Case 1:11-cv NGG-MDG Document 153 Filed 07/22/16 Page 1 of 2 PageID #: 2064 : : : : : :

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1 Case 111-cv NGG-MDG Document 153 Filed 07/22/16 Page 1 of 2 PageID # 2064 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X LOCKMAN, INC., individually and on behalf of all others similarly situated, Plaintiff, v. THE CITY OF NEW YORK, ACTING THROUGH THE TRAFFIC CONTROL DIVISION OF THE NEW YORK CITY POLICE DEPARTMENT AND THE NEW YORK CITY DEPARTMENT OF FINANCE; STEPHEN GOLDSMITH; DAVID M. FRANKEL; JAMES TULLER; HARRY J. WEDIN; AND JOHN AND JANE DOES 1-10, all in their official capacities, Defendants X Civil Action No. 11-cv (NGG-MG) NOTICE OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT PLEASE TAKE NOTICE, that upon the accompanying Memorandum of Law in Support of Plaintiff Lockman, Inc. s Motion for Final Approval of Class Action Settlement dated July 22, 2016, and the exhibits annexed thereto, and all prior pleadings had herein, Plaintiff Lockman Inc. hereby moves pursuant to Rule 23 of the Federal Rules of Civil Procedure for an order granting final approval to the Parties settlement, granting final certification to the

2 Case 111-cv NGG-MDG Document 153 Filed 07/22/16 Page 2 of 2 PageID # 2065 proposed settlement class, and approving and ordering the distribution of the settlement funds. Dated July 22, 2016 Respectfully submitted, /s/ Oren Giskan Oren Giskan Raymond Audain GISKAN SOLOTAROFF & ANDERSON LLP 11 Broadway Suite 2150 New York, NY Telephone (626) Facsimile (646) ogiskan@gslawny.com raudain@gslawny.com Kenneth A. Jacobsen JACOBSEN LAW OFFICES LLC 5 East Rose Valley Road Wallingford, PA Telephone (610) Jacobsenlaw@AOL.com Michael J. Boni BONI & ZACK LLC 15 St. Asaphs Road Bala Cynwyd, PA Telephone (610) Facsimile (610) mboni@bonizack.com Julia H. Lowenfeld THE LOWENFELD LAW FIRM, PC 1706 Sheepshead Bay Road Brooklyn, New York Telephone (718) Facsimile (718) Julialowenfeld@yahoo.com Attorneys for Plaintiff Lockman, Inc. and the Proposed Class

3 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 1 of 28 PageID # 2066 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X LOCKMAN, INC., individually and on behalf of all others similarly situated, Plaintiff, v. THE CITY OF NEW YORK, ACTING THROUGH THE TRAFFIC CONTROL DIVISION OF THE NEW YORK CITY POLICE DEPARTMENT AND THE NEW YORK CITY DEPARTMENT OF FINANCE; STEPHEN GOLDSMITH; DAVID M. FRANKEL; JAMES TULLER; HARRY J. WEDIN; AND JOHN AND JANE DOES 1-10, all in their official capacities, Defendants X Civil Action No. 11-cv (NGG-MG) MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF LOCKMAN, INC. S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

4 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 2 of 28 PageID # 2067 TABLE OF CONTENTS INTRODUCTION...1 PRELIMINARY STATEMENT BACKGROUND OF LITIGATION & SUMMARY OF SETTLEMENT FACTAL BACKGROUND ARGUMENT...4 I. NOTICE TO THE CLASS WAS ADEQUATE UNDER RULE 23 4 II. THE PROPOSED SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE AND SHOULD BE APPROVED IN ALL RESPECTS 6 A. The Settlement is Procedurally Fair B. The Settlement is Substantively Fair...8 i. Litigation Through Trial Would be Complex, Costly, and Long...8 ii. The Reaction of The Class Supports Final Approval...9 iii. Discovery has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly...10 iv. Plaintiff Would Face Substantial Risk of Establishing Liability if the Case Were to Proceed..11 v. Risk of Establishing Damages.12 vi. Maintaining the Class Through Trial Would not be Simple vii. Defendants Presumptive Ability to Withstand a Greater Judgment Does not Detract from Fairness of the Settlement..12 viii. The Settlement Fund is Substantial, Given the Best Possible Recovery and the Attendant Risks of Litigation C. The Plan of Allocation is Fair, Reasonable and Adequate 13 III. CERTIFICATION OF THE SETTLEMENT IS APPROPRIATE.14 A. The Requirements of Rule 23(a) Are Satisfied..14 i. The Class is Sufficiently Numerous..14 ii. Questions of Law Or Fact Are Common To The Class 14 iii. Plaintiff s Claims Are Typical Of The Class...16 iv. Plaintiff Will Fairly and Adequately Protect the Class s Interests...17 B. Plaintiff Has Satisfied the Requirements of Rule 23(b)(3)...18 i. Common Questions of Law or Fact Predominate As To Plaintiff s Claims...18 ii. A Class Action Is The Superior And Most Efficient Method For Adjudicating This Action.20 CONCLUSION 21 ii

