is a member of the District of Columbia and Illinois state bars. She is also admitted to practice before the United States District Public Justice Court for the District of Maryland and the United States Courts of Appeals for the Fourth and Sixth Circuits. Awards Super Lawyers, Rising Star 2020
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Glenn Chappell Associate 202.973.0900 [email protected]
Glenn Chappell is an associate in the Washington, D.C. office. Prior to joining Tycko & Zavareei, he was an associate in the Washington, D.C. Education office of Gibson, Dunn & Crutcher LLP, one of the nation’s most Duke University School of Law, 2017 prestigious defense-side firms. During his time at Gibson Dunn, Mr. Summa Cum Laude, Order of the Coif Chappell represented corporations in complex litigation at the trial and Saint Leo University, 2011 Cum Laude appellate levels, including the United States Supreme Court. He also maintained an active pro bono practice that focused on police and sentencing reform. Bar Admissions Mr. Chappell graduated summa cum laude from Duke University School District of Columbia of Law in 2017, where he served as Managing Editor of the Duke Law Virginia Journal and Senior Research Editor of the Duke Law & Technology Review. While in law school, he dedicated more than 450 hours to pro bono work. Memberships After graduating law school, Mr. Chappell clerked for the Honorable Order of the Coif Gerald Bard Tjoflat of the United States Court of Appeals for the Eleventh Circuit and the Honorable Anthony J. Trenga of the United States District Virginia Equality Bar Association Court for the Eastern District of Virginia. Before law school, he worked American Constitution Society as a manager in the manufacturing industry. He graduated with honors from Saint Leo University, earning a Bachelor of Arts in Business Virginia Bar Association Administration. His legal scholarship has appeared in multiple publications, including the Duke Law Journal and the University of Richmond Publications Law Review. The Historical Case for Constitutional “Concepts”, 53 UNIVERSITY OF RICHMOND LAW REVIEW 373 (2019)
Health Care’s Other “Big Deal”: Direct Primary Care Regulation in Contemporary American Health Law, 66 DUKE LAW JOURNAL 1331 (2017) Seeking Rights, Not Rent: How Litigation Finance Can Help Break Copyright’s Precedent Gridlock, 15 DUKE LAW & TECHNOLOGY REVIEW 269 (2017)
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Lauren Kuhlik Associate 202.973.0900 [email protected]
Prior to joining Tycko & Zavareei in 2021, Lauren Kuhlik was a fellow at the National Prison Project of the American Civil Liberties Education Union, where she engaged in litigation and other advocacy to stop Harvard Law School, 2017 Cum Laude unconstitutional and illegal practices by prison and jail Harvard T.H. Chan School of Public administrators and ICE. She focused on improving conditions of Health, M.P.H., 2017 confinement for pregnant and postpartum people, as well as fighting Wesleyan University, BA in to eliminate the inhumane practice of solitary confinement. During Philosophy with Honors, 2011 the COVID-19 crisis, Ms. Kuhlik maintained an extensive habeas practice seeking to secure the release of detained individuals with Bar Admissions medical vulnerabilities. District of Columbia Ms. Kuhlik graduated cum laude from Harvard Law School in 2017. Virginia (inactive) She also received a Masters in Public Health from the Harvard T.H. Chan School of Public Health in 2017. Following law school, Ms. Memberships Kuhlik clerked for the Honorable Stephen Glickman of the District Public Justice of Columbia Court of Appeals. She has published articles regarding the treatment of pregnant incarcerated people in the Harvard Law Publications & Presentations and Policy Review and the Harvard Civil Rights-Civil Liberties Law National Abortion Federation Annual Review. Ms. Kuhlik has also published about gender and Meeting (2021) incarceration in USA Today and Ms. Magazine, among others. Pregnancy, Systematic Disregard and Degradation, and Carceral Institutions, Harvard Law & Policy Review (2020) Harvard Law & Policy Review Fall Symposium (2019) Society of Family Planning Annual Meeting (2019) George Mason University Law School Civil Rights Law Journal Symposium (2019) Pregnancy Behind Bars: The Constitutional Argument for Reproductive Healthcare Access in Prison, Harvard Civil Rights & Civil Liberties Law Review (2017)
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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David W. Lawler Of Counsel 202.973.0900 [email protected]
Mr. Lawler joined Tycko & Zavareei LLP in January 2012. He has over twenty years of commercial litigation experience, including an Education expertise in eDiscovery and complex case management. At the firm Creighton University School of Mr. Lawler has represented consumers in a numerous practice areas, Law, 1997 including product liability, false labeling, deceptive and unfair trade University of California, Berkeley practices, and antitrust class actions litigation. School of Law, 1989 Before joining Tycko & Zavareei LLP, Mr. Lawler was an associate in the litigation departments at McKenna & Cuneo LLP and Swidler Bar Admissions Berlin Shereff Friedman LLP. District of Columbia
Among Mr. Lawler’s career achievements include the co-drafting of Memberships appellate briefs which resulted in rare reversal and entry of judgment American Association for Justice in favor of client, US Court of Appeals for the Fourth Circuit. Public Justice Mr. Lawler is a member of the District of Columbia Bar, as well as numerous federal courts.
Representative Cases In re Generic Pharmaceuticals Pricing Antitrust Litigation, MDL No. 2724 (E.D. Penn.) (complex price-fixing action)
Morgan v. Apple, Inc., Case No. 4:17-cv-5277(N.D. Cal.) (multimillion-dollar case alleging defects in high-end Powerbeats headphone)
In re Automotive Parts Antitrust Litigation, Master File No. 12-md-02311 (E.D. Mich.) (described by the Department of Justice as the largest antitrust case in history, recovering over $1.2 billion for classes)
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Victoria Hoekstra Staff Attorney 510.254.6808 [email protected]
Victoria Hoekstra is highly skilled in e-Discovery. She was hired by Tycko & Zavareei LLP in 2018 to help with a custom’s fraud case and later Education became a staff attorney. Currently she is working on a class action against University of California, Berkeley Juul for marketing e-cigarettes to youth. School of Law, J.D., 1988 Victoria began her legal career at Paul, Hastings in Los Angeles. She University of California Los Angeles moved to a small law firm and later became in-house counsel at an art College of Law, B.S. Economics, store where she also ran an art education program. Victoria worked on 1982 many matters in these positions including business transactions, intellectual property rights and litigation involving accountant’s Bar Admissions malpractice, deceptive business practices, securities fraud and Elder California Abuse. In recent time, Victoria has worked on many e-Discovery projects related Memberships to large scale litigation and regulatory reviews by the DOJ, FTC, SEC, FDA and the DEA. Projects have involved breach of contract, personal Public Justice injury, antitrust investigations (mergers and anti-competitive violations), CPA, California Public Accountancy anti-kickback violations, intellectual property, stock transactions, breaches of fiduciary duty and general fraud including fraudulent marketing related to the sale of opioids. Industries include pharmaceuticals, healthcare, ride- sharing platforms, telecommunications, retail, manufacturing, education, publishing, digital advertising, software development and implementation, data contracts, banking, insurance and government contracts. Victoria has also worked on compliance projects related to reviews by the DOJ and she had a long-term project answering search warrants, court orders and subpoenas related to Google products. In this capacity, Victoria helped law enforcement investigate critical crimes, but was also attentive to privacy laws. Victoria is a Certified Public Accountant and prior to law school she worked as an auditor for a large CPA firm. Victoria was also a sole proprietor of an Internet bookstore for many years. Victoria received a B.S. in Economics from University of California, Los Angeles. She received her Juris Doctorate from the University of California, Berkeley School of Law and she attended Oxford University (Christ Church) in England as a visiting scholar studying Philosophy.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Jennifer Thelusma Fellow 202.973.0900 [email protected]
Jennifer Thelusma graduated from Duke University School of Law in 2019 with a J.D. and a certificate in Public Interest and Public Service. Education Duke University School of Law, 2019 While at Duke Law, Jennifer gained legal experience through various University of Florida, 2016, practical projects. For example, during the Fall of her 2L year, as a legal Summa Cum Laude intern in the Duke Wrongful Convictions Clinic, she worked to move five cases through post-conviction review by conducting legal research, Bar Admissions interviewing witnesses, and drafting a motion for appropriate relief. During the Fall of her 3L year, Jennifer externed full time at the U.S. Florida Department of Justice’s Special Litigation Section where she worked on District of Columbia cases aimed at enforcing the Constitutional rights of individuals under state hospital and correctional control. Memberships
During her time at Duke Law, Jennifer also served as symposium editor Public Justice of the Duke Environmental Law and Policy Forum, externed in Duke Environmental Law and Policy Earthjustice’s D.C. office, and served as internal vice president of Duke’s Forum, 2017-2019 Black Law Students Association.
Jennifer received her a B.A. in political science and history from the University of Florida.
Jennifer is a member of the District of Columbia and Florida State Bars.
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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Leora N. Friedman Fellow 202.417.3669 [email protected]
Leora Friedman received her J.D. from Georgetown University Law Center in 2020. Education Georgetown University Law Center, At Georgetown Law, Leora obtained diverse legal experience through 2020 experiential courses led by the O’Neill Institute for National and Global Princeton University, 2014 Health Law and by the Institute for Constitutional Advocacy and Protection. In addition, she authored papers proposing new legal Bar Admissions frameworks for addressing the negative health impacts of electronic cigarettes and improving pandemic preparedness through writing- District of Columbia intensive coursework. Memberships During law school, Leora also served as an intern for the Department of Public Justice Justice’s Office of Vaccine Litigation and its Consumer Protection Branch. She was an Executive Editor for the Georgetown Environmental Law Executive Editor, Georgetown Review, which published her note “Recommending Judicial Environmental Law Review, 2019– Reconstruction of Title VI to Curb Environmental Racism: A 2020 Recklessness-Based Theory of Discriminatory Intent.” Publications Previously, Leora was the Rockefeller Foundation’s Princeton Project 55 Recommending Judicial Reconstruction of Fellow from 2014-2015 and, thereafter, aided international health Title VI to Curb Environmental Racism: A advocacy campaigns at Global Health Strategies. Recklessness-Based Theory of Discriminatory Intent, 32 GEO. ENV’T L. REV. 421 She graduated from Princeton University with an A.B. in Politics in 2014. (2020)
Tycko & Zavareei LLP Tycko & Zavareei LLP Tycko & Zavareei LLP 1828 L St. NW Suite 1000 1970 Broadway Suite 1070 10880 Wilshire Blvd., Suite 1101 Washington, DC 20036 Oakland, CA 94612 Los Angeles, CA 90024 202.973.0900 510.254.6808 510.254.6808
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LOS ANGELES SAN FRANCISCO MINNEAPOLIS 15165 Ventura Boulevard 350 Sansome Street 800 LaSalle Avenue Suite 400 Suite 680 Suite 2150 Sherman Oaks, CA 91403 San Francisco, CA 94104 Minneapolis, MN 55402 Tel (818) 788-8300 Tel (415) 433-9000 Tel (612) 389-0600 Fax (818) 788-8104 Fax (415) 433-9008 Fax (612) 389-0610
WWW.PSWLAW.COM
Pearson, Simon & Warshaw, LLP (“PSW”) is an AV-rated civil litigation firm with offices in Los Angeles, San Francisco and Minneapolis. The firm specializes in complex litigation, including state coordination cases and federal multi-district litigation. Its attorneys have extensive experience in antitrust, securities, consumer protection, and unlawful employment practices. The firm handles national and multi-national class actions that present cutting-edge issues in both substantive and procedural areas. PSW attorneys understand how to litigate difficult and large cases in an efficient and cost-effective manner, and they have used these skills to obtain outstanding results for their clients, both through trial and negotiated settlement. They are recognized in their field for excellence and integrity, and are committed to seeking justice for their clients.
CASE PROFILES
PSW attorneys currently hold, or have held, a leadership role in the following representative cases:
In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, Northern District of California, MDL No. 2451. PSW attorneys currently serve as co-lead counsel in this multidistrict litigation that alleges the NCAA and its member conferences violate the antitrust laws by restricting the value of grant-in-aid athletic scholarships and other benefits that college students who are football and basketball players can receive. PSW settled the damages case, recently obtaining final approval of a $208 million dollar settlement. PSW attorneys with co-counsel have completed a bench trial for the injunctive portion of the case. A verdict for Plaintiffs was awarded, and the United States Supreme Court recently issued an Opinion affirming the verdict 9-0. See Case No. 20-512, 594 U.S. ___ (2021).
In re Credit Default Swaps Antitrust Litigation, Southern District of New York, MDL No. 2476. PSW attorneys served as co-lead counsel and represented the Los Angeles County Employees Retirement Association (“LACERA”) in a class action on behalf of all purchasers and sellers of Credit Default Swaps (“CDS”) against twelve of the world’s largest banks. The lawsuit alleged that the banks, along with other defendants who controlled the market infrastructure for CDS trading, conspired for years to restrain the efficient trading of CDS, thereby inflating the cost to trade CDS. The alleged antitrust conspiracy resulted in billions of dollars in economic harm to institutional investors such
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as pension funds, mutual funds, and insurance companies who used CDS to hedge credit risks on their fixed income portfolios. After nearly three years of litigation and many months of intensive settlement negotiations, PSW helped reach a settlement with the defendants totaling $1.86 billion plus injunctive relief. On April 15, 2016, the Honorable Denise L. Cote granted final approval to the settlement, which is one of the largest civil antitrust settlements in history.
