STATE OF CONNECTICUT
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`DOCKET NO. (X10) CV—166033559S
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`PERSONNA NOBLE, ET AL.
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`V.
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`NORTHLAND INVESTMENT CORR,
`ET AL.
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`SUPERIOR COURT
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`COMPLEX LITIGATION DOCKET
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`AT WATERBURY
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`OCTOBER 14, 2020
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`RULING ON MOTION FOR PRELIMINARY APPROVAL
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`OF CLASS ACTION SETTLEMENT (# 301)
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`This motion comes before the court for a decision on the papers.1 The parties have
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`stipulated that “the information set forth in the Motion provides an adequate factual predicate for
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`the issuance of the Preliminary Approval Order .
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`.
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`. .” (# 311).2 This motion is also supported by
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`the Rosen Declaration. The parties have waived any hearing that may be required pursuant to
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`Practice Book § 9-9 (c) (1) (C). Id.3
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`‘ In determining this motion, the court has reviewed and relied upon the following docket
`entries: # 300 Second Amended Stipulation of Settlement and its appendix and exhibits
`(Settlement Agreement); # 310 Declaration of David N. Rosen made under penalty of perjury
`(Rosen Declaration); Parties’ Stipulation Waiving Hearing on Motion for Preliminary Approval
`of Class Action Settlement, # 311.
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`2 All references to docket entries in this ruling will be in the format (#
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`).
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`3 The parties have also waived a hearing on the motions for appointments of a Guardian
`Ad Litem, # 305, Trustee, # 307, and Special Masters, # 312. The court has entered electronic
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`1.
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`The following background is relevant to the consideration of this motion: This lawsuit
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`was commenced in the New Haven Judicial District in December 2016 by a number of former
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`residents of a 301 unit housing project in New Haven, Connecticut known as Church Street
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`South (CSS), seeking class action relief against the alleged current owners of CSS, Northland
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`Investment Corporation, Lawrence R. Gottesdiener, Church Street New Haven, LLC, and two
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`property management companies, DeMarco Management Corporation and Wm. M. Hotchkiss
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`Company (defendants).4 On January 13, 2017, an application was made to transfer this lawsuit to
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`the complex litigation docket (# 101). On January 31, 2017, the application was granted and the
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`case was transferred to the X10 complex litigation docket in Waterbury (# 101.10). This court
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`has presided over this lawsuit since the date of transfer.
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`Following an initial status conference on February 22, 2017, a scheduling order ( # 108)
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`entered directed towards the completion of the initial stage of a class action which is the filing
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`and hearing of a class certification motion. The order concerned first stage discovery, to be
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`conducted both informally and formally if required, directed to class certification with the
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`objective ofjoining the issues for the consideration of a such a motion, as well as certain
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`additional time sensitive fact discovery involving inspections of the CSS property (see # 310, 11
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`22). There followed a protracted period of discovery, both fact and expert, informal and formal
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`(with related litigation), along with motions directed to the pleadings, all reflected in the
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`lawsuit’s docket entries. Once the issues related to class certification were fully joined and
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`4 Claims against other originally named defendants were stricken by the court following
`protracted litigation. See Memorandum of Decision at entry # 225 ruling on the motion to strike
`at entry # 143.
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`-2-
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`briefed, the court held a lengthy oral argument on August 29, 2018. As represented in this
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`motion, following that hearing this court encouraged the parties to attempt mediation efforts
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`which they undertook with the assistance of retired judge Jonathan E. Silbert, a highly regarded
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`and skilled mediator. The mediation efforts “involved 100 or more meetings and consultations,
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`some jointly, some with one side, over the course of more than a year, as well as innumerable
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`emails and written presentations” ( # 301, p4) which occurred prior to the filing of a motion for
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`preliminary approval on March 6, 2020 (# 291). Since then, due to the pandemic, the parties
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`have continued their negotiations remotely with the assistance of the mediator leading to the
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`filing of the present motion and the Second Amended Stipulation of Settlement on October 5,
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`2020. When it was appropriate, the parties and the mediator involved this court in the process.
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`Additionally, given the fact that a settlement award for many of the potential class members
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`could require probate court approval, with this court’s assistance, the parties and the mediator
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`conferred with the Honorable Beverly K. Streit—Kefalas, the Probate Court Administrator, and the
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`Honorable Clifton E. Graves, Jr., the probate judge for New Haven where the vast majority of
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`potential class members reside.5
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`11.
