Clay Class Action Litigation Settlement Information
Explains the settlement proposal and procedure and the amendment filed Aug. 21
Written By: Bill Jonas on 8/21/2008
Members of the Clay Class may have received through U.S. mail a Notice of Settlement related to the sewer overcharge portion of the dispute between the former customers of Clay Utilities and the City of South Bend. The same group will also receive an Amended Notice of Settlement.
The action against the City has been brought on two fronts: before the St. Joseph Superior Court where the sewer overcharges were tried and before the Indiana Utility Regulatory Commission where the water charges (and specifically the City's right to charge higher rate to those outside the city limits) have been challenged. There have been two trials before the IURC related to water charges. The amendment to the settlement is the result of the decision of the Indiana Utility Regulatory Commission after the second trial on water rates. The purpose of the amendment is to preserve a fund from the sewer recovery to finance continued efforts to remove the higher water rates charged by the City to its water customers who reside outside the city limits.
The entire amended notice follows:
STATE
OF INDIANA ) IN
THE ST. JOSEPH SUPERIOR COURT
)
SS:
COUNTY OF ST. JOSEPH ) CAUSE
NO. 71D07-0309-PL-00291
Roland
G. Switalski, )
Dennis
D. Gray, )
Wylie
T. Wright, )
Plaintiffs, )
v. )
)
City
of South Bend, )
Defendant. )
NOTICE
OF AMENDED PROPOSED
SETTLEMENT
TO MEMBERS OF PLAINTIFF CLASS
To: All Clay Township Class III
utility users of sewage service between the dates of September 1, 1999, and
March 31, 2003.
PLEASE
READTHIS NOTICE CAREFULLY AND IN ITS ENTIRETY. THIS NOTICE RELATES TO A PROPOSED
SETTLEMENT OF THIS CLASS ACTION AND CONTAINS
IMPORTANT INFORMATION AS TO YOUR RIGHTS CONCERNING THE SETTLEMENT.
SUMMARY OF THE SETTLEMENT
Statement of Plaintiff Recovery
The proposed settlement
is for $710,000, representing the judgment amount of $614,725.64, plus
statutory post-judgment interest of $24,790.32 from February 14, 2008 through August 15, 2008,
together with the additional sum of $70,484.04 to settle all of Plaintiffs
rights asserted pursuant to the contract and Notice of Appeal filed June 9, 2008.
Statement of
Potential Outcome of Case
The parties disagree on the issues raised in the appeal.
Plaintiffs allege entitlement to an additional $145,998 in damages and
$304,299.85 in pre-judgment interest. Defendant alleges that the entire
judgment amount was awarded in error and Plaintiffs should receive nothing.
Statement of Attorney fees and Costs
Sought
Plaintiffs counsel will make an Application to the Court
for reimbursement of costs of litigation in the approximate amount of $75,000,
presently in the amount of $69,587.84; projected additional $5,000 in mailing
charges to complete mailings related to this notice and distribution and for
attorney fees in an amount not to exceed 40% of the total recovery (.4 x $710,000
= $284,000). An additional
sum of $100,000 would be held, in trust (pursuant to an express trust, the
terms of which would be subject to approval by this Court), for the class to
pursue such actions as the class representatives deem advisable to continue the
effort to remove out-of-town differential rates from the City of South Bend
water rate structure.
Projected Distribution
If this settlement is
approved, each member of the class would receive a distribution of
approximately 44.7%
of the amount the Court determined that they were overcharged.
For a typical homeowner who was overcharged a total of
$199.50 during the period from September
1, 1999, through March
1, 2003, the recovery on distribution would be about $89.57.
All members of the class would receive the same
percentage of the amount the City was determined to have overcharged. No member
of the class would receive a greater percentage of the overcharge than any
other class member.
Identification of Attorney’s
Representation
Questions from persons
in the Class concerning any matter contained in this Notice may be directed to:
R. William Jonas, Jr.
Hammerschmidt, Amaral & Jonas
137 N. Michigan
South Bend, IN 46601
574-282-1231 ext. 13
574-282-1234 facsimile
rwj@hajlaw.com
Purpose of this Notice: Hearing
1. The
purpose of this Notice is to inform you of the proposed settlement. If approved
by the Court, the settlement will be biding upon you and preclude all of your
claims against the City of South Bend for sewage overcharges between September
1, 1999 and March 1, 2003.
2. A
hearing (the “Settlement Hearing”) will be held on September 8, 2008, in the
St. Joseph Superior Court, Hon. Michael P. Scopelitis, Judge, at the St. Joseph
County Courthouse, 101 South Main Street, South Bend, IN 46601, at 9:00 a.m. At
the settlement hearing, the St. Joseph Superior Court will consider: (1) Whether
to approve the settlement as fair, reasonable and adequate to the class in
accordance with the standards established by the Indiana Supreme Court in Hefty
v. Penn Central Corporation et al., 680 N.E.2d 843 (Ind. 1997); (2) Whether
to approve the attorney fees of Plaintiffs counsel as fair and reasonable; and
(3) Whether to approve the application for reimbursement of costs as fair and
reasonable.
Reasons for the Settlement
Lead Plaintiffs believe the proposed settlement is fair,
reasonable and adequate to satisfy the judgment entered, compromise the claims
for additional damages on appeal, and avoid the risk of the judgment being
overturned on appeal. The
amendment to the settlement notice creating the trust for additional actions
related to the out-of-town differential water rates was made necessary, in the
view of the class representatives, by the decision of the IURC entered Aug. 13,
2008. This
decision was NOT available to the class representatives at the time of the
original notice and this amendment is for the purpose of funding additional
actions related to the water rates, including, but not limited to (a) seeking
reconsideration of the IURC order of Aug. 13, 2008; (b) pursuing an appeal from the IURC
order of Aug. 13, 2008; and/or (c) such future actions as the class deems
advisable.
Releases and Dismissal of the Appeal
If the settlement is approved, the Superior Court will
enter an Order of Satisfaction of the Judgment and the Plaintiffs will withdraw
the appeal to the Indiana Court of Appeals. The entry of the Order approving
the settlement will bind all class members, barring any future attempt to
recover sewage overcharges from September 1, 1999 through March 1, 2003. Each
class member shall be deemed to have fully, finally and forever released,
relinquished and discharged any and all claims for recovery of sewage
overcharges by the City of South Bend from September 1, 1999, through March 1,
2003.
Examination of Papers and Inquiries
The entire record of this case is available for review at
the office of the St. Joseph County Clerk, 101
South Main Street, South
Bend, IN 46601.
Objection to settlement
Any party who objects to the settlement must file their
written objection with the Court and deliver copies to counsel for the parties
at the following addresses:
|
Clerk,
St.
Joseph Superior Court
101 South Main Street
South Bend, IN 46601
|
R. William Jonas, Jr.
Hammerschmidt,
Amaral & Jonas
137 N. Michigan St.
South
Bend, IN 46601
|
|
Aladean
M. DeRose
105 E. Jefferson Blvd, Suite 400
South
Bend, IN 46601
|
Robert
L. Miller, Sr.
17526 Douglas Road Lot 9
South Bend, IN 46635
|
The deadline for filing of
objections is September 5, 2008. Only those parties who have filed written
objections will be heard in opposition to the settlement at the settlement
hearing.
PLEASE
DO NOT CONTACT THE SUPERIOR COURT REGARDING THIS NOTICE.
By
Order of the Court.
Michael
P. Scopelitis, Judge
Class members with questions or concerns may contact the writer at rwj@hajlaw.com.
|