In re TFT-LCD (Flat Panel) Antitrust Litigation, Northern District of California, MDL No. 1827. PSW served as co-lead counsel for the direct purchaser plaintiffs in this multidistrict litigation arising from the price-fixing of thin film transistor liquid crystal display (“TFT- LCD”) panels. Worldwide, the TFT-LCD industry is a multi-billion dollar industry, and many believe that this was one of the largest price-fixing cases in the United States. PSW helped collect over $405 million in settlements before the case proceeded to trial against the last remaining defendant, Toshiba Corporation and its related entities. PSW partner Bruce L. Simon served as co-lead trial counsel, successfully marshaled numerous witnesses, and presented the opening argument. On July 3, 2012, PSW obtained a jury verdict of $87 million (before trebling) against Toshiba. PSW later settled with Toshiba and AU Optronics to bring the total to $473 million in settlements. In 2013, California Lawyer Magazine awarded Mr. Simon a California Lawyer of the Year Award for his work in the TFT-LCD case.
In re Potash Antitrust Litigation (No. II), Northern District of Illinois, MDL No. 1996. PSW partner Bruce L. Simon served as co-lead counsel for the direct purchaser plaintiffs in this multidistrict litigation arising from the price-fixing of potash sold in the United States. After the plaintiffs defeated a motion to dismiss, the defendants appealed, and the Seventh Circuit Court of Appeals agreed to hear the case en banc. Mr. Simon presented oral argument to the en banc panel and achieved a unanimous 8-0 decision in his favor. The case resulted in $90 million in settlements for the direct purchaser plaintiffs, and the Court’s opinion is one of the most significant regarding the scope of international antirust conspiracies. See Minn-Chem, Inc. v. Agrium Inc., 683 F. 3d 845 (7th Cir. 2012).
North American Soccer League, LLC v. United States Soccer Federation, Inc., and Major League Soccer, L.L.C., Eastern District of New York, Case No. 1:17-cv-05495-MKB-ST. PSW, along with co-counsel, represents the North American Soccer League in a matter against the United States Soccer Federation and Major League Soccer alleging antitrust violations. The complaint alleges that U.S. Soccer and MLS have driven NASL out of business and have prevented NASL from competing against MLS (the sole Division I league) and the United Soccer League (the sole Division II league), which is affiliated with MLS.
In re Broiler Chicken Antitrust Litigation, Northern District of Illinois, Case No. 1:16-cv- 08637. PSW attorneys currently serve as interim co-lead counsel on behalf of direct purchaser plaintiffs. The complaint alleges that the nation’s largest broiler chicken producers violated antitrust laws by limiting production and manipulating the price indices.
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Thus far, PSW and co-counsel have secured final approval of over $169 million in settlements for the direct purchaser plaintiffs with numerous defendants remaining in the litigation.
In re Pork Antitrust Litigation, District of Minnesota, Case No. 0:18-cv-01776. PSW attorneys currently serve as interim co-lead counsel on behalf of direct purchaser plaintiffs. The complaint alleges that the nation’s largest pork producers violated antitrust laws by limiting production and manipulating the price indices. Thus far, PSW and co- counsel have secured over $100 million in settlements for the direct purchaser plaintiffs with numerous defendants remaining in the litigation.
Greg Kihn, et al. v. Bill Graham Archives, LLC, et al., Northern District of California Case No. 4:17-cv-05343-JSW. PSW attorneys currently serve as Class counsel in this certified copyright class action alleging that defendants broadcasted, continue to broadcast, or otherwise make available to the public, copyrighted musical works of Plaintiffs and the Class without proper licenses, as required under the Copyright Act.
Grace v. Apple, Inc., Northern District of California, 5:17-CV-00551. PSW partner Daniel L. Warshaw currently serves as class counsel in this California certified class action on behalf of consumers who allege Apple intentionally broke its “FaceTime” video conferencing feature for Apple iPhone 4 or iPhone 4S users operating on iOS 6 or earlier.
In re Santa Fe Natural Tobacco Company Marketing, Sales Practices, and Products Liability Litigation, District of New Mexico, Case No. 1:16-md-02695-JB-LF. PSW partner Melissa S. Weiner chairs the Executive Committee and PSW partner Daniel L. Warshaw serves on the executive committee. This class action alleges that defendants’ “natural” and “additive free” claims on their tobacco products were false and misleading to consumers.
In re Keurig Green Mountain Single-Serving Coffee Antitrust Litigation, Southern District of New York, MDL No. 2542. In June 2014, Judge Vernon S. Broderick appointed PSW to serve as interim co-lead counsel on behalf of indirect purchaser plaintiffs in this multidistrict class action litigation. The case arises from the alleged unlawful monopolization of the United States market for single-serve coffee packs by Keurig Green Mountain, Inc. Keurig’s alleged anticompetitive conduct includes acquiring competitors, entering into exclusionary agreements with suppliers and distributors to prevent competitors from entering the market, engaging in sham patent infringement litigation, and redesigning the single-serve coffee pack products in the next version of its brewing system to lock out competitors’ products. PSW and co-counsel recently obtained final approval of a $31 million settlement.
Senne, et al. v. Office of the Commissioner of Baseball, et al., Northern District of California, Case No. 14-cv-0608. PSW attorneys currently serve as co-lead counsel in this certified class action and FLSA collective action on behalf of minor league baseball players
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who allege that Major League Baseball and its member franchises violate the FLSA and state wage and hour laws by failing to pay minor league baseball players minimum wage and overtime.
In re KIND LLC “Healthy and All Natural” Litigation, Southern District of New York, MDL No. 2645. PSW partner Daniel L. Warshaw currently serves as interim co-lead counsel in this multistate certified class action on behalf of consumers who allege that they purchased KIND snack bars that were falsely advertised as “all natural,” “non-GMO,” and/or “healthy.”
Trepte v. Bionaire, Inc., Los Angeles County Superior Court, Case No. BC540110. PSW attorneys served as Class Counsel in this certified class action alleging that the defendant sold defective space heaters. The complaint alleged that defendant breached the warranty and falsely advertised the safety of the heaters due to design defects that cause the heaters to fail – and, as a result of the failure, the heaters could spark, smoke and catch fire. Final approval of the class settlement was recently granted.
In re Carrier IQ Consumer Privacy Litigation, Northern District of California, MDL No. 2330. PSW attorneys served as interim co-lead counsel in this putative nationwide class action on behalf of consumers who alleged privacy violations arising from software installed on their mobile devices that was logging text messages and other sensitive information.
Sciortino, et al. v. PepsiCo, Inc., Northern District of California, Case No. 14-cv-0478. PSW attorneys served as interim co-lead counsel in this putative California class action on behalf of consumers who alleged that PepsiCo failed to warn them that certain of its sodas contain excess levels of a chemical called 4-Methylimidazole in violation of Proposition 65 and California consumer protection statutes.
James v. UMG Recordings, Inc., Northern District of California, Case No. 11-cv-01613. PSW partner Daniel L. Warshaw served as interim co-lead counsel in this putative nationwide class action on behalf of recording artists and music producers who alleged that they had been systematically underpaid royalties by the record company UMG.
In re Warner Music Group Corp. Digital Downloads Litigation, Northern District of California, Case No. 12-cv-00559. PSW attorneys served as interim co-lead counsel, with partner Bruce L. Simon serving as chairman of a five-firm executive committee, in this putative nationwide class action on behalf of recording artists and music producers who alleged that they had been systematically underpaid royalties by the record company Warner Music Group.
In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, Northern District of California, MDL No. 1486. PSW partner Bruce L. Simon served as co-chair of discovery and as a member of the trial preparation team in this multidistrict litigation arising from
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the price-fixing of DRAM, a form of computer memory. Mr. Simon was responsible for supervising and coordinating the review of almost a terabyte of electronic documents, setting and taking depositions, establishing and implementing protocols for cooperation between the direct and indirect plaintiffs as well as the Department of Justice, presenting oral arguments on discovery matters, working with defendants on evidentiary issues in preparation for trial, and preparation of a comprehensive pretrial statement. Shortly before the scheduled trial, class counsel reached settlements with the last remaining defendants, bringing the total value of the class settlements to over $325 million.
In re Methionine Antitrust Litigation, Northern District of California, MDL No. 1311. PSW partner Bruce L. Simon served as co-lead counsel in this nationwide antitrust class action involving a conspiracy to fix prices of, and allocate the markets for, methionine. Mr. Simon was personally responsible for many of the discovery aspects of the case including electronic document productions, coordination of document review teams, and depositions. Mr. Simon argued pretrial motions, prepared experts, and assisted in the preparation of most pleadings presented to the Court. This action resulted in over $100 million in settlement recovery for the Class.
In re Sodium Gluconate Antitrust Litigation, Northern District of California, MDL No. 1226. PSW partner Bruce L. Simon served as class counsel in this consolidated antitrust class action arising from the price-fixing of sodium gluconate. Mr. Simon was selected by Judge Claudia Wilken to serve as lead counsel amongst many other candidates for that position, and successfully led the case to class certification and settlement.
In re Citric Acid Antitrust Litigation, Northern District of California, MDL No. 1092. PSW partner Bruce L. Simon served as class counsel in antitrust class actions against Archer- Daniels Midland Co. and others for their conspiracy to fix the prices of citric acid, a food additive product. Mr. Simon was one of the principal attorneys involved in discovery in this matter. This proceeding resulted in over $80 million settlements for the direct purchasers.
Olson v. Volkswagen of America, Inc., Central District of California, Case No. CV07- 05334. PSW attorneys brought this class action lawsuit against Volkswagen alleging that the service manual incorrectly stated the inspection and replacement intervals for timing belts on Audi and Volkswagen branded vehicles equipped with a 1.8 liter turbo-charged engine. This case resulted in a nationwide class settlement.
Swain et al. v. Eel River Sawmills, Inc. et al., California Superior Court, DR-01-0216. Bruce L. Simon served as lead trial counsel for a class of former employees of a timber company whose retirement plan was lost through management’s investment of plan assets in an Employee Stock Ownership Plan. Mr. Simon negotiated a substantial settlement on the eve of trial resulting in a recovery of approximately 40% to 50% of plaintiffs’ damages after attorneys’ fees and costs.
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In re Homestore Litigation, Central District of California, Master File No. 01-11115. PSW attorneys served as liaison counsel and class counsel for plaintiff CalSTRS in this securities class action. The case resulted in over $100 million in settlements to the Class.
In re MP3.Com, Inc., Securities Litigation, Southern District of California, Master File No. 00-CV-1873. PSW attorneys served as defense counsel in this class action involving alleged securities violations under Rule 10b-5.
In re Automotive Refinishing Paint Cases, Alameda County Superior Court, Judicial Council Coordination Proceeding No. 4199. PSW attorneys served as class counsel with other law firms in this coordinated antitrust class action alleging a conspiracy by defendants to fix the price of automotive refinishing products.
In re Beer Antitrust Litigation, Northern District of California, Case No. 97-20644 SW. PSW partner Bruce L. Simon served as primary counsel in this antitrust class action brought on behalf of independent micro-breweries against Anheuser-Busch, Inc., for its attempt to monopolize the beer industry in the United States by denying access to distribution channels.
In re Commercial Tissue Products Public Entity Indirect Purchaser Antitrust Litigation, San Francisco Superior Court, Judicial Counsel Coordination Proceeding No. 4027. PSW partner Bruce L. Simon served as co-lead counsel for the public entity purchaser class in this antitrust action arising from the price-fixing of commercial sanitary paper products.
Hart v. Central Sprinkler Corporation, Los Angeles County Superior Court, Case No. BC176727. PSW attorneys served as class counsel in this consumer class action arising from the sale of nine million defective fire sprinkler heads. This case resulted in a nationwide class settlement valued at approximately $37.5 million.
Rueda v. Schlumberger Resources Management Services, Inc., Los Angeles County Superior Court, Case No. BC235471. PSW attorneys served as class counsel with other law firms representing customers of the Los Angeles Department of Water & Power (“LADWP”) who had lead-leaching water meters installed on their properties. The Court granted final approval of the settlement whereby defendant would pay $1.5 million to a cy pres fund to benefit the Class and to make grants to LADWP to assist in implementing a replacement program to the effected water meters.
In re Louisiana-Pacific Corp. Inner-Seal OSB Trade Practices Litigation, Northern District of California, MDL No. 1114. PSW partner Bruce L. Simon worked on this nationwide product defect class action brought under the Lanham Act. The proposed class was certified, and a class settlement was finally approved by Chief Judge Vaughn Walker.