5 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 3 of 28 PageID # 2068 TABLE OF AUTHORITES CASES...PAGE(S) In re Am. Bank Note Holographics, Inc., 127 F. Supp. 2d 418 (S.D.N.Y. 2001)...9 Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct (2013) AOL Time Warner ERISA Litig., 2006 U.S. Dist. LEXIS (S.D.N.Y. Sept. 27, 2006) Attenborough v. Const. & Gen. Bldg. Laborers Local, 238 F.R.D. 82 (S.D.N.Y. 2006) Austrian & German Bank Holocaust Litig., F. Supp. 2d 164 (S.D.N.Y. 2000)...8 In re Bear Stearns Cos., 909 F. Supp. 2d (S.D.N.Y. 2012) Brecher v. Citigroup Inc., 2014 U.S. Dist. LEXIS (S.D.N.Y. May 20, 2014) Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010) Castagna v. Madison Square Garden, L.P., 2011 U.S. Dist. LEXIS (S.D.N.Y. June 7, 2011) Clark v. Ecolab Inc., 2010 U.S. Dist. LEXIS (S.D.N.Y. May 11, 2010)...6 Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) D Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001)... 6, 8 Daniels v. City of N.Y., 198 F.R.D. 409 (S.D.N.Y. 2001) iii

6 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 4 of 28 PageID # 2069 David v. Showtime/Movie Channel, Inc., 697 F. Supp. 752 (S.D.N.Y. 1988) DeMarco v. Nat'l Collector's Mint, Inc., 229 F.R.D. 73 (S.D.N.Y. 2005) Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974)... 6, 8 Dodge v. Cty of Orange, 208 F.R.D. 79 (S.D.N.Y. 2002) Ebbert v. Nassau Cty., 2011 U.S. Dist. LEXIS (E.D.N.Y. Dec. 22, 2011) EVCI Career Colls. Holding Corp. Sec. Litig., 2007 U.S. Dist. LEXIS (S.D.N.Y. July 27, 2007)...7 Facebook, Inc. IPO Sec. & Derivative Litig., 2015 U.S. Dist. LEXIS (S.D.N.Y. Nov. 9, 2015) Foti v. NCO Financial Systems, Inc., 2008 U.S. Dist. LEXIS (E.D.N.Y. Feb. 20, 2008)...8 Global Crossing Sec. & Erisa Litig., 225 F.R.D. 436 (S.D.N.Y. 2004)...8 Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000)....6 Ira Haupt & Co., 304 F. Supp. 917 (S.D.N.Y. 1969) Joint E. & S. Distr. Asbestos Litig., 78 F.3d 764 (2d Cir. 1996) Karic v. Major Auto. Cos., 2016 U.S. Dist. LEXIS (E.D.N.Y. Apr. 27, 2016) Krueger v. N.Y. Tel. Co., 163 F.R.D. 433 (S.D.N.Y. 1995) Luxottica Group S.P.A. Secs. Litig., 233 F.R.D. 306 (E.D.N.Y. 2006)...6 iv

7 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 5 of 28 PageID # 2070 Marisol A. by Forbes v. Giuliani, 126 F.3d 372 (2d Cir. 1997)... 16, 17 McMahon v. Olivier Cheng Catering & Events, 2010 U.S. Dist. LEXIS (S.D.N.Y. Mar. 3, 2010)...6 Nassau Cnty. Strip Search Cases, 461 F.3d 219 (2d Cir. 2006)... 18, 19 Nigeria Charter Flights Contract Litig., 233 F.R.D. 297 (E.D.N.Y. 2006) PaineWebber Ltd. P ships Litig., 147 F.3d 132 (2d Cir. 1998)...6 Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) Ross v. A.H. Robbins Co., 100 F.R.D. 5 (S.D.N.Y. 1982)... 10, 17 Seijas v. Republic of Arg., 606 F.3d 53 (2d Cir. 2010) Spann v. AOL Time Warner, Inc., 2005 U.S. Dist. LEXIS (S.D.N.Y. June 7, 2005)...6 Stinson v. City of N.Y., 282 F.R.D. 360 (S.D.N.Y. 2012) U.S. Foodserv. Pricing Litig., 729 F.3d 108 (2d Cir. 2013) Velez v. Majik Cleaning Serv. Inc U.S. Dist. LEXIS (S.D.N.Y. June 22, 2007) Visa Check/ MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001) Vitamin C Antitrust Litig., 279 F.R.D. 90 (E.D.N.Y. 2012) United States v. New York, 2014 U.S. Dist. LEXIS (E.D.N.Y. March 17, 2014)...4 v

8 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 6 of 28 PageID # 2071 Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96 (2d Cir. 2005)... 6, 7 Warfarin Sodium Antitrust Litig. 391 F.3d 516 (3d Cir. 2004) STATUTES, RULES & PUBLICATIONS...PAGE(S) Fed. R. Civ. P Passim Article I 6-7 of the New York State Constitution...2 Herbert Newberg et al., Newberg on Class Actions 1141 (4 th ed. 2002)...7 J. Moore et al., Moore s Federal Practice - Civil 23.46[1] vi

9 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 7 of 28 PageID # 2072 Intervenor-Plaintiff Lockman Inc. ( Plaintiff ), on behalf of itself and all others similarly situated, submits this memorandum of law in support of its motion for final approval of the settlement of this Action (the Settlement ) as against Defendants the City of New York ( City ), acting through the Traffic Control Division of the New York City Police Department and the New York City Department of Finance, Stephen Goldsmith, David M. Frankel, James Tuller, Harry J. Wedin, and John and Jane Does 1-10 (collectively, Defendants ). PRELIMINARY STATEMENT After more than five years of hard fought litigation, the Parties have reached a classwide settlement which, by any standard, is an outstanding result for the Class. Defendants have agreed to pay $14 million to resolve all claims alleged in this case arising out of what Plaintiff contends was the unlawful operation of the Stipulated Fine Program (the Program ), described more fully below. This amount represents a substantial return to the Class. Equally significant is that Class Counsel eliminated any claims process. Since the Parties have reliable data from which to calculate damages to each Class member, checks will be mailed directly to eligible Class members. Those provisions distinguish this settlement from many others where cumbersome claims procedures reduce participation in the settlement fund by deterring claims. The reaction of the Class has been as good as it could possibly be. Not a single member of the Class has objected or opted out of the settlement. 1 1 Nor have there been any objections to Class Counsel s separate Motion for an Award of Attorneys Fees and Reimbursement of Litigation Expenses, filed June 14, 2016 and posted on the case website that same day. (ECF No. 152). 1

