IN THE UNITED STATES DISTRICT COURT FOR THE … - Plaintiffs... · for the northern district of florida . pensacola division . ... law office of j.j. talbott, ... for the northern

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JOHN NAVELSKI, LINDA NAVELSKI, ERICK ALEXANDER, JACOB HUTCHINS, AMBER HUTCHINS, JEANNE HENDERLY, RICHARD BULLARD, and BEVERLY BULLARD, on their own behalf and those others similarly situated, Plaintiffs, v. CASE NO. 3-14-cv-445 MCR/CJK INTERNATIONAL PAPER COMPANY, Defendant. /

PLAINTIFFS’ RENEWED MOTION FOR APPROVAL OF CLASS

NOTICE PLAN

Plaintiffs John Navelski, Linda Navelski, Erick Alexander, Jacob Hutchins,

Amber Hutchins, Jeanne Henderly, Richard Bullard, and Beverly Bullard

(“Plaintiffs”) respectfully move the Court for approval of the agreed proposed

Notice Plan, attached as Exhibit A (Epperly Decl.), which fully satisfies all

requirements under Rule 23(c) and due process.

On March 25, 2017, the Court granted Plaintiffs’ Motion for Class

Certification and certified the following class:

All persons who, as of April 29, 2014, owned real property in the Bristol Park, Bristol Woods, Bristol

Case 3:14-cv-00445-MCR-CJK Document 124 Filed 09/15/17 Page 1 of 8

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Creek, or Ashbury Hills Subdivisions in Cantonment, Florida.

(See ECF No. 93 at 46.)

Following the Court’s Order, Plaintiff submitted a Corrected Motion for

Approval of Class Notice Plan on July 19, 2017, which outlined the reasons that

the notice and notice plan is the best practicable notice under Rule 23(c)(2)(B).

(See ECF No. 117.) Thereafter on July 20, 2017, the Court held a Notice Hearing

to discuss the notice for the class, during which the Court directed the parties (1) to

include the trial date, which commences on February 20, 2018 and concludes on

March 2, 2018 (Hearing Transcript from July 20, 2017 at 4:3-5); (2) to include the

website address for the case website, www.flnd.uscourts.gov/314cv445 (Id. at

4:10-15); (3) to bold and increase the font size on the title of the notice to say

“Court Approved Legal Notice of Class Action” (Id. at 6:19-22); and (4) to revise

the notice to make it clear that the class has been certified for liability purposes

only with an explanation of what that means. (Id. at 6:8-14).

Following the Court’s direction at the Notice Hearing, the parties have

revised the agreed Class Notice to address all of the issues raised by the Court. The

Class Notice was modified (1) to include the trial date on the second page; (2)

included the court website on the bottom of the second page; (3) bolded and

increased the font size on the title; and (4) added language under the heading

“WHAT WILL BE DECIDED IN THE CLASS TRIAL?” at the top of the second


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page. (See Exhibit B, redlined Class Notice). For the same reasons stated in

Plaintiffs’ original motion (See ECF No. 117), the Class Notice and Notice Plan

should be approved.

DISCUSSION

A. The Proposed Notice Plan is the best practicable notice under the circumstances

Rule 23(c)(2)(B) provides that “[f]or any class certified under Rule 23(b)(3),

the court must direct to class members the best practicable notice under the

circumstances, including individual notice to all members who can be identified

through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); see also Wal-Mart Stores,

Inc., v. Dukes, 131 S. Ct. 2541, 2558 (2011). Here, the Plaintiff proposes a direct

mailing approach designed to meet that requirement.

As noted in the Court’s Certification Order, “[t]he names and addresses of

the proposed class members are easily ascertainable by reference to the real

property records of Escambia County, Florida” and Plaintiffs “have sufficiently

demonstrated that the members of the class may be identified in an

administratively feasible way.” (See ECF No. 93 at 46.) Additionally, as set forth

in the declaration of David Epperly, his company Epperly Re:Solutions has parsed

and formatted the owner records for a total of 314 homes in the class and updated


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those records through the TransUnion TLO address databases.1 Epperly

Re:Solutions has identified 54 of the 314 records that reflect an updated mailing

address and can provide a complete list of class members to the parties’ counsel

within three (3) days of the Court’s approval of the Notice Plan. Further, Epperly

Re:Solutions stands ready to mail the proposed notice by first class mail, postage

pre-paid, to class members within seven (7) days of the Court approving this

Notice Plan. Additionally, the Court’s website can be used to make the Notice

publicly available. The website address from the Court’s website can be included

in the Notice mailed to class members.