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In re iPod nano Cases, Los Angeles County Superior Court, Judicial Counsel Coordination Proceeding No. 4469. PSW attorneys were appointed co-lead counsel for this class action brought on behalf of California consumers who own defective iPod nanos. The case resulted in a favorable settlement.
Unity Entertainment Corp. v. MP3.Com, Central District of California, Case No. 00-11868. PSW attorneys served as defense counsel in this class action alleging copyright infringement.
Vallier v. Jet Propulsion Laboratory, Central District of California, Case No. CV97-1171. PSW attorneys served as lead counsel in this toxic tort action involving 50 cancer victims and their families.
Nguyen v. First USA N.A., Los Angeles County Superior Court, Case No. BC222846. PSW attorneys served as class counsel on behalf of approximately four million First USA credit card holders whose information was sold to third party vendors without their consent. This case ultimately settled for an extremely valuable permanent injunction plus disgorgement of profits to worthy charities.
Morales v. Associates First Financial Capital Corporation, San Francisco Superior Court, Judicial Council Coordination Proceeding No. 4197. PSW attorneys served as class counsel in this case arising from the wrongful sale of credit insurance in connection with personal and real estate-secured loans. This case resulted in an extraordinary $240 million recovery for the Class.
In re AEFA Overtime Cases, Los Angeles County Superior Court, Judicial Council Coordination Proceeding No. 4321. PSW attorneys served as class counsel in this overtime class action on behalf of American Express Financial Advisors, which resulted in an outstanding class-wide settlement.
Khan v. Denny’s Holdings, Inc., Los Angeles County Superior Court, Case No. BC177254. PSW attorneys settled a class action lawsuit against Denny’s for non-payment of overtime wages to its managers and general managers.
Kosnik v. Carrows Restaurants, Inc., Los Angeles County Superior Court, Case No. BC219809. PSW attorneys settled a class action lawsuit against Carrows Restaurants for non-payment of overtime wages to its assistant managers and managers.
Castillo v. Pizza Hut, Inc., Los Angeles County Superior Court, Case No. BC318765. PSW attorneys served as lead class counsel in this California class action brought by delivery drivers who claimed they were not adequately compensated for use of their personally owned vehicles. This case resulted in a statewide class settlement.
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Baker v. Charles Schwab & Co., Inc., Los Angeles County Superior Court, Case No. BC286131. PSW attorneys served as class counsel for investors who were charged a fee for transferring out assets between June 1, 2002 and May 31, 2003. This case resulted in a nationwide class settlement.
Eallonardo v. Metro-Goldwyn-Mayer, Inc., Los Angeles County Superior Court, Case No. BC286950. PSW attorneys served as class counsel on behalf a nationwide class of consumers who purchased DVDs manufactured by defendants. Plaintiffs alleged that defendants engaged in false and misleading advertising relating to the sale of its DVDs. This case resulted in a nationwide class settlement.
Gaeta v. Centinela Feed, Inc., Los Angeles County Superior Court, Case No. BC342524. PSW attorneys served as defense counsel in this class action involving alleged failures to pay wages, overtime, employee expenses, waiting time penalties, and failure to provide meal and rest periods and to furnish timely and accurate wage statements.
Leiber v. Consumer Empowerment Bv A/K/A Fasttrack, Central District of California, Case No. CV 01-09923. PSW attorneys served as defense counsel in this class action involving copyrighted music that was made available through a computer file sharing service without the publishers’ permission.
Higgs v. SUSA California, Inc., Los Angeles County Superior Court Case No. BC372745. PSW attorneys are serving as co-lead class counsel representing California consumers who entered into rental agreements for the use of self-storage facilities owned by defendants. In this certified class action, plaintiffs allege that defendants wrongfully denied access to the self-storage facility and/or charged excessive pre-foreclosure fees.
Fournier v. Lockheed Litigation, Los Angeles County Superior Court. PSW attorneys served as counsel for 1,350 residents living at or near the Skunks-Works Facility in Burbank. The case resolved with a substantial confidential settlement for plaintiffs.
Nasseri v. CytoSport, Inc., Los Angeles County Superior Court, Case No. 439181. PSW attorneys served as class counsel on behalf of a nationwide class of consumers who purchased CytoSport’s popular protein powders, ready to drink protein beverages, and other “supplement” products. Plaintiffs alleged that these supplements contain excessive amounts of lead, cadmium and arsenic in amounts that exceed Proposition 65 and negate CytoSport’s health claims regarding the products. The case resulted in a nationwide class action settlement which provided monetary relief to the class members and required the reformulation of CytoSport supplement products.
In re Samsung Top-Load Washing Machine Marketing, Sales Practice and Products Liability Litigation, Western District of Oklahoma, Case No. 5:17-ml-02792-D. Plaintiffs allege that the top-load washing machines contain defects that cause them to leak and
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explode. PSW Partner Melissa S. Weiner was appointed to the Plaintiffs’ Steering Committee in this multi-district class action.
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ATTORNEY PROFILES
PARTNERS
CLIFFORD H. PEARSON
Clifford H. Pearson is a civil litigator and business lawyer focusing on complex litigation, class actions, and business law. In 2013 and 2016, Mr. Pearson was named by the Daily Journal as one of the Top 100 lawyers in California. Additionally, Mr. Pearson was named as one of the Daily Journal’s 2019 Top Plaintiff Lawyers. He was instrumental in negotiating a landmark settlement totaling $1.86 billion in In re Credit Default Swaps Antitrust Litigation, a case alleging a conspiracy among the world’s largest banks to maintain opacity of the credit default swaps market. Mr. Pearson also negotiated $473 million in combined settlements in In re TFT-LCD (Flat Panel) Antitrust Litigation, an antitrust case in the Northern District of California that alleged a decade- long conspiracy to fix the prices of TFT-LCD panels, $209 million in In re NCAA Grant-in-aid Antitrust Litigation, and over $90 million in In re Potash Antitrust Litigation, an antitrust case in the Northern District of Illinois that alleged price fixing by Russian, Belarusian and North American producers of potash, a main ingredient used in fertilizer.
Before creating the firm in 2006, Mr. Pearson was a partner at one of the largest firms in the San Fernando Valley, where he worked for 22 years. There, he represented aggrieved individuals, investors and employees in a wide variety of contexts, including toxic torts, consumer protection and wage and hour cases. Over his 35-plus year career, Mr. Pearson has successfully negotiated substantial settlements on behalf of consumers, small businesses and companies. In recognition of his outstanding work on behalf of clients, Mr. Pearson has been regularly selected by his peers as a Super Lawyer (representing the top 5% of practicing lawyers in Southern California). He has also attained Martindale-Hubbell’s highest rating (AV) for legal ability and ethical standards.
Mr. Pearson is an active member of the American Bar Association, Los Angeles County Bar Association, Consumer Attorneys of California, Consumer Attorneys Association of Los Angeles, and Association of Business Trial Lawyers.
Current Cases: In re Broiler Chicken Antitrust Litigation (N.D. Ill.) In re Pork Antitrust Litigation (D. Minn.) In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (N.D. Cal.) North American Soccer League, LLC v. United States Soccer Federation, Inc., and Major League Soccer, L.L.C. (E.D.N.Y.) Senne, et al. v. Office of the Commissioner of Baseball, et al. (N.D. Cal.)
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Education: Whittier Law School, Los Angeles, California – J.D. – 1981 University of Miami, Miami, Florida – M.B.A. – 1978 Carleton University, Ontario, Canada – B.A. – 1976
Bar Admissions: California Ninth Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Northern District of California U.S. District Court, Southern District of California
Professional Associations and Memberships: American Bar Association Association of Business Trial Lawyers Consumer Attorneys Association of Los Angeles Consumer Attorneys of California Los Angeles County Bar Association
BRUCE L. SIMON
Bruce L. Simon is a partner emeritus at Pearson, Simon & Warshaw, LLP and has lead the firm to national prominence. Mr. Simon specializes in complex cases involving antitrust, consumer fraud and securities. He has served as lead counsel in many business cases with national and global impact.
In 2019, Mr. Simon was named as one of the Daily Journal’s Top Plaintiff Lawyers. In 2018, Mr. Simon was awarded “Antitrust Lawyer of the Year” by the California Lawyers Association. In 2013 and 2016, Mr. Simon was chosen by the Daily Journal as one of the Top 100 attorneys in California. In 2013, he received the California Lawyer of the Year award from California Lawyer Magazine and was selected as one of seven finalists for Consumer Attorney of the Year by Consumer Attorneys of California for his work in In re TFT-LCD (Flat Panel) Antitrust Litigation, MDL No. 1827 (N.D. Cal.). That year, Mr. Simon was included in the Top 100 of California’s “Super Lawyers” and has been named a “Super Lawyer” every year since 2003. He has attained Martindale-Hubbell's highest rating (AV) for legal ability and ethical standards.
Mr. Simon was co-lead class counsel in In re TFT-LCD (Flat Panel) Antitrust Litigation, a case that lasted over five years and resulted in $473 million recovered for the direct purchaser plaintiffs. Mr. Simon served as co-lead trial counsel and was instrumental in obtaining an $87 million jury verdict (before trebling). He presented the opening argument and marshalled numerous witnesses during the six-week trial.
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Also, Mr. Simon was co-lead class counsel in In re Credit Default Swaps Antitrust Litigation, a case alleging a conspiracy among the world’s largest banks to maintain opacity of the credit default swaps market as a means of maintaining supracompetitive prices of bid/ask spreads. After three years of litigation and many months of intensive settlement negotiations, the parties in CDS reached a landmark settlement amounting to $1.86 billion. It is one of the largest civil antitrust settlements in history.
Mr. Simon was also co-lead class counsel in In re Potash Antitrust Litigation (II), MDL No. 1996 (N.D. Ill.), where he successfully argued an appeal of the district court’s order denying the defendants’ motions to dismiss to the United States Court of Appeals for the Seventh Circuit. Mr. Simon presented oral argument during an en banc hearing before the Court and achieved a unanimous 8-0 decision in his favor. The case resulted in $90 million in settlements for the direct purchaser plaintiffs, and the Court’s opinion is one of the most significant regarding the scope of international antirust conspiracies.
More recently, Mr. Simon completed the trial seeking injunctive relief in the In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation. The plaintiffs allege that the NCAA and its member conferences violate the antitrust laws by restricting the value of grant-in-aid athletic scholarships and other benefits that college football and basketball players can receive.
Current Cases: In re Broiler Chicken Antitrust Litigation (N.D. Ill.) In re Keurig Green Mountain Single-Serving Coffee Antitrust Litigation (S.D.N.Y.) In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (N.D. Cal.) In re Pork Antitrust Litigation (D. Minn.) Senne, et al. v. Office of the Commissioner of Baseball, et al. (N.D. Cal.) North American Soccer League, LLC v. United States Soccer Federation, Inc., and Major League Soccer, L.L.C. (E.D.N.Y.)
Reported Cases: Minn-Chem, Inc. et al. v. Agrium Inc., et al., 683 F.3d 845 (7th Cir. 2012) In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, 594 U.S. ___ (2021).
Education: University of California, Hastings College of the Law, San Francisco, California – J.D. – 1980 University of California, Berkeley, California – A.B. – 1977
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Bar Admissions: California Supreme Court of the United States Ninth Circuit Court of Appeals Seventh Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Northern District of California U.S. District Court, Southern District of California
Recent Publications: Class Certification Procedure, Ch. V, ABA Antitrust Class Actions Handbook (3d ed.), (forthcoming) Reverse Engineering Your Antitrust Case: Plan for Trial Even Before You File Your Case, Antitrust, Vol. 28, No. 2, Spring 2014 The Ownership/Control Exception to Illinois Brick in Hi-Tech Component Cases: A Rule That Recognizes the Realities of Corporate Price Fixing, ABA International Cartel Workshop February 2014 Matthew Bender Practice Guide: California Unfair Competition and Business Torts, LexisNexis, with Justice Conrad L. Rushing and Judge Elia Weinbach (Updated 2013) The Questionable Use of Rule 11 Motions to Limit Discovery and Eliminate Allegations in Civil Antitrust Complaints in the United States, ABA International Cartel Workshop February 2012
Professional Associations and Memberships: California State Bar Antitrust and Unfair Competition Section, Advisor and Past Chair ABA Global Private Litigation Committee, Co-Chair ABA International Cartel Workshop, Steering Committee American Association for Justice, Business Torts Section, Past Chair Business Torts Section of the American Trial Lawyers Association, Past Chair Hastings College of the Law, Board of Directors (2003-2015), Past Chair (2009-2011)
DANIEL L. WARSHAW
Daniel L. Warshaw is a civil litigator and trial lawyer who focuses on complex litigation, class actions, and consumer protection. Mr. Warshaw has held leadership roles in numerous state, federal and multidistrict class actions, and obtained significant recoveries for class members in many cases. These cases have included, among other things, antitrust violations, high-technology products, automotive parts, entertainment royalties, intellectual property and false and misleading advertising. Mr. Warshaw has also represented employees in a variety of class actions, including wage and hour, misclassification and other Labor Code violations.