10 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 8 of 28 PageID # 2073 BACKGROUND OF LITIGATION AND SUMMARY OF SETTLEMENT In September 2014, Lockman filed its Class Action Complaint in Intervention against the Defendants. 2 Lockman alleges that Defendants perpetrated an illegal and protracted scheme to issue unlawful traffic tickets and, as a result, collected millions of dollars in ticket fines from Class members to which the City was not entitled. Lockman asserts claims pursuant to 42 U.S.C for violations of the Fourth and Fourteenth Amendments to the United States Constitution, claims under Article I 6-7 of the New York State Constitution, a claim for declaratory judgment, and other relief. In settlement of all claims alleged in the lawsuit, Defendants have agreed to pay $14 million into a fund (the Settlement Fund ). The Settlement Fund will be paid to Class members after the deduction of claims administration and notice costs, any Court-approved service award to Plaintiff Lockman and any Court-approved attorneys fees and expenses (the Net Settlement Fund ). The Net Settlement Fund will be allocated pro rata to members of the Class based on the number of Traffic Lane tickets paid by the Class member during the Class Period. As indicated above, there will be no claims process. Participating Class members will be sent checks directly reflecting their share of the Net Settlement Fund. By any measure, this is an outstanding result. 3 On April 14, 2016, the Court issued an Order preliminarily certifying a class for settlement purposes, appointing Class Counsel, directing the issuance of notice to the Class and 2 This case was originally filed on April 14, 2011, on behalf of the New York Trucking and Delivery Association ( NYTDA ). In August 2013, the Court ruled that NYTDA did not have standing to serve as a class representative, so Lockman intervened. All fact investigation and formal discovery conducted both before and after Lockman s intervention as well as motions to dismiss for failure to state a claim and other motions based on alleged Class member waivers in the Program documents were made on a classwide basis. 3 In addition to the payment of $14 million, the City will also void all unpaid tickets issued during the Class Period providing an additional benefit of approximately $580,000 to the Class. 2

11 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 9 of 28 PageID # 2074 scheduling a fairness hearing on August 5, (ECF Doc. 149.) The Court conditionally certified the following Class for settlement purposes (Id. at 3.) All or any commercial delivery company(ies), commercial vehicle owners/operator(s), commercial service company(ies) and other persons and entities who owned and/or operated New York State registered commercial vehicles and who, during the period June 1, 2006, through October 31, 2010 (the Class Period ), participated in the City s Stipulated Fine Program and who during the Class Period received a ticket for a traffic lane violation indicated as Code 45 on the face of the ticket, and paid the associated fine of $40 per ticket on or before February 8, In accordance with the April 14, 2016, Preliminary Approval Order, on May 13, 2016, 1,069 Notices were disseminated by mail and 950 were disseminated by to members of the Class as identified by the City and verified independently by Class Counsel against data collected during the course of the litigation. The Notice was also posted on the website lockmanclassactionsettlement.com/documents/nlo0001/nlo_not_ pdf maintained by the Claims Administrator, which website also contains copies of the Parties Settlement Agreement, Preliminary Approval Order and other relevant court documents. Following an inquiry by a Class member, on May 24, 2016, the Parties sought and received the Court s permission to send to Class members a Clarification of Notice of Class Settlement that explained This notification is being sent to clarify Who is in the Class. The class, for purposes of this settlement, includes all persons or entities who owned and/or operated commercial vehicles (whether registered in New York or any other state) that during the period June 1, 2006 through October 31, 2010 ( Class Period ), participated in the City s Stipulated Fine Program, and during the Class Period received a ticket for a Traffic Lane violation indicated as Code 45 on the face of the ticket, and paid the associated $40 fine at any point up to until February 8, (See ECF Doc. No. 151 and May 24, 2016, Order granting the Parties Joint Motion to Amend/Correct/Supplement). On May 24, 2016, 950 Clarification Notices were ed to 3

12 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 10 of 28 PageID # 2075 Class members. The clarification notice was also posted on the website lockmanclassactionsettlement.com/documents/nlo0001/nlo_sup_ _ pdf The Notice instructed Class members that, if they did not wish to be part of the Settlement, they were to request exclusion by mailing a written request postmarked no later than June 24, 2016, or send an no later than June 24, The Notice also instructed Class members that the deadline for objecting to all or part of any settlement or Class Counsel s motion for fees and expenses was June 24, Class members have responded overwhelmingly favorably to the settlement. No Class Member has opted out or objected. Class Counsel firmly believe that this proposed Settlement is in the best interests of the Class, and that the response of the Class to date underscores that fact. FACTUAL BACKGROUND The background of this case is extensively set forth on pages 3-8 of The Memorandum of Law in Support of Plaintiff Lockman, Inc. s Motion for Preliminary Approval of Class Action Settlement. (ECF Doc. No. 147.) For the convenience of the Court, and to avoid undue repetition, that discussion is not repeated here but, rather, is incorporated by reference. ARGUMENT I. Notice to the Class Was Adequate Under Rule 23 As the Court described in United States v. New York, The standard for whether notice in a class action is adequate under [Fed. R. Civ. P.] 23(e) is reasonableness. A notice is reasonable if it fairly apprise[s] the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceeding. Notice need not be perfect, but need be only the best notice practicable under the circumstances, and every class member need not receive actual notice so long as class counsel acted reasonably in choosing the means likely to inform potential class members. 4

