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IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO
BROWN & SZALLER CO., L.P.A., et al., Plaintiffs, v. WASTE MANAGEMENT OF OHIO, INC., Defendant.
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Case No. CV-16-859588
Judge Daniel Gaul SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (“Agreement”) is made and entered into this 22nd
day of January, 2020, by and among (1) Plaintiffs Brown & Szaller Co., L.P.A., now known as
Knabe Law Firm Co., L.P.A., and Gebcon Properties LTD (“Plaintiffs”), for themselves and on
behalf of the putative Class they seek to represent (as defined below), and (2) Defendant Waste
Management of Ohio, Inc. (“Defendant” or “WMO”). The Agreement is intended by Plaintiffs
and Defendant (collectively, the “Parties”) to fully, finally, and forever resolve, discharge, release,
and settle the Released Claims (as defined below) upon and subject to the terms and conditions
hereof, and shall be submitted pursuant to Ohio Civil Rule 23(E) for approval by this Court.
I. RECITALS
WHEREAS, Plaintiffs filed a lawsuit against Defendant that is currently pending in the
Court of Common Pleas for Cuyahoga County, Ohio, captioned Brown & Szaller, Co., L.P.A. et
al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588 (the “Litigation” or “Action”);
WHEREAS, Plaintiffs have asserted claims, on their own behalf and on behalf of putative
classes of allegedly similarly situated WMO customers, seeking monetary damages and relief
against Defendant arising out of WMO’s contracting for, pricing and provision of waste collection,
disposal and/or recycling services to certain commercial and industrial customers in Ohio;
WHEREAS, WMO denies Plaintiffs’ allegations of wrongful conduct, liability, and
damages in their entirety, and has asserted numerous procedural and substantive defenses to
Plaintiffs’ claims;
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WHEREAS, counsel for Plaintiffs and the Class (proposed “Class Counsel”) have
conducted a thorough investigation and extensive discovery of the facts and legal theories relating
to and forming the basis of the claims alleged in the Action during nearly four years of litigation;
WHEREAS, the Parties participated in and reached an agreement to settle the Action as
part of an arm’s-length mediation process conducted before the Hon. Morton Denlow; and
WHEREAS, Plaintiffs and Class Counsel have concluded, based upon the aforementioned
litigation record and factual investigation, and taking into account the sharply contested issues
involved, the expense and time necessary to prosecute the Litigation through trial, and subsequent
potential appeals, the risks, costs, and uncertainties of further prosecution of the Litigation, and
the substantial benefits to be provided to the Settlement Class Members (as defined below)
pursuant to this Agreement, that a settlement with Defendant on the terms set forth herein is fair,
equitable, adequate, reasonable, and in the best interests of Plaintiffs and the Settlement Class
Members. The Parties have therefore agreed to settle the Litigation on the terms and conditions
set forth herein.
II. AGREEMENT
NOW THEREFORE, intending to be legally bound and acknowledging the sufficiency
of the consideration and undertakings set forth below, WMO, WMO’s Counsel, Class Counsel,
and Plaintiffs hereby stipulate and agree that, in consideration of the terms and conditions of this
Agreement and upon the Court’s entry of a Final Approval Order approving this Agreement, all
claims of Plaintiffs and the Settlement Class Members against WMO in the Action, shall be settled,
compromised, and released upon the terms and conditions set forth herein.
III. DEFINITIONS
In addition to the terms defined at various points within this Agreement, the following
Defined Terms apply throughout this Agreement and the attached exhibits:
a) “Action” or “Litigation” means the class action lawsuit, styled Brown & Szaller,
Co., L.P.A. et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588
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filed in the Court of Common Pleas for Cuyahoga County, Ohio, which is currently
pending before the Hon. Daniel Gaul.
b) “Allocation Formula” means the formula by which the cash payments that
Settlement Class Members are eligible to receive under the Settlement are
calculated in accordance with Section IX of this Agreement.
c) “Class” means for purposes of this Settlement:
All Commercial Customers that were parties to a WMO Contract at any
time on or after February 26, 2001 to the present, excluding only: (1) those
commercial customers who signed a WMO Contract that contained an
arbitration clause with a class action waiver; and (2) any commercial
customer whose only WMO Contract contained a class action waiver
without an arbitration clause.
d) “Class Counsel” means the firms of Kushner & Hamed Co., LPA and Meyer
Wilson Co., LPA.
e) “Class Period” means February 26, 2001 through the date of Preliminary Approval
by this Court.
f) “Commercial Customers” refers to those non-government commercial customers
that contracted directly with WMO for their waste collection, disposal, and/or
recycling services in the state of Ohio, and not as part of a franchise agreement or
national account arrangement.
g) “Court” means the Court of Common Pleas for Cuyahoga County, Ohio.
h) “Cy Pres Recipient” means Keep Ohio Beautiful, a non-profit environmental
organization serving Ohio, subject to approval by the Court, which shall receive
any remainder from the Settlement Fund after the completion of the distribution
process described in Paragraph X of this Agreement.
i) “Defendant’s Counsel” or “WMO’s Counsel” means the law firms of Taft Stettinius
& Hollister LLP, and Baker Botts LLP.
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j) “Effective Date” means the fifth business day after (a) the time provided in the
applicable rules of procedure within which an appeal may be filed has lapsed if no
appeal of either the Final Approval Order or the Court’s order regarding Attorneys’
Fees has been filed, or (b) if one or more timely appeals have been filed, all such
appeals are finally resolved, with no possibility of further appellate review,
resulting in final judicial approval of this Settlement. For purposes of this
definition, the term “appeal” includes proceedings for a writ of certiorari.
k) “Escrow Account” means the interest-bearing account to be established by the
Settlement Administrator consistent with the terms and conditions described in this
Agreement.
l) “Final Approval” means the date the Court enters an Order granting final approval
of the Settlement.
m) “Final Approval Hearing” means the hearing to be held by the Court to determine
(a) whether the Settlement is fair, adequate, and reasonable; (b) whether the Final
Approval Order should be entered; and (c) whether to approve Class Counsel’s
application for attorneys’ fees and reimbursement of expenses, and for incentive
awards to Plaintiffs.
n) “Final Approval Order” means the order that the Court enters upon finally
approving the Settlement, including an order resolving the application for
attorneys’ fees.
o) “Net Settlement Fund” means the Settlement Fund as adjusted in accordance with
Section IX of this Agreement.
p) “Notice” means the forms of Notice of the Settlement that the Parties shall request
the Court to approve in connection with the Motion for Preliminary Approval of
Class Action Settlement, substantially in the forms of Exhibits 1 through 3 to the
Preliminary Approval Order.
q) “Notice Deadline” means the date by which the Settlement Administrator is
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required to send out Notice, which shall not be later than forty-five (45) days before
the Final Approval Hearing or as otherwise ordered by the Court.
r) “Notice Program” means the methods described in this Agreement and attached
exhibits for providing Notice to members of the Class, including their opportunities
to object to or exclude themselves (“opt-out”) from participation in the Settlement.
A complete description of the contemplated Notice Program is provided in Section
VII of this Agreement.
s) “Parties” means Plaintiffs and Defendant.
t) “Preliminary Approval” means the date that the Court enters, without material
change, an Order preliminarily approving the Settlement in the form jointly agreed
upon by the Parties.
u) “Released Claims” means all claims to be released as specified in Section XII of
this Agreement. The “Releases” means all of the releases contained in this
Agreement.
v) “Released Parties” means those persons or entities, including each of their
respective heirs, assigns, beneficiaries, and successors, released by this Settlement,
as described in Section XII of this Agreement.
w) “Releasing Parties” means Plaintiffs and all Settlement Class Members, including
each of their respective heirs, assigns, beneficiaries, and successors.
x) “Settlement” means the settlement into which the Parties have entered to resolve
the Action. The terms of the Settlement are as set forth in their entirety in this
Agreement, including its recitals and the attached exhibits.
y) “Settlement Administrator” means the qualified class action claims administration
service provider chosen by the Parties, subject to approval by the Court, to serve
the notice and administrative functions described in Sections VI and VII of this
Agreement.
z) “Settlement Class Members” means all members of the Class who do not timely
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and/or properly opt out of the Settlement (in accordance with the terms of this
Agreement and Preliminary Approval Order) and who are therefore entitled to
receive a distribution of funds following Final Approval of the Settlement (in
accordance with the terms of this Agreement).
aa) “Settlement Fund” means the $30,500,000 common fund established under
Section IV of this Agreement.
bb) “Settlement Website” means the website that the Settlement Administrator will
establish in accordance with Paragraph 19 of this Agreement.
IV. CONSIDERATION FOR SETTLEMENT
1. In exchange for the mutual promises and covenants in this Agreement, including,
without limitation, the Releases as set forth in Section XII of this Agreement, within ten (10)
calendar days following Final Approval, WMO shall pay or cause to be paid the sum of Thirty
Million Five Hundred Thousand Dollars ($30,500,000) into the Escrow Account to create the
Settlement Fund as set forth herein.
2. Upon the creation of the Settlement Fund, the funds therein may be invested in
interest-bearing short-term instruments – to be agreed upon by Class Counsel and Defendant’s
Counsel – that are backed by the full faith and credit of the United States Government or that are
fully insured by the United States Government or an agency thereof (the “Instruments”). The
interest proceeds and the principal may thereafter be reinvested as they mature in similar
Instruments, bearing in mind the liquidity requirements of the Escrow Account to ensure that it
contains sufficient cash available to pay all invoices, taxes, fees, costs, and expenses, and other
required disbursements, in a timely manner. Except as otherwise specified herein, the Instruments
at all times will remain in the Escrow Account.
3. The Settlement Fund at all times shall be deemed a “qualified settlement fund”
within the meaning of United States Treasury Reg. § 1.468B-1. All taxes (including any estimated
taxes, and any interest or penalties relating to them) arising with respect to the income earned by
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the Settlement Fund or otherwise, including any taxes or tax detriments that may be imposed upon
WMO or WMO’s Counsel with respect to income earned by the Settlement Fund for any period
during which the Settlement Fund does not qualify as a “qualified settlement fund” for the purpose
of federal or state income taxes or otherwise (collectively “Taxes”), shall be paid out of the
Settlement Fund. WMO and WMO’s Counsel, and Plaintiffs and Class Counsel, shall have no
liability or responsibility for any of the Taxes. The Settlement Fund shall indemnify and hold
WMO and WMO’s Counsel, and Plaintiffs and Class Counsel, harmless for all Taxes (including,
without limitation, Taxes payable by reason of any such indemnification).
4. The Settlement Fund shall be used for the following purposes, to the extent such
purposes are approved by the Court:
a. Distribution of payments to the Settlement Class Members pursuant to Section IX of this Agreement.
b. Payment of the Court-ordered award of Class Counsel’s attorneys’ fees and reimbursement of expenses pursuant to Section XIII of this Agreement.
c. Payment of any Court-ordered service award to Plaintiffs pursuant to Section XIII of this Agreement.
d. Payment of the costs of Notice and administration of the Settlement, including without limitation all costs of the Settlement Administrator.
e. Payment of any Taxes, including without limitation, taxes owed as a result of accrued interest on the Escrow Account.
f. Payment of any additional fees, costs, and expenses not specifically enumerated in subparagraphs (a) through (e) above, subject to approval of Class Counsel and WMO’s Counsel.