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Mr. Warshaw played an integral role in several of the firm’s groundbreaking cases. In the In re TFT-LCD (Flat Panel) Antitrust Litigation, he assisted in leading this multidistrict to trial and securing $473 million in recoveries to the direct purchaser plaintiff class. After the firm was appointed as interim co-lead counsel in In re Credit Default Swaps Antitrust Litigation, Mr. Warshaw along with his partners and co-counsel successfully secured a $1.86 billion settlement on behalf of the class.
Currently he serves in a lead or co-lead position in the following cases: Grace v. Apple, Inc., 5:17-CV-00551-YGR (N.D. Cal.), a certified class action on behalf of consumers who allege that Apple intentionally broke its “FaceTime” video conferencing feature for iPhones with older operating systems that recently settled for $18 million on behalf of a California class; In re KIND LLC “Healthy and All Natural” Litigation, MDL No. 2645, (S.D.N.Y.), a multistate certified class action on behalf of consumers who allege that they purchased KIND snack bars that were falsely advertised as “all natural,” and/or “non-GMO”; Seene v. The Office of the Commissioner of Baseball, 3:14-cv-00608-JCS (N.D. Cal.), a certified multistate class action alleging that Major League Baseball and its teams violate state and federal wage and hour laws relating to minor league players.
Mr. Warshaw’s cases have received significant attention in the press, and Mr. Warshaw has been profiled by the Daily Journal for his work in the digital download music cases. In 2019 and 2020, Mr. Warshaw was named as one of the Daily Journal’s Top Plaintiff Lawyers. And in 2020 he was also named one of the Daily Journal’s Top Antitrust Lawyers. Additionally, Mr. Warshaw has been selected by his peers as a Super Lawyer (representing the top 5% of practicing lawyers in Southern California) every year since 2005. He has also attained Martindale-Hubbell's highest rating (AV) for legal ability and ethical standards.
Mr. Warshaw has assisted in the preparation of two Rutter Group practice guides: Federal Civil Trials & Evidence and Civil Claims and Defenses. Mr. Warshaw is the founder and Chair of the Class Action Roundtable. The purpose of the Roundtable is to facilitate a high-level exchange of ideas and in-depth dialogue on class action litigation.
Current Cases:
Grace v. Apple, Inc. (N.D. Cal.) In Re: Keurig Green Mountain Single-Serve Coffee Antitrust Litigation (S.D.N.Y.) Greg Kihn, et al. v. Bill Graham Archives, LLC, et al. (N.D. Cal.) In re KIND LLC “Healthy and All Natural” Litigation (S.D.N.Y.) In re Pork Antitrust Litigation (D. Minn.) In re. Santa Fe Natural Tobacco Company Marketing, Sales Practices, and Products Liability Litigation (D. N.M.) Senne, et al. v. Office of the Commissioner of Baseball, et al. (N.D. Cal.)
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Education: Whittier Law School, Los Angeles, California – J.D. – 1996 University of Southern California – B.A. – 1992
Bar Admissions: California Ninth Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Northern District of California U.S. District Court, Southern District of California U.S. District Court, Western District of Texas
Professional Associations and Memberships: American Bar Association Association of Business Trial Lawyers, Board Member Consumer Attorneys of California Los Angeles County Bar Association, Complex Court Committee, Member Plaintiffs’ Class Action Roundtable, Chair
BOBBY POUYA
Bobby Pouya is a partner in the firm’s Los Angeles office, focusing on complex litigation, class actions, and consumer protection. Mr. Pouya has been an attorney with Pearson, Simon & Warshaw, LLP since 2007, and has extensive experience in representing clients in a variety of contexts. He has served as a primary member of the litigation team in multiple cases that resulted in class certification or a class-wide settlement, including cases that involved high-technology products, price fixing, consumer safety and false and misleading advertising. The cases that Mr. Pouya has worked on have resulted in hundreds of millions of dollars in judgments and settlements on behalf of effected plaintiffs and class members.
Mr. Pouya has served as one of the attorneys representing direct purchaser plaintiffs in several complex antitrust cases, including In re Polyurethane Foam Antitrust Litigation (N.D. Ohio) and In re Fresh and Processed Potatoes Antitrust Litigation (D. Idaho). Mr. Pouya is currently actively involved in the prosecution of In re Broiler Chicken Antitrust Litigation (N.D. Ill), In re Pork Antitrust Litigation (D. Minn.), Senne, et al. v. Office of the Commissioner of Baseball, et al. (N.D. Cal.), as well as several prominent consumer class action lawsuits.
Mr. Pouya’s success has earned him recognition by his peers as a Super Lawyers Rising Star (representing the top 2.5% of lawyers in Southern California age 40 or younger or in practice for 10 years or less) every year since 2008. Mr. Pouya earned his Juris Doctorate from Pepperdine University School of Law in 2006, where he received a certificate in dispute resolution from the
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prestigious Straus Institute for Dispute Resolution and participated on the interschool trial and mediation advocacy teams, the Dispute Resolution Law Journal and the Moot Court Board.
Current Cases: In re Broiler Chicken Antitrust Litigation (N.D. Ill) In re Pork Antitrust Litigation (D. Minn.) In re Cattle Antitrust Litigation (D. Minn.) Senne, et al. v. Office of the Commissioner of Baseball, et al. (N.D. Cal.) Greg Kihn, et al. v. Bill Graham Archives, LLC, et al. (N.D. Cal.)
Education: Pepperdine University School of Law, Malibu, California – J.D. – 2006 University of California, Santa Barbara, California – B.A., with honors – 2003
Publications: Should Offers Moot Claims?, Daily Journal, Oct. 10, 2014 Central District Local Rules Hinder Class Certification, Daily Journal, April 9, 2013
Bar Admissions: California Ninth Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Northern District of California U.S. District Court, Southern District of California
Professional Associations and Memberships: American Bar Association Consumer Attorneys Association of Los Angeles Consumer Attorneys of California Los Angeles County Bar Association
Professional Associations and Memberships: California State Bar Antitrust and Unfair Competition Section, Advisor and Past Chair ABA Global Private Litigation Committee, Co-Chair ABA International Cartel Workshop, Steering Committee American Association for Justice, Business Torts Section, Past Chair Business Torts Section of the American Trial Lawyers Association, Past Chair Hastings College of the Law, Board of Directors (2003-2015), Past Chair (2009-2011)
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MELISSA S. WEINER
Melissa S. Weiner is a partner and civil litigator whose work is squarely focused on combating consumer deception. Her experience is expansive, including class actions related to consumer protection, product defect, intellectual property, automotive, false advertising and the Fair Credit Reporting Act. Ms. Weiner has taken a leadership role in numerous large class actions and MDLs in cases across the country.
A contributor to her professional community, Ms. Weiner serves on the Executive Board for Public Justice as the Co-Vice Chair of the Development Committee, former co-chair of the Mass Tort and Class Action Practice Group for the Minnesota Chapter of the Federal Bar Association and serves on the Minnesota Bar Association Food & Drug Law Council. In recognition of her outstanding efforts in the legal community, each year since 2012, Ms. Weiner has been named a Super Lawyers Rising Star by Minnesota Law & Politics.
Ms. Weiner has been appointed to leadership positions in the following MDLs and consolidated cases:
In Re: Luxottica of America, Inc. Data Security Breach Litigation (S.D. Ohio) (Appointed Interim Executive Committee Member); Culbertson v. Deloitte Consulting LLP (S.D.N.Y.) (Appointed to Plaintiffs’ Executive Committee), a nationwide data breach class action In Re: Fairlife Milk Products Marketing and Sales Practices Litigation (N.D. Ill.) (Appointed Interim Co-Lead Counsel); In Re: Deva Concepts Products Liability Litigation (S.D.N.Y.) (Appointed Interim Co- Lead Counsel); In Re Santa Fe Natural Tobacco Company Marketing & Sales Practices and Products Liability Litigation (D.N.M.) (chair of the Plaintiffs’ Steering Committee and member of the Plaintiffs’ Oversight Committee); In Re Samsung Top-Load Washing Machine Marketing, Sales Practices & Product Liability Litigation (W.D. Okla.), (appointed to Plaintiffs’ Executive Committee), a nationwide class action regarding a design defect in 2.8 million top loading washing machines, which resulted in a nationwide settlement; In Re Windsor Wood Clad Window Product Liability Litigation (E.D. Wis.), a nationwide class action regarding allegedly defective windows, which resulted in a nationwide settlement. In Re: Blackbaud, Inc. Customer Data Security Breach Litigation (D.S.C.), nationwide data breach class action, (appointed to Plaintiffs’ Steering Committee).
Current Cases: Aguilera v. NuWave, LLC (N.D. Ill.) (product defect and false advertising) Anurag Gupta v. Aeries Software, Inc. (C.D. CA) (data breach) Ashour v. Arizona Beverages USA LLC et al. (S.D. NY) (false advertising/mislabeling) Benson et al v. Newell Brands Inc., et al. (N.D. IL) (false advertising/mislabeling)
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Connor Burns v. Mammoth Media, Inc. (C.D. CA) (data breach) Culbertson v. Deloitte Consulting LLP (S.D.N.Y.) (data breach) Daniels v. Delta Air Lines, Inc. (N.D. Ga.). (COVID-19 pandemic relief) In Re: Deva Concepts Products Liability Litigation (S.D.N.Y.) (false advertising/mislabeling) In Re Fairlife Milk Products Marketing and Sales Practices Litigation (N.D. IL) (false advertising) Ford v. [24]7.AI, Inc. (N.D. Cal.) (data breach) In Re Pork Antitrust Litigation (D. Minn.) In Re Samsung Top-Load Washing Machine Marketing, Sales Practices, and Products Liability Litigation (W.D. Okla.) In Re Santa Fe Natural Tobacco Company Marketing, Sales Practices, and Products Liability Litigation (D. N.M.) (false advertising/mislabeling) Wedra v. Cree, Inc. (S.D.N.Y)
Education: William Mitchell College of Law - J.D. – 2007 University of Michigan – Ann Arbor - B.A. – 2004
Bar Admissions: New York Minnesota Ninth Circuit Court of Appeals U.S. District Court, District of Minnesota U.S. District Court, Colorado U.S. District Court, Northern District of Illinois U.S. District Court, Southern District of New York U.S. District Court, Eastern District of New York
Professional Associations and Memberships: Minnesota State Bar Association Federal Bar Association Public Justice
MICHAEL H. PEARSON
Michael H. Pearson is a Partner and civil litigator in the firm’s Los Angeles office, focusing on complex litigation, class actions, and consumer protection. Mr. Pearson has extensive experience in representing clients in a variety of contexts. He has served as a member of the litigation team in multiple cases that resulted in class certification or a class-wide settlement, including cases that involved antitrust, business litigation, complex financial products, high- technology products, consumer safety, and false and misleading advertising. Specifically, he was instrumental in managing the review of tens of millions of documents and drafting pleadings in In
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Re Credit Default Swaps Antitrust Litigation, which was settled for $1.86 billion, plus injunctive relief.
Mr. Pearson received his Bachelor of Science degree from Tulane University in 2008, majoring in Finance with an Energy Specialization. He received his Juris Doctorate from Loyola Law School Los Angeles in 2011. Mr. Pearson is an active member in a number of legal organizations, including the American, Los Angeles County and San Fernando Valley Bar Associations, Consumer Attorneys of California, the Consumer Attorneys Association of Los Angeles and the Association of Business Trial Lawyers.
Mr. Pearson’s success has earned him recognition by his peers as a Super Lawyers Rising Star (representing the top 2.5% of lawyers in Southern California age 40 or younger or in practice for 10 years or less) in 2017, 2018, 2019, and 2020.
Current Cases: City of Oakland v. The Oakland Raiders, et al. (N.D. Cal.) In re Broiler Chicken Antitrust Litigation (N.D. Ill.) In re Pork Antitrust Litigation (D. Minn.) Senne, et al. v. Office of the Commissioner of Baseball, et al. (N.D. Cal.)
Education: Loyola Law School Los Angeles, Los Angeles, California – J.D. – 2011 Tulane University, New Orleans, Louisiana – B.S., magna cum laude – 2008
Bar Admissions: California Ninth Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Northern District of California U.S. District Court, Southern District of California
Professional Associations and Memberships: American Bar Association Association of Business Trial Lawyers Consumer Attorneys Association of Los Angeles Consumer Attorneys of California Los Angeles County Bar Association San Fernando Valley Bar Association
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BENJAMIN E. SHIFTAN
Benjamin E. Shiftan is a Partner and litigator in the firm’s San Francisco office. Since joining the firm in 2014, Mr. Shiftan has focused on complex class action litigation, including antitrust, product defect, and consumer protection cases.
Prior to joining the firm, Mr. Shiftan litigated complex bad faith insurance cases for a national law firm. Before that, Mr. Shiftan served as a law clerk to the Honorable Peter G. Sheridan, United States District Court for the District of New Jersey, and worked for a mid-sized firm in San Diego.