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`Practice Book § 9-9 (0) governs the approval of the settlement of class actions. The
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`standard for approval, both at the preliminary and final approval stage, is that the settlement must
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`be “fair, reasonable, and adequate.” Practice Book § 9—9 (c ) (1) (C). In that regard, § 9-9 is
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`5 This court believes that the willingness of the probate judges to engage in the settlement
`process was critical to the success of the negotiations. In particular, their input was instrumental
`to the parties’ decision to adopt the trust mechanism set forth in the Second Amended Stipulation
`for Settlement (# 300, ex. H).
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`-3-
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`identical to Rule 23 (e) (2) of the Federal Rules of Civil Procedure which provides that final
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`approval of a class action settlement requires a “finding that it is fair, reasonable, and adequate .
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`. .” Thus, that rule and federal case law interpreting it can be looked to for guidance in the
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`consideration of this motion. See Rivera v. Veterans Memorial Medical Center, 262 Conn. 730,
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`737, 818 A.2d 731 (2003).
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`Before 2018, Rule 23 did not describe the process for preliminary approval and thus the
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`federal courts developed a “general rule that a court would grant preliminary approval where the
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`proposed settlement was neither illegal nor collusive and is within the range of probable
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`approval.” (Internal quotation marks omitted). W. Rubenstein, Newberg on Class Actions (5th
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`Ed. 2014, Winter 2019 Supplement) § 13.10. In 2018, this approach was codified in Rule 23 (e)
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`(1) (B) which provides that the court must determine whether, at the final approval stage, it likely
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`will be able to give final approval to the settlement proposal pursuant to the procedural and
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`substantive standards set forth in Rule 23(e)(2)6 and also certify the proposed class for purposes
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`of entering judgment. The “likely” standard means that the court does not have to engage in a full
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`and rigorous analysis of the proposed settlement’s strengths and weaknesses at the preliminary
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`approval stage. The court has reviewed the motion and the Settlement Agreement in this light.
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`6 F. R. Civ. P. 23 (e) (2) sets forth the following factors to measure whether the proposal
`is fair, reasonable and adequate: “(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 agreement required to be identified under Rule
`23(e)(3); and (D) the proposal treats class members equitably relative to each other.”
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`Preliminary approval requires assessment of both procedural and substantive factors as
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`described in Rule 23 (e) (2), see note 6, supra, and federal caselaw. See City ofDetroit v.
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`Grinnell, 495 F.2d 448, 463 (2d Cir. 1974). All the factors do not have to be present or
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`satisfied. “[R]ather, a court should look at the totality of these factors in light of the particular
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`circumstances.” Berni v. Barilla G. e R. Fratelli, S.p.A., 332 F.R.D. 14, 30 (E.D.N.Y., 2019),
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`rev’d on other grounds, 964 F.3d 141 (2020).
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`The procedural factors address the quality and nature of the negotiations asking the court
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`to consider whether the class was adequately represented through legitimate arm’s length
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`negotiations after appropriate discovery has occurred and in light of the litigation that preceded
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`the Settlement Agreement. In this case, it is clear that the court can conclude that it will likely
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`find these procedural requirements met at the final approval stage.
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`After a lengthy period of extensive, substantial and relevant discovery including fact and
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`expert discovery and after a lengthy period of adversarial litigation including a thoroughly briefed
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`and argued motion for class certification with each side vigorously advocating their views in
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`favor and against either full or partial class certification, the parties elected to seek to resolve
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`their differences with the assistance of a highly qualified third party mediator. With the
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`mediator’s assistance over a very lengthy period, the parties engaged in an arm’s length
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`negotiation that was serious, well—informed and sought to address the legitimate concerns of the
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`proposed class and the defendants. The Settlement Agreement that resulted from these
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`negotiations does not give preferential treatment to any class representative or any segment of the
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`proposed class; all are treated the same. Like the members of the proposed class they seek to
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`represent, the class representatives resided at CSS during the relevant time period and claim
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`-5-
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`injuries and damages resulting from exposure to certain common conditions on those premises
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`during the course of their occupancy. Counsel is qualified and entered into the arm’s length
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`negotiations with substantial knowledge of the strengths and weaknesses of the case as well as
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`with sufficient information to properly value the claims at issue.
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`The substantive factors broadly address the adequacy and equity of the proposed relief in
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`light of the circumstances of the case. Pertinent factors include: “the complexity, expense and
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`likely duration of the litigation, .
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`the stage of the proceedings and the amount of discovery
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`completed, .
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`. the risks of establishing liability, .
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`. the risks of establishing damages, .