V. PRELIMINARY APPROVAL AND CERTIFICATION OF THE CLASS
5. Upon execution of this Agreement by all Parties, Class Counsel shall promptly
move the Court for an Order preliminarily approving this Settlement substantially in the form of
Exhibit 1, hereto (the “Preliminary Approval Order”). The Motion for Preliminary Approval shall
request that the Court: (i) approve the terms of the Settlement as within the range of fair, adequate,
and reasonable; (ii) provisionally certify the Class pursuant to the Ohio Rules of Civil Procedure
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for settlement purposes only; (iii) approve the Notice Program set forth herein and approve the
form and content of Notice; (iv) approve the procedures set forth in and pursuant to this Agreement
for members of the Class to exclude themselves from or opt out of the Settlement, or to object to
the Settlement; (v) stay the Action pending Final Approval of the Settlement; and (vi) schedule a
Final Approval Hearing.
6. Through the Motion for Preliminary Approval of the Settlement, Plaintiffs and
Class Counsel shall seek certification from the Court of a Class, for settlement purposes only,
defined as follows:
All Commercial Customers that were parties to a WMO Contract at any time on or after February 26, 2001 to the present, excluding only: (1) those commercial customers who signed a WMO Contract that contained an arbitration clause with a class action waiver; and (2) any commercial customer whose only WMO Contract contained a class action waiver without an arbitration clause.
7. For purposes of this Settlement only, WMO agrees to the certification of the Class.
Nothing in this Agreement shall be construed as an admission by Defendant or other Released
Parties that the Litigation is amenable to class certification for purposes of a trial or contested
proceeding. If the Court declines to approve the Settlement, or if the Court changes the Class
composition or the terms of the Settlement in any material way not acceptable to WMO after
reasonable consultation with Class Counsel, or if certification of the Class or approval of the
Settlement is reversed, or if certification of the Class or approval of the Settlement is changed upon
appeal or review in any material way not acceptable to WMO after reasonable consultation with
Class Counsel, WMO shall have the right to terminate the Settlement in accordance with this
Agreement.
8. In the event Final Approval of this Settlement is not granted by the Court and/or
the Settlement embodied herein does not become effective or is terminated by a Party, the Parties
shall be returned to the status quo ante, and the Litigation shall proceed as if this Agreement had
never been negotiated or executed and no Class had been certified.
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VI. SETTLEMENT ADMINISTRATOR
9. The Settlement Administrator shall administer various aspects of the Settlement
as described in this Agreement and perform such other functions as are otherwise specified for the
Settlement Administrator elsewhere in this Agreement, including, but not limited to (i) providing
Notice, as described in Section VII of this Agreement and (ii) distributing the Settlement Fund in
accordance with the terms of this Agreement. Class Counsel and Defendant’s Counsel will jointly
choose and oversee the performance of the Settlement Administrator. The Settlement
Administrator agrees to be subject to the jurisdiction of the Court with respect to the administration
of the Settlement and the allocation and distribution of the Settlement Fund pursuant to the terms
of the Agreement.
10. All necessary and reasonable Settlement Administrator fees, charges, and expenses
shall be paid from the Settlement Fund within thirty (30) days of Class Counsel’s and Defendant’s
Counsel’s mutual receipt and approval of an invoice evidencing the same.
11. The duties of the Settlement Administrator, in addition to other responsibilities that
are described in this Agreement, are as follows:
a. Obtain from WMO each Class member’s name and address or email address information (to the extent it is available), and, to the extent necessary, verify and update the addresses received through the National Change of Address database, for the purpose of disseminating Notice and later mailing settlement checks to the Settlement Class Members.
b. Establish and maintain a Post Office box for receipt of any Settlement Class Member’s request for exclusion from the Settlement;
c. Establish and maintain the Settlement Website;
d. Establish and maintain an automated toll-free telephone line for Settlement Class Members to call with Settlement-related inquiries, and answer the questions of the Settlement Class Members who call with or otherwise communicate such inquiries;
e. Respond to any mailed Settlement Class Member inquiries;
f. Process all requests for exclusion from the Settlement;
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g. Provide weekly reports and, no later than five (5) days after the end of the Opt-Out Period (as described in Section VI of this Agreement), a final report to Class Counsel and Defendant’s Counsel that summarizes the total number of requests for exclusion received and other pertinent information;
h. In advance of the Final Approval Hearing, prepare an affidavit to submit to the Court that, inter alia, identifies each Settlement Class Member who timely and properly requested exclusion from the Class;
i. Process and transmit distributions to the Settlement Class Members from the Settlement Fund pursuant to the Allocation Formula;
j. Pay invoices, expenses, and costs upon approval by Class Counsel and Defendant’s Counsel, as provided in this Agreement; and
k. Administer the Escrow Account as described in this Agreement, and any other Settlement-administration-related function at the instruction of Class Counsel and Defendant’s Counsel.
VII. NOTICE TO CLASS MEMBERS
12. Upon Preliminary Approval of the Settlement, at the direction of Class Counsel,
the Settlement Administrator shall implement the Notice Program provided herein. In doing so,
the Settlement Administrator shall use the forms of Notice, attached as Exhibits 1 through 3 to the
Preliminary Approval Order. The Notice shall include, among other information: (i) a description
of the material terms of the Settlement; (ii) a date by which Class members may exclude
themselves from or “opt out” of the Class (the “Opt-Out Period”); (iii) a date by which Settlement
Class Members may object to the Settlement; (iv) the date upon which a Final Approval Hearing
will occur; and (v) the address of the Settlement Website by which Class members may access this
Agreement and other related case and settlement documents and information. Class Counsel and
Defendant’s Counsel shall insert the correct dates and deadlines in the Notice before the Notice
Program commences, based upon those dates and deadlines set by the Court in the Preliminary
Approval Order. Notice and publications provided under or as part of the Notice Program shall
not bear or include the Waste Management or WMO logos or trademarks, the return address of
WMO, or otherwise be styled to appear to originate from WMO.
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13. The Notice also shall include a procedure for Class members to exclude themselves
from or opt out of the Settlement. A Class member may opt out of the Settlement at any time
before the deadline set by the Court by following the process set forth in the Preliminary Approval
Order. Any Class member who does not submit a timely or valid request for exclusion from the
Settlement shall be bound by the terms of this Agreement.
14. The Notice also shall include a procedure for Settlement Class Members to object
to the Settlement and/or to Class Counsel’s application for attorneys’ fees, reimbursement of
expenses, and/or for an incentive award to Plaintiffs. Objections to the Settlement or to the
application for fees, reimbursement of expenses and an incentive award must be mailed to the
Clerk of the Court, Class Counsel, and Defendant’s Counsel. Each objection must be received by
the Court, Class Counsel, and Defendant’s Counsel no later than the deadline set by the Court in
the Preliminary Approval Order. Each objection must also set forth:
a. the name of the Action;
b. the objector’s full name, address, and telephone number;
c. an explanation of the basis upon which the objector claims to be a Settlement Class Member;
d. all grounds for the objection, accompanied by any legal support for the objection known to the objector or the objector’s counsel;
e. the number of times in which the objector has objected to a class action settlement within the five (5) years preceding the date that the objector files the objection, and the caption of each case in which the objector has made such objection;
f. the identity of all counsel who represent the objector, including any former or current counsel who may be entitled to compensation for any reason related to the objection;
g. any and all agreements that relate to the objection or the process of objecting – whether written or verbal – between objector or objector’s counsel and any other person or entity;
h. the identity of all counsel representing the objector who will appear at the Final Approval Hearing;
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i. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;
j. a statement confirming whether the objector intends to personally appear and/or testify at the Final Approval Hearing
k. the objector’s signature (an attorney’s signature is not sufficient); and
l. if the objector is represented by counsel, the signature of counsel.
15. Notice shall be provided to the Class members in three (3) different forms: email
notice; mail notice; and long-form notice posted on the Settlement Website.
16. Subject to the Court’s approval, the email notice shall be substantially in the form
of Exhibit 1 to the Preliminary Approval Order; the mail notice shall be substantially in the form
of Exhibit 2 to the Preliminary Approval Order; and the long-form notice, which shall be posted
on the Settlement Website, attached to the email notice, and available by mail upon request, shall
be substantially in the form of Exhibit 3 to the Preliminary Approval Order.
17. By the Notice Deadline, the Settlement Administrator shall (i) disseminate the
email notice to each member of the Class for whom WMO has an email address at the email
address identified in WMO’s records; and (ii) mail, via first-class mail postcard, the mail notice to
each member of the Class at the address identified from WMO’s records. Before mailing any
postcards, the Settlement Administrator will verify and update the mailing addresses received
through the United States Postal Service’s National Change of Address Database.
18. The last known mailing address of a Class Member will be subject to confirmation
or updating as follows: (i) the Claims Administrator will check each address against the United
States Post Office National Change of Address Database before the initial mailing, (ii) for each
mailing returned as undeliverable and with no forwarding address provided, the Claims
Administrator will conduct a skip-trace search, utilizing a third-party vendor database such as
LexisNexis (using the corresponding address in WMO’s records) and, provided a reasonable match
is found showing a new address, update the address accordingly, (iii) the Claims Administrator
will update addresses based on any forwarding information received from the United States Post
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Office, and (iv) the Claims Administrator will update addresses based on verified requests received
from persons in the Settlement Class. The Claims Administrator will then promptly re-mail the
Notices to the updated addresses provided under scenarios ii, iii, and iv above. Any Class Member
that has been deemed unreachable after the completion of this four-step notice process shall be
hereinafter referred to as a “Residual Class Member.”
19. The Settlement Administrator shall establish and make accessible the Settlement
Website as soon as practicable but in no event later than twenty-five (25) days after entry of the
Preliminary Approval Order. The Settlement Website will set forth the following information: (a)
the full text of the Settlement Agreement; (b) the long-form Notice; (c) the Preliminary Approval
Order (as defined in Section V of this Agreement); (d) contact information for the Settlement
Administrator; and (e) any other documents or information that Class Counsel and WMO’s
Counsel agree to post or that the Court orders posted on the Settlement Website. The Settlement
Website shall provide a means for any visitor that believes itself to be a Class Member but that did
not receive direct notice to provide identifying information, which the Settlement Administrator
shall use to verify membership in the Settlement Class. The title and URL for the Settlement
Website shall be agreed to by Class Counsel and WMO’s Counsel (e.g.,
WMOClassSettlement.net). Any language or documents appearing on the Settlement Website in
addition to the above-listed documents shall be approved by the Parties. The Settlement Website
shall not include any advertising and shall not bear or include WMO or Waste Management logos
or trademarks. Not later than twenty (20) days before the Final Approval Hearing, the Settlement
Administrator shall cause proof of the establishment and maintenance of the Settlement Website
to be filed with the Court. The Settlement Website shall be deactivated one hundred eighty (180)
days following the Effective Date. Ownership of the Settlement Website URL shall be transferred
to WMO within ten (10) days of the date upon which the Settlement Website is deactivated.
20. The Settlement Administrator shall provide Class Counsel and Defendant’s
Counsel an affidavit confirming that the Notice Program was completed in a timely manner and
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identifying any opt-outs that were timely received. Class Counsel shall file that affidavit with the
Court no less than seven (7) court days prior to the commencement of the Final Approval Hearing.
VIII. FINAL APPROVAL ORDER
21. Plaintiffs’ Motion for Preliminary Approval of the Settlement will include a request
to the Court for a scheduled date on which the Final Approval Hearing will occur.
22. At the Final Approval Hearing, the Court will determine whether to enter the Final
Approval Order granting final approval of the Settlement, and whether to approve Class Counsel’s
request for attorneys’ fees and reimbursement of expenses, and for a service award to Plaintiffs.
