MACOMB RETAIL CENTER, LLC v. CITY OF ROSEVILLE

Case No. 19-5299-CZ

State of Michigan Macomb County Circuit Court

Frequently Asked Questions

  1. What does the settlement provide?

    For the purposes of the proposed Settlement, the City expressly denies any and all allegations that it acted improperly, but, to avoid litigation costs, the City has agreed to create a settlement fund in the aggregate amount of Two Million Four Hundred Thousand Dollars ($2,400,000) for the benefit of the Class (the “Settlement Amount”). The Settlement Amount will be utilized, with Court approval, to pay refunds or provide credits to the Class, and to pay Class Counsel an award of attorneys’ fees, the total amount of which shall not exceed 33% of the Settlement Amount, and expenses for the conduct of the litigation.

    The “Net Settlement Fund” is the Settlement Fund less the combined total of: (a) attorneys’ fees and any incentive award to the Class representative awarded by the Court; and (b) Class Counsel and Claims-Escrow Administrator expenses reimbursed pursuant to the Settlement Agreement. The Net Settlement Fund shall be used to compensate Class Members as described below.

    Each Class Member’s share in the Net Settlement Fund shall be referred to herein as his, her or its “Pro Rata Share,” and each Class Member’s Pro Rata Share of the Net Settlement Fund will be distributed via a refund payment or credit.

  2. How can I get a cash refund?

    All Class Members may participate in the Settlement by receiving from the Net Settlement Fund a cash distribution Payment or Credit (as defined in Paragraph 10 of the Settlement Agreement). To qualify to receive a distribution of cash via check (a “Payment”) from the Net Settlement Fund, Class Members are required to submit sworn claims (the “Claims”) which identify their names, addresses, and the periods of time in which they paid the Stormwater Charges in order to participate in the Settlement. Class Members who submit Claims will hereafter be referred to as the “Claiming Class Members.” The Claiming Class Members are required to submit those claims no later than 60 days prior to the hearing on the final approval of this settlement, as described in Paragraph 25 of the Settlement Agreement (the “Claims Period”).

  3. What if I don’t apply for a cash refund?

    If you do not file a Claim and do not request to be excluded from the Class, you will receive a credit on your water and sewer billing account in the amount of your Pro Rata Share. The credit will be in the same amount you would have received as a cash refund if you had filed a Claim.

  4. How will the payments be calculated?

    The Claims-Escrow Administrator shall calculate each Class Member’s pro rata share of the Net Settlement Fund (the “Pro Rata Share”). Only those Class Members who paid Stormwater Charges during the Class Period and submit a timely Claim are entitled to distribution by a cash Payment of a Pro Rata Share of the Net Settlement Fund. The Pro Rata Shares of the Net Settlement Fund for Class Members who/which do not submit a timely claim will be distributed by the City funding and providing Credits on the water and/or sewer service accounts associated with the Stormwater Charges in the amount of those Class Members’ Pro Rata Shares. Any Credit will attach to the water and sewer account associated with the Stormwater Charges and will remain until the Stormwater Charges accrued by that account after the Settlement Date exceed the amount of the Credit. The City shall apply the Credits as of the Settlement Date. For this reason, it is very important for any Class Member who paid Stormwater Charges but does not have a water and sewer billing account to submit a Claim. If a Class Member does not have a water and sewer billing account, it will not be possible for the City to apply any credit. The only way for Class Members without water and sewer billing accounts to receive a portion of the Net Settlement Fund is for them to file Claims.

    The size of each Class Member’s Pro Rata Share shall be determined by (1) calculating the total amount of Charges the Class Member paid during the Class Period and then (2) dividing that number by the total amount of Charges the City collected from Class Members during the Class Period and then (3) multiplying that fraction by the amount of the Net Settlement Fund.

    The City may not levy a tax or other assessment against property owners or water and/or sewer customers to finance, in whole or in part, the Settlement Fund (unless such tax or assessment receives voter approval), nor may the City increase its water and sewer rates to finance, in whole or in part, the Settlement Fund. The Settlement Fund shall be financed solely from current assets of the City’s Water and Sewer Fund, the General Fund, credits and/or other available funds.

  5. How do I exclude myself from the Settlement?

    Class Members who wish to exclude themselves from the Settlement may write to the Administrator, stating that they do not wish to participate in the Settlement and that they wish to retain their right to file an action against the City. This proposed settlement should not be interpreted, in any way, as suggesting that the claims alleged against the City have legal or factual merit. The City has challenged the validity of Plaintiffs’ claims. This request for exclusion must be postmarked no later than October 7, 2021 and mailed to: Kickham Hanley PLLC, 32121 Woodward Avenue, Suite 300, Royal Oak, Michigan 48073 or emailed to khtemp@kickhamhanley.com.

    By remaining a Class Member, you will be bound by the terms of the proposed settlement and will be barred from bringing a separate action against the City for the claims asserted in the Lawsuit at your own expense through your own attorney. You will, however, receive your pro rata share of the Net Settlement Fund via a Refund or Credit. Again, however, where a Class Member does not have a water and sewer billing account, it will not be possible for the City to apply any credit. The only way for Class Members without water and sewer billing accounts to receive a portion of the Net Settlement Fund is for them to file Claims.

    If you were to successfully pursue such a separate action to conclusion, recovery might be available to you which is not available in this class action settlement. Whether to remain a member of this class or to request exclusion from this class action to attempt to pursue a separate action at your own expense without the assistance of the City in this Action is a question you should ask your own attorney. Class Counsel cannot and will not advise you on this issue.

