Case 8:11-cv PWG Document Filed 10/21/14 Page 1 of 8 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

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1 Case 8:11-cv PWG Document Filed 10/21/14 Page 1 of 8 UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND KENSINGTON PHYSICAL THERAPY, INC. vs. Plaintiff JACKSON THERAPY PARTNERS, LLC Case No. 8:11-cv Defendant ORDER PRELIMINARILY APPROVING STIPULATION OF SETTLEMENT, CONDITIONALLY CERTIFYING CLASS, AND ENTERING SCHEDULE Pending is plaintiff Kensington Physical Therapy, Inc. s ( Plaintiff ), Unopposed Motion for Preliminary Approval of Stipulation of Settlement1, Conditional Class Certification and Entry of Scheduling Order. For the reasons stated herein, the Court GRANTS Plaintiff s Motion, conditionally certifies the class, preliminarily approves the Stipulation of Settlement and enters the schedule set forth below for notice to the class, exclusion and opt out deadlines, and for a final approving hearing. WHEREAS, the Parties filed a Stipulation of Settlement which, sets forth the terms and conditions for the settlement and release of certain claims against the Defendant; the Court having considered the Stipulation of Settlement (which defines the capitalized terms used herein) and all of the files, records, and proceedings herein, and it appearing to the Court that upon preliminary examination the Stipulation of Settlement appears fair, reasonable and adequate, and that a hearing should and will be held after notice to the Settlement Class to confirm that the Stipulation of Settlement is fair, reasonable, and adequate, and to determine whether a Judgment 1 Capitalized terms shall have the same definition as in the Stipulation of Class Action Settlement.

2 Case 8:11-cv PWG Document Filed 10/21/14 Page 2 of 8 Approving Settlement and Order of Dismissal should be entered in this Litigation based upon the Stipulation of Settlement; NOW, THEREFORE, IT IS HEREBY ORDERED: 1. For purposes of settlement only, the Court has jurisdiction over the subject matter of this Litigation and personal jurisdiction over the parties and the members of the Settlement Class described below. 2. Pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure ( Fed.R.Civ.P. ), and for the purposes of settlement only, the Settlement Class is preliminarily certified, consisting of the following class (the "Settlement Class"): All persons or entities within the United States to whom Jackson Therapy Partners sent or caused to be sent facsimile advertisements promoting its goods or services from September 1, 2007 to the date of the Preliminary Approval Order. The following are excluded from the Class: all directors, officers, agents and employees of Defendant; any person or entity who timely opts out of this proceeding; any person or entity who has given a valid release of the claims asserted in the suit, and court personnel, Plaintiff s counsel and their employees. 3. Pursuant to Fed.R.Civ.P. 23, and for settlement purposes only, Plaintiff is hereby appointed class representatives and the following counsel are hereby appointed as Class Counsel: Edward A. Broderick Anthony I. Paronich Broderick Law, P.C. 125 Summer St., Suite 1030 Boston, MA Matthew P. McCue The Law Office of Matthew P. McCue 1 South Ave, Third Floor Natick, MA Stephen H. Ring Law Offices of Stephen H. Ring, P.C Belward Campus Drive, Suite 175 Rockville, MD The Court hereby approves Kurtzman Carson Consultants as the Settlement Administrator to issue Notice to Settlement Class members, to perform such other functions and duties of the Settlement Administrator as are set forth in the Stipulation of Settlement, and to 2

3 Case 8:11-cv PWG Document Filed 10/21/14 Page 3 of 8 provide such administration services as are reasonably necessary to facilitate the completion of the settlement. 5. The prerequisites for a class action under Fed.R.Civ.P. 23(a) and (b)(3) have been preliminarily satisfied in that (a) the number of Settlement Class members is so numerous that joinder of all members thereof is impracticable; (b) there are questions of law and fact common to the Settlement Class; (c) the claims of the class representatives are typical of the claims of the respective classes within the Settlement Class they seek to represent; (d) the class representative will fairly and adequately represent the interests of the Settlement Class; (e) the questions of law and fact common to the members of the Settlement Class predominate over any questions affecting only individual members of the Settlement Class; and (f) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The Court further finds that (A) the members of the Settlement Class have a limited interest in individually prosecuting the claims at issue; (B) the Court is satisfied with Class Counsel s representation that they are unaware of any other litigation commenced regarding the claims at issue by members of the Settlement Class; (C) it is desirable to concentrate the claims in this forum; and (D) it is unlikely that there will be difficulties encountered in administering this matter as a class action settlement. 6. A hearing (the Final Approval Hearing ) pursuant to Fed.R.Civ.P. 23(e) is hereby scheduled to be held before the Court on [INSERT DATE AND TIME] for the following purposes: (a) to finally determine whether the applicable prerequisites for settlement class action treatment under Fed.R.Civ.P. 23(a) and (b) are met; 3

4 Case 8:11-cv PWG Document Filed 10/21/14 Page 4 of 8 (b) to determine whether the settlement is fair, reasonable and adequate, and should be approved by the Court; (c) to determine whether the final approval order as provided under the Stipulation of Settlement should be entered; (d) to consider the application for an award of attorneys fees and expenses of Class Counsel; (e) (f) to consider the application for a service award to the Plaintiff; to consider the distribution of the Settlement Fund pursuant to the Stipulation of Settlement; and (g) to rule upon such other matters as the Court may deem appropriate. Briefs and papers in support of the final approval of the proposed settlement shall be filed no later than seven (7) days before the Final Approval Hearing. The Final Approval Hearing may be postponed, adjourned, transferred or continued by order of the Court without further notice to the Settlement Class. After the Final Approval Hearing, the Court may enter a Judgment Approving the Stipulation of Settlement and Order of Dismissal in accordance with the Stipulation of Settlement that will adjudicate the rights of all class members. 7. The Court hereby approves the form, content and requirements of the Notice annexed to the Stipulation of Settlement as Exhibit B and the notice plan set forth in the Stipulation of Settlement for issuing notice to the Settlement Class. Class Counsel shall cause the Notice to be issued to all members of the Class in accordance with the notice plan set forth in the Stipulation of Settlement, which the Court finds constitutes reasonable effort to identify and notify such Settlement Class members. Class Counsel shall, prior to the Final Approval Hearing, file with the Court proof of sending Notice to the Settlement Class members. 4