IX. ALLOCATION AND DISTRIBUTION OF NET SETTLEMENT FUND TO SETTLEMENT CLASS MEMBERS
23. The Net Settlement Fund is equal to the Settlement Fund plus any interest earned
from the Instruments, less the following:
a. the amount of the Court-ordered award of Class Counsel’s attorneys’ fees and expenses, and/or any other Court ordered award of fees in connection with the Settlement, together with any interest accrued thereon;
b. the amount of any Court-ordered service award to Plaintiffs;
c. the costs of notice and administration;
d. all applicable taxes; and
e. other appropriate fees, costs, and expenses not specifically enumerated in subparagraphs (a) through (d) of this paragraph, subject to approval of Class Counsel and WMO’s Counsel or as provided under this Agreement.
24. All cash payments will be made from the Net Settlement Fund and calculated in
accordance with the Allocation Formula described below:
a. Twenty-five percent (25%) of the Net Settlement Fund will be allocated equally on a per capita basis to all Settlement Class Members.
b. The remaining seventy-five percent (75%) of the Net Settlement Fund will be allocated on a pro rata basis. The pro rata basis will be calculated as
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follows: (i) each Settlement Class Member’s total payment to WMO during the period from February 26, 2001 to the date of Preliminary Approval by this Court will be divided by the total payments made by all Settlement Class Members during the same period; and (ii) that percentage will be multiplied by the remainder of the Net Settlement Fund.
c. Payments will be sent by check with no claims process to all Settlement Class Members.
25. Within thirty (30) days of the Effective Date, the Settlement Administrator shall
distribute the Net Settlement Fund to the Settlement Class Members other than Residual Class
Members. All monies from the Net Settlement Fund allocated to Residual Class Members will
continue to be held in escrow until completion of the process described in paragraph 27, below.
26. All Settlement Class Members will be paid by check, which will be issued and
mailed by the Settlement Administrator with an appropriate legend, in a form approved by Class
Counsel and Defendant’s Counsel, to indicate that it is from the Settlement, and will be sent to the
addresses that the Settlement Administrator identifies as valid Settlement Class Member addresses.
Checks shall be valid for one hundred eighty (180) days. The Settlement Administrator shall make
reasonable efforts to locate the proper address for any Settlement Class Member whose check is
returned by the Postal Service as undeliverable and shall re-mail it to the updated address one time.
27. The amount of the Settlement Fund attributable to Residual Class Members and to
uncashed checks and checks returned to the Settlement Administrator shall remain in the
Settlement Fund for six (6) months from the date that the first distribution check is mailed by the
Settlement Administrator, during which time the Settlement Administrator shall make a reasonable
effort to locate those Residual Class Members and Settlement Class Members whose checks were
returned to effectuate delivery of such checks to the Settlement Class Members entitled to them.
The Settlement Administrator shall make only one attempt to re-mail or re-issue a distribution
check. Reissued checks will be valid for ninety (90) days from the re-issuance date.
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X. DISPOSITION OF RESIDUAL FUNDS AFTER DISTRIBUTION TO THE SETTLEMENT CLASS MEMBERS
28. If the amount of settlement checks that are uncashed or undistributed more than
one hundred eighty (180) days after distribution is equal to or less than two hundred fifty thousand
dollars ($250,000), the funds will be distributed to the Cy Pres Recipient, if approved by the Court.
29. If the amount of settlement checks that are uncashed more than one hundred eighty
(180) days after distribution is greater than two hundred fifty thousand dollars ($250,000), a second
distribution of the funds will be made on the following basis:
a. The remaining funds will first be used to pay any remaining notice and administrative costs, if applicable, subject to approval of Class Counsel and Defendant’s Counsel.
b. Next, a second distribution will be made to all those Settlement Class Members who cashed their initial checks on a per capita basis, provided that the cost of administering such a distribution is less than fifty percent (50%) of the remaining Net Settlement Fund.
c. If the cost of administering such a second distribution is greater than fifty percent (50%) of the remaining Net Settlement Fund or if after a second distribution the Net Settlement Fund has not been exhausted, the remainder of the Net Settlement Fund shall be distributed to the Cy Pres Recipient, if approved by the Court. In such a circumstance, the Parties agree to report to the Court as to any undistributed funds remaining, including the amount of the funds and explaining why the funds cannot be distributed to the Settlement Class Members.
d. This Settlement is non-reversionary and is not a claims-made settlement. WMO shall not be entitled to recover any of the Settlement Fund, or interest earned thereon, after the Effective Date of the Agreement.
e. No person or entity shall have any claim against Plaintiffs, Class Counsel, WMO, Defendant’s Counsel, or any other person designated by or acting on behalf of Plaintiffs, Class Counsel, WMO, or Defendant’s Counsel, based on any determination or distribution made substantially in accordance with this Agreement and the Settlement contained herein.
XI. EFFECT OF TERMINATION
30. The grounds upon which this Agreement may be terminated are set forth in Section
XIV of this Agreement. In the event of a termination as provided therein, this Agreement shall be
considered null and void; all of WMO’s obligations under the Settlement shall cease to be of any
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force and effect; the amounts in the Settlement Fund shall be returned to WMO in accordance with
paragraphs 31 and 46 of this Agreement; and the Parties shall return to the status quo ante in the
Action as if the Parties had not entered into this Agreement. In addition, in the event of such a
termination, the Parties’ respective pre-Settlement claims and defenses will be preserved,
including, but not limited to, Plaintiffs’ right to seek class certification and WMO’s right to seek
summary judgment or adjudication of issues and oppose class certification.
31. In the event of a termination as provided in Section XIV of this Agreement, the
Settlement Fund shall be returned to WMO within fourteen (14) days of termination, less any
money that the Settlement Fund has already paid, or incurred an obligation to pay, for Settlement-
related costs and expenses.
32. This Settlement shall become effective on the Effective Date, unless earlier
terminated in accordance with the provisions of Section XIV of this Agreement.
33. In the event the Settlement is terminated in accordance with the provisions of
Section XIV of this Agreement, any discussions, offers, or negotiations associated with this
Settlement shall not be discoverable or offered into evidence or used in the Action or any other
action or proceeding for any purpose. In the event the Settlement is terminated, all Parties to the
Action shall stand in the same position as if this Agreement had not been negotiated, made, or filed
with the Court.
XII. RELEASE
34. As of the Effective Date, Plaintiffs and each Settlement Class Member, each on
behalf of itself, himself, or herself and on behalf of its, his, or her respective heirs, assigns,
beneficiaries, and successors, shall automatically be deemed to have fully and irrevocably released
and forever discharged WMO and each of its present and former parents, subsidiaries, divisions,
affiliates, predecessors, successors, and assigns, and the present and former directors, officers,
employees, agents, shareholders, predecessors, successors, and assigns of each of them, of and
from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs,
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attorneys’ fees, losses, and remedies, whether known or unknown, existing or potential, suspected
or unsuspected, liquidated or unliquidated, legal, statutory or equitable, that result from, arise out
of, are based upon, or relate to WMO’s contracting, sales, pricing and disclosure practices, as
raised in this Litigation, including but not limited to all claims related to price increases and
charges for fuel and environmental surcharges during the Class Period.
35. As of the Effective Date, WMO will be deemed to have completely released and
forever discharged Plaintiffs, and their respective heirs, representatives, and assigns, and attorneys
from any and all liabilities, rights, claims, counterclaims, set-offs, actions, causes of action,
demands, damages, penalties, costs, attorneys’ fees, losses, and remedies, whether known or
unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal,
statutory, or equitable, that are based upon, or relate to the institution, prosecution, and settlement
of the Litigation.
36. The failure of any member of the Class or Settlement Class Member to receive
payment out of the Settlement Fund or to receive actual notice of this Settlement, notwithstanding
the good faith efforts of the Settlement Administrator, shall not affect the scope or binding nature
of the Releases under this Agreement.
37. Nothing in this Agreement shall operate or be construed to release any claims or
rights WMO has to recover any past, present, or future amounts that may be owed by Plaintiffs,
any Settlement Class Member, or any Class member on his/her/its accounts, or any other debts
with WMO, pursuant to the terms and conditions of such accounts or any other debts.
XIII. PAYMENT OF ATTORNEYS’ FEES, EXPENSES AND SERVICE AWARD
38. Any award of attorneys’ fees and reimbursement of expenses to Class Counsel
shall be payable solely out of the Settlement Fund and will be subject to Court approval. Other
than WMO’s obligation to establish the Settlement Fund, WMO shall have no obligation to pay
Class Counsel or any other lawyer or law firm claimng to represent the Class or any Class Member.
WMO agrees not to oppose Class Counsel’s request to the Court for attorneys’ fees of up to thirty-
19
three and one-third percent (33⅓%) of the Settlement Fund, plus Class Counsel’s reasonable
litigation expenses incurred, prior to any deductions from the Settlement Fund.
39. Class Counsel shall ask the Court to approve an incentive award of up to ten
thousand dollars ($10,000) for each of the two named Plaintiffs. Such incentive awards are to be
paid from the Settlement Fund. The incentive awards shall be paid to each Plaintiff and are in
addition to Plaintiffs’ individual settlement payments as Settlement Class Members. WMO shall
not oppose Class Counsel’s request for payment of the incentive awards.
40. The Parties negotiated and reached this agreement regarding attorneys’ fees,
reimbursement of expenses, and the incentive awards in good faith and at arm’s length, only after
reaching agreement on all other material terms of this Settlement as part of the mediation held
before the Hon. Morton Denlow.
41. The amount of attorneys’ fees and reimbursement of expenses awarded by the
Court is within the sole discretion of the Court. Any fees and expenses, as awarded by the Court,
shall be paid to Class Counsel from the Settlement Fund, as ordered, within five (5) days after the
Court executes the Final Approval Order awarding such fees and expenses, notwithstanding the
existence of any timely filed objections thereto or to the Settlement, or potential appeal therefrom,
or collateral attack on the Settlement, provided Class Counsel deliver to WMO the Stipulated
Undertaking, attached hereto as Exhibit 2.
42. Notwithstanding any other provision of this Agreement to the contrary, the award
of attorneys’ fees and expenses to be paid out of the Settlement Fund shall be considered by the
Court separate and apart from its consideration of the fairness, reasonableness, and adequacy of
the Settlement, and any order or proceeding relating to the award of attorneys’ fees and expenses,
or any appeal of any order relating thereto or reversal or modification thereof, shall not operate to,
or be grounds to, terminate or cancel this Agreement or the Settlement of the Action, or affect or
delay the finality of the Final Approval Order approving this Settlement.
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XIV. TERMINATION OF SETTLEMENT
43. This Settlement may be terminated by either WMO or Plaintiffs by serving on
counsel for the opposing party and filing with the Court a written notice of termination within
fourteen (14) days after any of the following occurrences:
a. the Court rejects, materially modifies, materially amends or changes, or declines to preliminarily or finally approve the Settlement;
b. an appellate court reverses the Final Approval Order, and the Settlement is not reinstated without material change by the Court on remand;
c. any court incorporates into, or deletes or strikes from, or modifies, amends, or changes, the Preliminary Approval Order, Final Approval Order, or the Settlement in a way that WMO or Class Counsel seeking to terminate the Settlement reasonably considers material;
d. the Effective Date does not occur; or
e. any other ground for termination provided for elsewhere in this Agreement.
44. WMO also shall have the right to terminate the Settlement by serving on Class
Counsel and filing with the Court a notice of termination within fourteen (14) days of its receipt
from the Settlement Administrator of the final report specified in paragraph 20, supra, if more than
five percent (5%) of the Class timely requests exclusion from the Settlement.
45. If, before the Settlement becomes Final, WMO files for protection under the
Bankruptcy Code, or any similar law, or a trustee, receiver, conservator or other fiduciary is
appointed by law, and in the event of the entry of a final order of a court of competent jurisdiction
determining the transfer of money to the Settlement Fund by Defendant to be a preference,
voidable transfer, fraudulent transfer or similar transaction under the Bankruptcy Code or
applicable state law, and any portion thereof is required to be returned to the Defendant out of the
Escrow Account, then at the election of Class Counsel, the Parties shall jointly move the Court to
vacate and set aside the judgment, including the releases pursuant thereto.