The recipients of the notice will be advised that they have forty-five (45)

days from the mailing to opt-out of the class. Within (7) days of the opt-out

deadline, Epperly Re:Solutions will provide a list of class members who have

opted out to the parties’ counsel.

B. The Proposed Notice Plan is easy to read and understand, comporting with the requirements of Rule 23 and due process.

To satisfy Rule 23(c)(2)(B), the class notice must concisely state in plain,

easy-to-understand language: (i) the nature of the action; (ii) the definition of the

class certified; (iii) the class claims, issues, or defenses; (iv) that a class member

may enter an appearance through counsel if the member so desires; (v) that the

1 These databases are used for skip tracing and identity authentication. The TLO databases use advanced algorithms to search public and proprietary records “on an estimated 95% of the U.S. population.” See www.tlo.com.


5

court will exclude from the class any member who requests exclusion; (vi) the time

and manner for requesting exclusion; and (vii) the binding effect of a class

judgment on class members under Rule 23(c)(3). Ultimately, notice is “adequate if

it may be understood by the average class member.” Alba Conte & Herbert B.

Newberg, 4 Newberg On Class Actions, §11:53, 167 (4th ed. 2002). Rule 23, of

course, accords considerable discretion to a district court in fashioning notice to a

class. See Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979).

Here, Plaintiffs and Defendant International Paper Company agree that the

language of the proposed notice satisfies Rule 23 and due process requirements.

The notice provides a concise description of the defined Class, along with a basic

description of the nature of the action and class claims. If any class member wants

additional information, the Notice provides contact information for class counsel

and email addresses to obtain additional information. The Notice prominently

features a text box entitled “YOUR LEGAL RIGHTS AND OPTIONS IN THIS

LAWSUIT” that simply and plainly explains the two options for class members in

the lawsuit: (1) do nothing and stay in the class or (2) ask to be excluded. The

Notice further explains in a straight-forward manner the impact to the class

member by choosing either of these options and that such a choice must be made

within 45 days of the mailing of the notice.


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In sum, the format and language of the Notice has been drafted so that it is

conveyed in plain language, easy to read, and will be readily understood by the

members of the Class. As such, Plaintiff’s proposed Notice Plan satisfies the

requirements of Rule 23 and due process and should be approved by the Court.

Conclusion

For the foregoing reasons, Plaintiffs and Class Counsel respectfully request

that the Court enter an Order (1) approving the proposed Notice Plan, finding that

it comports with both Rule 23 and due process requirements, (2) entering a

schedule for providing notice and setting a deadline for class members to opt-out,

and (3) authorizing notice be sent by First Class mail to all class members. (See

Exhibit C, Proposed Order.)

Dated: September 15, 2017 Respectfully Submitted, /s/ James L. Kauffman

James L. Kauffman, Fl. Bar No. 12915 Jonathan R. Marshall, pro hac vice BAILEY & GLASSER LLP 1054 31st Street, N.W., Suite 230 Washington, DC 20007 Telephone: (202) 463-2101 Fax: (202) 463-2103 [email protected] [email protected]

Jeremiah J. Talbott Law Office of J.J. Talbott, P.A. 900 East Moreno Street


mailto:[email protected]

7

Pensacola, FL 32503 [email protected]

Christopher M. Vlachos Vlachos Injury Law, P.A. 714 North DeVilliers Street Pensacola, FL 32501 [email protected] Counsel for Plaintiffs and the Class




8

CERTIFICATE OF SERVICE I HEREBY CERTIFY this 15th day of September 2017 that a true copy of the foregoing was served via electronic delivery on counsel below: MOORE, HILL & WESTMORELAND, P.A. Charles F. Beall, Jr. [email protected] Florida Bar No. 66494 Larry Hill [email protected] [email protected] Florida Bar No. 173908 Kimberly S. Sullivan [email protected] Florida Bar No. 101408 220 West Garden Street SunTrust Tower, 9th Floor Pensacola FL 32502 Telephone: (850) 434-3541 Attorneys for Defendant

GIBSON, DUNN & CRUTCHER, LLP Daniel W. Nelson [email protected] 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5306 Telephone: (202) 887-3687

/s/ James L. Kauffman James L. Kauffman



Case 3:14-cv-00445-MCR-CJK Document 124-1 Filed 09/15/17 Page 1 of 6






Exhibit A-1

1

DAVID W. EPPERLY MBA, CPA, ABV, CFF, CVA

122 Capitol Street, Suite 201

Charleston, West Virginia 25301

P.O. Box 849

Hurricane, West Virginia 25526

(304) 549-3231

Specializing in business valuations and the formulation of forensic economic and

accounting analyses for use in tort, contract, and divorce litigation.