13 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 11 of 28 PageID # U.S. Dist. LEXIS 35274, at *17 (E.D.N.Y. March 17, 2014) (internal citations and quotation marks omitted). The April 14, 2016, Preliminary Approval Order determined that the Notice sent to the Class members satisfied Rule 23(c)(2)(B). Pursuant to that Order, the Claims Administrator KCC duly mailed and ed the Notice to all settlement class members at their mailing and addresses, as provided by the City and verified against data compiled independently by Class Counsel. Due to the length of the Class Period in this case, which dates back 10 years to June 1, 2006, Class Counsel determined that notice would be the most effective notice in this case, since if Class members moved and their mailing addresses were no longer current, the Class members (all commercial businesses) were unlikely to change their addresses. To ensure thorough notice, however, the Claims Administrator sent both mail and notice as proposed by Class Counsel and ordered by this Court. This notice program was highly successful, as confirmed in the attached Declaration of the Claims Administrator. Through the dual program of ed and mailed notice, coupled with follow-up efforts by the Claims Administrator and Class Counsel to obtain updated contact information (which efforts are ongoing), extensive notice was provided to the Class. 4 Each Notice included an explanation of the Settlement and informed Class members that they could object or exclude themselves from the Settlement, explaining how to do so. The Notice communicated the terms of the Settlement in clear, simple language and provided points of contact for Class members questions. It provided easy-to-understand instructions about how to submit written comments about the Settlement or arrange to speak at the fairness hearing. As 4 See Declaration of Lana Luchesi attached as Exhibit A. 5

14 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 12 of 28 PageID # 2077 such, the Parties have fully complied with Rule 23(e) s notice requirements. See New York, 2014 U.S. Dist. LEXIS 35274, at *18. II. The Proposed Settlement is Fair, Reasonable, and Adequate and Should be Approved in All Respects Fed. R. Civ. P. 23(e) requires court approval for a class action settlement to ensure that it is procedurally and substantively fair, reasonable and adequate. To determine procedural fairness, courts examine the negotiating process leading to the settlement. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 116 (2d Cir. 2005); D Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001). To determine substantive fairness, courts determine whether the settlement s terms are fair, adequate, and reasonable according to the factors set forth in the City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), abrogated on other grounds by Goldberger v. Integrated Res., Inc., 209 F.3d 43 (2d Cir. 2000). In evaluating the settlement, the Court should keep in mind the unique ability of class and defense counsel to assess the potential risks and rewards of litigation.... Clark v. Ecolab Inc., 2010 U.S. Dist. LEXIS 47036, at *4 (S.D.N.Y. May 11, 2010); see also McMahon v. Olivier Cheng Catering & Events, LLC, 2010 U.S. Dist. LEXIS 18913, at *10 (S.D.N.Y. Mar. 3, 2010) ( The Court gives weight to the parties judgment that the settlement is fair and reasonable. ). Courts examine procedural and substantive fairness in light of the strong judicial policy in favor of settlement of class action suits. Wal-Mart Stores, 396 F.3d at 116 (quoting In re PaineWebber Ltd. P ships Litig., 147 F.3d 132, 138 (2d Cir. 1998)); see also Spann v. AOL Time Warner, Inc., 2005 U.S. Dist. LEXIS 10848, at *18 (S.D.N.Y. June 7, 2005) ( [P]ublic policy favors settlement, especially in the case of class actions. ); In re Luxottica Group S.P.A. Secs. Litig., 233 F.R.D. 306, 310 (E.D.N.Y. 2006) ( Class action suits readily lend themselves to compromise because of the difficulties of proof, the uncertainties of the outcome, and the typical 6

15 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 13 of 28 PageID # 2078 length of the litigation. There is strong public interest in quieting any litigation; this is particularly true in class actions. ); 4 ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS 1141, at 87 (4 th ed. 2002) ( The compromise of complex litigation is encouraged by courts and favored by public policy. ). A. The Settlement is Procedurally Fair A presumption of fairness, adequacy and reasonableness may attach to a class settlement reached in arm s-length negotiations between experienced, capable counsel after meaningful discovery. Wal-Mart Stores, 396 F.3d at 116 (internal citation and quotation marks omitted); see also D Amato, 236 F.3d at 85. Absent fraud or collusion, [courts] should be hesitant to substitute [their] judgment for that of the parties who negotiated the settlement. In re EVCI Career Colls. Holding Corp. Sec. Litig., 2007 U.S. Dist. LEXIS 57918, at *124 (S.D.N.Y. July 27, 2007). The Settlement in this case was reached after the Parties engaged in five years of discovery, motion practice, and protracted settlement negotiations with the aid of The Honorable Marilyn D. Go. At all times during the process, the Parties respective counsel bargained vigorously and at arm s-length on behalf of their clients. The Parties attorneys encountered and overcame key points of contention during the course of these negotiations. These arm s-length negotiations involved counsel well-versed in complex class action law, raising a presumption that the settlement meets the requirements of due process. See New York, 2014 U.S. Dist. LEXIS 35274, at * B. The Settlement is Substantively Fair In Detroit v. Grinnell Corp. the Second Circuit provided the analytical framework for evaluating the substantive fairness of class action settlement. 495 F.2d 448 (2d Cir. 1974). The 7