46. In the event of a termination of the Settlement, and after payment of any invoices
or other fees or expenses mentioned in this Agreement that have been incurred and are due to be
21
paid from the Escrow Account, the balance of the Settlement Fund shall be refunded and remitted
to WMO. WMO shall have no right to seek reimbursement from Plaintiffs or Class Counsel for
any funds disbursed from the Escrow Account pursuant to paragraphs 38 through 42 above.
47. In the event of a termination of the Settlement pursuant to this Section, the Parties
shall retain all of their pre-Settlement litigation rights and defenses, including Plaintiffs’ right to
seek class certification and WMO’s right to seek dismissal and oppose class certification.
XV. NO ADMISSION OF LIABILITY
48. WMO disputes the claims alleged in the Action and does not by this Agreement
or otherwise admit any liability or wrongdoing of any kind. WMO has agreed to enter into this
Agreement to avoid the further expense, inconvenience, and distraction of burdensome and
protracted litigation, and to be completely free of any further claims that were asserted or could
have been asserted in the Action.
49. Class Counsel and Plaintiffs believe the claims asserted in the Action have merit,
and they have examined and considered the benefits to be obtained under the proposed Settlement
set forth in this Agreement, the risks associated with the continued prosecution of this complex,
costly, and time-consuming Litigation, and the likelihood of success on the merits of the Action.
Class Counsel have fully investigated the facts and law relevant to the merits of the claims and
have conducted extensive discovery and an independent expert analysis of the claims in this
Action. Class Counsel and Plaintiffs have concluded that the proposed Settlement set forth in this
Agreement is fair, adequate, reasonable, and in the best interests of the Class.
50. The Parties understand and acknowledge that this Agreement constitutes a
compromise and settlement of disputed claims. No action taken by the Parties either previously
or in connection with the negotiations or proceedings connected with this Agreement shall be
deemed or construed to be an admission of the truth or falsity of any claims or defenses heretofore
made, or an acknowledgment or admission by any party of any fault, liability or wrongdoing of
any kind whatsoever.
22
51. Neither the Settlement, nor any act performed or document executed pursuant to or
in furtherance of the Settlement: (i) is or may be deemed to be, or may be used as, an admission
of, or evidence of, the validity of any claim made by Plaintiffs, any Class member, or any
Settlement Class Member, or of any wrongdoing or liability of WMO or any Released Party; or
(ii) is or may be deemed to be, or may be used as, an admission of, or evidence of, any fault or
omission of WMO or any Released Party, in the Action or in any proceeding in any court,
administrative agency or other tribunal.
52. In addition to any other defenses WMO may have at law, in equity or otherwise, to
the extent permitted by law, this Agreement may be pleaded as a full and complete defense to, and
may be used as the basis for an injunction against, any action, suit or other proceeding that may be
instituted, prosecuted or attempted in breach of this Agreement or the Releases contained herein.
XVI. MISCELLANEOUS PROVISIONS
53. Gender and Plurals. As used in this Agreement, the masculine, feminine, or
neutral gender, and the singular or plural number, shall each be deemed to include the others
whenever the context so indicates.
54. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of,
the respective heirs, assigns, beneficiaries, and successors of the Releasing Parties and the
Released Parties.
55. Cooperation of Parties. The Parties to this Agreement agree to cooperate in good
faith to prepare and execute all documents, to seek Court approval, defend Court approval, and to
do all things reasonably necessary to complete and effectuate the Settlement described in this
Agreement. This obligation of the Parties to support and complete the Settlement shall remain in
full force and effect regardless of events that may occur, or court decisions that may be issued, in
the Cuyahoga County Court of Common Pleas or in any other case in any court.
56. Exhibits. Each and every exhibit to this Agreement is an integral and material part
of this Agreement and is incorporated herein by this reference as though fully set forth herein.
23
57. Obligation to Meet and Confer. Before filing any motion in the Court raising a
dispute arising out of, based on, resulting from, or related to this Agreement, the Parties shall
consult with each other and certify to the Court that they have consulted.
58. Non-disparagement. Plaintiffs and WMO agree, on behalf of themselves and on
behalf of each of their respective directors, officers, employees, agents, shareholders, predecessors,
successors, and assigns, that they shall not engage in making or publishing written statements
which are disparaging to the reputation of the other or their corporate parents or affiliates.
59. Integration. This Agreement constitutes a single, integrated written contract
expressing the entire agreement of the Parties relative to the subject matter hereof. No covenants,
agreements, representations, or warranties of any kind whatsoever have been made by any Party
hereto, except as provided for herein. This Agreement supersedes and replaces any prior
agreements between the Parties, including but not limited to the mediation term sheet.
60. No Conflict Intended. Any inconsistency between the headings used in this
Agreement and the text of the paragraphs of this Agreement shall be resolved in favor of the text.
61. Statements to the Media. The Parties, Class Counsel and WMO’s Counsel agree
not to assert in any statement made to any media representative (whether or not for attribution)
that the Action was commenced or prosecuted by Plaintiffs or defended by WMO in bad faith or
without a reasonable basis, nor will they deny that the Action was commenced and prosecuted and
defended in good faith and is being settled voluntarily after consultation with competent legal
counsel. In all events, the Parties, Class Counsel, and WMO’s Counsel shall not make any
accusations of wrongful or actionable conduct by any party concerning the prosecution, defenses,
and resolution of this Action, and shall not otherwise suggest that the Settlement constitutes any
admission of any claim or defense alleged. The Parties, Class Counsel, and WMO’s Counsel
reserve their right to rebut, in a manner that such party determines to be appropriate, any contention
made in any public forum regarding the Action, including that the Action was brought or defended
in bad faith or without a reasonable basis.
24
62. Governing Law. The Agreement shall be construed in accordance with, and be
governed by, the laws of the State of Ohio, without regard to the principles thereof regarding choice
of law.
63. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument, even though all Parties do not sign the same counterparts. Original signatures
are not required. Any signature submitted by facsimile or through email of a scanned signature
shall be deemed an original.
64. Jurisdiction. The Court shall retain jurisdiction over the implementation,
enforcement, and performance of this Agreement, and shall have exclusive jurisdiction over any
suit, action, proceeding, or dispute arising out of or relating to this Agreement that cannot be
resolved by negotiation and agreement by Class Counsel and WMO’s Counsel. The Court shall
retain jurisdiction with respect to the administration, consummation, and enforcement of the
Agreement and shall retain jurisdiction for the purpose of enforcing all terms of the Agreement.
The Court shall also retain jurisdiction over all questions and/or disputes related to the Notice
Program and performance of the Settlement Administrator. As part of its agreement to render
services in connection with this Settlement, the Settlement Administrator shall consent to the
jurisdiction of the Court for this purpose.
65. Notices. All notices to Class Counsel provided for herein, shall be sent by email
and facsimile with a hard copy sent by overnight mail to:
As to Plaintiffs
Philip Kushner Kushner & Hamed Co., LPA 1375 East Ninth Street, Suite 1930 Cleveland, Ohio 44114 (216) 696-6700 Matthew R. Wilson Meyer Wilson Co., LPA 1320 Dublin Road, Suite 100
25
Columbus, Ohio 43215 (614) 224-6000
As to WMO:
James G. Kress BAKER BOTTS, LLP 700 K Street, NW Washington DC 20001 202-639-7884 Ronald D. Holman, II TAFT STETTINIUS & HOLLISTER, LLP 200 Public Square, Ste 3500 Cleveland, OH 44114 216-241-2838
66. The notice recipients and addresses designated above may be changed by written
notice. Upon the request of any of the Parties, the Parties agree to promptly provide each other
with copies of objections, requests for exclusion, or other filings received as a result of the Notice
Program.
67. Modification and Amendment. This Agreement may be amended or modified only
by a written instrument signed by the Parties and their respective counsel and approved by the
Court.
68. No Waiver. The waiver by any Party of any breach of this Agreement by another
Party shall not be deemed or construed as a waiver of any other breach, whether prior, subsequent,
or contemporaneous, of this Agreement.
69. Authority. The Parties represent and warrant that the persons signing this
Agreement on their behalf have full power and authority to bind Plaintiffs and WMO to all terms
of this Agreement. Any person executing this Agreement in a representative capacity represents
and warrants that he or she is fully authorized to do so and to bind the Party on whose behalf he or
she signs this Agreement to all of the terms and provisions of this Agreement.
70. Agreement Mutually Prepared. Neither WMO nor Plaintiffs shall be considered to
be the drafter of this Agreement or any of its provisions for the purpose of any statute, case law,
26
or rule of interpretation or construction that would or might cause any provision to be construed
against the drafter of this Agreement.
71. Independent Decision to Settle. The Parties understand and acknowledge that they:
(a) have performed an independent investigation of the allegations of fact and law made in
connection with this Action; and (b) that even if they may hereafter discover facts in addition to,
or different from, those that they now know or believe to be true with respect to the subject matter
of this Action as reflected in this Agreement, that will not affect or in any respect limit the binding
nature of this Agreement. It is the Parties’ intention to resolve their disputes in connection with
this Action pursuant to the terms of this Agreement now and thus, in furtherance of their intentions,
the Agreement shall remain in full force and effect notwithstanding the discovery of any additional
facts or law, or changes in law, and this Agreement shall not be subject to rescission or
modification by reason of any changes or differences in facts or law, subsequently occurring or
otherwise.
72. Receipt of Advice of Counsel. Each Party acknowledges, agrees and specifically
warrants that he, she, or it has fully read this Agreement and the Releases contained in Section XII
of this Agreement, received independent legal advice with respect to the advisability of entering
into this Agreement and the Releases, and the legal effects of this Agreement and the Releases,
and fully understands the effect of this Agreement and the Releases.
FOR PLAINTIFFS:
Dated:Bri^vn/& Sj^WpfCo., L.P.A., n/k/a Knabe LawFirn/Co., EfVt _
B>- /(eJt-'-ftIts:
Dated:Gebcon Properties L.TDBy:Its:
Dated:Philip KushnerClass Counsel
FOR DEFENDANT:
Dated:Waste Management of Ohio, Inc.By:Its:
Dated:James G. KressCounselfor WMO
27
DOCuSign Envelope ID A7DF6050-7686-4388-9338-38C5D46774B4
FOR PLAINTIFFS:
Dated:Brown & Szaller Co., L.P.A., n/k/a Knabe LawFirm Co., LPABy:Its:
tiocuSi£<girrd by
1/20/2020
Dated:6tJbewff^ertics LTDBy: Kris conwill
MsnagerIts:
az:Dated:Philip KushnerClass Counsel
FOR DEFENDANT:
Dated:Waste Management of Ohio, Inc.By:
Its:
Dated:James G. KressCounsel for H'MO
27
FOR PLAINTIFFS:
Dated:
Brown & Szaller Co., L.P.A., n/k/a Knabe LawFirm Co., LPABy:Its:
Dated:Gebcon Properties LTDBy:Its:
Dated:
Philip KushnerClass Counsel
FOR DEFENDANT:
January 21 , 2020Dated;
Waste-ManagententofOhio, Inc.By: tsCrJiserIts:
January 22, 2020Dated:
Ja(npfK). KressCounselfor IVMO
27
EXHIBIT 1
IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO
GENERAL DIVISION
BROWN & SZALLER CO., L.P.A., et al., Plaintiffs,
v. WASTE MANAGEMENT OF OHIO, INC.,
Defendant.
