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22ND JUDICIAL DISTRICT coURT FOR THE PARISH oF sT.f'JLJ;
STATE OF LOillSIANA
SEP l 0 ZU14
This is a court ordered notice. This is not a solicitation fro~Ji..f!.~ , .
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NOTICE OF HEARING TO APPROVE THE FAIRNE~SP()~-y··t:t~"k!'---­
PROPOSED PARTIAL CLASS SETTLEMENT AND ESTABLISHING
THE DEADLINE AND PROCEDURE FOR PRESENTING OBJECTIONS
If yo u are a present or past homeowner in the Penn Mill Lakes Subdivision in Covington,
Louisiana, yo ur rights may be affected by a partial settlement reached in the following proposed
class action pending in the 22"d Judicial District Court for the Parish of St. Tammany, State of
Louisiana: PATRICIA GRANT WIFE OF/AND RICHARD GRANT, ET AL.,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. SUN
CONSTRUCTION, L.L.C.; NO. 2008-10737 C/W 2008-11536; DIVISION "I".
SUMMARY OF YOUR LEGAL RIGHTS AND
OPTIONS IN THIS PARTIAL SETTLEMENT
These rights and options- and the deadl ines and requirements to exercise them- are explained in more
detail below. The Court to which this case has been al lotted has not yet decided whether to approve
the Settlement.
Questions? Please visit 'WWw.LSULawyer.com/pml or call Plaintiffs' counsel.
DO NOT CALL THE COURT WITH OUESTIONS ABOUT THE CASE.
A. Basic Information
1. Why did I get this Notice? If you received this notice, you have been identified as a present or past
homeow ner in the Penn Mill Lakes Subdivision in Covington, Louis iana. If you are not a present or
past homeowner in the subdivision, please so advise plaintiffs ' counsel.
2. What is the name of the case and where is it filed? The case is Patricia Grant, et a!. v. Sun
Construction, LLC; Docket No. 2008-10737, consolidated with Docket No. 2008-11536. It is pending
in the 22"d Judicial District Court for the Parish of St. Tammany, Division " 1" .
3. What is this case about? Plaintiffs claim that the defendants are liable for des igning and building
the Penn Mill Lakes Subdivision with inadequate drainage features and in contravention of standard
EXHIBIT
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hydrological methods and practices. The defendants are alleged to have conspired to subvert proper
governmental oversight in order to get the Subdivision approved and built without having to comply
with the provisions of the St. Tammany Parish Code of Ordinances intended to prevent approval or
construction of subdivisions in a flood basin or other areas subject to flooding unless the
developer/applicant agreed to construct public works, such as levees and pumping stations, that would
prevent such flooding. Defendants are further alleged to have conspired to keep this information from
the public and from those persons, class members, who eventually bought homes in the Subdivision.
4. What do the Defendants say about the case? Cooper Engineering, Inc. and its owner, Leroy
Cooper, the engineers for the developers in the Subdivision and the defendants who are seeking to be
released by this proposed Settlement, deny all liability and further deny any wrongdoing whatsoever.
All other defendants also so deny any wrongdoing.
5. Why is this case a proposed Class Action and who is included in the proposed Class? The Court
has not yet certified the matter as a Class Action. However, the proposed or “putative” class consists
of all present and past homeowners in the Penn Mill Lakes Subdivision who have been affected in
some manner by alleged drainage and flooding issues in the subdivision. This will be considered the
“settlement class” for the purpose of the fairness hearing.
6. Who can I contact regarding the Settlement, and who represents the parties?
Plaintiffs’ Counsel: As the Class has not yet been Certified, the Class Members are not formally
represented by anyone in this litigation at this time. However, counsel for the named plaintiffs, who
have been litigating the case on behalf of the Class since it was filed in 2008, are seeking to be named
as Class Counsel when and if the Class is Certified by the Court.
THE PLAINTIFFS are represented by:
LOUIS R. KOERNER, JR.
MAURICE LEGARDEUR
ADAM S. LAMBERT
1204 Jackson Avenue
335 E. Boston Street
3531 Plymouth Place
New Orleans, Louisiana 70130
Covington, LA 70433
New Orleans, LA 70131
Tel: (504) 581-9569
Phone: (985) 892-1420
Tel. (504) 433-0289
Fax: (504) 324-1798
Fax: (985) 892-1797
Fax (504) 433-0840
Email: [email protected]
Email: [email protected]
Web: www.koerner-law.com
Web: www.LSULawyer.com
Defendants Leroy Cooper, Cooper Engineering, Inc., and his and its insurers are represented by:
J. Ashley Inabnet
Inabnet & Jones, LLC
1331 West Causeway Approach
Mandeville, LA 70471
7. Am I represented by any of the attorneys in this case right now? No. The attorneys representing
the named plaintiffs have asked the Court to certify the case as a Class Action, but the Court has not
certified the proposed Class yet. Furthermore, the Defendants object to the certification of the proposed
Class. Unless the Court Certifies the Class, the attorneys representing the named plaintiffs represent
only the named plaintiffs. You will be notified if the Class is certified and if the attorneys for the named
plaintiffs later become Class Counsel for the entire proposed Class. In any event, you are always
welcome to seek the advice and/or representation of your own counsel.