Educational Bachelor of Science, Accounting, Magna Cum Laude,

History: West Virginia University - Institute of Technology,

Montgomery, West Virginia.

Bachelor of Science, Computer Management / Data

Processing, Magna Cum Laude, West Virginia University -

Institute of Technology, Montgomery, West Virginia.

Master of Business Administration (MBA), Finance

Concentration, West Virginia Graduate College, South

Charleston, West Virginia.

Professional C.P.A., Certified Public Accountant, 1988, West Virginia.

Licenses: C.V.A., Certified Valuation Analyst, 1997, issued by the

National Association of Certified Valuation Analysts.

A.B.V., Accredited in Business Valuation, issued by the

American Institute of Certified Public Accountants.

C.F.F., Certified in Financial Forensics, issued by the

American Institute of Certified Public Accountants.

Experience: Formulation of economic analyses for use in West Virginia

Circuit Courts in divorce cases, including marital estate

valuation, pension valuations, valuations of closely-held

businesses, valuations of stock and limited partnership interests,

valuations of professional degrees and professional practices,

as well as income capacity determinations of use in alimony and

support calculations.


Exhibit A-1

2

Experience, Formulation of economic loss analyses addressing damages in

Continued: wrongful death, wrongful termination, personal injury, and

criminal fraud actions, as well as valuations of lost business

profits.

Forensic accounting and data analytics engagements pertaining to

wage payment (timeliness) claims, alleged underpayment of

natural gas royalties, improper debt collection contacts, loan

servicing fees and issues, loan amortization issues, and homeowner

association fees/assessment issues.

Expert economic and accounting testimony in Federal Court

and West Virginia Circuit Courts relative to lost income /

earnings determinations, lost business profits, pension plan

valuations, valuations of other employment-related fringe

benefits, personal income tax issues, statutory interest

computations, financial motives in insurance fraud litigation,

investment performance and rate of return computations, and

valuations of closely-held businesses and professional practices.

Court-appointed class action administration services, including

noticing process oversight, database management, member

registration, claims administration, settlement administrator and

settlement fund administrator/custodian/trustee.

Court-appointed mediator regarding asset valuation and equitable

distribution issues.

Valuations of closely-held businesses and professional practices

for buy / sell, estate tax, gift tax, ESOP, and marital dissolution

purposes, as well as for dissenting shareholder actions.

Engagement Manager in audits of both for-profit and not-

for-profit entities, including Voluntary Health and Welfare

Organizations, labor organizations, trade associations, Public

Service Districts, as well as other entities funded primarily by state

and federal grant monies.

Accounting services for retail, service, and manufacturing

oriented establishments.

Computer hardware and software consulting for both for-

profit and not-for-profit entities.


Exhibit A-1

3

Professional National Association of Certified Valuation Analysts, West

Organizations: Virginia State Chapter President.

American Institute of Certified Public Accountants

Continuing West Virginia Public Accountants Association

Education Topic: Valuations of Closely-Held Businesses

Seminars

Instructed: West Virginia Chapter of the National Association of Certified

Valuation Analysts

Topic: Business Valuation Research and Information Resources

West Virginia University College of Law and West Virginia State

Bar’s Continuing Legal Education Committee

Topic: Valuation and Distribution of Pension Assets in Divorce

Cases

West Virginia Public Accountants Association

Topic: Asset Valuation Issues - Standards & Requirements

West Virginia Public Accountants Association

Topic: Business Succession – Optimizing and Building Value

Kanawha County Family Court Continuing Legal Education

Committee

Topic: Reading and Interpreting Complex Tax Returns

West Virginia University College of Law and West Virginia State

Bar’s Continuing Legal Education Committee

Topic: Income Measurement and Taxation Issues for Self-

Employed Individual

Kanawha County Family Court Continuing Legal Education

Committee

Topic: Tax Aspects of Divorce

Academic University of Charleston, The Forensic Institute.