Mr. Shiftan graduated from the University of San Diego School of Law in 2009. While in law school, he served as Lead Articles Editor of the San Diego International Law Journal and competed as a National Team Member on the Moot Court Board. Mr. Shiftan won the school’s Paul A. McLennon, Sr. Honors Moot Court Competition. At graduation, he was one of ten students inducted into the Order of the Barristers. Mr. Shiftan graduated from the University of Virginia in 2006.
Current Cases: In re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation (S.D.N.Y.) In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (N.D. Cal.) Senne, et al. v. Office of the Commissioner of Baseball, et al. (N.D. Cal.) North American Soccer League, LLC v. United States Soccer Federation, Inc., and Major League Soccer, L.L.C. (E.D.N.Y.)
Education: University of San Diego School of Law, San Diego, CA – J.D. – 2009 University of Virginia, Charlottesville, VA – B.A. – 2006
Bar Admissions: California Ninth Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Northern District of California U.S. District Court, Southern District of California
Professional Associations and Memberships: San Francisco County Bar Association
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TRIAL COUNSEL
THOMAS J. NOLAN
Thomas J. Nolan is Trial Counsel (Of Counsel) in the Sherman Oaks office of Pearson, Simon & Warshaw, LLP.
Mr. Nolan is widely recognized as one of the nation’s leading trial attorneys, and has extensive civil and criminal trial experience representing corporations and individuals in complex litigation in state and federal courts.
Mr. Nolan is a former federal prosecutor and served as Chief of Fraud and Special Prosecutions in the Los Angeles United States Attorney’s Office. He has been a member of the defense bar since 1979.
Mr. Nolan has represented both corporate plaintiffs and defendants across a wide range of complex civil litigation matters including class actions; a wide variety of contract disputes, including a three-month jury trial against 63 insurance carriers; unfair business practices and consumer fraud; as well as antitrust and intellectual property issues. Mr. Nolan is also recognized as a leading lawyer for “first of their kind” trials. His diverse experience was cited by media reports on his arrival at Latham, such as this Bloomberg-BNA Law article.
Mr. Nolan has represented corporations and individuals in criminal DOJ prosecutions and SEC enforcement matters and in internal investigations involving FCPA allegations, securities fraud, money laundering, RICO, healthcare fraud, and insider trading violations.
He leverages extensive trial experience including winning jury verdicts of more than $1 billion for his clients and defeating claims exceeding $15 billion asserted against clients.
Notable Cases: Lead trial counsel for CashCall in defeating more than $275 million in restitution and monetary claims sought by the CFPB. Served as lead trial counsel representing UBS Real Estate Securities Inc. in a closely watched three-week bench trial conducted in the US District Court, Southern District of New York.* Served as lead trial counsel representing the home mortgage division of a major bank against class action claims of racial discrimination in mortgage lending* Defended Peter Morton in securing a unanimous jury verdict awarding zero damages in a case alleging fraud, breach of fiduciary duty and invasion of privacy* Represented the founders of Skype Technologies S.A., with a consortium of private equity and venture capital firms led by Silver Lake, in the $2.8 billion acquisition of Skype from eBay Inc.*
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Represented Tyco International Ltd. in a litigation in the US District Court for the Southern District of New York brought by holders of $2.7 billion of notes issued by Tyco.* Served as lead trial counsel representing the consortium of underwriters of WorldCom Securities in securing a settlement on the eve of jury selection in one of the largest securities class action cases in history.* Represented Litton Industries in a high-profile monopoly antitrust lawsuit against Honeywell, Inc. in the US District Court for the Central District of California.*
*Represents experience from previous law firms.
Accolades: Mr. Nolan has served in numerous honorary positions and received numerous accolades over his extensive career, including:
American College of Trial Lawyers – Fellow International Academy of Trial Lawyers – Fellow Loyola Marymount University – Board of Regents Loyola University School of Law at Los Angeles – Board of Directors Loyola University School of Law at Los Angeles – Champion of Justice Award Beverly Hills Bar Association – Excellence in Advocacy Award Association of Business Trial Lawyers – frequent lecturer Federal Bar Association – frequent lecturer California Bar Association – Pro Bono Lawyer of the Year The Am Law Litigation Daily – Litigator of the Week
Mr. Nolan has been selected for inclusion in Chambers Global: The World’s Leading Lawyers for Business, and he is one of only 23 attorneys listed in the top tier of national trial attorneys by Chambers USA: America’s Leading Lawyers for Business, which also ranks him in its top tier for general commercial litigation. In addition, Mr. Nolan has been profiled for 12 different years as one of the Top 100 most influential lawyers in California and as one of the Top 30 Securities Litigators in California by the Daily Journal. He was named Best Lawyers’ 2015 Los Angeles Bet-the-Company Litigation Lawyer of the Year.
Education: Loyola Law School – Los Angeles, California – J.D. – 1975 Loyola Marymount University – Los Angeles, California – B.B.A. – 971
Bar Admissions: California Supreme Court of the United States Ninth Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California
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U.S. District Court, Northern District of California U.S. District Court, Southern District of California U.S. District Court, Southern District of New York
OF COUNSEL
NEIL SWARTZBERG
Neil Swartzberg, Of Counsel to Pearson, Simon & Warshaw, LLP, has significant litigation and counseling experience, with a track record of providing advice and representation to individuals and companies on a variety of technology, consumer and finance related matters. He has expertise in complex and commercial litigation, including in the intellectual property, consumer protection, antitrust, securities and class action context. Practicing in both federal and state courts, he has litigated price-fixing class actions, securities fraud suits and other consumer protection cases, as well as patent infringement, trade secret misappropriation and related intellectual property matters. Mr. Swartzberg also has experience negotiating licenses and similar agreements to resolve disputes in technology areas such the Internet, online banking, and telecommunications.
Mr. Swartzberg was a leading attorney in the Direct Purchaser Plaintiff class action In re Static Random Access Memory (SRAM) Antitrust Litigation (N.D. Cal.). He was also actively involved in several other antitrust class actions, such as In re International Air Transportation Surcharge Antitrust Litigation (N.D. Cal.), Air Cargo Shipping Services Antitrust Litigation (E.D.N.Y.), In re Cathode Ray Tube (CRT) Antitrust Litigation (N.D. Cal.), and In re Optical Disk Drive (ODD) Antitrust Litigation (N.D. Cal.). He has represented patent owners and companies in infringement cases for patents covering video game controllers, Internet search functionality, secure mobile banking transactions, and telecommunications switches.
Current Cases: In re Broiler Chicken Antitrust Litigation (N.D. Ill.) In re Pork Antitrust Litigation (D. Minn.) In re: Santa Fe Natural Tobacco Company Marketing, Sales Practices, and Products Liability Litigation (D.N.M.) North American Soccer League, LLC v. United States Soccer Federation, Inc., and Major League Soccer, L.L.C. (E.D.N.Y.)
Education: University of California, Davis, School of Law, Davis, California – J.D. – 2001 State University of New York, Buffalo, Buffalo, New York – M.A. – 1994 Duke University, Durham, North Carolina – A.B. – 1991
Bar Admissions: California Ninth Circuit Court of Appeals
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Federal Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Eastern District of Missouri U.S. District Court, Western District of Pennsylvania
Publications and Presentations: American Bar Association, Section of Antitrust Law, 2020 Spring Conference, Presentation, Judge Jon S. Tigar: In re Cathode Ray Tube (CRT) Antitrust Litig. American Bar Association, Section of Antitrust Law, 2019 Spring Conference, Presentation, Bruce Simon: Challenges & Recent Developments in Class Certification: From the Plaintiffs’ Perspective (with Eric Mont) The Hard Cell, Mobile banking and the Federal Circuit's "divided infringement" decisions, Feb. 2013, Intellectual Property magazine, with Robert D. Becker.
Professional Associations and Memberships: American Bar Association
Languages: German (proficient)
ASSOCIATES
NAVEED ABAIE
Naveed Abaie is an associate in the firm’s Los Angeles office focusing on consumer protection, antitrust, and business litigation.
He graduated from the University of San Diego, School of Law in 2017. While at the University of San Diego, Mr. Abaie earned his J.D. with a concentration in Business and Corporate Law. Mr. Abaie received his Bachelor’s degree from the University of California, Berkeley Haas School of Business in 2012.
Current Cases: In re Broiler Chicken Antitrust Litigation (N.D. Ill) In re Pork Antitrust Litigation (D. Minn.)
Education: University of San Diego, California – J.D. – 2017 University of California, Berkeley, California – B.A.– 2012
Bar Admissions: California
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Professional Associations and Memberships: Iranian American Bar Association
MATTHEW A. PEARSON
Matthew A. Pearson is an associate in the firm’s Los Angeles office focusing on antitrust, consumer protection, copyright, and business litigation. Mr. Pearson has represented clients in a variety of different matters and works closely with clients, co-counsel, and opposing counsel on all aspects of litigation.
In 2019, Mr. Pearson received the award for Outstanding Antitrust Litigation Achievement in Private Law Practice by the American Antitrust Institute for his work in the In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (N.D. Cal.) trial, which took place in September of 2018 and resulted in a verdict in Plaintiffs’ favor. Additionally, in 2019, Mr. Pearson was selected by his peers as a Super Lawyer (representing the top 5% of practicing lawyers in Southern California).
Mr. Pearson received his Bachelor of Science degree from the University of Arizona in 2010, majoring in Business Management. He received his Juris Doctorate from Whittier Law School in 2013. Mr. Pearson is an active member in a number of legal organizations, including the American Bar Association, American Association for Justice, Association of Business Trial Lawyers, Consumer Attorneys Association of Los Angeles, Consumer Attorneys of California, and the Los Angeles County Bar Association.
Current Cases: In re Pork Antitrust Litigation (D. Minn.) Grace v. Apple, Inc. (N.D. Cal.) In re Keurig Green Mountain Single-Serving Coffee Antitrust Litigation (S.D.N.Y.) Greg Kihn, et al. v. Bill Graham Archives, LLC, et al. (N.D. Cal.) In re KIND LLC “Healthy and All Natural” Litigation (S.D.N.Y.) In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (N.D. Cal.) North American Soccer League, LLC v. United States Soccer Federation, Inc., and Major League Soccer, L.L.C. (E.D.N.Y.) In Re Cattle Antitrust Litigation (D. Minn.)
Education: Whittier Law School, California – J.D. – 2013 University of Arizona: Eller College of Management – B.S.– 2010
Bar Admissions: California
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Ninth Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Eastern District of California U.S. District Court, Northern District of California U.S. District Court, Southern District of California
Professional Associations and Memberships: American Bar Association American Association for Justice Association of Business Trial Lawyers Consumer Attorneys Association of Los Angeles Consumer Attorneys of California Los Angeles County Bar Association
HARRISON C. MARGOLIN
Harrison C. Margolin is an associate in the firm’s Los Angeles office focusing on antitrust, class action and commercial litigation.
He graduated from the UCLA School of Law in 2020. While at UCLA, Harrison was an Advanced Trial Advocacy pupil in the A. Barry Capello Trial Advocacy series and focused on courses in Complex Litigation. He is a law review article author on topics in tort law, complex litigation and emerging technology.
Before law school, Harrison earned his B.A. in Economics at the University of California, Berkeley, where he graduated with Honors of Highest Distinction.
Current Cases: In re Pork Producers Antitrust Litigation
Education: University of California, Los Angeles – J.D. – 2020 University of California, Berkeley, California – B.A., Economics; Highest Distinction – 2017.
Bar Admissions: California (provisional licenses)
DANIEL K. ASIEDU
Daniel K. Asiedu is an associate in the firm’s Minneapolis office focusing on consumer class action and data breach cases.
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Mr. Asiedu graduated from Mitchell Hamline School of Law in 2017. While in law school, Mr. Asiedu competed in the Rosalie Wahl Moot Court competition and was a judicial extern in the Second Judicial District of Minnesota for the Honorable Jennifer L. Frisch, who is now of the Minnesota Court of Appeals. After law school, Mr. Asiedu served as a law clerk to the Honorable Robert J. Rupp, District Court Judge, Seventh Judicial District of Minnesota.
Mr. Asiedu received his B.A. in Justice Studies from Rhode Island College in 2010 and a Master’s degree in Global Studies and International Affairs from Northeastern University in 2012.
Education: Mitchell Hamline School of Law – J.D. – 2017 Northeastern University – M.S. – 2012 Rhode Island College – B.A. – 2010
Bar Admission: Minnesota U.S. District Court, District of Minnesota
Professional Association and Membership: Minnesota State Bar Association Hennepin County Bar Association Minnesota Black Lawyers Association
Y. CHRISTOPHER NAGAKAWA
Y. Christopher Nagakawa is an associate in the firm’s Sherman Oaks office focusing on antitrust consumer class action cases.
Mr. Nagakawa graduated from Pepperdine University School of Law in 1999. After law school, he served as a Deputy Attorney General of the California Department of Justice, Office of the Attorney General, for seven and a half years. He lateraled to the Santa Monica City Attorney's Office, where he served as a Deputy City Attorney for over 12 years. He took a break from trial and appellate practice to work as an Ambulance Operator/EMT with the Glendale Fire Department and Firefighter with the Ventura County Fire Department.
