JOUSMA v. THOMAS J. MOYLE, JR., INC.

OPINION

TIMOTHY P. GREELEY, Magistrate Judge.

On May 21, 2013, the Honorable Robert Holmes Bell, United States District Judge, referred to the undersigned Defendants' Motion to Enforce Settlement Agreement (Docket #100). A hearing was held on June 6, 2013. Following that hearing, the parties and the undersigned engaged in extensive and protracted settlement discussions. The parties were very well represented by counsel and through the efforts of those parties, a settlement agreement has been reached and is attached herewith. In the opinion of the undersigned, the proposed settlement is a fair and reasonable resolution of the issues presented by this case.

SETTLEMENT AGREEMENT

This SETTLEMENT AGREEMENT is made the 16th day of October 2013, by and between BENJAMIN JOUSMA, MARK KELA, DARIN BURCAR. MICHAEL NEWKIRK, DANIEL A. GHAZALE, RICHARD J. SIMONS (collectively referred to as "Plaintiffs"), ON BEHALF OF THEMSELVES AND THOSE SIMILARLY SITUATED, and THOMAS J. MOYLE, JR., INC., THOMAS J. MOYLE, JR., ANDREW J. MOYLE, GARY A MOYLE, THOMAS R. HELMFNEN, AND KIMBERLY R. MOYLE (collectively referred to as "Moyle Defendants") and ORCHARD TRUST COMPANY ("Orchard").

I. CONDITIONS OF SETTLEMENT. Plaintiffs and Defendants (collectively referred to as the "Parties") agree to seek a class certification of a mandatory class, under Federal Rule of Civil Procedure 23, for settlement purposes only. They further agree that this Settlement Agreement is conditioned on Court approval and certification of the class for settlement purposes. The Parties agree to seek Court approval of the Settlement and certification of a mandatory non-opt out class consisting of all persons who worked as laborers and construction mechanics for Thomas J, Moyle, Jr., Inc. ("Moyle, Inc.") on Federal Davis-Bacon or State Prevailing Wage projects at any time during the years 2009 through 2012 (hereafter referred to as "Class Members"). The term "laborers and construction mechanics" refers to persons who performed work of the type covered by the applicable Federal Davis-Bacon or State Prevailing Wage law. If the class is certified and this Settlement is approved by the Court, this Settlement will be binding on Plaintiffs, Defendants and Class Members.

2. PAYMENT. The Parties agree that Moyle, Inc. will make the following Settlement payments:

The Settlement payments, which will be made by Moyle, Inc. alone, will be made following Court approval of the Settlement according to the payment schedule set forth below. The $56,000 lost opportunity costs amount shall be paid out of the first installment discussed below.

3. PAYMENT PLAN. The entire settlement amount, i.e., both contributions and lost opportunity costs, will be paid by September 30, 2014, according to the following payment schedule.

The payments shall be made after Court approval of the class settlement and regardless of when the jointly retained CPA (which is discussed in paragraphs 4 and 5 below) begins or completes his/her work.

If Moyle, Inc. pays more than the agreed-upon payment on any scheduled payment date, the amount above the required payment will be credited towards Moyle, Inc.'s next required payment, The CPA, jointly retained by the Parties as described in paragraph 4 below, shall provide Plaintiffs' counsel with proof of each settlement payment at the time of each such payment. The pension contribution amounts to be paid to the Plan under this Settlement Agreement shall be allocated to participant accounts consistent with Plan terms and federal law. The $56,000 in lost opportunity costs shall be allocated to the Class Members in proportion to the amounts owed for each Class Member.

4. INDEPENDENT VERIFICATION. The Parties agree that the total contribution amounts owed to the Plan under the Settlement for work performed by Class Members on federal Davis Bacon projects and State Prevailing Wage projects from January 1, 2009-Decernber 31, 2012 are subject to verification by a jointly retained independent CPA. The costs and fees for this jointly retained CPA shall be borne entirely and exclusively by Moyle, Inc. Magistrate Judge Timothy Greeley will select the CPA.

5. CPA DUTIES. The Parties agree that the CPA will verify and determine the exact amount of pension contributions which Moyle, Inc. must pay to the Plan for work performed by Class Members on Davis Bacon projects and State Prevailing "Wage projects for the period of January 1, 2009 through December 31, 2012. Tire CPA will also verify that payments required under this Settlement Agreement have been made according to the payment schedule in Paragraph 3.

Moyle, Inc. will make all payments required under this Settlement Agreement to the CPA, who shall transfer these payments to the Plan. The Moyle Defendants and Orchard will give the CPA full, unhindered access to all files and records that the CPA determines, in his sole discretion, are relevant to the determination and verification of the contributions owed to the Plan under the Settlement for work performed by Class Members on Federal Davis-Bacon projects and State Prevailing Wage projects during the period of January 1, 2009-December 31, 2012.

All source information obtained by the CPA is subject to confidentiality terms. The CPA will honor confidentiality terms and not produce or provide any confidential information to Plaintiffs or to Plaintiffs' counsel without a protective order or confidentiality agreement.

The Parties specifically agree that the CPA's final report and the information in that report is not confidential.