Instruction: Instructor: Accredited Fraud Investigator (AFI) Program

University of Charleston, Graduate School of Business

Adjunct Professor: Executive Master of Forensic Accounting,

2008-present



PENSACOLA DIVISION

JOHN NAVELSKI, LINDA NAVELSKI, ERICK ALEXANDER, JACOB HUTCHINS, AMBER HUTCHINS, JEANNE HENDERLY, RICHARD BULLARD, and BEVERLY BULLARD, on their own behalf and those others similarly situated,

Plaintiffs,

v. CASE NO. 3:14-cv-445 MCR/CJK

INTERNATIONAL PAPER COMPANY,

Defendant.

COURT APPROVED LEGAL NOTICE OF CLASS ACTION

THIS IS NOT NOTICE OF A LAWSUIT AGAINST YOU. The purpose of this notice (the “Notice”) is to advise you of a class-action lawsuit against International Paper Company (“IP”). This Notice is being sent to you because property records show that you may be a class member. If you are a member of the following class, you are one of the participants on whose behalf the lawsuit was brought and this notice applies to you:

All persons who, as of April 29, 2014, owned real property in the Bristol Park, Bristol Woods, Bristol Creek, or Ashbury Hills Subdivisions in Cantonment, Florida.

This Notice describes the case in general and does not address all of the issues in detail.

WHAT IS THIS LAWSUIT ABOUT? The Representative Plaintiffs sued IP claiming they experienced flooding during a rainstorm on April 29-30, 2014, and that the flooding was caused by the failure of the structure sometimes referred to as the Kingsfield Road Dam, which was located on IP’s Cantonment Mill. The Representative Plaintiffs claim the Dam failed because IP did not properly maintain or remove it. The lawsuit includes claims of negligence, trespass, nuisance, and strict liability against IP relating to the failure of the Dam.

IP denies it is responsible for the flooding that the Representative Plaintiffs and other members of the class experienced; rather, IP contends the flooding was caused by the rainfall that occurred during the April 29-30 storm.

Additional information about the lawsuit is available at www.flnd.uscourts.gov/314-cv-445. You are encouraged to access this web site to learn more about the case.

Exhibit A-2


http://www.flnd.uscourts.gov/314-cv-445

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WHAT WILL BE DECIDED IN THE CLASS TRIAL? Chief Judge M. Casey Rodgers of the United States District Court for the Northern District of Florida has granted class action status to a lawsuit brought on behalf of owners of real property as of April 29, 2014, in the Bristol Park, Bristol Woods, Bristol Creek, or Ashbury Hills Subdivisions in Cantonment, Florida (the “Class Area”). The court’s class action certification applies only through a decision on whether IP has legal responsibility for the flooding in the Class Area on April 29 - 30, 2014. There is no money available now, and no guarantee there will be. The Court has only decided that the Representative Plaintiffs will be permitted to try to prove part of their case—whether IP is responsible for the failure of the Kingsfield Road Dam and, if so, whether IP is liable to them and the other members of the class for the flooding experienced within the Class Area—in a single trial on behalf of all class members. The liability jury will only determine whether or not all of the flooding experienced by Plaintiffs was caused by the failure of the Kingsfield Road Dam. If the evidence presented at the liability trial leads the jury to conclude that the Dam failure did not cause any of the flooding in the subject neighborhoods, or that it caused some but not all of the flooding, then Plaintiffs will have failed to carry their burden and the matter will end. If the liability jury decides in Plaintiffs’ favor, then class members will have the opportunity to proceed with individual actions on the issue of damages (i.e., the financial impact from the amount of water in each home).

This class trial will decide only the question whether IP does or does not have legal responsibility to compensate class members for damages caused by the flooding; it will not address the amount of damages, if any, caused by the flooding:

• If the Representative Plaintiffs are successful in proving that IP is liable to them and the other members of the class for the flooding, each class member will then be required to prove his or her damages, if any, that were caused by the flooding in a separate proceeding. Class counsel will continue to represent class members after the liability phase, though you will no longer be a class member at that point and continue to have the right to retain your own counsel.

• If the Representative Plaintiffs are not successful in proving that IP is liable to them and the other class members for the flooding, class members will not receive any money and will not be permitted to bring their own individual claims against IP for damage caused by the failure of the Kingsfield Road Dam.