) ) ) ) ) ) ) )
CASE NO. CV-16-859588 JUDGE DANIEL GAUL PLAINTIFFS’ PROPOSED ORDER ON UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT
This matter having come before the Court on Plaintiffs’ Unopposed Motion for Preliminary
Approval of the proposed class action settlement of the above-captioned case (the “Action”)
between Plaintiffs Brown & Szaller Co., LPA, and Gebcon Properties, Ltd., individually and on
behalf of the Settlement Class (“Plaintiffs”), and Defendant Waste Management of Ohio, Inc.
(“Defendant”), as set forth in the Parties’ Settlement Agreement and Release (the “Agreement,”
which memorializes the “Settlement”).
Having duly considered the papers, THE COURT HEREBY FINDS AND ORDERS AS
FOLLOWS:
1. The Court has jurisdiction over the subject matter of the litigation, the Parties, and
all Settlement Class Members.
2. Unless defined herein, all defined terms in this Order shall have the meanings
ascribed to them in the Agreement.
3. Pursuant to Civil Rule 23(E)(1), the Court approves the proposed Notice Plan for
giving notice to the Settlement Class (i) by email, where Defendant has email addresses for Class
Members, in substantially the form attached to this Order as Exhibit 1; (ii) by mail to all other
Class Members, in substantially the form attached to this Order as Exhibit 2; and (iii) by
establishing a Settlement Website at the web address of WMOClassSettlement.net, as more fully
described in the Agreement, which shall contain the “long form” notice in substantially the form
attached to this Order as Exhibit 3. The Notice Plan, in form, method, and content, complies with
the requirements of Civil Rule 23 and due process, and constitutes the best notice practicable under
the circumstances. The Court hereby directs the Parties and the Claims Administrator to complete
all aspects of the Notice Plan no later than [DATE], in accordance with the terms of the Agreement
4. Pursuant to Civil Rule 23(E)(2), the Court has conducted an evaluation of the
Settlement as set forth in the Agreement for fairness, adequacy, and reasonableness. Based upon
that evaluation, the Court finds there is cause to believe that: (i) the Agreement is fair, reasonable,
and within the range of possible approval; (ii) Plaintiffs and Class Counsel have adequately
represented members of the Class; and (iii) the Settlement is in the public interest.
5. Pursuant to Civil Rule 23(E)(3) through (E)(5), the Court finds (i) the Parties have
provided to the Court all agreements between the Parties in connection with the Settlement; (ii)
the Class has not been previously certified; and (iii) Class Members may object to the Settlement
in the manner set forth in more detail below.
6. As such, the Court finds that the Settlement meets all requirements for preliminary
approval as set forth in Civil Rule 23(E), and thus hereby grants preliminary approval to the
Settlement.
7. The Court, pursuant to Civil Rule 23(A) and 23(B)(3), conditionally certifies, for
purposes of this Settlement only, the following Settlement Class:
All Commercial Customers that were parties to a WMO Contract at any time on or after February 26, 2001 to the present, excluding only: (1) those commercial customers who signed a WMO Contract that contained an arbitration clause with a class action waiver;
and (2) any commercial customer whose only WMO Contract contained a class action waiver without an arbitration clause.
8. The Court appoints Kushner & Hamed Co., LPA and Meyer Wilson Co., LPA as
Class Counsel, pursuant to Civil Rule 23.
9. The Court hereby appoints Brown & Szaller Co., LPA and Gebcon Properties, Ltd.,
as representatives of the Class set forth above.
10. On [DATE], in Courtroom 19-D of the Cuyahoga County Court of Common Pleas,
1200 Ontario Street, Cleveland, Ohio, or at such other date and time later set by Court Order, this
Court will hold a Final Approval Hearing on the fairness, adequacy and reasonableness of the
Agreement and to determine whether (i) final approval of the Settlement embodied by the
Agreement should be granted, and (ii) Plaintiffs’ application for attorneys’ fees and expenses, and
incentive awards to Class Representatives, should be granted. No later than [DATE], Plaintiffs
must file papers in support of their application for attorneys’ fees and expenses, and the incentive
awards to the Class Representatives. No later than [DATE], which is fourteen (14) days prior to
the Final Approval Hearing, Plaintiffs must file papers in support of final approval of the
Settlement and respond to any written objections. Defendant may (but is not required to) file
papers in support of final approval of the Settlement, so long as it does so no later than fourteen
(14) days prior to the Final Approval Hearing. The Court may continue the Final Approval hearing
from time-to-time without further notice to the members of the Settlement Class.
11. The Claims Administrator will file with the Court by no later than [DATE], which
is seven (7) days prior to the Final Approval Hearing, proof that Notice was provided in accordance
with the Agreement and this Preliminary Approval Order.
12. Settlement Class Members who wish to either object to the Settlement or request to
be excluded from it must do so by the Objection Deadline and Opt-Out Deadline of [DATE],
which are both forty-five (45) calendar days after the Settlement Notice Date. Settlement Class
Members may not both object and opt out. If a Settlement Class Member submits both a Request
for Exclusion and an objection, the Request for Exclusion will be controlling.
13. To submit a Request for Exclusion, Settlement Class Members must follow the
directions in the Notice and send a compliant request to the Claims Administrator at the address
designated in the Class Notice by the Opt-Out Deadline. In the Request for Exclusion, the
Settlement Class Member must include the legal name of the commercial customer and its address,
and must state in writing that it wishes to be excluded from the Settlement. No Settlement Class
Member, or any person acting on behalf of or in concert or participation with that Settlement Class
Member, may exclude any other Settlement Class Member from the Settlement Class.
14. If a timely and valid Request for Exclusion is made by a member of the Settlement
Class, then that entity will not be a Settlement Class Member, and the Agreement and any
determinations and judgments concerning it will not bind the excluded entity.
15. All Settlement Class Members who do not opt out in accordance with the terms set
forth in the Agreement will be bound by all determinations and judgments concerning the
Agreement.
16. To object to the Settlement, Settlement Class Members must follow the directions
in the Notice and file a written Objection with the Court by the Objection Deadline. In the written
Objection, the Settlement Class Member must state (a) the name of the Action; (b) the objector’s
full name, address, and telephone number; (c) an explanation of the basis upon which the objector
claims to be a Settlement Class member; (d) all grounds for the objection, accompanied by any
legal support for the objection known to the objector or the objector’s counsel; (e) the number of
times in which the objector has objected to a class action settlement within the five years preceding
the date that the objector files the objection, and the caption of each case in which the objector has
made such objection; (f) the identity of all counsel who represent the objector, including any
former or current counsel who may be entitled to compensation for any reason related to the
objection; (g) any and all agreements that relate to the objection or the process of objecting –
whether written or verbal – between objector and/or objector’s counsel and/or any other person or
entity; (h) the identity of all counsel representing the objector who will appear at the Final
Approval Hearing; (i) a list of all persons who will be called to testify at the Final Approval
Hearing in support of the objection; (j) a statement confirming whether the objector intends to
personally appear and/or testify at the Final Approval Hearing; (k) the objector’s signature (an
attorney’s signature is not sufficient); and (l) if you are represented by counsel, the signature of
your counsel. No Objection will be valid unless all of the information described above is included.
The right to object to this Settlement must be exercised individually by an individual Settlement
Class Member, not by the act of another person acting or purporting to act in a representative
capacity. The Parties will have the right to depose any objector as to the basis and circumstances
of his or her objection, and to assess the objector’s standing to object.
17. Any Settlement Class Member who fails to timely file a written objection with the
Court and notice of his or her intent to appear at the Final Approval Hearing in accordance with
the terms of this Order, above and as detailed in the Notice, and at the same time provide copies
to Class Counsel and Defendant’s Counsel, shall not be permitted to object to the Agreement at
the Final Approval Hearing, shall be foreclosed from seeking any review of the Agreement by
appeal or other means, shall be deemed to have waived its objections, and shall be forever barred
from making any such objections in the Action. All members of the Settlement Class, except those
members of the Settlement Class who submit timely Requests for Exclusion, will be bound by all
determinations and judgments in the Action, whether favorable or unfavorable to the Settlement
Class.
18. Accordingly, the following are the deadlines by which certain events must occur:
19. The Agreement and any and all negotiations, documents, and discussions
associated with it, will not be deemed or construed to be an admission or evidence of any violation
of any statute, law, rule, regulation, or principle of common law or equity, or of any liability or
wrongdoing, by Defendant, or the truth of any of the claims, and evidence relating to the
Agreement will not be discoverable or used, directly or indirectly, in any way, whether in the
Action or in any other action or proceeding, except for purposes of demonstrating, describing,
[DATE] [21 calendar
days after the date of this order]
Deadline to Provide Class Notice
[DATE] [30 days after
the Settlement Notice Date, adjusted for the weekend]
Deadline for Plaintiffs’ Motion for Attorneys’ Fees and Incentive Award
[DATE][45 days after
the Settlement Notice Date, adjusted for the weekend]
Deadline for Class Members to file Objections or submit Requests for Exclusion
[DATE] [14 days
FinalthebeforeApproval Hearing]
Deadline for Parties to File the Following: (1) List of Class Members who Made Timely and Proper Requests
for Exclusion; (2) Proof of Class Notice (to be filed by the Administrator); and (3) Motion and Memorandum in Support of Final Approval,
including responses to any Objections.
[ DATE], at [TIME]
Final Approval Hearing
implementing, or enforcing the terms and conditions of the Agreement, this Order, and the Final
Judgment and Order of Dismissal.
20. Pending the final determination of whether the Settlement should be approved, all
pre-trial proceedings and briefing schedules in the Action are stayed. If the Settlement is
terminated or final approval does not for any reason occur, the stay will be immediately terminated.
21. If the Settlement is not approved or consummated for any reason whatsoever, the
Settlement and all proceedings in connection with the Settlement will be without prejudice to the
right of Defendant and the Settlement Class Representatives to assert any right or position that
could have been asserted if the Agreement had never been reached or proposed to the Court. In
such an event, the Parties will return to the status quo ante in the Action and the certification of
the Settlement Class will be deemed vacated. The certification of the Settlement Class for
settlement purposes, or any briefing or materials submitted seeking certification of the Settlement
Class, will not be considered in connection with any subsequent class certification decision.
22. Pending the final determination of whether the Settlement should be approved, any
member of the Settlement Class is hereby enjoined from filing any class action, or attempting to
amend an existing action to assert any claims which would be released pursuant to the Settlement
Agreement. If the Settlement is terminated or final approval does not for any reason occur, this
injunction will be terminated.
23. Pursuant to the Agreement, BrownGreer, PLC is hereby appointed as Claims
Administrator and shall be required to perform all the duties of the Claims Administrator as set
forth in the Agreement and this Order.
24. Counsel are hereby authorized to use all reasonable procedures in connection with
approval and administration of the Settlement that are not materially inconsistent with this Order
or the Agreement, including making, without further approval of the Court, minor changes to the
form or content of the Notice and Claim Form, and other exhibits that they jointly agree are
reasonable and necessary. The Court reserves the right to approve the Agreement with such
modifications, if any, as may be agreed to by the Parties without further notice to the members of
the Class.
SO ORDERED
DATED: __________
26471128.2
EMAIL NOTICE
Cuyahoga County Court of Common Pleas, General Division Case No. CV-16-859588
IF YOU WERE OR ARE A CUSTOMER OF WASTE MANAGEMENT OF OHIO,
YOU COULD RECEIVE A PAYMENT
FROM A CLASS ACTION SETTLEMENT.
A court authorized this notice. This is not a solicitation from a lawyer.
