FURLONG et al v. USA, No. 1:2009cv00367 - Document 155 (Fed. Cl. 2017)
Court Description: REPORTED OPINION granting 144 Motion for Preliminary Approval of Proposed Settlement Agreement, Approval of Notice to Class Members, and to Set Fairness Hearing. Notice of Compliance due 6/1/2017. Fairness hearing set for 6/13/2017 at 11:00 a.m. EDT. Signed by Judge Margaret M. Sweeney. (Attachments: # 1 Approved Notice) (pp) Copy to parties.
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FURLONG et al v. USA Doc. 155 Att. 1 UNITED STATES COURT OF FEDERAL CLAIMS Notice of Proposed Final Settlement of Class Action Against the United States A Court authorized this notice. This is not a solicitation from a lawyer. Your legal rights are affected whether you act or don’t act. Read this notice carefully. I. INTRODUCTION. You are receiving this notice because our records show that you are a member of a plaintiff class that the United States Court of Federal Claims certified in a class action lawsuit that was filed in 2009. Plaintiffs in that lawsuit, captioned Furlong et al. v. United States, No. 09-367 L (Fed. Cl.), sought just compensation from the United States based on allegations that the federal Surface Transportation Board’s issuance of a Notice of Interim Trail Use on a 9.14-mile railroad corridor in Albany County, New York, interfered with property interests recognized under New York state law. Plaintiffs allege that this interference constitutes a taking of private property for public use, requiring compensation in accordance with the Fifth Amendment to the United States Constitution. The Defendant in this action, the United States of America, denies that the named Plaintiffs and class members are entitled to compensation for a Fifth Amendment taking. At this time, the Plaintiff class representatives and the United States propose settling this matter. Under the terms of the proposed settlement, which must be approved by the Court, the United States agrees to pay to the Plaintiffs the total sum of $13,988,929.28, plus interest accruing after April 7, 2017. This amount consists of $6,489,084.21 in principal for the value of the property interests allegedly taken, $5,795,743.34 in interest through April 7, 2017, and $1,704,101.73 for reimbursement of attorneys’ fees and costs pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654(c) (“URA”). The $1,704,101.73 for statutory fees and costs has been allocated among attorneys’ fees of $1,299,060.20 and reimbursement for reasonable costs and expenses of $405,041.53. Your allocated share of that total settlement amount is shown on the attached financial disclosure form. In exchange for the payments to be made by the United States as specified herein, Plaintiffs agree that this settlement constitutes a full, complete, and final resolution of any and all of the Class’s claims against the United States, legal or equitable, and stipulate to a voluntary dismissal of this action, with prejudice to re-filing. The proposed settlement described herein was reached through a process in which Class Counsel and the United States, each retained an independent expert appraiser who appraised the value of certain parcels allegedly taken as of July 8, 2003. Each appraiser placed similar properties into groups and then appraised a representative parcel. The appraised value for that representative parcel was then used to calculate a settlement value for each claim within the group. Adjustments were made from the base appraised value to individual properties as needed due to any unique characteristics that existed. After each appraiser submitted their result, Class Counsel and the class representative and the United States negotiated a settlement amount that provides compensation 1 Dockets.Justia.com to all class members. To eliminate the time, costs, and risks associated with additional litigation, Class Counsel negotiated this proposed settlement on behalf of the Class, which substitutes the certainty of an immediate cash payment to the members of the Class for the uncertainties additional litigation poses. Class Counsel believes that the proposed settlement is fair, reasonable, and in the best interest of all members of the Class. You may request additional information regarding the proposed settlement from Class Counsel, including: a copy of the representative appraisal and/or the one-page summary report applicable to the claims of class members, a spreadsheet identifying the properties in each appraisal group and the class member’s property and showing how the value of each property in that group was extrapolated or derived from the appraisal of the representative parcels, and a copy of the Parties’ filings to the Court regarding approval of this settlement. If, after a fairness hearing, the proposed settlement is approved by the Court, as soon as the proceedings are final the United States Department of Justice will submit the settlement to the United States Department of the Treasury for payment from the Judgment Fund. The Department of the Treasury requires each member of the Class who is to receive a portion of the total settlement to provide their Social Security Number or Federal Tax Identification Number prior to processing payment, so that the Department of the Treasury may fulfill its statutory obligations under the Debt Collection Improvement Act of 1996 (31 U.S.C. § 3325(d)). If you have questions regarding this requirement, visit https://www.fiscal.treasury.gov/fsservices/gov/pmt/jdgFund/judgementFund_home.htm (last updated November 1, 2016). This information is requested on the form that is attached to this Notice, and should be provided if you have not already done so. II. CLASS MEMBERSHIP. In 2013, potentially eligible persons were given notice of the certified class action and were offered the opportunity to opt-in to the class. All of those who opted to join this certified class action were provided notice that they would be bound to the terms of any judgment or any settlement the Court may approve. As a class member, you are entitled to comment on or object to the terms of the proposed settlement, and participate in a hearing with the Court, before the Court determines whether to approve the proposed settlement. If the Court approves the settlement described in this notice, the terms of the settlement are intended to bind all class members. III. H EARING AND COMME NT S. You have a right to enter an appearance in this case through an attorney other than Class Counsel if you so desire. The Court of Federal Claims will hold a public