The Court has set a trial on the class issues to begin on February 20, 2018, and the trial is scheduled to conclude by March 2, 2018.

WHO ARE THE REPRESENTATIVE PLAINTIFFS? The court-approved Representative Plaintiffs, John Navelski, Linda Navelski, Erick Alexander, Jacob Hutchins, Amber Hutchins, Jeanne Henderly, Richard Bullard, and Beverly Bullard, owned real property as of April 29, 2014, in the Class Area. These Representative Plaintiffs serve as the representatives for the class and are responsible for ensuring that decisions in the lawsuit are in the best interests of the class.

WHO ARE THE CLASS COUNSEL? The Court has appointed James L. Kauffman and Jonathan R. Marshall of the law firm Bailey & Glasser LLP, Jeremiah J. Talbott of the Law Office of J.J. Talbott, P.A., and Christopher M. Vlachos of Vlachos Injury Law, P.A. as class counsel.


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HOW IS CLASS COUNSEL BEING PAID? Class Counsel are representing you and the rest of the Class on a contingent fee basis and advancing all costs of the litigation on behalf of the Class, the reimbursement of which is also contingent on the outcome of the case. If money damages are obtained for you, Class Counsel will submit a fee request to the Court requesting reimbursement of litigation expenses and a percentage of the recovery to be determined at the discretion of the Court. In no event will Class Counsel request an attorney’s fee that exceeds one third (33.33%) of any recovery obtained by you or the class.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT

DO NOTHING

Stay in this lawsuit. Await the outcome.

By doing nothing, you keep the possibility of getting money or benefits that may come from a trial or a settlement of the pending case. But, you give up any rights to sue IP separately about the claims asserted in this lawsuit, and you will be bound by the outcome of the Lawsuit.

ASK TO BE EXCLUDED

Get out of this lawsuit. Drop your claims completely, or pursue your claims with your own lawyer.

If you ask to be excluded, you keep any rights to sue IP separately about the legal claims asserted in this lawsuit at your own expense, but you lose the benefits, if any, attained by the Representative Plaintiffs in the Lawsuit. See below for information about how to be excluded.

• Your options are explained in this notice. If you want to be excluded from the Class, you must either mail the notice administrator a letter or card indicating your wish to be excluded at the address: Epperly Re:Solutions, P.O. Box 849, Hurricane, WV 25526 or send an email to [email protected]. To be excluded, you must send an email or have your letter postmarked on or before [notice administrator to insert a date that is forty-five (45) days after the date the Class Notice was mailed].

• The Class’s lawyers must prove the claims against IP at a trial. If they do not prove those claims, then there will be no money or benefits obtained from IP for the members of the Class and members of the Class will not be permitted to bring their own individual claims against IP for damage caused by the failure of the Kingsfield Road Dam. If the jury finds that IP is liable to the class, then the Court will establish a process for each class member to prove his or her damages, if any, that were caused by the failure of the Kingsfield Road Dam.

• If any money is recovered from IP, a portion of the recovery may be used to cover the necessary and reasonable costs of this suit, including such attorney’s fees as the Court approves.

• You do not need to hire your own lawyer because Class Counsel is working on your behalf. But, if you want your own lawyer, you will have to pay that lawyer. For example, you can



4

ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you.

GETTING MORE INFORMATION

You can review the case file online at https://ecf.flnd.uscourts.gov/cgi-bin/login.pl. Please note that you will need to obtain a Login ID and Password. You may obtain a Login ID and Password at http://pacer.psc.uscourts.gov. Information is also available on the Court’s website at http://www.flnd.uscourts.gov/314-cv-445. Additionally, you may contact Class Counsel at the telephone number below or by writing to Class Counsel at the address provided below.

CONTACT INFORMATION FOR CLASS COUNSEL

The contact information for Class Counsel is as follows:

James L. Kauffman Jonathan R. Marshall BAILEY & GLASSER LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Telephone: (202) 463-2101

Jeremiah J. Talbott Law Office of J.J. Talbott, P.A. 900 East Moreno Street Pensacola, FL 32503 Telephone: (850) 437-9600

Christopher M. Vlachos Vlachos Injury Law, P.A. 714 North DeVilliers Street Pensacola, FL 32501 Telephone: (850) 444-0141

DO NOT ADDRESS QUESTIONS ABOUT THE LAWSUIT TO THE CLERK OF THE COURT OR TO THE JUDGE.