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`the
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`risks of maintaining the class action through the trial, .
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`. the range of reasonableness of the
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`settlement fund in light of the best possible recovery, .
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`. the range of reasonableness of the
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`settlement fund to a possible recovery in light of all the attendant risks of litigation .
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`.
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`. .” City of
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`Detroit v. Grinnell, supra, 495 F.2d 463. In this case, it is clear that the court can conclude that it
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`will likely find these factors have been met at the final approval stage.
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`Significant factors here are the litigation’s complexity, expense and likely duration or, as
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`set forth in Rule 23 (e)(2) (i), “the costs, risks, and delay of trial and appeal,” as well as the stage
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`of the proceedings. The litigation has already been time consuming and costly. The court has not
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`yet ruled on the class certification motion, but any ruling on that motion would create an
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`opportunity for either or both sides to take an immediate appeal. Upon the conclusion of the
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`appeals process, if the case proceeds to trial there will be substantial additional time and costs
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`required to prepare it for trial, including necessary trial discovery. That process will be extremely
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`time consuming. The likely duration of this litigation should be measured in years not months.
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`Additionally, there are real and legitimate trial risks related to establishing liability and
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`-6-
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`damages as described in detail at pages 24 - 26 of the plaintiffs’ memorandum (# 301) and in the
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`Rosen Declaration (# 310, W 7 - 14).7 In light of the identified risks, along with the potential for
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`a lengthy period of time until judgment can enter, with no assurances of recovery at the end of
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`the process and the attendant risks of class action litigation related to maintaining class
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`certification through trial and final judgment, the court concludes that the settlement fund falls
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`within the range of reasonableness and it is adequately funded.
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`Further, the Settlement Agreement provides substantial benefits to the class members
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`including, but not limited to, each class member’s entitlement to a base monetary payment, the
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`ability to claim enhanced monetary payments for certain serious injuries, lien resolution, and
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`access to a structured settlement option. For those class members who are minors, disabled,
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`incapable or deceased, the Settlement Agreement provides a trust mechanism designed to save
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`the time and expense associated with otherwise required separate probate proceedings for
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`approval of awards and disbursements to those class members.8
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`In sum, in reviewing the totality of the circumstances present in this case, the court
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`concludes that is likely to give final approval to the Settlement Agreement pursuant to the
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`requisite procedural and substantive standards and also to certify the proposed class.
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`III.
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`For all the reasons stated above, the court preliminarily approves the proposed Settlement
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`Agreement pursuant to Practice Book § 9-9 (c ) (1) and will appoint David Rosen & Associates,
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`7 Additionally, certain trial risks were explored during the lengthy August 29, 2018
`hearing on the motion for class certification.
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`. would otherwise be subject
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`8 Plaintiffs represent that “more than 400 class members .
`to the requirement of individual probate applications and fees.” (# 301 , p. 8)
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`PC. and its attorneys David N. Rosen and Barbara Goren as class counsel. Pursuant to Practice
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`Book § 9-9 (c ) (l) (B), “The court must direct notice in a reasonable manner to all class
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`members who would be bound by a proposed settlement, withdrawal or compromise.”
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`Reasonable notice is of the type reasonably calculated to advise interested parties that the action
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`is pending and give them an opportunity to object to the settlement and appear at the final
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`approval hearing. The court has reviewed the proposed notice appended as exhibit A to the
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`Settlement Agreement along with the proposed procedure to provide notice (exhibit C, “Notice
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`Program Summary”) which includes individualized notice to class members who can be
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`identified with reasonable effort by direct mail, phone and email notice as well notice to the
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`Connecticut Department of Children and Families.9 The proposed notice meets the § 9-9 criteria
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`and the parties are directed to provide notice pursuant to the terms of the settlement agreement
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`and its appended documents.
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`The court has issued a detailed written order consistent with the findings in this ruling.
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`LINDA K. LACIE , JUDGE
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`9 At this time, the court will not require publication notice. Plaintiffs’ counsel not only
`represents approximately 300 class members but has been in contact with hundreds of others.
`Out of a class estimated to consist of approximately 1050 members, plaintiffs’ counsel indicates
`active communication with about 730 members (Rosen Declaration 1} 5), approximately 70% of
`the potential class. Publicity about this court’s preliminary approval of the Settlement
`Agreement may result in other potential class members reaching out to class counsel who can
`then facilitate Notice as defined in the Settlement Agreement to them. The parties may ask the
`court to order supplemental publication notice at a later date if they deem it necessary.
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