• Two Ohio businesses, Brown & Szaller Co., LPA and Gebcon Properties, Ltd., brought claims against Waste Management of Ohio, Inc. (“WMO”) alleging that WMO imposed improper price increases on its commercial customers, in violation of the contracts between WMO and those customers. WMO denies all wrongdoing and asserts that it complied with the contracts.
• A settlement has been reached in this case which affects some Ohio commercial customers who used WMO for waste removal services from February 26, 2001 to the present.
• The Settlement, if approved by the Court, would provide $30,500,000 to provide a payment to Class Members based, in part, on the total amount paid by the Class Member to WMO during the period from February 26, 2001 to the present, as well as to pay Class Counsel’s attorneys’ fees and costs, a service award to the Class Representatives, and administrative costs of the Settlement.
• The Settlement, if approved by the Court, would avoid the further cost and risk associated with continuing the lawsuit for both parties, and would release WMO from further liability.
Your legal rights are affected whether you act or don’t act. Read this notice carefully. For more information, see WMOClassSettlement.net. Why is there a notice?
A Court authorized this Notice because you have a right to know about a proposed Settlement of this class action lawsuit, and about all of your options, before the Court decides whether to give its final approval of the Settlement. If the Court approves the Settlement, after any objections or appeals are resolved, an administrator appointed by the Court will make the payments that the Settlement provides. Because your rights will be affected by this Settlement, it is important that you read this Notice carefully.
If you received a Notice in the mail or by email, it is because, according to the records of Waste Management of Ohio, Inc. (“WMO”), you were a commercial customer of WMO at some time from February 26, 2001 to the present, excluding only: (1) those commercial customers who signed a WMO Contract that contained an arbitration clause with a class action waiver; and (2) any commercial customer whose only WMO Contract contained a class action waiver without an arbitration clause.
The Court in charge of the case is the Cuyahoga County Court of Common Pleas, and the case is known as Brown & Szaller, Co., L.P.A. et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. The proposed Settlement would resolve all claims in this case. The people who sued are called the Plaintiffs and the company sued, Waste Management of Ohio, Inc., is called the Defendant and is referred to in this Notice as "WMO."
26471128.2
What are these class action lawsuits about?
A class action is a lawsuit in which the claims and rights of many people are decided in a single court proceeding. Representative plaintiffs, also known as “class representatives,” assert claims on behalf of the entire class.
The Class Representatives filed this Action alleging that WMO improperly imposed price increases that were not authorized by its contracts with its customers.
WMO denies that it did anything wrong, and further denies that this case is appropriate for treatment as a
class action for litigation purposes.
Why is there a Settlement?
The Court did not decide in favor of the Plaintiffs or Defendant. Both sides agreed to a settlement instead of
going to trial. That way, they avoid the uncertainty and cost of a trial, and the people affected will get
compensation. The Class Representatives and their attorneys think the Settlement is best for all Class
Members.
What Do These Terms Mean?
In the Settlement, and in this Notice, the definition of the following capitalized terms are:
Cash Award: The amount to be paid to a Class Member who does not opt-out of the Settlement,
calculated in the manner described below;
Net Settlement Fund: The amount remaining in the $30,500,000 settlement fund after paying the
costs of settlement administration, attorneys’ fees and costs, and incentive payments to Class
Representatives, if any;
Released Parties: Waste Management of Ohio, Inc., and each of its present and former parents,
subsidiaries, divisions, affiliates, predecessors, successors, and assigns providing waste collection,
recycling and disposal services in Ohio, and the present and former directors, officers, employees,
agents, shareholders, predecessors, successors, and assigns of each of them.
How do I know if I am part of the Settlement?
The Settlement provides relief for all Class Members, who are described as all Commercial Customers that were parties to a WMO Contract at any time on or after February 26, 2001 to the present, excluding only: (1) those commercial customers who signed a WMO Contract that contained an arbitration clause with a class action waiver; and (2) any commercial customer whose only WMO Contract contained a class action waiver without an arbitration clause.
“Commercial Customers” refers to those non-government commercial customers that contracted directly with WMO for their waste collection, disposal, and/or recycling services in the state of Ohio, and not as part of a franchise agreement or national account arrangement.
If you have questions about whether you are a Class Member, or are still not sure whether you are included, you can visit www.WMOClassSettlement.net for more information or call the Claims Administrator’s toll
26471128.2
free number (***-***-****).
What does the Settlement provide?
WMO has agreed to pay a total settlement amount of $30,500,000, which will be used to create a Settlement Fund to pay a Settlement award to Settlement Class Members, pay Class Counsel’s attorneys’ fees and costs,
pay a service award to the Class Representatives, and pay costs and expenses of settlement administration.
After subtracting the amount authorized by the Court for attorneys’ fees, costs, service awards, and costs of settlement administration, twenty-five percent (25%) of the Net Settlement Fund will be distributed equally on a per capita basis to all Settlement Class Members. The remaining seventy-five percent (75%) of the Net Settlement Fund will be distributed on a pro rata basis. The pro rata basis will be calculated as follows: (i) each Settlement Class Member’s total payments to WMO during the period from February 26, 2001 to the date of Preliminary Approval by this Court will be divided by the total payments made by all Settlement Class Members during the same period; and (ii) that percentage will be multiplied by the remainder of the Net Settlement Fund.
How and when can I get a payment?
Class Members do not have to submit a claim or other paperwork in order to obtain a settlement award.
The Court will hold a hearing on _________, 2020, to decide whether to approve the Settlement. If the Settlement is approved, appeals may still follow. The outcome of any appeal is uncertain, and resolving them can take time, often more than a year. Please be patient.
What am I giving up to get a payment or stay in the Class?
If you are a Class Member, unless you exclude yourself, you can’t sue, continue to sue, or be part of any other lawsuit against WMO about the legal issues in this case, and all of the decisions and judgments by the Court will bind you.
If proven, the claims asserted by Plaintiffs could result in substantial damages that could be recovered by some or all Class Members. However, WMO has denied all of the allegations in this case, and in any future lawsuit it will have a full range of potential defenses. This Settlement permits all class members the opportunity to obtain money now, without the delay or uncertainty of continued litigation.
If you do not exclude yourself from this Settlement, you will be unable to file your own lawsuit regarding the claims described in this Notice, and you will release WMO from any liability for the Released Claims defined below and in the Settlement.
Remaining in the Class means that you, as well as your respective assigns, executors, administrators,
successors and agents, will release, resolve, relinquish and discharge each and all of the Released Parties from each of the Released Claims (as defined below). You further agree that you and they will not institute any action or cause of action (in law, in equity or administratively), suits, debts, liens, or claims, known or unknown, fixed or contingent, which you may have or claim to have, in state or federal court, in arbitration, or with any state, federal or local government agency or with any administrative or advisory body, arising from the Released Claims.
26471128.2
“Released Claims” means, as of the Effective Date, Plaintiffs and each Settlement Class Member, each on behalf of itself, himself, or herself and on behalf of its, his, or her respective heirs, assigns, beneficiaries, and successors, shall automatically be deemed to have fully and irrevocably released and forever discharged WMO and each of its present and former parents, subsidiaries, divisions, affiliates, predecessors, successors, and assigns providing waste collection, recycling and disposal services in Ohio, and the present and former directors, officers, employees, agents, shareholders, predecessors, successors, and assigns of each of them, of and from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys’ fees, losses, and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory or equitable, that result from, arise out of, are based upon, or relate to WMO’s contracting and pricing practices, including but not limited to claims related to price increases and charges for fuel and environmental surcharges during the Class Period.
The Settlement Agreement (available on the website at www.WMOClassSettlement.net) provides more detail regarding the release and describes the Released Claims with specific descriptions in necessary,
accurate legal terminology, so read it carefully. You can talk to the law firms representing the Class for free, or you can, at your own expense, talk to your own lawyer if you have any questions about the Released Parties or the Released Claims or what they mean.
The release does not apply to Class Members who timely opt out of the Settlement.
How do I exclude myself from the Settlement?
If you don’t want a payment from this Settlement, and you want to keep the right to sue or continue to sue WMO on your own about the legal issues in this case, then you must take steps to exclude yourself from the Settlement.
To exclude yourself from the Settlement, you must send a letter by mail saying that you want to be excluded
from Brown & Szaller, Co., L.P.A., et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. Be sure to include the legal name of the business and its address. You must also include a statement that you wish to be excluded from the Settlement. You must mail your exclusion request postmarked no later than [DATE], to:
WMO Class Settlement, c/o , [ADDRESS]
If you ask to be excluded, you will not get any Cash Award and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) WMO in the future. Although no other person may exclude you from the Settlement Class, nothing prohibits you from obtaining the assistance of another, such as a lawyer or family member, in preparing or submitting any individual exclusion.
Do I have a lawyer in this case?
The Court has appointed Kushner & Hamed Co., LPA and Meyer Wilson Co., LPA as co-lead class counsel to represent you and other Class Members. You will not be charged separately for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.
Additionally, you may enter an appearance through your own attorney if you so desire, but you do not need
to do so.
26471128.2
How will the lawyers and class representatives be paid?
Class Counsel will ask the Court to approve payment of up to one-third of the Settlement Fund, plus the costs incurred for investigating the facts, litigating the case, and negotiating the Settlement. Class Counsel will also request an award of $10,000 to each of the two Class Representatives, as compensation for their time and effort. The Court may award less than these amounts. These payments, along with the costs of administering the Settlement, will be made out of the Settlement Fund.
How do I tell the Court if I do not think the Settlement is fair? You can tell the Court that you don’t agree with the Settlement or some part of it. If you are a Class Member,
you can object to the Settlement if you do not think the Settlement is fair. You can state reasons why you think the Court should not approve it. The Court will consider your views. To object, you must send or file a written statement with the Court saying that you object to the proposed Settlement in Brown & Szaller, Co., L.P.A. et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. To make a valid objection, you must include:
a. the name of the Action;
b. your full name, address, and telephone number; c. an explanation of the basis upon which you claim to be a Settlement Class
member; d. all grounds for the objection, accompanied by any legal support for the objection
known to you or your counsel; e. the number of times in which you have objected to a class action settlement within
the five years preceding the date that you file the objection, and the caption of each case in which you have made such objection;
f. the identity of all counsel who represent you, including any former or current counsel who may be entitled to compensation for any reason related to the objection;
g. any and all agreements that relate to the objection or the process of objecting –
whether written or verbal – between you and/or your counsel and/or any other person or entity;
h. the identity of all counsel representing you who will appear at the Final Approval Hearing;
i. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;
j. a statement confirming whether you or your counsel intends to personally appear and/or testify at the Final Approval Hearing;
k. your signature (an attorney’s signature is not sufficient); and l. if you are represented by counsel, the signature of your counsel.
Your objection to the Settlement must be filed no later than [DATE].
The objection must be provided as follows to the following:
For Court Filing: Brown & Szaller, Co., L.P.A. et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588.