DATED: , 2017

By order of Chief Judge M. Casey Rodgers of the United States District Court for the Northern District of Florida


https://ecf.flnd.uscourts.gov/cgi-bin/login.pl

http://pacer.psc.uscourts.gov/

http://www.flnd.uscourts.gov/


PENSACOLA DIVISION

JOHN NAVELSKI, LINDA NAVELSKI,

ERICK ALEXANDER, JACOB HUTCHINS,

AMBER HUTCHINS, JEANNE HENDERLY,

RICHARD BULLARD, and BEVERLY

BULLARD, on their own behalf and those

others similarly situated,

Plaintiffs,

v. CASE NO. 3-:14-cv-445

MCR/CJK


Defendant. /

[PROPOSED] COURT APPROVED LEGAL NOTICE

THIS IS NOT NOTICE OF A LAWSUIT AGAINST YOU.COURT APPROVED LEGAL NOTICE OF CLASS ACTION

THIS IS NOT NOTICE OF A LAWSUIT AGAINST YOU. The purpose of this notice (the “Notice”) is to advise you of a class-action lawsuit against International Paper Company (“IP”). This Notice is being sent to you because property records show that you may be a class member. If you are a member of the following class, you are one of the participants on whose behalf the lawsuit was brought and this notice applies to you:

Exhibit B


2 4

All persons who, as of April 29, 2014, owned real property in the Bristol Park, Bristol Woods, Bristol Creek, or Ashbury Hills Subdivisions in Cantonment, Florida.

This Notice describes the case in general and does not address all of the issues in detail.

WHAT IS THIS LAWSUIT ABOUT?WHAT IS THIS LAWSUIT ABOUT? The Representative Plaintiffs sued IP claiming they experienced flooding during a rainstorm on April 29-30, 2014, and that the flooding was caused by the failure during the storm of the structure sometimes referred to as the Kingsfield Road Dam, which was located on IP’s Cantonment Mill. The Representative Plaintiffs claim the Dam failed because IP did not properly maintain or remove it. The lawsuit includes claims of negligence, trespass, nuisance, and strict liability against IP relating to the collapsefailure of the Dam.

IP denies it is liableresponsible for the flooding that the Representative Plaintiffs and other members of the class experienced; rather, IP contends the flooding was caused by the rainfall that occurred during the April 29-30 storm.

Additional information about the lawsuit is available at www.flnd.uscourts.gov/314-cv-445. You are encouraged to access this web site to learn more about the case. WHAT WILL BE DECIDED IN THE CLASS TRIAL? Chief Judge M. Casey Rodgers of the United States District Court for the Northern District of Florida has granted class action status to a lawsuit brought on behalf of owners of real property as of April 29, 2014, in the Bristol Park, Bristol Woods, Bristol Creek, or Ashbury Hills Subdivisions in Cantonment, Florida. If you are a member of (the “Class Area”). The court’s class, you are one of the participants on whose behalf the lawsuit was brought and this notice action certification applies to you:

only through a decision on All persons who, as of April 29, 2014, owned real property in the Bristol Park, Bristol Woods, Bristol Creek, or Ashbury Hills Subdivisions in Cantonment, Florida.

The Court has not decided whether IP did anything wrong or whetherhas legal responsibility for the flooding was caused by the failure of the Kingsfield Road Dam.in the Class Area on April 29 - 30, 2014. There is no money available now, and no guarantee there will be. The Court has only decided that the Representative Plaintiffs will be permitted to try to prove part of their case—whether IP is liableresponsible for the failure of the Kingsfield Road Dam and, if so, whether IP is liable to them and the other members of the class for the flooding experienced within the four subdivisions identified in the class definition. Class Area—in a single trial on behalf of all class members. The liability jury will only determine whether or not all of the flooding experienced by Plaintiffs was caused by the failure of the Kingsfield Road Dam. If the evidence presented at the liability trial leads the jury to conclude that the Dam failure did not cause any of the flooding in


http://www.flnd.uscourts.gov/314-cv-445

3 4

the subject neighborhoods, or that it caused some but not all of the flooding, then Plaintiffs will have failed to carry their burden and the matter will end. If the liability jury decides in Plaintiffs’ favor, then class members will have the opportunity to proceed with individual actions on the issue of damages (i.e., the financial impact from the amount of water in each home).