16 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 14 of 28 PageID # 2079 Grinnell factors guide the district courts in making this determination. They are (1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the class; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of defendant to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Id. at 453. The Court need not find that each of the nine factors is satisfied; rather, a court considers the totality of these factors in light of the particular circumstances. Foti v. NCO Financial Systems, Inc., 2008 U.S. Dist. LEXIS 16511, at *16 (E.D.N.Y. Fed. 20, 2008) (citing In re Global Crossing Sec. & Erisa Litig., 225 F.R.D. 436, 456 (S.D.N.Y. 2004)). Here, consideration of the Grinnell factors strongly weighs in favor of granting final approval of the Settlement. i. Litigation Through Trial Would be Complex, Costly, and Long By reaching a favorable settlement prior to summary judgment motions or trial and before a decision on class certification, Plaintiff avoids significant expense and delay and ensures a risk-free recovery for the class. Most class actions are inherently complex and settlement avoids the costs, delays and multitude of other problems associated with them. In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 174 (S.D.N.Y. 2000), aff d sub. nom. D Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001). This case is no exception. It presents novel issues of law against a massive governmental entity which claims that their challenged activities were largely commercial in nature. Defendants have already moved to dismiss this case twice. First, in August 2011, Defendants moved to dismiss on the grounds that Class 8

17 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 15 of 28 PageID # 2080 members, all participants in the Stipulated Fine Program, waived their right to contest these traffic lane citations through language in the Program documents which they signed when they enrolled in the Program. Then, in October 2012, Defendants moved to dismiss the case again on the same grounds. Both times, Class Counsel successfully opposed Defendants dismissal motions. Absent settlement, the next step would be a decision on Plaintiff s pending class certification motion followed by motion practice on the inevitable dispositive motions, which would be laborious and costly, as would be full trial preparation. In addition, any judgment related to class certification and summary judgment may be appealed, extending the duration of the litigation. And there is the risk in this case, as there is in any class action, that Defendants move to decertify the Class if individualized issues arise during later proceedings or even at trial. See Fed. R. Civ. P. 23(c)(1)(C). The Settlement, on the other hand, makes monetary relief available to Class members in a certain, prompt, and efficient manner. ii. The Reaction of The Class Supports Final Approval It is well settled that the reaction of the class to the settlement is perhaps the most significant factor to be weighed in considering its adequacy. In re Am. Bank Note Holographics, Inc., 127 F. Supp. 2d 418, 425 (S.D.N.Y. 2001). Here, there is no question but that the reaction of the Class to the Settlement has been overwhelmingly positive. The Notice sent to the Class included an explanation of the allocation formula. The Notice also informed Class Members of their right to object or to exclude themselves from the Settlement and explained how to do so. There have been no opt-outs and no objections. There could not be a more favorable response from the Class. See Ebbert v. Nassau Cty, 2011 U.S. Dist. LEXIS , at *26-27 (E.D.N.Y. Dec. 22, 2011) (Finding that the complete lack of objection 9

18 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 16 of 28 PageID # 2081 indicates an overwhelmingly positive reaction from the class when no objections were filed to the Settlement, no one opted-out and no one appeared at the Fairness Hearing to voice any objections. ); see also Castagna v. Madison Square Garden, L.P., 2011 U.S. Dist. LEXIS 64218, at *15 (S.D.N.Y. June 7, 2011) ( The total absence of objections demonstrates Class Members satisfaction with the Settlement s terms and [t]his factor weighs heavily in favor of approving the proposed settlement. ); Ross v. A.H. Robins Co, Inc., 700 F. Supp. 682, 684 (S.D.N.Y. 1988) (Noting that [t]he absence of objectants may itself be taken as evidencing the fairness of the settlement. ). iii. Discovery has Advanced Far Enough to Allow the Parties to Resolve the Case Responsibly. As described above, the Parties have completed extensive motion practice and protracted discovery and are well prepared to recommend settlement. The proper question is whether counsel had an adequate appreciation of the merits of the case before negotiating. In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 537 (3d Cir. 2004). The Parties discovery here meets this standard, as the Parties engaged in significant discovery prior to engaging in any settlement discussions. Class Counsel engaged in extensive data collection and analysis both before and after this lawsuit was filed, and consulted with various experts during the early course of this litigation. Class counsel served Initial Disclosures, two sets of comprehensive document requests and a set of detailed interrogatories on Defendants. Class counsel produced thousands of pages of ticketing data, s and other documents which were broken down into the 16 separate categories of documents requested by Defendants, and which bore directly on the claims in this case. Class Counsel reviewed 2,449 pages of documents produced by Defendants, as well as factual information set forth in Defendants' answers to interrogatories. 10