5 Case 8:11-cv PWG Document Filed 10/21/14 Page 5 of 8 8. The form and method of issuing notice to the Settlement Class members set forth in the Stipulation of Settlement constitutes the best notice practicable under the circumstances, including individual notice to all Settlement Class Members who could be identified through reasonable effort, and satisfies fully the requirements of Rule 23 of the Federal Rules of Civil Procedure, the requirements of due process and any other applicable law. 9. On or before seven (7) days prior to the Final Approval Hearing, Class Counsel shall file and serve (i) motion for final approval; (ii) any application for award of attorneys' fees and expenses; and (iii) any application for a service award to the Plaintiff. 10. The Court sets the following deadlines and schedule: a. Class Counsel shall ensure that Notice is issued to the Settlement Class in accordance with the terms of the Stipulation of Settlement within 14 days after the date of this Order. b. Settlement Class members who wish to be excluded from the Settlement Class must submit their requests for exclusion to the Settlement Administrator by U.S. Mail and such requests must be postmarked on or before [INSERT DATE]. c. Objections to the Stipulation of Settlement must be filed with the Clerk of the Court on or before [INSERT DATE] and a copy of the objection is to be served on the Settlement Administrator. d. The Court shall conduct a Final Approval Hearing on [INSERT DATE AND TIME] for the purpose of determining whether to issue final approval to the Stipulation of Settlement. The date and time of the final approval hearing may be changed by the Court without further notice to the Settlement Class. 11. Settlement Class members shall be bound by all determinations and orders pertaining to the Stipulation of Settlement, whether favorable or unfavorable, unless such person 5

6 Case 8:11-cv PWG Document Filed 10/21/14 Page 6 of 8 is excluded from the Settlement Class by order of this Court. Settlement Class members who do not timely and validly request exclusion shall be so bound even if they have previously initiated or subsequently initiate individual litigation or other proceedings against the Defendants relating to the claims released pursuant to or covered by the terms of the Stipulation of Settlement. 12. A Settlement Class member wishing to make a request for exclusion from the Settlement Class shall mail the request in written form, by first class mail, postage prepaid, and postmarked no later than [INSERT DATE]. Any request for exclusion is to be sent to the Settlement Administrator at the address specified in the Notice. Such request for exclusion shall clearly indicate the name, address, and telephone number of the person seeking exclusion, the name and case number of the case, must be signed by such person, and shall state the Settlement Class member excludes itself, himself or herself from the Settlement Class. The request for exclusion shall not be effective unless it provides the required information and is made within the time stated above, or the exclusion is otherwise accepted by the Court. No Settlement Class member, or any person acting on behalf of or in concert or in participation with that Settlement Class member, may request exclusion of any other Settlement Class member from the Settlement Class. 13. Any Settlement Class member who is not excluded from the Settlement Class and who objects to the approval of the proposed settlement must submit a complete written statement of all grounds for the objection, together with factual and legal support for the stated objection. A member of the Settlement Class may appear at the Final Approval Hearing in person or through counsel to show cause why the proposed settlement should not be approved as fair, reasonable, and adequate. Attendance at the hearing is not necessary; however, persons wishing to be heard orally in opposition to the approval of the settlement and/or the request for attorneys 6

7 Case 8:11-cv PWG Document Filed 10/21/14 Page 7 of 8 fees and/or the request for a service award to the Plaintiff, are required to indicate in their written objection their intention to appear at the hearing, and must offer a complete statement of grounds for the objection, together with all factual and legal authority for the stated objection, and state the identity of any witnesses they may call to testify and exhibits they intend to introduce into evidence at the Final Approval Hearing. The Court will consider comments and/or objections to the Stipulation of Settlement, the award of attorneys fees and reimbursement of expenses, and the service award to the class representative only if, on or before [INSERT DATE], such comments or objections and any supporting papers are filed in writing with the Clerk of this Court, and copies of all such papers are served upon the Settlement Administrator. No Settlement Class member shall be entitled to be heard and no objection shall be considered unless these requirements are satisfied. 14. Any Settlement Class member who does not make their objection to the Stipulation of Settlement in the manner provided herein shall be deemed to have waived any objection to the Stipulation of Settlement by appeal, collateral attack, or otherwise. 15. Pending final determination of whether the Stipulation of Settlement should be approved, the Plaintiff and all Settlement Class members, and anyone who acts or purports to act on their behalf, shall not institute, commence or prosecute any action which asserts Released Claims against the Defendant or its insurers. 16. All discovery and other pretrial proceedings in this action are stayed and suspended until further order of the Court except such actions as may be necessary to implement the Stipulation of Settlement and this Order. 17. If the Stipulation of Settlement does not become effective, the order certifying the Settlement Class and all preliminary and/or final findings or stipulations regarding certification of the Settlement Class shall be automatically vacated, voided and treated as if never filed, and 7

8 Case 8:11-cv PWG Document Filed 10/21/14 Page 8 of 8 the parties will retain and reserve all positions with respect to the litigation, and the litigation shall proceed as if no settlement had been reached. ENTER: Paul W. Grimm, United States District Court Judge DATED:,