This class trial will decide only the question whether IP does or does not have legal responsibility to compensate class members for damages caused by the flooding; it will not address the amount of damages, if any, caused by the flooding:

• If the Representative Plaintiffs are successful in proving that IP is liable to them and the other members of the class for the flooding, each class member will then be required to prove his or her damages, if any, that were caused by the flooding. in a separate proceeding. Class counsel will continue to represent class members after the liability phase, though you will no longer be a class member at that point and continue to have the right to retain your own counsel.

• If the Representative Plaintiffs are not successful in proving that IP is liable to them and the other class members for the flooding, class members will not receive any money and will not be permitted to bring their own individual claims against IP for damage caused by the failure of the Kingsfield Road Dam. The Court has not set a date for trial, and there is no way to predict when the case will be concluded.

The Court has set a trial on the class issues to begin on February 20, 2018, and the trial is scheduled to conclude by March 2, 2018.

WHO ARE THE REPRESENTATIVE PLAINTIFFS? The court-approved Representative Plaintiffs, John Navelski, Linda Navelski, Erick Alexander, Jacob Hutchins, Amber Hutchins, Jeanne Henderly, Richard Bullard, and Beverly Bullard, owned real property as of April 29, 2014, in the Bristol Park, Bristol Woods, Bristol Creek, or Ashbury Hills Subdivisions in Cantonment, Florida.Class Area. These Representative Plaintiffs serve as the representatives for the class and are responsible for ensuring that decisions in the lawsuit are in the best interests of the class.

WHO ARE THE CLASS COUNSEL? The Court has appointed James L. Kauffman and Jonathan R. Marshall of the law firm Bailey & Glasser LLP, Jeremiah J. Talbott of the Law Office of J.J. Talbott, P.A., and Christopher M. Vlachos of Vlachos Injury Law, P.A. as class counsel.

HOW IS CLASS COUNSEL BEING PAID? Class Counsel are representing you and the rest of the Class on a contingent fee basis and advancing all costs of the litigation on behalf of the Class, the reimbursement of which is also contingent on the outcome of the case. If money damages are obtained for you, Class Counsel will submit a fee request to the Court requesting reimbursement of litigation expenses and a percentage of the recovery to be determined at the discretion of the Court. In no event will Class Counsel request an attorney’s fee that exceeds one third (33.33%) of any recovery obtained by you or the class.


4 4

YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT

DO NOTHINGDO NOTHING

Stay in this lawsuit. Await the outcome.

By doing nothing, you keep the possibility of getting money or benefits that may come from a trial or a settlement of the pending case. But, you give up any rights to sue IP separately about the claims asserted in this lawsuit, and you will be bound by the outcome of the Lawsuit.

ASK TO BE EXCLUDEDASK TO BE EXCLUDED

Get out of this lawsuit. Drop your claims completely, or pursue your claims with your own lawyer. If you ask to be excluded, you keep any rights to sue IP separately about the legal claims asserted in this lawsuit at your own expense, but you lose the benefits, if any, attained by the Representative Plaintiffs in the Lawsuit.

•• Your options are explained in this notice. If you want to be excluded from the Class, you must either mail the notice administrator a letter or card indicating your wish to be excluded at the address: Epperly Re:Solutions, 122 Capitol Street, Suite 201, CharlestonP.O. Box 849, Hurricane, WV 2530125526 or send an email to [email protected]@frontier.com. To be excluded, you must send an email or have your letter postmarked on or before ________ ( [notice administrator to insert a date that is forty-five (45) days after the date the Class Notice was mailed).].

•• The Class’s lawyers must prove the claims against IP at a trial. If they do not prove those claims, then there will be no money or benefits obtained from IP for the members of the Class and members of the Class will not be permitted to bring their own individual claims against IP for damage caused by the failure of the Kingsfield Road Dam. If the jury finds that IP is liable to the class, then the Court will establish a process for each class member to prove his or her damages, if any, that were caused by the failure of the Kingsfield Road Dam.

•• If any money is recovered from IP, a portion of the recovery may be used to cover the necessary and reasonable costs of this suit, including such attorney’s fees as the Court approves.

•• You do not need to hire your own lawyer because Class Counsel is working on your behalf. But, if you want your own lawyer, you will have to pay that lawyer. For example, you can ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you.