8. How do I get more information about this settlement? Contact plaintiffs’ counsel or log on to
plaintiffs’ counsel’s website at www.lsulawyer.com/pml. DO NOT CALL THE COURT WITH
QUESTIONS ABOUT THIS SETTLEMENT. The Judge is not allowed to speak to you directly about
your rights. Neither the Judge nor the Clerk is allowed to give you legal advice.
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B. Additional Information on the Lawsuit and the Terms of the Settlement
1. Are the Plaintiffs’ attorneys receiving any attorney’s fees from these funds? Under the proposed
settlement, the Plaintiffs’ attorneys will receive no attorney’s fees from these settlement funds. The
proposed settlement provides that these settlement funds will be used to pay off or repay previouslyincurred, substantial expenses, such as court costs and expert witness fees paid for by plaintiffs’
counsel, and that the remainder be placed into an escrow account from which plaintiffs’ counsel will
pay future case litigation expenses. Any funds left over at the conclusion of the case will be distributed
in accordance with future orders of the Court.
2. Do the people who brought this case get anything from this Settlement? Under the proposed
Settlement, the named plaintiffs will receive no direct payments from these funds. However, costs and
expenses previously expended on their behalf by plaintiffs’ counsel will be reimbursed from these
funds. Remaining funds will be used to pay future expenses for the named plaintiffs and, if the class is
certified, for the Class Members.
3. What am I giving up under the Settlement? You are releasing only certain specified claims that
you may have against COOPER ENGINEERING, INC. and LEROY COOPER, individually and
against their insurers, Continental Casualty and National Fire. Claims that are reserved are described
below. The release itself is confidential. However, a summary of the provisions of the proposed release
as contained in the Settlement Agreement can be viewed online at www.lsulawyer.com/pml. In
summary, if the Court grants approval of the partial Settlement, you will be deemed to have fully and
finally released and discharged LEROY COOPER, COOPER ENGINEERING, INC. and their
insurers, Continental Casualty and National Fire, from any and all claims relating in any manner to the
allegations made in connection with the claims alleged by plaintiffs in this case. If you want more
detail about the scope of the release, you should read the Summary of the Settlement Agreement, which
is posted online at www.lsulawyer.com/pml. Nothing in the release precludes any action to enforce the
terms of the Settlement Agreement. The Release also does not extend to any claims based on a breach
of this Agreement.
4. What are some specifics of the case and the settlement? The release itself is confidential.
However, the allegations of the case and the specifics of the settlement are as follows:
• In this case, the plaintiffs claim that the defendants are liable for designing and building the Penn
Mill Lakes Subdivision with inadequate drainage features and in contravention of standard
hydrological methods and practices. The plaintiffs allege that the defendants conspired to subvert
proper governmental oversight in order to get the Subdivision approved and built without having
to comply with the provisions of the St. Tammany Parish Code of Ordinances intended to prevent
approval or construction of subdivisions in a flood basin or other areas subject to flooding unless
the developer/applicant agreed to construct public works, such as levees and pumping stations, that
would prevent such flooding. Defendants are further alleged to have conspired to keep this
information from the public and from those persons who eventually bought homes in the
Subdivision.
• The Defendants, including Defendants, Cooper Engineering, Inc. and its owner, Leroy Cooper
(collectively referred to hereinafter as “Cooper”), who was the engineer for the Subdivision
developers, deny all liability and deny any wrongdoing whatsoever.
• Although the case was filed by the named Plaintiffs as a proposed (“putative”) Class Action, the
Class has not been certified by the Court. All Defendants oppose Certification of the proposed
Class Action.