19 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 17 of 28 PageID # 2082 Following this written discovery, the Parties undertook depositions pursuant to discovery schedules established by the Court. In April and May 2012, the Parties took depositions of the following individuals, who were the most knowledgeable of the factual issues in the case and were all deeply involved in the Stipulated Fine Program Ken Thorpe, President of NYTDA Maryann Cordova, Fleet/Rental Unit, NYC Department of Finance Mary Gotsopolis, Chief Administrative Law judge Martha E. Stark, Former Commissioner, NYC Department of Finance Deputy Inspector Michael Pilecki, New York City Police Department Based on these circumstances, the Parties were well equipped to evaluate the strengths and weaknesses of the case. iv. Plaintiff Would Face Substantial Risk of Establishing Liability if the Case Were to Proceed Although Plaintiff believes his claims have merit and are suitable for class action treatment, Plaintiff also recognizes that it could face significant legal, factual, and procedural obstacles to recovering damages on its claims. Indeed, [i]f settlement has any purpose at all, it is to avoid a trial on the merits because of the uncertainty of the outcome. In re Ira Haupt & Co., 304 F. Supp. 917, 934 (S.D.N.Y. 1969); see also Velez v. Majik Cleaning Serv. Inc., 2007 U.S. Dist. LEXIS 46223, at *19 (S.D.N.Y. June 22, 2007) ( The proposed settlement benefits each plaintiff in that he or she will recover a monetary award immediately, without having to risk that an outcome unfavorable to the plaintiffs will emerge from trial. ). Defendants deny that they did anything unlawful, and would continue to challenge Plaintiff s claims at summary judgment, at trial, and on appeal. In light of the strengths and weaknesses of the case, the Settlement achieves significant benefits for the Class in a case where failure at trial is certainly possible. 11

20 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 18 of 28 PageID # 2083 v. Risk of Establishing Damages Establishing damages was not a significant risk in this case. vi. Maintaining the Class Through Trial Would not be Simple The risk of obtaining and maintaining class certification through trial militates in favor of settlement. The Court has not yet certified a class, and Defendants have opposed Plaintiff s proposed Class Period. Should the Court certify a class, Defendants may later challenge certification and move to decertify, requiring another round of briefing. Defendants may also seek permission to file an interlocutory appeal under Fed. R. Civ. P. 23(f). See In re Bear Stearns Cos., 909 F. Supp. 2d at ( The risk that Defendants could in fact succeed in their efforts to decertify the class militates in favor of settlement approval. ). Risk, expense, and delay permeate such a process. Settlement eliminates this risk, expense, and delay. vii. Defendants Presumptive Ability to Withstand a Greater Judgment Does not Detract from the Fairness of the Settlement Plaintiff does not have reason to think that Defendants ability to withstand a greater judgment is a concern here. However, this factor, standing alone, does not suggest that the settlement is unfair. In re Facebook, Inc. IPO Sec. & Derivative Litig., 2015 U.S. Dist. LEXIS , at *15 (S.D.N.Y. Nov. 9, 2015). viii. The Settlement Fund is Substantial, Given the Best Possible Recovery and the Attendant Risks of Litigation The last Grinnell factors consider the settlement fund s range of reasonableness in light of the best possible recovery and compared to a possible recovery in light of all the attendant risks of litigation. In re AOL Time Warner ERISA Litig., 2006 U.S. Dist. LEXIS 70474, at *27 (S.D.N.Y. Sept. 27, 2006). These factors weigh heavily in favor of approval. The $14 million settlement represents 12

21 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 19 of 28 PageID # 2084 an excellent return to the Class given the risks of litigation, and represents an excellent result. In Class Counsel s estimation, the monetary relief provided for in this Settlement represents a substantial portion of the Class s losses from the challenged practices. Depending on the Class Period, the Settlement returns 58-93% of the Class damages. 5 Weighing the benefits of the Settlement against the risks associated with proceeding in the litigation, the Settlement is more than reasonable and far exceeds the minimum standard for approval. See Karic v. Major Auto. Cos., 2016 U.S. Dist. LEXIS 57782, at *23 (E.D.N.Y. Apr. 27, 2016) (Finding settlement reasonable where proposed settlement provides a meaningful benefit to the Class Members. ). C. The Plan of Allocation is Fair, Reasonable, and Adequate The plan of allocation is fair, reasonable, and adequate. See Brecher v. Citigroup Inc., 2014 U.S. Dist. LEXIS 69382, at *16-17 (S.D.N.Y. May 20, 2014) (applying fair, adequate, and reasonable standard to plan of allocation). As described above, there is no claims process because the Parties have reliable data from which to calculate damages to each Class member. An eligible Class member who does not opt out of the Class will receive a check in the mail for its pro rata share of the Net Settlement Fund based on the number of Traffic Lane tickets received during the Class Period. All Class members were informed of this plan of allocation in the class Notice and none have objected to it or opted out of the Settlement. 5 The amount of damages that could be awarded at trial depends on the length of the Class Period adopted by the Court. Plaintiff estimates that if the Class prevailed at trial, a damage award would range from $15 million to $23 million depending on the Class Period. Defendants have taken the position that the Class Period should run from April 14, 2008, until October 31, 2010 ( shorter period ). Plaintiff believes that the Class Period should run from June 1, 2006, until October 31, 2010 ( longer period ). The Class Period, for purposes of this Settlement, is the longer period. Even if you exclude the attorneys fees and expenses from the recovery for the class, the Settlement returns to the Class 43-67% of the Settlement Class damages. 13