hearing to determine whether to approve the proposed settlement of this class action. Members of the class, as well as members of the public, are invited to attend and participate in person or by telephone, in a public hearing on Tuesday, June 13, 2017 at 11:00 a.m. EDT before the Honorable Margaret M. Sweeney, United States Court of Federal Claims Judge. The hearing shall be held telephonically, with Class Counsel present at a location that is convenient to class members who wish to participate in person. Call-in information shall be provided to participating members of the Class in advance of the hearing. At this hearing, Class Counsel will ask the Court to approve the proposed settlement. Any member of the class who would like an opportunity to comment on the proposed settlement or Class Counsel’s motion for an award of attorney’s fees at the hearing must advise the Court in writing at the address listed below by 2 May 22, 2017. Only those class members who have provided timely written notice of their intention to address the Court will be permitted to present any comments or objections regarding the proposed settlement at the hearing, which is open to the public. Written notice stating your intent to object to, approve of, or otherwise comment on the proposed settlement should be sent to the following address (or by facsimile to (314) 899-2925): Furlong Hearing Notice c/o Steven M. Wald Stewart, Wald & McCulley 12747 Olive Boulevard, Suite 280 St. Louis, Missouri 63141 IV. ATTORNEY’S FEES. A federal law known as the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4654(a) (“URA”), provides for reimbursement of reasonable attorneys’ fees and costs in this case. Class counsel and counsel for the United States have negotiated the amount of attorneys’ fees and costs that will be reimbursed under this law. The proposed settlement includes a payment of $1,704,101.73 under the URA. This sum includes $1,299,060.20 in attorneys’ fees and $405,041.53 in costs. Because the costs incurred in this action were paid directly by Class Counsel, the $405,041.53 in reimbursable costs to be paid by the United States will be retained by Class Counsel. Your legal rights are affected whether you act or do not act. Read this notice carefully. If you do not take the opportunity to object to the proposed settlement either in writing or during the forthcoming hearing, you may be deemed to have waived your right to later object and to appeal from any court order approving the settlement and/or from any judgment that may be entered in this case. You may obtain a copy of the Parti es ’ fil in gs by requesting a copy from Class Counsel. These requests may be made by calling Class Counsel at 1-314-720-0220 or sending an email to Class Counsel at wald@swm.legal. Please do not contact the United States Court of Federal Claims with questions or requests for information. 3 IN THE UNITED STATES COURT OF FEDERAL CLAIMS JOHN P. FURLONG and LAUREN B. PEARCE, husband and wife, et al., Individually, For Themselves and As Representatives of a Class of Similarly Situated Persons, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 09-367 L Judge Margaret M. Sweeney INDIVIDUAL CLASS MEMBER’S SETTLEMENT DISCLOSURE STATEMENT To: [name and address of individual class member to be inserted here] This Disclosure Statement contains information to help you understand the rights and benefits you would be entitled to under the proposed Settlement of this Class Action Lawsuit. Your total land value plus interest — $ Your total land value was determined through a settlement process that used an appraisal of your property or property deemed to be sufficiently similar to your property. It was calculated by multiplying your total square footage or acreage within the right-of-way by the per square foot dollar amount specific to your parcel of land. Your total interest — $ You are entitled to the total property value plus interest. This figure reflects an estimate of interest on your compensation for the property. The interest will be recalculated based on the actual date of payment and may be slightly higher than the amount listed here. Your total statutory attorneys’ fees — $ By statute, you are entitled to recover reasonable attorney’s fees. This figure reflects your share of the attorney’s fees for Class Counsel under the relevant statute. If you have a separate fee agreement with Class Counsel, your actual attorney’s fees are determined by that agreement. If you do not have a separate fee agreement with Class Counsel, your actual attorney’s fees are the statutory attorney’s fees shown above. In either case, you will be reimbursed for your attorney’s fees up to the statutory amount. Your total recovery is determined by adding your total land value and your total interest, and then deducting the excess, if any, of your actual attorney’s fees over your statutory attorney’s fees reimbursement. Please contact Class Counsel if you have questions about your attorney’s fees or your total recovery amount. Please do not contact the United States Court of Federal Claims with questions or requests for information. 5 If not previously provided, please provide your Social Security No. or Federal Tax Identification No. (SSN/TIN) (you must provide this information in order to receive payment): Class Member SSN/TIN (named above): Co-Owner (print name & SSN/TIN): B. COMMENTS / OBJECTIONS ON THE PROPOSED SETTLEMENT *: C. REQUEST TO SPEAK AT PUBLIC HEARING. If you are a class member, and only if you expressed your objection, approval, or other comments on the proposed settlement in Section A of this form, you may (but are not required to) request to speak at the public hearing at which the Court will consider whether to approve the settlement. You may attend the hearing in person or you may participate by telephone. You do not need to speak at the hearing to remain in the class or to have the Court consider your written commentary. ____ I wish to speak at the hearing __ in person / __ by telephone. Please fax, email or mail this form by May 22, 2017 to: Furlong Hearing Notice c/o Mr. Steven M. Wald Stewart, Wald & McCulley 12747 Olive Boulevard, Suite 280 St. Louis, Missouri 63141 Facsimile: (314) 899-2925 wald@swm.legal *If you do not intend to appear at the hearing to state your objections on the record, you must submit specific objections in writing, or risk waiving those objections for the purposes of an appeal. Attach additional sheets setting forth your comments/objections if needed. 7
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