By Mail: Matthew R. Wilson MEYER WILSON CO.., LPA 1320 Dublin Road, Suite 100 Columbus, OH 43215
26471128.2
Clerk Cuyahoga County Court of Common Pleas Justice Center 1200 Ontario Street Cleveland, OH 44113
Attorneys for Plaintiff and the Settlement Class James Kress BAKER BOTTS, LLP The Warner, 1299 Pennsylvania Avenue, NW Washington, DC 20004 Attorneys for Defendant
When and where will the Court decide whether to approve the Settlement? The Court will hold a hearing to decide whether to approve the Settlement. This Fairness Hearing will be held at on _________, 2020, at the Cuyahoga County Court of Common Pleas, 1200 Ontario Street, Cleveland, OH 44113, Courtroom 19-D. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check the website for updates. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate, and whether to award attorneys’ fees, expenses, and an incentive award as described above, and in what amounts. If there are objections, the Court will consider them. At or after the hearing, the Court will decide whether to approve the Settlement. We do not know how long it will take the Court to issue its decision. It is not necessary for you to appear at this hearing, but you may attend at your own expense. May I speak at the hearing? You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that you intend to appear at the Fairness Hearing in Brown & Szaller, Co., L.P.A. et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. Be sure to include the full business name and address. Your letter stating your notice of intention to appear must be postmarked no later than [DATE], and be sent to the Clerk of the Court, Cuyahoga County Court of Common Pleas, 1200 Ontario Street, Cleveland, Ohio 44113. You cannot speak at the hearing if you exclude yourself. How do I get more information? This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can get a copy of the Settlement Agreement here [www.WMOClassSettlement.net]; by writing to: WMO Class Settlement, c/o [ADMIN], [ADDRESS]; or visiting the website at www.WMOClassSettlement.net, where you will also find answers to common questions about the Settlement, plus other information to help you determine whether you are a Class Member and whether you are eligible for a payment.
Postcard Notice
Notice of Class Action Settlement A court authorized this notice. You are not being
sued.
Records show that you may be entitled to money from a class action settlement. You do not need to
do anything to receive this money. A settlement has been proposed in this lawsuit pending in the Cuyahoga County Court of Common Pleas (“Court”). This case claims that Waste Management of Ohio, Inc. (“WMO”), improperly imposed price increases on its commercial customers in violation of their contracts. WMO denies that it did anything wrong.
Brown & Szaller Co., LPA et al. v. Waste Management of Ohio, Inc. c/o [DATE] Toll Free Number: x-xxx-xxx-xxxx PO Box [____________] Website: www.WMOclasssettlement.net
<<Name1>> <<Name2>> <<Address1>> <<Address2>> <<City>><<State>><<Zip>>
Who’s Included? You are included in the Settlement as a “Class Member” if you were a commercial customer of WMO from February 26, 2001 to the present, excluding only: (1) those commercial customers who signed a WMO Contract that contained an arbitration clause with a class action waiver; and (2) any commercial customer whose only WMO Contract contained a class action waiver without an arbitration clause. What Are the Settlement Terms? Under the proposed Settlement, WMO has agreed to establish a Settlement Fund of $30,500,000 to: pay Class Members based, in part, on the total amount paid by the Class Member to WMO during the period from February 26, 2001 to the present; pay a service award of no more than $10,000 to each of the two Class Representatives; pay attorneys’ fees and costs awarded by the Court (Plaintiffs will ask the Court to award attorneys’ fees of up to one-third of the Settlement Fund, plus reasonable litigation expenses); and pay settlement notice and administration costs. How Can You Get a Payment? You do not need to make a claim. Unless you exclude yourself from the Settlement, you will receive a payment. Your Other Options. You will be legally bound by the Settlement unless you exclude yourself from the Settlement Class by [DATE]. If you exclude yourself, you get no payment from the Settlement. You may object to the Settlement by [DATE]. The information available on the Settlement website (www.WMOClassSettlement.net) explains how to exclude yourself or object. The Court will hold a Hearing on [DATE] to consider whether to approve the Settlement and a request for attorneys’ fees and expenses and a service payment to the Class Representatives. You may appear at the hearing, either yourself or through an attorney hired by you, but you do not have to appear at the hearing. For more information, call the Claims Administrator’s toll free number (***-***-****) or visit the Claims Administrator’s
website at www.WMOClassSettlement.net. The capitalized terms used in this Notice are defined in the Settlement Agreement, which is available on the Claims Administrator’s website.
26471336.1
Cuyahoga County Court of Common Pleas, General Division
IF YOU WERE OR ARE A CUSTOMER OF WASTE MANAGEMENT OF OHIO,
YOU COULD RECEIVE A PAYMENT FROM A CLASS ACTION SETTLEMENT.
A court authorized this notice. This is not a solicitation from a lawyer.
• This notice relates to a case in the Cuyahoga County Court of Common Pleas known as Brown & Szaller, Co., L.P.A., et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588.
• Two Ohio businesses, Brown & Szaller Co., LPA and Gebcon Properties, Ltd., brought claims against Waste Management of Ohio, Inc. (“WMO”) alleging that WMO imposed improper price increases on its commercial customers, in violation of the contract between WMO and those customers. WMO denies all wrongdoing.
• A settlement has been reached in this case which affects some Ohio commercial customers who used WMO for waste removal services from February 26, 2001 to the present.
• The Settlement, if approved, would provide $30,500,000 to provide a payment to Class Members based, in part, on the total amount paid by the Class Member to WMO during the period from February 26, 2001 to the present, as well as to pay Class Counsel’s attorneys’ fees and costs, a service award to the Class Representative, and administrative costs of the Settlement.
• The Settlement, if approved, would avoid the further cost and risk associated with continuing the lawsuit, and would release WMO from further liability.
• Your legal rights are affected whether you act or don’t act. Read this notice carefully. For more information, see WMOClassSettlement.net.
26471336.1
These rights and options - and the deadlines to exercise them - are explained in this notice.
The Court in charge of this case still has to decide whether to approve the Settlement. Payments will be made if the Court approves the Settlement and after any appeals are resolved. Please be patient.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
Do Nothing You will receive a settlement payment. The amount of that payment will be determined according to the formula set forth below. In return, you give up the right to sue WMO with respect to the claims in this case.
Exclude Yourself or "Opt Out" of the Settlement
If you ask to be excluded, you will get no payment. You will also not waive any rights you may have against WMO with respect to any legal claims you may have.
Object Write to the Court if you believe the Settlement is unfair.
Go to a Hearing Ask to speak in Court about the fairness of the Settlement.
26471336.1
WHAT THIS NOTICE CONTAINS
BASIC INFORMATION ................................................................................................................ PAGE 4 1. Why is there a notice? 2. What is this class action lawsuit about? 3. Why is there a Settlement? 4. What do these terms mean?
WHO IS IN THE SETTLEMENT ............................................................................................... PAGE 5 5. How do I know if I am part of the Settlement?
THE SETTLEMENT BENEFITS - WHAT YOU GET ............................................................. PAGE 5 6. What does the Settlement provide?
HOW YOU GET A PAYMENT ................................................................................................... PAGE 5 7. How and when can I get a payment? 8. What am I giving up to get a payment or stay in the Class?
EXCLUDING YOURSELF FROM THE SETTLEMENT ....................................................... PAGE 6 9. How do I exclude myself from the Settlement?
THE LAWYERS REPRESENTING YOU .................................................................................. PAGE 7 10. Do I have a lawyer in this case? 11. How will the lawyers and class representatives be paid?
OBJECTING TO THE SETTLEMENT ..................................................................................... PAGE 7 12. How do I tell the Court if I do not think the Settlement is fair?
THE COURT'S FAIRNESS HEARING ...................................................................................... PAGE 8 13. When and where will the Court decide whether to approve the Settlement? 14. May I speak at the hearing?
GETTING MORE INFORMATION ........................................................................................... PAGE 9 15. How do I get more information?
26471336.1
BASIC INFORMATION
1. Why is there a notice?
A Court authorized this Notice because you have a right to know about a proposed Settlement of this class action lawsuit, and about all of your options, before the Court decides whether to give its final approval of the Settlement. If the Court approves the Settlement, after any objections or appeals are resolved, an administrator appointed by the Court will make the payments that the Settlement provides. Because your rights will be affected by this Settlement, it is important that you read this Notice carefully.
If you received a Notice in the mail or by email, it is because, according to the records of Waste Management of Ohio, Inc. (“WMO”), you were a commercial customer of WMO from February 26, 2001 to the present, excluding only: (1) those commercial customers who signed a WMO Contract that contained an arbitration clause with a class action waiver; and (2) any commercial customer whose only WMO Contract contained a class action waiver without an arbitration clause.
The Court in charge of the case is the Cuyahoga County Court of Common Pleas, and the case is known as Brown & Szaller, Co., L.P.A., et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. The proposed Settlement would resolve all claims in this case. The people who sued are called the Plaintiffs and the company sued, Waste Management of Ohio, Inc., is called the Defendant and is referred to in this Notice as "WMO."
2. What are these class action lawsuits about?
A class action is a lawsuit in which the claims and rights of many people are decided in a single court proceeding. Representative plaintiffs, also known as “class representatives,” assert claims on behalf of the entire class.
The Class Representatives filed this action alleging that WMO improperly imposed price increases that were
not authorized by its contracts with its customers.
WMO denies that it did anything wrong, and further denies that this case is appropriate for treatment as a
class action in a litigated proceeding.
3. Why is there a Settlement?
The Court did not decide in favor of the Plaintiffs or Defendant. Both sides agreed to a settlement instead of
going to trial. That way, they avoid the uncertainty and cost of a trial, and the people affected will get
compensation. The Class Representatives and their attorneys think the Settlement is best for all Class
Members.
4. What Do These Terms Mean?
In the Settlement, and in this Notice, the definition of the following capitalized terms are:
Cash Award: The amount to be paid to a Class Member who does not opt-out of the Settlement,
calculated in the manner described below;
Net Settlement Fund: The amount remaining in the $30,500,000 settlement fund after paying the
costs of settlement administration, attorneys’ fees and costs, and incentive payments to Class
Representatives, if any;
Released Parties: Waste Management of Ohio, Inc., and each of its present and former parents,
subsidiaries, divisions, affiliates, predecessors, successors, and assigns providing waste collection,
recycling and disposal services in Ohio, and the present and former directors, officers, employees,
agents, shareholders, predecessors, successors, and assigns of each of them.
26471336.1
WHO IS IN THE SETTLEMENT?
5. How do I know if I am part of the Settlement?
The Settlement provides relief for all Class Members, who are described as all Commercial Customers that were parties to a WMO Contract at any time on or after February 26, 2001 to the present, excluding only: (1) those commercial customers who signed a WMO Contract that contained an arbitration clause with a class action waiver; and (2) any commercial customer whose only WMO Contract contained a class action waiver without an arbitration clause.
“Commercial Customers” refers to those non-government commercial customers that contracted directly with WMO for their waste collection, disposal, and/or recycling services in the state of Ohio, and not as part of a franchise agreement or national account arrangement.
If you have questions about whether you are a Class Member, or are still not sure whether you are included, you can visit www.WMOClassSettlement.net for more information or call the Claims Administrator’s toll free number (***-***-****).
THE SETTLEMENT BENEFITS - WHAT YOU GET 6. What does the Settlement provide?
WMO has agreed to pay a total settlement amount of $30,500,000, which will be used to create a Settlement Fund to pay a Settlement award to Settlement Class Members, pay Class Counsel’s attorneys’ fees and costs, pay a service award to the Class Representative, and pay costs and expenses of settlement administration.
After subtracting the amount authorized by the Court for attorneys’ fees, costs, service awards, and costs of settlement administration, twenty-five percent (25%) of the Net Settlement Fund will be distributed equally on a per capita basis to all Settlement Class Members. The remaining seventy-five percent (75%) of the Net Settlement Fund will be distributed on a pro rata basis. The pro rata basis will be calculated as follows: (i) each Settlement Class Member’s total payments to WMO during the period from February 26, 2001 to the date of Preliminary Approval by this Court will be divided by the total payments made by all Settlement Class Members during the same period; and (ii) that percentage will be multiplied by the remainder of the Net Settlement Fund. To the extent that there is any amount of the Net Settlement Fund that has not been distributed, any remaining amount will be distributed on a cy pres basis, to Keep Ohio Beautiful, a not for profit Ohio environmental organization.
HOW YOU GET A PAYMENT
7. How and when can I get a payment?
Class Members do not have to submit a claim or other paperwork in order to obtain a settlement award.