• The proposed partial settlement for which court approval is being sought is a settlement with only
the named defendants that are associated with COOPER ENGINEERING, INC. and LEROY
COOPER and includes two of their insurers, Continental Casualty Company (“Continental
Casualty”) and National Fire Insurance Company of Hartford (“National Fire”). The settlement
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provides for payments from defendant Cooper’s insurers to the plaintiffs in the Grant, et al, matter
in return from a complete release from further liability and a dismissal of these proceedings as it is
directed against them. The amount of the settlement payment from Cooper will be a minimum of
$150,000.00 up to a maximum of $170,000.00. The precise amount of the settlement payments
to the Grant plaintiffs cannot be determined at this time because the Continental Casualty policy
is a declining limits policy, and it will not be possible to determine the actual amount of remaining
coverage limits in the Continental Casualty Policy until the date that the Grant/Cooper settlement
agreement is actually executed. Therefore an estimated range of the settlement payment is being
provided in this Notice. A full accounting of the remaining Continental Casualty policy proceeds
will be provided at that time to counsel for the Grant plaintiffs.
The proposed partial settlement includes a reservation of rights by plaintiffs against all remaining
and unreleased defendants. Defendants not released includes not only the Developers, their
insurers, and the St. Tammany Parish Government and two present or former St. Tammany Parish
public officials, but also one other of Cooper’s comprehensive general liability insurers and other
newly-joined defendants that may have some financial responsibility for Cooper’s alleged actions
and/or alleged failures to act.
The undersigned as class counsel believe that the settlement with Cooper Engineering, Inc. and
Leroy Cooper, individually, and the amount that is being paid to fund the proposed settlement is
appropriate in amount and also timely. The Cooper errors and omissions insurance policy with
Continental Casualty has a face value and limits of $250,000. However, the policy provides that
the effective limit of liability and the amount that can be paid is reduced by the defense costs paid
to the attorney who has been appointed to defend Cooper’s interests. The Cooper interests have
capably and aggressively been defended since 2008, resulting in a reduction of those limits to
approximately $92,000.00. That there would be a contribution from the Cooper CGL carrier,
National Fire, and that the contribution would be substantial, was not anticipated at the time that
settlement negotiations with Cooper were begun.
An important feature of the settlement agreement as proposed is the affirmative representation that
Leroy Cooper will make himself available for deposition and that his deposition testimony will be
truthful and complete. Based on the 4,829 pages of documents produced by Cooper, the truthful
testimony of Mr. Cooper, particularly after his release from further responsibility in this litigation,
will help prove the responsibility of other defendants.
Plaintiffs have alleged and believe that the documents thus far received are evidence of intentional
actions by the defendants that harmed the plaintiffs and the members of the class, although Cooper
has denied any intentional acts on its part or on the part of Leroy Cooper. If such allegations are
proven, each defendant so engaged will be responsible for all of the damages caused to the plaintiffs
and the members of the class. This could mean that there may not be a proportionate deduction in
recovery on account of the fault of the settling parties, here the Cooper/Cooper Engineering
interests.
Attorneys for all of the parties named in the newest petition (including Ins Co. of the State of
Pennsylvania, Zurich/Maryland, Leon Lowe, Resilire) have either contacted plaintiffs’ counsel or
already made an appearance in the lawsuit.
Plaintiffs’ counsel, Maurice LeGardeur, Adam S. Lambert, and Louis R. Koerner, Jr., have thus
far spent approximately $50,000 in out-of-pocket costs prosecuting the case. It is estimated even
more funds will needed for a successful outcome to be reached. Accordingly, plaintiffs’ counsel
have proposed that the Settlement funds received from Mr. Cooper should only be used to pay for
costs already expended with the remainder being deposited in a trust account for payment of the
substantial future costs needed to support the prosecution of the suit. Past costs include filing fees,
fees of the expert witnesses retained by the plaintiffs, copy costs, interest, and similar costs. Future
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costs will include all of these and will, in addition, include the substantial costs of the depositions,
both individual and corporate, of Mr. Cooper and of the remaining defendants.
By means of a separate agreement, the Cooper defendants have offered and April and Mark
Markiewicz have accepted $30,000 to be paid by Cooper in partial settlement of their separate
Home Warranty Act suit against Cooper Engineering and the developers. Mr. and Mrs. Markiewicz
are not members of the class, and their action against Cooper and the developers is sufficiently
distinct so that it was severed from the Grant case. The Markiewicz petition was filed in 2006 and
is set for trial. The settlement and any other resolution of the Markiewicz case is completely
separate from the Grant case, is only mentioned in the interest of complete disclosure, and is
mentioned because funds, the amount of which was proposed by the Cooper defendants, are being
paid to a Penn Mill Lakes homeowner by a class defendant.
The Court has ordered a “Fairness Hearing” to be held October 22, 2014 at 9:00 A.M. on the issue
of the fairness of the settlement and the appropriateness of the disposition of the funds as described
above. You are invited attend and to state your opinions to Court in order that the Court may make
an informed decision on the fairness of the proposed settlement.
