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R.K. HILL v. Hill Brothers Construction Co. Inc.

United States District Court, N.D. Mississippi, Oxford Division

May 9, 2017

R.K. HILL, et al., Plaintiffs,
v.
HILL BROTHERS CONSTRUCTION COMPANY, INC., et al., Defendants.

          ORDER ON PLAINTIFFS' UNOPPOSED PRELIMINARY MOTION FOR APPROVLA OF CLASS ACTION SETTLEMENT AND PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS

          Sharion Aycock United States District Judge.

         Plaintiffs Robert K. Hill, Donald Byther, Sandy Byther, Keith Clark, Samuel Copeland, B.T. Erve, Percy Evans, George Flakes, Scott Goolsby, Sheila Kelly, Paul Leonard, Fred Smith, Dewayne Toliver, Ulysses Wiley, and Warlfoyd Winters (hereinafter “Plaintiffs”) filed their Unopposed Motion for Approval of Class Actions Settlement and Preliminary Certification of the Settlement Class on March 23, 2017 (hereinafter “Motion”). A hearing was held before this Honorable Court on May 3, 2017, and Counsel for defendants Hill Brothers Construction Company, Inc., HBC Board of Directors, Kenneth W. Hill, Kenneth W. Hill, Jr., Gerald C. Hill, Jimmy Hill, John F. Hill, Jr., Sterling Aker, Danny McAllister, Clyde R Robertson, Donald Bates, Jane H. Childs, Beth Lockhart, Mark Robertson, Doug Horton, David Horton, and the Hill Brothers Construction Company, Inc. Employee Stock Ownership and 401(K) Plan and Trust Plan Administrative Committee were present.

         The capitalized terms used herein shall have the same meaning as defined in the Settlement Agreement which is attached as Appendix A to Plaintiff's Motion for Preliminary Approval (the “Settlement Agreement”). Having considered Plaintiffs' motion, brief and supporting documents, the signed Settlement Agreement and all other evidence submitted concerning Plaintiffs' motion, and being duly advised in the premises, this Court hereby finds that:

(a) The settlement proposed in the Settlement Agreement (“the Settlement”) has been negotiated in good faith at arm's length and is preliminarily determined to be fair, reasonable, adequate, and in the best interests of the Settlement Class (as defined below).
(b) The class notice, as described in the Settlement Agreement, Plaintiffs' brief, and as described during the preliminary hearing, fully complies with Federal Rule of Civil Procedure 23(c)(2)(B) and due process, constitutes the best notice practicable under the circumstances, and is due and sufficient notice to all persons entitled to notice of the settlement of the Action.
(c) With respect to the Settlement Class, this Court finds that, for settlement purposes only, certification is appropriate under Federal Rule of Civil Procedure 23(a) and (b)(3). This Court finds that members of the Settlement Class will receive notice of the settlement through the notice program described below.
(d) This Court finds that the class notice described below constitutes the best notice practicable under the circumstances and fully complies with Federal Rule of Civil Procedure 23(c)(2)(B).

         IT IS THEREFORE ORDERED THAT:

         1. For the reasons stated on the record, and in Plaintiffs' Motion, the settlement proposed in the Settlement Agreement has been negotiated in good faith at arm's length, and is preliminarily determined to be fair, reasonable, adequate, and in the best interests of the Settlement Class in light of the factual, legal, practical and procedural considerations raised by this case.

         2. The following class (the “Settlement Class”) is preliminarily certified solely for the purpose of settlement pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3):

All participants, beneficiaries, and alternate payees of the ESOP reflected on the records of the ESOP as of August 15, 2013.

         The Court makes a preliminary finding that this action satisfies the applicable prerequisites for class action treatment under Fed.R.Civ.P. 23(a) and (b). The Settlement Class is ascertainable, so numerous that joinder of all members is not practicable, there are questions of law and fact common to the Settlement Class, the claims of the Class Representative (as defined below) are typical of the claims of the Settlement Class, and the Class Representative will fairly and adequately protect the interests of the Settlement Class. Questions of law and fact common to the members of the Settlement class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

         3. The Court preliminarily appoints Plaintiffs Robert K. Hill, Donald Byther, Sandy Byther, Keith Clark, Samuel Copeland, B.T. Erve, Percy Evans, George Flakes, Scott Goolsby, Sheila Kelly, Paul Leonard, Fred Smith, Dewayne Toliver, Ulysses Wiley, and Warfloyd Winters as class representatives of the Settlement Class (“Class Representative”), and finds that they meet the requirements of Fed.R.Civ.P. 23.

         4. The Court preliminarily appoints the following lawyers as Settlement Class Counsel and finds that they meet the requirements of Fed.R.Civ.P. 23: Matthew Y. Harris of Harris Law, PLLC, New Albany, MS; Diandra S. Debrosse Zimmermann, of Zarzaur Mujumdar & Debrosse, Birmingham, Alabama; Edgar C. Gentle of Gentle Turner Sexton & Harbison, LLC, Hoover, AL; L. ...


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