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GETTING MORE INFORMATION

You can review the case file online at https://ecf.flnd.uscourts.gov/cgi-bin/login.pl.https://ecf.flnd.uscourts.gov/cgi-bin/login.pl. Please note that you will need to obtain a Login ID and Password. You may obtain a Login ID and Password at http://pacer.psc.uscourts.gov.http://pacer.psc.uscourts.gov. Information is also available on the Court’s website at http://www.flnd.uscourts.gov/[insert specific web address information].http://www.flnd.uscourts.gov/314-cv-445. Additionally, you may contact Class Counsel at the telephone number below or by writing to Class Counsel at the address provided below.

CONTACT INFORMATION FOR CLASS COUNSEL

The contact information for Class Counsel is as follows:

James L. Kauffman Jonathan R. Marshall BAILEY & GLASSERBAILEY & GLASSER LLP 1054 31st Street, NW, Suite 230 Washington, DC 20007 Telephone: (202) 463-2101

Jeremiah J. Talbott Law Office of J.J. Talbott, P.A. 900 East Moreno Street Pensacola, FL 32503 Telephone: (850) 437-9600

Christopher M. Vlachos Vlachos Injury Law, P.A. 714 North DeVilliers Street Pensacola, FL 32501 Telephone: (850) 444-0141


https://ecf.flnd.uscourts.gov/cgi-bin/login.pl

http://pacer.psc.uscourts.gov/

http://www.flnd.uscourts.gov/

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DO NOT ADDRESS QUESTIONS ABOUT THE LAWSUIT TO THE CLERK OF THE COURT OR TO THE JUDGE.

DATED: ____________, , 2017 By order of Chief Judge M. Casey Rodgers of the United States District Court for the Northern District of Florida


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PENSACOLA DIVISION

JOHN NAVELSKI, LINDA NAVELSKI, ERICK ALEXANDER, JACOB HUTCHINS, AMBER HUTCHINS, JEANNE HENDERLY, RICHARD BULLARD, and BEVERLY BULLARD, on their own behalf and those others similarly situated,

Plaintiffs,

v.


Defendant.

Case No. 3:14-cv-00445 MCR/CJK

[PROPOSED] ORDER APPROVING CLASS NOTICE

This matter is before the Court on Plaintiffs’ Renewed Motion for Approval

of Class Notice Plan. ECF No. [ ] (“Plaintiffs’ Renewed Motion”). Upon

consideration of Plaintiffs’ Renewed Motion, the Court finds and orders as follows:

1. The Court approves the Notice Plan set forth in Plaintiffs’ Renewed

Motion and the exhibits thereto. The Notice Plan, in form, method, and content,

complies with the requirements of Federal Rule of Civil Procedure 23 and due

process. It shall constitute due and sufficient notice to all class members.

Exhibit CCase 3:14-cv-00445-MCR-CJK Document 124-5 Filed 09/15/17 Page 1 of 3

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2. Not later than seven (7) days from the date of this Order (“the Notice

Date”), the Notice, substantially in the form attached as Exhibit A-2 to Plaintiffs’

Renewed Motion, shall be sent by first class mail, postage prepaid, to all class

members who can be identified with reasonable effort.

3. Within three (3) days of the Court’s approval of the Notice Plan,

Epperly Re:Solutions will provide to the parties’ counsel a complete list of the class

members (including their Cantonment, Florida and any updated addresses), who will

receive the Notice mailing.

4. The deadline for a class member to request exclusion from the class

shall be 45 days after the Notice Date (the “Exclusion Deadline”). Any request for

exclusion that is not received by class counsel or postmarked by the Exclusion

Deadline shall be null and void.

5. Within seven (7) days of the Exclusion Deadline, Epperly Re:Solutions

will provide a list of class members who have opted out of the class.

6. Within fourteen (14) days of the Exclusion Deadline, class counsel shall

file a list identifying (A) the names of the individuals who opted out of the class, and

(B) the names of the individuals who remain members of the class and who shall

therefore be bound by the class judgment.


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Accordingly, Plaintiffs’ Renewed Motion for Approval of Class Notice Plan (ECF No. [ ]) is GRANTED.

DONE and ORDERED on this [ ] day of September, 2017.

________________________________________

M. CASEY RODGERS CHIEF UNITED STATES DISTRICT JUDGE


Documents

IN THE UNITED STATES DISTRICT COURT FOR THE … - Plaintiffs... · for the northern district of florida . pensacola division . ... law office of j.j. talbott, ... for the northern