22 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 20 of 28 PageID # 2085 III. Certification of the Settlement Class is Appropriate On April 14, 2016, the Court preliminarily certified the Settlement Class. The Court should now confirm that certification as final because all of the requirements of Fed. R. Civ. P. 23 are met. Plaintiff respectfully requests that the Court certify under Fed. R. Civ. P. 23(a) and 23(b)(3) the Settlement Class set forth and defined in the Court s Preliminary Approval Order. A. The Requirements of Rule 23(a) Are Satisfied i. The Class Is Sufficiently Numerous According to Defendants own records, there were hundreds of separate participants in the Stipulated Fine program during the Class Period. Therefore, the numerosity requirement has been satisfied. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) ( Numerosity is presumed at a level of 40 members. ). ii. Questions Of Law Or Fact Are Common To The Class The commonality element of Rule 23(a)(2), which requires the plaintiff to demonstrate that a single, common issue of law or fact exists and affects all class members, is considered a "minimal burden for a party to shoulder." Steinberg, 224 F.R.D. at 74; see also DeMarco v. Nat'l Collector's Mint, Inc., 229 F.R.D. 73, 80 (S.D.N.Y. 2005) (Rule 23(a)(2) is met where plaintiffs and the proposed class share a single common question of law or fact.). Identity of all issues is not required. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001). Indeed, Rule 23(a)(2) does not require the plaintiffs to demonstrate that the class members' claims are identical. Rather, it demands that the disputed issue of law or fact occupies essentially the same degree of centrality to the named Plaintiffs claim as to that of other members of the proposed class. Dodge v. Cty of Orange, 208 F.R.D. 79, 88 (S.D.N.Y. 2002) (quoting Krueger v. N. Y. Tel. Co., 163 F.R.D. 433, 442 (S.D.N.Y. 1995)). Moreover, [t]he key inquiry 14

23 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 21 of 28 PageID # 2086 of Rule 23(a)(2) is whether the plaintiffs claims arise from a common nucleus of facts. Such cases are considered particularly appropriate for class action treatment. David v. Showtime/ Movie Channel, Inc., 697 F. Supp. 752, 756 (S.D.N.Y. 1988). Here, all of Plaintiff s claims, and those of the Class, arise from one common course of conduct and involve a number of core common questions of law or fact, including the following (a) (b) (c) (d) whether Defendants authorized, implemented, followed and/or permitted policies, practices and procedures which resulted in the issuance of improper traffic lane tickets by traffic enforcement agents, thereby causing the Stipulated Fine Program to be operated and administered in a manner which resulted in the unlawful collection of fines; whether the traffic enforcement agents violated the City s own parking laws and regulations by systematically issuing traffic lane violations to Class members; whether Defendants deprived Class members of their Constitutional rights through the operation and administration of the Stipulated Fine Program; and what and when City officials knew about the illegal policies and practices. Accordingly, the commonality requirement is readily satisfied. See Stinson v. City of N.Y., 282 F.R.D. 360, 369 (S.D.N.Y. 2012) (finding commonality where plaintiffs alleged that they were victims of a pattern and practice set and enforced by city officials ) (citing Daniels v. City of N.Y., 198 F.R.D. 409, 417 (S.D.N.Y. 2001) ( The fact that the claims of the proposed class stem from the same alleged unconstitutional conduct of the defendants proves the existence of common questions of law or fact. )). iii. Plaintiff s Claims Are Typical Of The Class The claims of the class representative must be typical of the claims of the class. Fed. R. Civ. P. 23(a)(3). Typicality is satisfied when each class member s claim arises from the same course of events, and each class member makes similar legal arguments to prove the 15

24 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 22 of 28 PageID # 2087 defendant s liability. Marisol A. by Forbes v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (citations omitted). The typicality analysis focuses on whether the named plaintiff's interests align with the interests of the rest of the class. In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 105 (E.D.N.Y. 2012). The purpose of this analysis is to ensure that, by prosecuting its own case, the named plaintiff simultaneously advances the interests of the absent class members. Id. (citations omitted). Typicality does not require complete symmetry between the class representative s claims and those of the absent class members, but [r]ather, the named plaintiff must simply raise claims that arise from the same course of events as the class claims and make similar legal arguments to prove the defendant's liability. Id. (citations omitted). Here, Lockman s claims and the claims of all of the members of the Class derive from the same acts by Defendants. Lockman owns and operates commercial vehicles in New York City that have been ticketed for traffic lane violations as a result of Defendants alleged unlawful scheme. During the Class Period, Lockman paid thousands of dollars in illegal fines as part of the Stipulated Fine Program. All Class members have suffered identical losses and deprivations of property. See Stinson, 282 F.R.D. at 371 (Finding typicality where proposed class representatives are New Yorkers who have all allegedly been issued at least one summons without probable cause and suffered injury as a result of an alleged unconstitutional NYPD practice. ). iv. Plaintiff Will Fairly and Adequately Protect the Class s Interests The adequacy requirement of Rule 23(a)(4) is satisfied where (a) the plaintiff s attorneys are qualified, experienced and generally able to conduct the litigation; and (b) plaintiff's interests are not antagonistic to those of the other class members. In re Joint E. & S. Distr. Asbestos 16

25 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 23 of 28 PageID # 2088 Litig., 78 F.3d 764, 778 (2d Cir. 1996); Ross v. A.H. Robbins Co., 100 F.R.D. 5, 7 (S.D.N.Y. 1982). Both prongs of the Rule 23(a)(4) adequacy requirement are satisfied here. First, Lockman s claims are identical to those of the Class it seeks to represent, and its interests are aligned with the interests of the Class members, as Lockman seeks damages from Defendants ticketing scheme that has similarly harmed thousands of other commercial vehicle owners and operators. Lockman s interests do not conflict with those of the absent Class members and it does not have any interests that are antagonistic to those of the Class members. Moreover, Lockman has already demonstrated its commitment to the vigorous prosecution of this action by its willingness to step forward and represent the Class after the Court ruled that the original class plaintiff, NYTDA, could no longer do so. Second, Lockman is represented by able counsel who are highly experienced in handling class actions, particularly large complex class actions involving complicated legal and factual issues. (See Firm Resumes, attached as Exhibits D, E, F, and G to The Memorandum of Law in Support of Plaintiff Lockman, Inc. s Motion for Preliminary Approval of Class Action Settlement (ECF Doc. No. 147).) Since Class Counsel have pursued this matter vigorously and competently on behalf of Lockman and all other members of the Class, the second prong of 23(a)(4) analysis is satisfied. See Marisol A., 126 F.3d at 378 ( Rule 23(a)(4) requires that plaintiffs demonstrate that class counsel is qualified, experienced, and generally able to conduct the litigation. ) (internal quotation marks and citation omitted). B. Plaintiff Has Satisfied The Requirements Of Rule 23(b)(3) Rule 23(b)(3) requires a finding of predominance and superiority ; i.e., a finding that questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly 17