C. Additional Information About the
Fairness Hearing and Your Right to Object
1. What is the Fairness Hearing and when will it be held? The Fairness Hearing presents an
opportunity for interested parties, including potential or “putative” Class Members, to express their
opinions on the proposed settlement. This hearing will be held on October 22, 2014 at 9:00 A.M. in
Division “I” of the 22nd Judicial District Court for the Parish of St. Tammany, located at 701 N
Columbia St., Covington, LA 70433. Written objections, memoranda, etc., if any, must be filed with
the Clerk of Court fifteen (15) or more days prior to the hearing or on October 7, 2014. You may hire
an attorney to represent you, but you are not required to do so.
2. How do I object? To be valid and considered by the Court, any objections by you must be submitted
in writing, must be filed with the Clerk of the Court – DO NOT MAIL OR ATTEMPT TO FILE
DOCUMENTS WITH THE JUDGE, THEY MUST BE FILED WITH THE CLERK OF THE COURT
– and served by mail and/or email on Plaintiffs’ Counsel by October 7, 2014. Your objection must
include the following information:
(1) a heading referring to the Action;
(2) your name, address, telephone number, email address and the contact information for any
attorney retained by you in connection with the objection;
(3) The address of the home you own or owned in Penn Mill Lakes subdivision and a statement
as to the dates that you purchased and, if applicable, sold the home;
(4) a detailed statement of each objection you are making, the basis for each said objection,
and the relief that you are requesting;
(5) a statement of whether you intend to appear, either in person or through an attorney, at the
Fairness Hearing;
(6) if you intend to appear through counsel, you must identify your counsel’s name, address,
phone number, email address, and Louisiana state bar number You objection should contain any Points
and Authorities in support of your objection and all legal authority upon which you will rely; and
(7) if you are going to request that the Court allow you to call witnesses at the Fairness Hearing,
please provide Plaintiff’s counsel, at least thirty (30) days prior to the Fairness Hearing, with a witness
list that includes a brief summary of each witness's expected testimony. Failure to provide this list of
witnesses may prevent a witness from testifying at the hearing. However, submitting this list does not
guarantee that the witnesses shall be allowed to testify.
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Any counsel retained by you in connection with an objection shall identify all objections they
have filed to class action settlements from January 1, 2010 to present, and identify the results of each
objection, including any court opinions ruling on the objections. Objector’s counsel shall also identify
if they have ever been sanctioned by a court in connection with filing an objection.
If you file an objection, you must make yourself available for deposition upon ten days written
notice, although the parties will work to accommodate your schedule to the extent practical. Also, for
your convenience, the deposition must be taken within 40 miles of your residence, unless you agree to
a different location.
An original and one copy of any objections you prepare must be timely filed with the Clerk of
the Court at the following address: 22nd Judicial District Court for the Parish of St. Tammany, located
at 701 N Columbia St., Covington, LA 70433. Copies of all documents filed with the Clerk of the
Court must also be sent to Plaintiffs’ counsel at the following address:
LOUIS R. KOERNER, JR.
1204 Jackson Avenue
New Orleans, Louisiana 70130-5130
Tel: (504) 581-9569
Fax: (504) 324-1798
[email protected]
3. What possible actions may the Court may take in response to the proposed Settlement?
(a) The Court could approve the settlement as proposed by the plaintiffs’ attorneys. LEROY
COOPER, COOPER ENGINEERING, INC. and their insurers, Continental Casualty Company
(“Continental Casualty”) and Nation Fire Insurance Company of Hartford (“National Fire”), would
thereby be fully and completely DISMISSED from the litigation as defendants in exchange for the
payment of the sum of $170,000 to the Class. The moneys received by the Class from Cooper and its
insurers will be used to pay for past, present, and future costs of prosecuting the litigation on behalf of
the named plaintiffs and also the Class if the Class is Certified by the Court. No funds will be used
for any other purpose and none of the funds will be used to pay attorney’s fees. If any funds are
still remaining at the conclusion of the case, they will be fairly and equitably distributed to the plaintiffs
and/or class members in accordance with future Orders of the Court and likely another Fairness
Hearing.
(b) The Court could reject the Settlement as proposed by the Plaintiffs’ Attorneys, but still
approve the Settlement in part; it could reject the Settlement in its entirety; or it may take other
action. The Court may take other action as it sees fit, including action proposed by any interested party
at the Fairness Hearing. However, as the Class has not been certified, the Court could not and will not
order any payments to potential Class Members who are not named plaintiffs in the lawsuit.
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