The Court will hold a hearing on _________, 2020, to decide whether to approve the Settlement. If the Settlement is approved, appeals may still follow. The outcome of any appeal is uncertain, and resolving them can take time, often more than a year. Please be patient. 8. What am I giving up to get a payment or stay in the Class?
If you are a Class Member, unless you exclude yourself, you can’t sue, continue to sue, or be part of any other lawsuit against WMO about the legal issues in this case, and all of the decisions and judgments by the Court will bind you.
26471336.1
If proven, the claims asserted by Plaintiffs could result in substantial damages that could be recovered by Class Members. However, WMO has denied all of the allegations in this case, and in any future lawsuit it will have a full range of potential defenses, which could result in no compensation for Class Members. This Settlement permits class members the opportunity to obtain money now, without the uncertainty and delay of continued litigation.
If you do not exclude yourself from this Settlement, you will be unable to file your own lawsuit regarding the claims described in this Notice, and you will release WMO from any liability for the Released Claims defined below and in the Settlement. Remaining in the Class means that you, as well as your respective assigns, executors, administrators, successors and agents, will release, resolve, relinquish and discharge each and all of the Released Parties from each of the Released Claims (as defined below). You further agree that you and they will not institute any action or cause of action (in law, in equity or administratively), suits, debts, liens, or claims, known or unknown, fixed or contingent, which you may have or claim to have, in state or federal court, in arbitration, or with any state, federal or local government agency or with any administrative or advisory body, arising from the Released Claims. “Released Claims” means, as of the Effective Date, Plaintiffs and each Settlement Class Member, each on behalf of itself, himself, or herself and on behalf of its, his, or her respective heirs, assigns, beneficiaries, and successors, shall automatically be deemed to have fully and irrevocably released and forever discharged WMO and each of its present and former parents, subsidiaries, divisions, affiliates, predecessors, successors, and assigns providing waste collection, recycling and disposal services in Ohio, and the present and former directors, officers, employees, agents, shareholders, predecessors, successors, and assigns of each of them, of and from any and all liabilities, rights, claims, actions, causes of action, demands, damages, costs, attorneys’ fees, losses, and remedies, whether known or unknown, existing or potential, suspected or unsuspected, liquidated or unliquidated, legal, statutory or equitable, that result from, arise out of, are based upon, or relate to WMO’s contracting and pricing practices, including but not limited to claims related to price increases and charges for fuel and environmental surcharges during the Class Period.
The Settlement Agreement (available here [include hyperlink to settlement agreement]) provides more detail regarding the release and describes the Released Claims with specific descriptions in necessary, accurate legal terminology, so read it carefully. You can talk to the law firms representing the Class for free, or you
can, at your own expense, talk to your own lawyer if you have any questions about the Released Parties or the Released Claims or what they mean.
The release does not apply to Class Members who timely opt out of the Settlement.
EXCLUDING YOURSELF FROM THE SETTLEMENT If you don’t want a payment from this Settlement, and you want to keep the right to sue or continue to sue WMO on your own about the legal issues in this case, then you must take steps to exclude yourself from the Settlement.
9. How do I exclude myself from the Settlement?
To exclude yourself from the Settlement, you must send a letter by mail saying that you want to be excluded from Brown & Szaller, Co., L.P.A., et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. Be sure to include the legal name of the business and its address. You must also include a statement that you wish to be excluded from the Settlement. You must mail your exclusion request postmarked no later
26471336.1
than [DATE], to:
WMO Class Settlement, c/o , [ADDRESS]
26471336.1
If you ask to be excluded, you will not get any Cash Award and you cannot object to the Settlement. You will not be legally bound by anything that happens in this lawsuit. You may be able to sue (or continue to sue) WMO in the future. Although no other person may exclude you from the Settlement Class, nothing prohibits you from obtaining the assistance of another, such as a lawyer or family member, in preparing or submitting any individual exclusion.
THE LAWYERS REPRESENTING YOU
10. Do I have a lawyer in this case?
The Court has appointed Kushner & Hamed Co., LPA and Meyer Wilson Co., LPA as co-lead class counsel to represent you and other Class Members. You will not be charged separately for these lawyers’ services. If you want to be represented by your own lawyer, you may hire one at your own expense.
Additionally, you may enter an appearance through your own attorney if you so desire, but you do not need
to do so.
11. How will the lawyers and class representatives be paid?
Class Counsel will ask the Court to approve payment of up to one-third of the Settlement Fund , plus the costs incurred for investigating the facts, litigating the case, and negotiating the Settlement. Class Counsel will also request an award of $10,000 to each of the two Class Representatives, as compensation for their time and effort. The Court may award less than these amounts. These payments, along with the costs of administering the Settlement, will be made out of the Settlement Fund.
OBJECTING TO THE SETTLEMENT You can tell the Court that you do not agree with the Settlement or some part of it.
12. How do I tell the Court that I do not think the Settlement is fair?
You can tell the Court that you don’t agree with the Settlement or some part of it. If you are a Class Member, you can object to the Settlement if you do not think the Settlement is fair. You can state reasons why you
think the Court should not approve it. The Court will consider your views. To object, you must send or file a written statement with the Court saying that you object to the proposed Settlement in Brown & Szaller, Co., L.P.A. et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. To make a valid objection, you must include:
a. the name of the Action; b. your full name, address, and telephone number;
c. an explanation of the basis upon which you claim to be a Settlement Class member;
d. all grounds for the objection, accompanied by any legal support for the objection known to you or your counsel;
e. the number of times in which you have objected to a class action settlement within the five years preceding the date that you file the objection, and the caption of each
case in which you have made such objection; f. the identity of all counsel who represent you, including any former or current
counsel who may be entitled to compensation for any reason related to the objection;
g. any and all agreements that relate to the objection or the process of objecting – whether written or verbal – between you and/or your counsel and/or any other
person or entity;
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h. the identity of all counsel representing you who will appear at the Final Approval Hearing;
i. a list of all persons who will be called to testify at the Final Approval Hearing in support of the objection;
j. a statement confirming whether you or your counsel intends to personally appear and/or testify at the Final Approval Hearing;
k. your signature (an attorney’s signature is not sufficient); and l. if you are represented by counsel, the signature of your counsel.
Your objection to the Settlement must be filed no later than [DATE]. The objection must be provided as follows to the following:
For Court Filing: Brown & Szaller, Co., L.P.A. et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. Clerk Cuyahoga County Court of Common Pleas Justice Center 1200 Ontario Street Cleveland, OH 44113
By Mail: Matthew R. Wilson MEYER WILSON CO.., LPA 1320 Dublin Road, Suite 100 Columbus, OH 43215 Attorneys for Plaintiff and the Settlement Class James Kress BAKER BOTTS, LLP The Warner, 1299 Pennsylvania Avenue, NW Washington, DC 20004
Attorneys for Defendant
THE FAIRNESS HEARING
13. When and where will the Court decide whether to approve the Settlement?
The Court will hold a hearing to decide whether to approve the Settlement. This Fairness Hearing will be held at on _________, 2020, at the Cuyahoga County Court of Common Pleas, 1200 Ontario Street, Cleveland, OH 44113, Courtroom 19-D. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check the website for updates. At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate, and whether to award attorneys’ fees, expenses, and an incentive award as described above, and in what amounts. If there are objections, the Court will consider them. At or after the hearing, the Court will decide whether to approve the Settlement. We do not know how long it will take the Court to issue its decision. It is not necessary for you to appear at this hearing, but you may attend at your own expense.
14. May I speak at the hearing?
You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that you intend to appear at the Fairness Hearing in Brown & Szaller, Co., L.P.A. et al., v. Waste Management of Ohio, Inc., Case No. CV-16-859588. Be sure to include the full business name and address. Your letter stating your notice of intention to appear must be postmarked no later than [DATE], and be sent
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to the Clerk of the Court, Cuyahoga County Court of Common Pleas, 1200 Ontario Street, Cleveland, Ohio 44113. You cannot speak at the hearing if you exclude yourself.
GETTING MORE INFORMATION
15. How do I get more information?
This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can get a copy of the Settlement Agreement here [hyperlinked to settlement agreement on the website], by writing to: WMO Class Settlement, c/o [ADMIN], [ADDRESS]; or visiting the website at www. WMOClassSettlement.net, where you will also find answers to common questions about the Settlement plus other information to help you determine whether you are a Class Member and whether you are eligible for a payment.
EXHIBIT 2
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
GENERAL DIVISION
BROWN & SZALLER CO., L.P.A., et al., ) CASE NO. CV-16-859588
)Plaintiffs, ) JUDGE DANIEL GAUL
)v.
) STIPULATED UNDERTAKING RE:
WASTE MANAGEMENT OF OHIO, INC. ) ATTORNEYS' FEES AND COSTS IN
) CONNECTION WITH PROPOSED
) CLASS ACTION SETTLEMENTDefendant.
Plaintiffs Brown & Szaller Co., LPA and Gebcon, Ltd. (collectively "Plaintiffs") and
Defendant Waste Management ofOhio, inc. ("WMO") (collectively "the Parties"), by and through
their undersigned counsel, stipulate and agree as follows:
WHEREAS, the undersigned Class Counsel desire to give an undertaking for repayment
of their award of attorneys' fees and costs ("Undertaking");
STIPULATION
NOW, THEREFORE, each counsel of record for Plaintiffs' and Class Counsel, onI.
behalf of himself or herself as individuals and as agents for his or her respective law firm, hereby
submits himself or herself and his or her respective law firm (collectively, "Obligors") to the
jurisdiction of the Court for the purpose ofenforcing the provisions of this Undertaking.
2. Capitalized terms used herein without definition have the meanings given to them
in the Settlement Agreement.
3. In the event that the Final Approval Order is reversed or modified on appeal, in
whole or in part, the Obligors shall, within ten (10) business days after the order vacating or
modifying the Final Approval Order becomes final, repay to the Escrow Account, or any of its
successors or assigns, the attorneys' fees and costs paid from WMO, the Settlement Fund, or the
Escrow Fund, to Class Counsel and or the Obligors in the amount vacated or modified (the
"Obligation"). Each Obligor shall be jointly and severally liable for the Obligation. In the event
that the Agreement is terminated, the Obligors shall owe the Obligation directly to WMO or its
successors or assigns.
4. This Undertaking and all obligations set forth herein shall expire upon the Effective
Date.
5. Each undersigned Obligor stipulates, warrants, and represents that he or she has
both actual and apparent authority to enter into this stipulation, agreement, and undertaking on
behalf of his or her respective law firms.
6. This Undertaking may be executed in one or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the same instrument.
Signatures by facsimile shall be as effective as original signatures.
The undersigned declare under penalty of perjury under the laws of the State of Ohio and
the United States and pursuant to their duty of candor to this Court that they have read and
understand the foregoing and that it is true and correct.
IT IS SO STIPULATED BY COUNSEL OF RECORD:
AGREED TO BY UNDERSIGNED:
DATED: 1Z . 2020 KUSHNER & HAMED CO., LPA
VvBy: Phi Kg S. Kushner
: Jq*V 22, 2020DATED: M /LLSON, 'A
: Matthew Wilson
DATED : , U. , 2020 Philip S. Kushner
up \p/iDATED: «-_,2020 Michael R. Hai
it-
: Jq-v/l . 2020 Matthew R. WiisonDATED:
Michael J. BoyfeJ/ 'DATED: 22-- 2020
ACKNOWLEDGED BY COUNSEL FOR DEFENDANT
WASTE MANAGEMENT OF OHIO, INC:
January 22DATED: BAKER BOTTS, LLP. , 2020
Jiwnes G Kress