Mr. Nagakawa received his B.A. in Political Science from the University of California at Riverside in 1996.
Education: Pepperdine University School of Law – J.D. and Certificate in ADR – 1999 University of California at Riverside – B.A. – 1996
Bar Admissions: California
958091.3 27
Case 1:20-cv-21813-JEM Document 78-2 Entered on FLSD Docket 07/13/2021 Page 76 of 76
PEARSON, SIMON & WARSHAW, LLP
Ninth Circuit Court of Appeals U.S. District Court, Central District of California U.S. District Court, Northern District of California
BRIAN S. PAFUNDI
Brian S. Pafundi is an associate in the firm’s Minneapolis office focusing on antitrust and consumer class actions.
Mr. Pafundi graduated from University of Florida Levin College of Law in 2010. After law school he worked as an Assistant Public Defender for the State of Minnesota where he handled a full and diverse caseload including felony trials.
Mr. Pafundi received his B.A. in Political Science in 2005 and a Master of Arts degree in Mass Communications in 2009, both from the University of Florida.
Education: University of Florida Levin College of Law – J.D. – 2010 University of Florida College of Journalism and Communications – M.A. – 2009 University of Florida College of Liberal Arts and Science – B.A. – 2005
Bar Admission: Minnesota
958091.3 28
Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 1 of 20
EXHIBIT C
Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 2 of 20
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
MARLENA ROSADO, on behalf of herself Case No. 20-cv-21813-JEM v-00466 and all others similarly situated,
Plaintiff,
v.
BARRY UNIVERSITY INC.,
Defendant.
DECLARATION OF JENNIFER M. KEOUGH REGARDING NOTICE ADMINISTRATION
I, JENNIFER M. KEOUGH, declare and state as follows:
1. I am the Chief Executive Officer of JND Legal Administration (“JND”). JND is a
legal administration services provider with its headquarters located in Seattle, Washington. JND
has extensive experience with all aspects of legal administration and has administered settlements
in hundreds of class action cases.
2. JND is serving as the Settlement Administrator1 in the above-captioned litigation
(“Action”) as ordered by the Court in its Order Preliminarily Approving Class Action Settlement
and Certifying the Settlement Class dated March 30, 2021 (“Order”). This Declaration is based on
my personal knowledge, as well as upon information provided to me by experienced JND
employees, and if called upon to do so, I could and would testify competently thereto.
1 Capitalized terms used and otherwise not defined in this Declaration shall have the meanings given such terms in the Settlement Agreement.
1 DECLARATION OF JENNIFER M. KEOUGH REGARDING NOTICE ADMINISTRATION Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 3 of 20
CAFA NOTICE
3. In compliance with the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715,
JND compiled a CD-ROM containing the following documents:
a. Class Action Complaint and Demand for Jury Trial, filed on May 1, 2020;
b. Amended Class Action Complaint and Demand for Jury Trial, filed June
26, 2020;
c. Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action
Settlement and Incorporated Memorandum of Law, filed March 17, 2021;
d. Class Action Settlement Agreement and Release, filed March 17, 2021;
e. [Proposed] Email and Postcard Class Notice, filed March 17, 2021;
f. [Proposed] Long Form Notice, filed March 17, 2021; and
g. [Proposed] Order Preliminarily Approving Class Action Settlement and
Certifying the Settlement Class, filed March 17, 2021.
4. The CD-ROM was mailed on March 26, 2021, to the appropriate Federal and State
officials identified in the attachment with an accompanying cover letter, a copy of which is
attached hereto as Exhibit A.
CLASS MEMBER DATA
7. On April 12, 2021, JND received spreadsheets containing, among other
information, the names, mailing addresses, email addresses, student ID’s, and amounts of tuition
paid of individuals identified as potential Class Members. The spreadsheet contained contact
information and other identifying data for a total of 6,077 records.
8. Prior to mailing notices, JND analyzed the raw data to remove duplicate records.
JND did not identify any duplicate records, resulting in 6,077 unique Class Member records. JND
2 DECLARATION OF JENNIFER M. KEOUGH REGARDING NOTICE ADMINISTRATION Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 4 of 20
updated the Class Member contact information using data from the National Change of Address
(“NCOA”) database.2 The Class Member data was promptly loaded into a database established
for this Action.
E-MAIL AND MAILED NOTICE
9. Pursuant to the Settlement Agreement, on April 29, 2021, JND e-mailed to
individuals identified as current students of Barry University the customized, Court-approved
Class Notice to 3,486 Class Members records. A representative sample of the e-mailed Class
Notice is attached hereto as Exhibit B.
10. Pursuant to the Settlement Agreement, on April 29, 2021, JND mailed to
individuals identified as former students of Barry University the customized, Court-approved
Class Notice via USPS first-class mail to 2,595 Class Members records. A representative sample
of the mailed Class Notice is attached hereto as Exhibit C.
11. As of the date of this Declaration, JND tracked e-mailed four (4) Class Notices that
were “bounced back” to JND as undeliverable. JND promptly mailed four (4) Class Notices to
these Class Members at their addresses provided by Barry University.
12. As of the date of this Declaration, 6,077 Class Members were e-mailed or mailed a
Class Notice which was not returned as undeliverable, representing 100% of total Class Members.
SETTLEMENT WEBSITE
14. On April 29, 2021, JND established a Settlement Website
(www.BarrySpring2020Refund.com), which hosts copies of important case documents, answers
to frequently asked questions, and includes contact information for Class Counsel and the
2 The NCOA database is the official United States Postal Service (“USPS”) technology product which makes changes of address information available to mailers to help reduce undeliverable mail pieces before mail enters the mail stream. This product is an effective tool to update address changes when a person has completed a change of address form with the USPS. The address information is maintained on the database for 48 months.
3 DECLARATION OF JENNIFER M. KEOUGH REGARDING NOTICE ADMINISTRATION Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 5 of 20
Settlement Administrator. The website also allows Class Members to file an Election Form
electronically. The Settlement Website contains all information required by paragraph 9 of the
Court’s Order Granting Preliminary Approval Order.
15. As of the date of this Declaration, the Settlement Website has tracked 7,260 unique
users who registered 21,938 page-views.
TOLL-FREE INFORMATION LINE
16. On April 29, 2021, JND established a case-specific toll-free telephone number (1-
833-358-1846) for Class Members to call to obtain information about the Settlement. The toll-free
number is accessible 24 hours a day, 7 days a week.
17. As of the date of this Declaration, the toll-free number has received 107 calls.
REQUESTS FOR EXCLUSION
18. The Class Notice informed Class Members who wanted to exclude themselves from
the Settlement (“opt-out”) that they must do so by sending an exclusion letter to the Settlement
Administrator stating that they desire to opt-out of the Settlement or otherwise not participate in
the Settlement, postmarked on or before July 28, 2021.
19. As of the date of this Declaration, JND has received one (1) exclusion request.
OBJECTIONS
20. The Class Notice informed recipients that any Class Member who wished to object
to approval of the Settlement could do so by submitting a written statement to the Court (with a
copy to JND), postmarked no later than July 28, 2021.
21. As of the date of this Declaration, JND has not received any objections.
4 DECLARATION OF JENNIFER M. KEOUGH REGARDING NOTICE ADMINISTRATION Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 6 of 20
ELECTION FORMS RECEIVED
22. The Class Notice informed recipients that Class Members do not need to do
anything to receive a payment, those wishing to elect the method in which they receive a payment
must file an Election Form and submit it to JND electronically on or before July 28, 2021.
23. As of the date of this Declaration, JND has received 1,442 Election Form
submissions.
24. JND is in the process of receiving, reviewing, and validating Election Form
submissions, and can, upon request, provide a supplemental declaration with final Election Form
counts following the Election Deadline.
I declare under penalty of perjury pursuant to the laws of the United States of America that
the foregoing is true and correct.
Executed on July 8, 2021 at Seattle, Washington.
JENNIFER M. KEOUGH
5 DECLARATION OF JENNIFER M. KEOUGH REGARDING NOTICE ADMINISTRATION Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 7 of 20
EXHIBIT A Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 8 of 20
March 26, 2021
United States Attorney General and the Appropriate Officials Identified in Attachment A
RE: CAFA Notice of Proposed Class Action Settlement
Dear Sir or Madam:
This Notice is being provided to you in accordance with the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1715 on behalf of Barry University, the defendant in the below-referenced class action (“the Action”). Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement and Incorporated Memorandum of Law was filed with the Court on March 17, 2021. As of the date of this Notice, the Court has not scheduled an approval hearing.
Case Name: Rosado v. Barry University, Inc. Case Number: 1:20-cv-21813-JEM Jurisdiction: United States District Court, Southern District of Florida (Miami Division) Date Settlement filed March 17, 2021 with Court:
Copies of all materials filed in the above-named actions are electronically available on the Court’s Pacer website found at https://pcl.uscourts.gov. Additionally, in compliance with 28 U.S.C. § 1715(b), the enclosed CD-ROM contains the following documents filed in the Action:
01 - Complaint.pdf Class Action Complaint and Demand for Jury Trial, filed May 1, 2020
02 - Amended Complaint.pdf Amended Class Action Complaint and Demand for Jury Trial, filed June 26, 2020
03 - Motion for Preliminary Approval.pdf Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement and Incorporated Memorandum of Law, filed March 17, 2021
04 - Settlement Agreement.pdf Class Action Settlement Agreement and Release, filed March 17, 2021
05 - Email and Postcard Notice.pdf [Proposed] Email and Postcard Notice, filed on March 17, 2021
06 - Long Form Notice.pdf [Proposed] Long Form Notice, filed March 17, 2021
CO • MN • NY • WA • DC | 800.207.7160 | [email protected] | WWW.JNDLA.COM Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 9 of 20
07 - Preliminary Approval Order.pdf [Proposed] Order Preliminarily Approving Class Action Settlement and Certifying the Settlement Class, filed March 17, 2021
It is not possible to provide a breakdown of the Settlement Class in accordance with 28 U.S.C. § 1715 (b)(7) at this time. However, we anticipate that the Settlement Class is sufficiently numerous as to include Class Members potentially residing in all 50 U.S. states, as well as the District of Columbia, and may include Class Members residing in U.S. territories and associated states.
There are no other settlements or agreements made between Counsel for the parties related to the class defined in the proposed settlement, and as of the date of this Notice, no Final Judgment or notice of dismissal has been entered in this case.