  6. When and where will the Court decide whether to approve the Settlement?

    Pursuant to the Order of the Court dated July 20, 2021, a Settlement Hearing will be held in the Macomb County Circuit Court, 40 N. Main Street, Mt. Clemens, MI 48043 at 8:30 a.m. on December 6, 2021, to determine whether the proposed Settlement as set forth in the Settlement Agreement dated July 20, 2021, is fair, reasonable, and adequate and should be approved by the Court, whether the Lawsuit should be dismissed pursuant to the Settlement, whether counsel for Plaintiffs and the Class should be awarded fees and expenses, and whether the Class Representatives should receive an incentive award.

  7. Do I have to come to the hearing?

    No. You are not required to attend the hearing.

  8. Can I speak at the hearing?

    At the Settlement Hearing, any member of the Class may appear in person or through counsel and be heard to the extent allowed by the Court in support of, or in opposition to, the fairness, reasonableness and adequacy of the proposed Settlement. However, no Class member will be heard in opposition to the proposed Settlement and no papers or briefs submitted by any such Class member will be accepted or considered by the Court unless on or before October 7, 2021, such Class member serves written objections by first class mail.

  9. How can I object to the Settlement?

    On or before October 7, 2021, written objections must be served by first class mail. Written objections must set forth the name of this matter as defined in the Notice, the objector’s full name, address and telephone number, an explanation of the basis upon which the objector claims to be a Class Member, all grounds for the objection including any known legal support for the objection, the number of times in which the objector has objected to a class action settlement in the past five years and a caption of each case in which an objection was filed, the identity of all counsel representing the objector at the hearing, a statement confirming whether the objector intends to appear and/or testify at the hearing (along with a disclosure of all testifying witnesses) and the signature of the objector (not just the objector’s attorney) upon each of the following attorneys:

    Gregory D. Hanley
    Kickham Hanley PLLC Clark Hill PLC
    300 Balmoral Centre
    32121 Woodward Avenue
    Royal Oak, Michigan 48073
    Counsel for Plaintiffs

    Joseph W. Colaianne
    Clark Hill PLC
    212 E Grand River Ave
    Lansing, MI 48906-4328

    Counsel for Defendant

    and has filed said notice, objections, papers and briefs, as to the settlement with the Clerk of the Macomb County Circuit Court. Any Class member who does not make and serve written objections in the manner provided above shall be deemed to have waived such objections and shall be forever foreclosed from making any objections (by appeal or otherwise) to the proposed Settlement.

    For a more detailed statement of the matters involved in the Lawsuit, including the terms of the proposed Settlement, you are referred to papers on file in the Lawsuit, which may be inspected during regular business hours at the Office of the Clerk of Circuit Court for Macomb County, Michigan. You may also view the Settlement Agreement and other important court documents at www.kickhamhanley.com.

  10. What if I do nothing?

    On the Settlement Date, each Class Member who has not timely requested exclusion therefrom shall be deemed to have individually executed, on behalf of the Class Member and his or her heirs, successors and assigns, if any, the following Release and Covenant Not To Sue, and the Final Order and Judgment to be entered by the Court in connection with the approval of this Settlement shall so provide:

    In executing the Release and Covenant Not To Sue, each Class Member, on behalf of himself, herself or itself, and his, her or its parents, subsidiaries, affiliates, members, shareholders, predecessors, heirs, administrators, officers, directors, successors, assigns, and any person the Class Member represents, intending to be legally bound hereby, for good and valuable consideration, the receipt of which is hereby acknowledged, hereby absolutely, fully and forever releases, relieves, remises and discharges the City, and each of its successors and assigns, present and former agents, representatives, employees, insurers, affiliated entities, attorneys and administrators, of and from any and all manner of actions, causes of action, suits, debts, accounts, understandings, contracts, agreements, controversies, judgments, consequential damages, compensatory damages, punitive damages, claims, liabilities, and demands of any kind or nature whatsoever, known or unknown, which arise from the beginning of time through the date of this Final Order and Judgment concerning (1) the City’s calculation or assessment of the Stormwater Charges; (2) the components of costs included in the Stormwater Charges; and/or (3) the City’s efforts to charge and/or collect Stormwater Charges. In executing the Release and Covenant Not to Sue, each Class Member also covenants that: (a) except for actions or suits based upon breaches of the terms of this Agreement or to enforce rights provided for in this Agreement, he, she or it will refrain from commencing any action or suit, or prosecuting any pending action or suit, in law or in equity, against the City on account of any action or cause of action released hereby; (b) none of the claims released under the Release and Covenant Not To Sue has been assigned to any other party; and (c) he, she or it accepts and assumes the risk that if any fact or circumstance is found, suspected, or claimed hereinafter to be other than or different from the facts or circumstances now believed to be true, the Release and Covenant Not To Sue shall be and remain effective notwithstanding any such difference in any such facts or circumstances.

    If you have a current water and sewer billing account, you will receive a credit on that account in the amount of your Pro Rata Share.

  11. Where can I get more information?

    Should you have any questions with respect to this Notice of the proposed settlement of the Lawsuit generally, you should raise them with your own attorney or direct them to counsel for the Class, IN WRITING OR BY EMAIL TO KHTEMP@KICKHAMHANLEY.COM, NOT BY TELEPHONE, identified as Attorneys for Plaintiffs, above.

    You may also contact the third party administrator by email or mail:

    Email: Info@RosevilleStormwaterSettlement.com

    Mail: City of Roseville Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103

    DO NOT CONTACT THE COURT, THE CLERK OF THE COURT, THE DEFENDANT OR THE ATTORNEYS FOR DEFENDANT.