26 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 24 of 28 PageID # 2089 and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). In determining whether these requirements have been met, the Court should consider the issue of manageability in a litigation context, see, e.g., Seijas v. Republic of Arg., 606 F.3d 53, 58 (2d Cir. 2010), but need not do so in a settlement context, Amchem, 521 U.S. at 620 (finding of manageability to litigate to trial a certified class is unnecessary in a settlement context, because a settlement obviates the need for a trial). i. Common Questions Of Law Or Fact Predominate As To Plaintiff s Claims. The predominance requirement is satisfied if resolution of some of the legal or factual questions that qualify each class member s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof. In re U.S. Foodserv. Pricing Litig., 729 F.3d 108, 118 (2d Cir. 2013) (citations omitted), cert. denied, 134 S. Ct (2014). The purpose of the predominance inquiry is to allow the Court to determine whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Amchem, 521 U.S. at 623; accord Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010); see also In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 225 (2d Cir. 2006). The predominance test asks whether a class suit for the unitary adjudication of common issues is economical and efficient in the context of all of the issues in the suit. 2 A. Conte & H. Newberg, Newberg on Class Actions 4.25, p. 156 (4th ed. 2002). Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class. Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133 S.Ct. 1184, 1191 (2013) (emphasis in the original). 18

27 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 25 of 28 PageID # 2090 Here, there are numerous common questions of law or fact that predominate over any issues affecting only individual Class members. The primary common question in this case is whether Defendants violated 1983 and other laws by issuing and/or causing to be issued to Lockman and other Class members unlawful tickets for traffic lane violations instead of fully amenable double parking citations. Because Rule 23 seeks greater efficiency via collective adjudication and, relatedly, greater uniformity of decision as to similarly situated parties, the Second Circuit has stated that when plaintiffs are allegedly aggrieved by a single policy of defendants, such as the blanket policy at issue here, the case presents precisely the type of situation for which the class action device is suited since many nearly identical litigations can be adjudicated in unison. Nassau Cnty. Strip Search Cases, 461 F.3d at 228 (quoting In re Visa Check, 280 F.3d 124, 146 (2d Cir. 2001)); see also Stinson, 282 F.R.D. at 383 ( Plaintiffs in this action present a common theory of liability involving an NYPD policy of issuing summonses to individuals without probable cause in response to a quota requirement. Because the potential plaintiffs claims brought under this theory involve sufficient common issues of law and fact subject to generalized proof, the predominance requirement of Rule 23(b)(3) is fulfilled. ). The resolution of Lockman s claims will establish Defendants liability for their ticketing scheme as to all members of the Class. See generally, In re Nigeria Charter Flights Contract Litig., 233 F.R.D. 297, 305 (E.D.N.Y. 2006); see also In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 139 (2d Cir. 2001) ( Common issues may predominate when liability can be determined on a class-wide basis, even when there are some individualized damage issues. ), superseded on other grounds by rule, Fed. R. Civ. P. 23(g), as stated in Attenborough v. Const. & Gen. Bldg. Laborers Local 79, 238 F.R.D. 82, 100 (S.D.N.Y. 2006). Accordingly, the requirement of predominance is satisfied. 19

28 Case 111-cv NGG-MDG Document Filed 07/22/16 Page 26 of 28 PageID # 2091 ii. A Class Action Is The Superior And Most Efficient Method For Adjudicating This Action. Rule 23(b)(3) provides that certification is warranted if a class-wide trial is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P. 23(b)(3). Rule 23(b)(3) class actions can be superior precisely because they facilitate the redress of claims where the costs of bringing individual actions outweigh the expected recovery. In re U.S. Foodser. Pricing Litig., 729 F.3d at 130; see also 5 J. Moore et al., Moore s Federal Practice - Civil 23.46[1] (3d ed. 2011) ( In determining superiority, courts must consider alternative methods of adjudicating the dispute. Superiority is determined by comparing the efficiency and fairness of all available methods of adjudicating the matter. ). Here, the class action device is far more fair and efficient than any other procedure available for resolving the factual and legal issues raised by Plaintiff s claims. Defendants conduct impacted thousands of commercial delivery operators in New York City. At the same time, it is likely that many class members would fail to pursue their claims based not on a lack of underlying merit but rather on the size of their potential recovery measured against the high cost of litigation and effort required to pursue their claims. By combining all of Class members claims challenging Defendants uniform policy and practice of illegally ticketing commercial vehicles, those claims are presented far more fairly and efficiently than they would be in individual actions, which would require the same issues to be litigated multiple times. See Stinson, 282 F.R.D. at 383 ( Plaintiffs claims allege a single unconstitutional practice, making class certification especially appropriate... [and] a superior means of adjudicating Plaintiffs claims. ). 20