If you have any questions regarding the details of the case and settlement, please contact Defense Counsel’s representative at:
Mendy Halberstam Jackson Lewis P.C. One Biscayne Tower Two South Biscayne Blvd., Suite 3500 Miami, FL 33131 (305) 577-7600 [email protected]
Stephanie Leigh Adler-Paindiris Jackson Lewis 390 N Orange Avenue Suite 1285 Orlando, FL 32801-1641 (407) 246-8440 [email protected]
For questions regarding this Notice, please contact JND at:
JND Class Action Administration 1100 2nd Ave, Suite 300 Seattle, WA 98101 Phone: 800-207-7160
Regards,
JND Legal Administration
Encl. Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 10 of 20 Rosado v. Barry University, Inc., Case No. 1:20-cv-21813-JEM CAFA Notice – Attachment A – Service List
Treg R. Taylor Steve Marshall Office of the Attorney General Office of the Attorney General 1031 W 4th Ave 501 Washington Ave Ste 200 Montgomery, AL 36104 Anchorage, AK 99501
Leslie Rutledge Mark Brnovich Office of the Attorney General Office of the Attorney General 323 Center St 2005 N Central Ave Ste 200 Phoenix, AZ 85004 Little Rock, AR 72201
CAFA Coordinator Phil Weiser Office of the Attorney General Office of the Attorney General Consumer Protection Section Ralph L. Carr Judicial Building 455 Golden Gate Ave., Ste 11000 1300 Broadway, 10th Fl San Francisco, CA 94102 Denver, CO 80203
Kathy Jennings William Tong Delaware Department of Justice Office of the Attorney General Carvel State Office Building 165 Capitol Ave 820 N French Street Hartford, CT 06106 Wilmington, DE 19801
Ashley Moody Chris Carr Office of the Attorney General Office of the Attorney General State of Florida 40 Capitol Sq SW PL ‐01 The Capitol Atlanta, GA 30334 Tallahassee, FL 32399
Thomas J. Miller Clare E. Connors Office of the Attorney General Department of the Attorney General Hoover State Office Building 425 Queen Street 1305 E. Walnut Street Rm 109 Honolulu, HI 96813 Des Moines, IA 50319
Kwame Raoul Lawrence G. Wasden Office of the Attorney General Office of the Attorney General James R. Thompson Center 700 W. Jefferson St, Suite 210 100 W. Randolph St Boise, ID 83720 Chicago, IL 60601 Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 11 of 20 Rosado v. Barry University, Inc., Case No. 1:20-cv-21813-JEM CAFA Notice – Attachment A – Service List
Todd Rokita Derek Schmidt Indiana Attorney General's Office Office of the Attorney General Indiana Government Center South 120 SW 10th Ave 302 W Washington St 5th Fl 2nd Fl Indianapolis, IN 46204 Topeka, KS 66612
Daniel Cameron Jeff Landry Office of the Attorney General Office of the Attorney General Capitol Building 1885 N. Third St 700 Capitol Ave Ste 118 Baton Rouge, LA 70802 Frankfort, KY 40601
CAFA Coordinator Brian E. Frosh General Counsel's Office Office of the Attorney General Office of Attorney General 200 St. Paul Pl One Ashburton Pl Baltimore, MD 21202 Boston, MA 02108
Dana Nessel Aaron Frey Department of Attorney General Office of the Attorney General G. Mennen Williams Building, 7th Fl 6 State House Station 525 W Ottawa St Augusta, ME 04333 Lansing, MI 48933
Keith Ellison Eric Schmitt Office of the Attorney General Attorney General's Office 445 Minnesota St Supreme Court Building Suite 1400 207 W High St St. Paul, MN 55101 Jefferson City, MO 65101
Lynn Fitch Austin Knudsen Office of the Attorney General Office of the Attorney General Walter Sillers Building 215 N. Sanders 550 High St Ste 1200 Justice Building, Third Fl Jackson, MS 39201 Helena, MT 59601
Wayne Stenehjem Josh Stein Office of the Attorney General Attorney General's Office State Capitol, 600 E Boulevard Ave 114 W Edenton St Dept. 125 Raleigh, NC 27603 Bismarck, ND 58505 Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 12 of 20 Rosado v. Barry University, Inc., Case No. 1:20-cv-21813-JEM CAFA Notice – Attachment A – Service List
Jane Young Doug Peterson Office of the Attorney General Office of the Attorney General NH Department of Justice 2115 State Capitol 33 Capitol St. Lincoln, NE 68509 Concord, NH 03301
Gurbir S. Grewal Hector Balderas Office of the Attorney General Office of the Attorney General Richard J. Hughes Justice Complex P.O. Drawer 1508 25 Market St 8th Fl, West Wing Santa Fe, NM 87504 Trenton, NJ 08611
Aaron Ford CAFA Coordinator Office of the Attorney General Office of the Attorney General Old Supreme Court Building 28 Liberty St 100 N Carson St 15th Fl Carson City, NV 89701 New York, NY 10005
Dave Yost Mike Hunter Attorney General's Office Office of the Attorney General State Office Tower 313 NE 21st St 30 E Broad St 14th Fl Oklahoma City, OK 73105 Columbus, OH 43215
Ellen F. Rosenblum Josh Shapiro Oregon Department of Justice PA Office of the Attorney General 1162 Court St NE Strawberry Square 16th Fl Salem, OR 97301 Harrisburg, PA 17120
Alan Wilson Peter F. Neronha Office of the Attorney General Office of the Attorney General Rembert C. Dennis Bldg 150 S Main St 1000 Assembly St Rm 519 Providence, RI 02903 Columbia, SC 29201
Jason Ravnsborg Herbert H. Slatery, III Office of the Attorney General Office of the Attorney General 1302 E Highway 14 301 6th Ave N Ste 1 Nashville, TN 37243 Pierre, SD 57501 Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 13 of 20 Rosado v. Barry University, Inc., Case No. 1:20-cv-21813-JEM CAFA Notice – Attachment A – Service List
Sean D. Reyes Ken Paxton Office of the Attorney General Office of the Attorney General Utah State Capitol Complex 300 W. 15th St 350 North State St Ste 230 Austin, TX 78701 Salt Lake City, UT 84114
Mark R. Herring T.J. Donovan Office of the Attorney General Attorney General's Office 202 N. Ninth St. 109 State St. Richmond, VA 23219 Montpelier, VT 05609
Bob Ferguson Josh Kaul Office of the Attorney General Attorney General's Office 1125 Washington St SE 114 E State Capitol Olympia, WA 98501 Madison, WI 53702
Patrick Morrisey Bridget Hill Office of The Attorney General Office of the Attorney General State Capitol, 1900 Kanawha Blvd E Kendrick Building Building 1 Rm E-26 2320 Capitol Ave Charleston, WV 25305 Cheyenne, WY 82002
Monty Wilkinson Karl A. Racine Office of the U.S. Attorney General Office of the Attorney General U.S. Department of Justice 400 6th St NW 950 Pennsylvania Ave NW Washington, DC 20001 Washington, DC 20530
Fainu’ulei Falefatu Ala’ilima-Utu Leevin Taitano Camacho Department of Legal Affairs Office of the Attorney General Exec Ofc Bldg, 3rd Fl Administration Division P.O. Box 7 590 S Marine Corps Dr, Suite 901 Utulei, AS 96799 Tamuning, GU 96913
Edward Manibusan Domingo Emanuelli Hernández Office of the Attorney General Dpto. de Justicia de Puerto Rico Administration Building Calle Teniente César González 677 P.O. Box 10007 Esq. Ave. Jesús T. Piñero Saipan, MP 96950 San Juan, PR 00918 Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 14 of 20 Rosado v. Barry University, Inc., Case No. 1:20-cv-21813-JEM CAFA Notice – Attachment A – Service List
Denise N. George Joses R. Gallen Office of the Attorney General Department of Justice 34 ‐38 Kronprindsens Gade P.O. Box PS-105 GERS Building 2nd Fl Palikir St. Thomas, VI 00802 Pohnpei State, FM 96941
Richard Hickson, Attorney General Ernestine K. Rengiil C/O Marshall Islands Embassy Office of the Attorney General 2433 Massachusetts Ave NW P.O. Box 1365 Washington, DC 20008 Koror, PW 96939
Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 15 of 20
EXHIBIT B Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 16 of 20
Subject Line: Barry Spring 2020 Refund Class Action Settlement
From: [email protected]
Marlena Rosado v. Barry University, Inc. (Case Number 1:20-cv-21813-JEM)
Unique ID: [Unique ID]
Dear [Name],
NOTICE OF PENDING CLASS ACTION AND PROPOSED SETTLEMENT THAT MAY AFFECT YOUR RIGHTS.
IF YOU WERE A STUDENT AT BARRY UNIVERSITY ON MARCH 1, 2020 AND WERE ASSESSED TUITION AND OTHER FEES FOR THE SPRING 2020 SEMESTER, THEN YOU MAY BE ENTITLED TO FUTURE TUITION CREDITS, A CASH PAYMENT, AND/OR CREDIT FOR AN OUTSTANDING BALANCE
A federal court has authorized this Notice; it is not a solicitation from a lawyer.
You do not have to do anything to participate in and receive the benefits of the Settlement. You are receiving this Notice because Barry University’s records indicate that, as of March 1, 2020, you were enrolled in Barry University for the Spring 2020, and thus may be a member of the Settlement Class in Marlena Rosado v. Barry University, 1:20-cv-12813, (“the Action”) in which the Plaintiff alleges that Defendant Barry University failed to refund Tuition and other Fees when Barry transitioned from in- classroom learning to online learning for the Spring 2020 Term due to the COVID-19 pandemic. Barry denies all allegations of wrongdoing and there has been no finding of liability by any Court. However, in order to support its students and to resolve the matter, but without admitting any wrongdoing, Barry has agreed to establish a Settlement Fund in the amount of $2,400,000 to resolve the claims in the Action (“the Settlement”). If you are a Settlement Class Member, and if the Settlement is approved, you will be entitled to receive Tuition Credits for future classes, a credit for unpaid balances due to Barry, or a cash payment.
You will be asked to elect whether you want credits toward tuition for your future classes at Barry (“Tuition Credits”) or a cash payment. To make your election, you will need to visit the Settlement Website at www.BarrySpring2020Refund.com and submit your election no later than July 28, 2021. If you do not make a timely election and you are a Former Student (not enrolled at Barry University as of the start of the Spring 2021 term), you will receive a cash payment by mail at the address on file with Barry University. If you are a Current Student (as of the start of the Spring 2021 term), Barry will provide you, in its discretion, with a Tuition Credit on your Barry account or a cash payment mailed to your address on file. Regardless of whether you elect to receive a Tuition Credit or a payment, if you have an outstanding balance with Barry, Barry has the option of first applying any payment due to you under the Settlement to the outstanding balance on your account with Barry. All Settlement funds provided as Tuition Credits must be used by the start of the Fall 2023 semester or are forfeited. The distribution of Tuition Credits or cash payments will only occur if the Court approves the Settlement.
The Court has preliminarily approved the Settlement. It will hold a Final Approval Hearing in this case on August 27, 2021. At that hearing, the Court will consider whether to grant Final Approval of the Settlement, and whether to approve payment from the Settlement Fund of up to $5,000 as a an award to the Class Representative for her service as the Class Representative in this litigation, up to 33.33% of the Settlement Fund as attorneys’ fees, and reimbursement of litigation costs to the attorneys and the Settlement Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 17 of 20
Administrator, if any. If the Court grants Final Approval of the Settlement and you do not request to be excluded from the Settlement by the deadline to do so, you will release your right to bring any claim covered by the Settlement.
To obtain a Long Form Notice and/or to review other important documents please visit www.BarrySpring2020Refund.com. Alternatively, you may call 1-833-358-1846.
If you do not want to participate in this Settlement—meaning you do not want to receive a credit for your outstanding balance, Tuition Credits or a cash payment, and you do not want to be bound by any judgment entered in this case—you may exclude yourself by submitting an opt-out request postmarked no later than July 28, 2021. If you want to object to this Settlement because you think it is not fair, adequate, or reasonable, you may object by submitting an objection postmarked no later than July 28, 2021. You may learn more about the opt-out and objection procedures by visiting www.BarrySpring2020Refund.com.
Regards, Barry Spring 2020 Refund Settlement Administrator
Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 18 of 20
EXHIBIT C Case 1:20-cv-21813-JEM Document 78-3 Entered on FLSD Docket 07/13/2021 Page 19 of 20 NOTICE OF PENDING CLASS ACTION AND PROPOSED SETTLEMENT THAT MAY AFFECT YOUR RIGHTS.
Unique ID: XXXXXXX
IF YOU WERE A STUDENT AT BARRY UNIVERSITY ON MARCH 1, 2020 AND Barry Spring 2020 Refund Settlement WERE ASSESSED TUITION AND OTHER c/o JND Legal Administration FEES FOR THE SPRING 2020 SEMESTER, P.O. Box 91398 THEN YOU MAY BE ENTITLED TO Seattle, WA 98111-9862 FUTURE TUITION CREDITS, A CASH PAYMENT, AND/OR CREDIT FOR AN OUTSTANDING BALANCE Postal Service: Please do not mark barcode A federal court has authorized this Notice; it is not a solicitation from a lawyer. NAME ADDRESS
To obtain a Long Form Notice and/or to review other important documents please visit www.BarrySpring2020Refund.com. Alternatively, you may call 1-833-358-1846.
Case 1:20-cv-21813-JEMYou do not have to do anything Document to participate 78-3in and receive Entered the benefits on of theFLSD Settlement. Docket You are receiving07/13/2021 this Notice because Page 20 of 20 Barry University’s records indicate that, as of March 1, 2020, you were enrolled in Barry University for the Spring 2020, and thus may be a member of the Settlement Class in Marlena Rosado v. Barry University, 1:20-cv-12813, (“the Action”) in which the Plaintiff alleges that Defendant Barry University failed to refund Tuition and other Fees when Barry transitioned from in-classroom learning to online learning for the Spring 2020 Term due to the COVID-19 pandemic. Barry denies all allegations of wrongdoing and there has been no finding of liability by any Court. However, in order to support its students and to resolve the matter, but without admitting any wrongdoing, Barry has agreed to establish a Settlement Fund in the amount of $2,400,000 to resolve the claims in the Action (“the Settlement”). If you are a Settlement Class Member, and if the Settlement is approved, you will be entitled to receive Tuition Credits for future classes, a credit for unpaid balances due to Barry, or a cash payment. You will be asked to elect whether you want credits toward tuition for your future classes at Barry (“Tuition Credits”) or a cash payment. To make your election, you will need to visit the Settlement Website at www.BarrySpring2020Refund.com and submit your election no later than July 28, 2021. If you do not make a timely election and you are a Former Student (not enrolled at Barry University as of the start of the Spring 2021 term), you will receive a cash payment by mail at the address on file with Barry University. If you are a Current Student (as of the start of the Spring 2021 term), Barry will provide you, in its discretion, with a Tuition Credit on your Barry account or a cash payment mailed to your address on file. Regardless of whether you elect to receive a Tuition Credit or a payment, if you have an outstanding balance with Barry, Barry has the option of first applying any payment due to you under the Settlement to the outstanding balance on your account with Barry. All Settlement funds provided as Tuition Credits must be used by the start of the Fall 2023 semester or are forfeited. The distribution of Tuition Credits or cash payments will only occur if the Court approves the Settlement. The Court has preliminarily approved the Settlement. It will hold a Final Approval Hearing in this case on August 27, 2021. At that hearing, the Court will consider whether to grant Final Approval of the Settlement, and whether to approve payment from the Settlement Fund of up to $5,000 as a an award to the Class Representative for her service as the Class Representative in this litigation, up to 33.33% of the Settlement Fund as attorneys’ fees, and reimbursement of litigation costs to the attorneys and the Settlement Administrator, if any. If the Court grants Final Approval of the Settlement and you do not request to be excluded from the Settlement by the deadline to do so, you will release your right to bring any claim covered by the Settlement. If you do not want to participate in this Settlement—meaning you do not want to receive a credit for your outstanding balance, Tuition Credits or a cash payment, and you do not want to be bound by any judgment entered in this case—you may exclude yourself by submitting an opt-out request postmarked no later than July 28, 2021. If you want to object to this Settlement because you think it is not fair, adequate, or reasonable, you may object by submitting an objection postmarked no later than July 28, 2021. You may learn more about the opt-out and objection procedures by visiting www.BarrySpring2020Refund.com. Case 1:20-cv-21813-JEM Document 78-4 Entered on FLSD Docket 07/13/2021 Page 1 of 10
EXHIBIT D
Case 1:20-cv-21813-JEM Document 78-4 Entered on FLSD Docket 07/13/2021 Page 2 of 10
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION
MARLENA ROSADO, on behalf of herself CASE NO. 20-cv-21813-JEM and all others similarly situated,
Plaintiff,
v.
BARRY UNIVERSITY, INC,
Defendant. ______/
[PROPOSED] ORDER GRANTING UNOPPOSED MOTION FOR FINAL APPROVAL OF SETTLEMENT, APPLICATION FOR SERVICE AWARD, CLASS COUNSEL’S APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES, AND FINAL JUDGMENT AND DISMISSAL WITH PREJUDICE
On July 13, 2021, Plaintiff1 filed her Unopposed Motion for Final Approval of Settlement,
Application for Service Award, Class Counsel’s Application for Attorneys’ Fees, and Incorporated
Memorandum of Law (“Motion”), seeking Final Approval of the Settlement in this Action. In
support of the Motion, Plaintiff filed the Joint Declaration of Class Counsel, Jeff Ostrow, Anna
Haac, and Daniel Warshaw, and Declaration of the Settlement Administrator, Jennifer M. Keough
of JND Legal Administration, to enable the Court to evaluate the fairness, adequacy and
reasonableness of the Settlement, as well as the reasonableness of the applications for a Service
Award to Class Representative and attorneys’ fees and expenses to Class Counsel. Following
Notice to the Settlement Class, only one Settlement Class member opted-out and no objections
were filed.
This matter came before the Court on August 27, 2021, for a Final Approval Hearing
pursuant to the Court’s Preliminary Approval Order dated March 30, 2021 (DE #73). The Court
1 The capitalized terms herein shall have the same meanings as those defined in the Settlement Agreement.
Case 1:20-cv-21813-JEM Document 78-4 Entered on FLSD Docket 07/13/2021 Page 3 of 10
carefully reviewed all of the filings related to the Settlement and heard argument on the Motion.
After full consideration of the Motion and the presentations of the Parties, the Court
concludes that this Settlement provides a substantial recovery for the Settlement Class Members
and is a very good result under the circumstances and challenges presented by the Action. The
Court specifically concludes that the Settlement is fair, adequate, and reasonable, and an
acceptable compromise of the claims filed for the benefit of the Settlement Class Members. The
Settlement complies with Fed. R. Civ. P. 23(e). Therefore, the Court grants Final Approval of the
Settlement, certifies the Settlement Class, authorizes the payment of a Service Award to the Class
Representative (and alternatively concludes that payment in an amount equal to the requested
Service Award is reasonable as compensation in exchange for the separate general release from
Plaintiff to Defendant) and awards attorneys’ fees and costs to Class Counsel.
The Court now makes the findings of fact and conclusions of law set forth in this Final
Approval Order granting the Motion, and HEREBY ORDERS AND ADJUDGES THAT:
Final Approval of Settlement
1. This Court has jurisdiction over the subject matter of this Action, the Settlement
Class, and over individuals and entities undertaking affirmative obligations under the Settlement.
2. This Court hereby approves the Settlement set forth in this Final Approval Order
and finds that the Settlement is, in all respects, fair, adequate, and reasonable, and in compliance
with all applicable requirements of Federal Rule of Civil Procedure 23 and the United States
Constitution (including the Due Process Clause), and all other applicable law, including the six
factors set forth in Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984).2 Following the
2 The Eleventh Circuit has identified six factors to be considered in analyzing the fairness, adequacy, and reasonableness of a class action settlement under Rule 23(e): (1) the existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the
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completion of the Notice Program, there have been no objections to the Settlement, a clear
indication that the Settlement Class Members support the Settlement. As the Settlement is in the
best interests of the Parties and the Settlement Class, the Court directs the Parties and their counsel
to implement and consummate the Settlement in accordance with the terms and conditions of the
Agreement.
Certification of Settlement Class
3. Pursuant to Federal Rule of Civil Procedure 23, the Settlement Class consists of:
All Students who were enrolled during the Class Period as well as others who paid or were charged Tuition Fees, Room and Board Fees, Health Fees, Lab and Materials Fees, or Other Fees on behalf of such Students.
4. The Settlement Class as previously provisionally certified satisfies all the
requirements contained in Federal Rule of Civil Procedure 23, the United States Constitution, and
any other applicable law as more fully set forth in the Court’s Preliminary Approval Order, which
is incorporated into this Final Approval Order by this reference.
5. As such, the Court finds, for settlement purposes only, that: (a) the Settlement Class
as defined is so numerous that joinder of all members is impracticable; (b) there are questions of
law or fact common to the Settlement Class; (c) the claims of the Plaintiff are typical of the claims
of the Settlement Class; (d) the Class Representative and Class Counsel will fairly and adequately
protect the interests of the Settlement Class Members; (e) Plaintiff alleges that Defendant has acted
on grounds that apply generally to the class; (f) the questions of law or fact common to the
Settlement Class predominate over the questions affecting on individual Settlement Class
litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of the plaintiffs’ success on the merits; (5) the range of possible recovery; and (6) the opinions of the class counsel, class representatives, and the substance and amount of opposition to the settlement.
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Members; and (g) certification of the Settlement Class is superior to the other methods for the fair
and efficient adjudication of the controversy.
Dismissal and Release
6. No one objects to the Settlement and only one Settlement Class Member requested
exclusion from the Settlement through the opt-out process approved by this Court. Except for the
individual claims of the single Settlement Class member who duly opted-out of the Settlement
Class (identified in Exhibit 13 to this Final Approval Order), this Court hereby dismisses this
Action on the merits and with prejudice as though after trial and a final adjudication of the facts
and the law as to all Settlement Class Members’ Released Claims.
7. In exchange for the benefits conferred by the Settlement, all Settlement Class
Members will be deemed to have released Defendant from claims related to the subject matter of
the Action.
8. The Notice Program was the best notice practicable under the circumstances. The
Notice Program provided due and adequate notice of the proceedings and of the matters set forth
therein, including the proposed Settlement set forth in the Agreement, to all persons entitled to
such notice and said Notice fully satisfied the requirements of the Federal Rules of Civil Procedure
and the United States Constitution, which include the requirement of due process.
9. Settlement Class Members shall be entitled to receive their portion of the Net
Settlement Fund, in accordance with the procedures set forth in the Agreement.
10. Having found that the Settlement Class Members have been properly certified and
received proper Notice under the Notice Program, all Settlement Class Members, other than the
3 To ensure the Court receives a complete list of individuals that have requested to opt-out of the Settlement, Plaintiff will submit a final opt-out list at the Final Approval hearing.
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one Settlement Class Member who opted-out of the Settlement, shall be barred and enjoined from
(a) further litigation in this case and (b) filing or taking any action directly or indirectly to
commence, prosecute, pursue, or participate on an individual or class or collective action basis any
action, claim, or proceeding against Defendant in any forum in which any of the claims released
in the Agreement are asserted or which in any way would prevent any such claims from being
extinguished.
11. All Settlement Class Members who have not-opted out of the Settlement shall be
bound by all determinations and judgments in this Action concerning the Agreement whether
favorable or unfavorable to the Settlement Class Member.
Attorneys’ Fees and Service Award
12. Class Counsel’s request for attorneys’ fees as a percentage of the common fund is
granted as being both appropriate and reasonable under the factors set forth in Camden I
Condominium Assn. v. Dunkle, 946 F.2d 768 (11th Cir. 1991).4 The requested percentage from
the Settlement Fund is reasonable, considering the results obtained, the nature of the case, and
Class Counsel’s significant work in this case and experience in litigating class actions. It was
necessary for Class Counsel, who undertook representation of Plaintiff and the putative class on a
purely contingent fee basis, to conduct research and discovery supporting the claims asserted and
the class-wide damages claimed, and to persuade Defendant that class claims were meritorious
4 The Eleventh Circuit’s factors for evaluating the reasonable percentage to award class-action counsel are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and the length of the professional relationship with the client; and (12) awards in similar cases.
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despite Defendant’s planned defenses. Prevailing in this case was by no means assured, given the
substantial defenses that Defendant would have pursued. Extensive settlement negotiations
occurred between the Parties. Defendant is represented by sophisticated counsel, who was
prepared to zealously defend this case. Notwithstanding, Class Counsel obtained a significant
settlement on behalf of the Settlement Class.
13. Therefore, Class Counsel is hereby awarded $800,000.00, which is 33.33% of the
Settlement Fund. The attorneys’ fees shall be payable out of the Settlement Fund. This percentage
accurately reflects the percentage figures of contingency fees attorneys commonly received in the
Southern District of Florida and the Eleventh Circuit, and are within the range of reasonableness
discussed in Camden I, 946 F.2d at 774-75.
14. The Court also finds that Class Counsel’s request for a Service Award to be paid to
the Class Representative is distinguishable from the type of service award prohibited by Johnson
v. NPAS Solutions, LLC, 975 F.3d 1244 (11th Cir. 2020), and thus finds that it is appropriate, and
the amount requested is reasonable. Therefore, Class Representative shall be paid a Service Award
of $5,000.00 from the Settlement Fund consistent with the terms of the Settlement Agreement and,
alternatively, awards the equivalent amount in exchange for the general release from Plaintiff to
Defendant.
Further Matters
15. Without affecting the finality of the Final Approval Order in any way, this Court
hereby retains continuing jurisdiction over: (a) implementation of this Settlement; (b) this Action
until the judgment contemplated herein has become effective and each and every act agreed to be
performed by the Parties has been performed; and (c) the Parties and all parties to the Settlement
Agreement for the purpose of enforcing and administering the Agreement.
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16. In the event that the Settlement does not become effective in accordance with its
terms, then the judgment contemplated herein shall be rendered null and void and be vacated and
the Agreement and all orders entered in connection therewith shall be rendered null and void, the
Settlement Class shall be decertified, all of Defendant’s obligations under the Settlement shall
cease to be of any force and effect; the amounts in the Settlement Fund shall be returned to
Defendant and Plaintiff’s Complaint shall be reinstated as it existed prior to the making of the
Agreement. In that case, all communications, documents, filings, negotiations and other actions
taken by the Parties to negotiate and pursue a settlement through the Settlement Agreement shall
be considered confidential settlement communications which cannot be used in evidence by any
Party against another Party.
17. Nothing in this Final Approval Order or the Agreement shall be construed as an
admission or concession by either Party. Defendant has denied all of Plaintiff’s allegations and
continues to deny such allegations. Plaintiff continues to believe her allegations have merit. The
Settlement and this resulting Final Approval Order represent a compromise of disputed allegations.
18. Except as expressly provided herein, each Party shall bear its own fees and costs.
19. Pursuant to Federal Rule of Civil Procedure 58(a), the Court will enter Final
Judgment in a separate document and direct the Clerk of this Court to close the case.
CONCLUSION
For the foregoing reasons, the Court: (1) grants Final Approval to the Settlement; (2)
appoints Plaintiff as Class Representative; (3) appoints as Class Counsel the law firms and
attorneys listed in Paragraph 1(c) of the Agreement; (4) awards a $5,000.00 Service Award to the
Class Representative (or, alternatively, as compensation in exchange for the general release from
Plaintiff to Barry); (5) awards Class Counsel attorneys’ fees in the amount of $800,000.00, plus
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litigation expenses in the amount of $8,494.79; (6) directs Class Counsel, Plaintiff, and Defendant
to implement and consummate the Agreement pursuant to its terms and conditions; (7) retains
continuing jurisdiction over Plaintiff, the Settlement Class Members, and Defendant to implement,
administer, consummate and enforce the Settlement and this Final Approval Order; and (8) will
separately enter Final Judgment dismissing the Action with prejudice.
DONE AND ORDERED in chambers in Miami, Florida, on this ___ day of _____, 2021.
______HONORABLE JOSE E. MARTINEZ U.S. DISTRICT COURT JUDGE Copies furnished to: Counsel of Record
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EXHIBIT 1
The following individuals opted-out of the Settlement and therefore are not bound by
the terms of this Final Approval Order:
1. Ingrid Bethune
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