6. PAYMENT ADJUSTMENTS. The last payment required under the payment schedule (September 30, 2014) will be adjusted, up or down, from the amount of $464,000 based on the actual amount of pension contributions determined to be owed by the CPA. The amount of the last payment will be the amount needed to pay all remaining settlement amounts owed as determined by the CPA for the January 1, 2009 through December 31, 2012 period. By the end of the payment plan set forth in paragraph 3 above (September 30, 2014), Moyle, Inc. must pay the total settlement amounts as described above.

7. ORDER GRANTING FINAL APPROVAL OF SETTLEMENT. The Parties agree to seek entry of an Order Granting Final Approval of Settlement, (Exhibit 1)

8. CURRENT FRINGE PAYMENTS. Defendants agree that for the duration of the payment schedule set forth in Paragraph No, 3 above, Moyle, Inc, will make timely contributions to the Plan, By this section, the Parties articulate their agreement that these settlement payments are not to lie financed by Moyle, Inc.'s failure to timely pay required post-settlement pension contributions. Compliance with this requirement will be verified by the CPA appointed in Paragraph No. 4, who will report any noncompliance to Plaintiffs' counsel of record.

9. RELEASE OF CLAIMS. Provided Moyle, Inc. is in compliance with the terms of this Settlement Agreement, Plaintiffs and Class Members release the Moyle Defendants and Orchard, and their parent and affiliated companies, attorneys, officers, directors, employees, agents, and shareholders from all claims for pension contributions, lost opportunity costs for work performed through December 31, 2012, attorneys* fees and litigation costs and all other claims or damages arising from or related to the Action.

Should Moyle, Inc. default on its payment obligations required by this Agreement and fail to cure within 30-days after written notice of default, all Moyle Defendants and Orchard agree that a Stipulated Consent Judgment (Exhibit 2) for the remaining unpaid settlement amounts may be entered against Moyle. Inc. and that Plaintiffs may reinstate any and all of their claims against the individual Defendants and Orchard, retroactive to the date of Plaintiffs' original Complaint in this matter.

If any of Plaintiffs' claims are reinstated following an uncured default, the individual Defendants and Orchard do not waive any claims or defenses, except for the defenses of statute of limitation and/or laches based on the lapse of time between the date of the Consent Order Approving Settlement and 90 days after Plaintiffs receive notice of default

Nothing in this provision nor any other term of this Settlement Agreement shall be interpreted or applied so as to release any claim by any Plaintiff or Class Member for pension contributions or other amounts for work an individual performs for Defendants on Federal Davis-Bacon and State Prevailing Wage projects after December 31, 2012 or for work on non-prevailing wage projects for any period.

All Defendants, on behalf of themselves and their heirs, administrators, executors, successors and assigns and affiliated companies, release Plaintiffs and Class Members and their spouses, executors, successors, heirs, assigns, and attorneys from any and all debts, obligations, demands, claims, judgments, causes of action of any kind arising out of or related to the Action. But, this release is void should Plaintiffs reinstate any claims against the individual Defendants and Orchard.

10. ATTORNEY FEES. Provided Moyle, Inc. is in compliance with the terms of the Settlement Agreement, Plaintiffs release and waive any and all claims for attorney fees and costs arising from or related to this action.

11. ORCHARD FEES. Orchard will not, during the payment schedule set forth in the Settlement Agreement, increase its administrative fees to the Plan.

12. WITHDRAWAL OF PENDING CLAIMS. Plaintiffs and Class Members further agree to stay all bond claims unless Moyle, Inc. defaults under this Settlement Agreement. Plaintiffs and Class Members agree to withdraw any bond claims when Moyle, Inc. makes full contributions for applicable projects.

13. DENIAL OF LIABILITY. All Defendants expressly deny liability or any wrongdoing, and the payment of consideration in this Settlement Agreement does not constitute an admission of liability or violation of any applicable law, any contract provisions or any rule or regulation. This Settlement Agreement shall not be admissible against any Defendants or Plaintiffs, in any proceeding, except in an action to enforce its terms.

14. UNITED STATES DEPARTMENT OF LABOR (USDOL). Plaintiffs agree to send the following attached letter (Exhibit 3) to the USDOL.

15. CONSULTATION WITH COUNSEL. Parties acknowledge that they have fully discussed the terms of this Settlement Agreement with their attorneys of record and have fully reviewed the claims which are being released and the obligations that they have under this Settlement Agreement. Based on that review and discussions with their attorneys, the Parties acknowledge that they fully and completely understand and accept the terms of this Settlement Agreement and enter it freely and voluntarily of their own accord.

16. SEVERABILITY. If any provision or portion thereof of this Settlement Agreement is held invalid or unenforceable under applicable statute or rule of law, only that provision shall be deemed omitted from this Settlement Agreement, and only to the extent to which it is held invalid. In such a case, the remainder of the Settlement Agreement shall remain in full force and effect.

17. ENTIRE AGREEMENT. The Parties acknowledge that this Settlement Agreement contains the Parties' entire, final and complete agreement and understanding, and that there are no additional promises or terms of the settlement between the Parties, other than those contained herein, and that this Settlement Agreement shall not be amended or modified except in writing and signed by all Parties,

18. GOVERNING LAW. This Settlement Agreement is to be construed in accordance with the laws of the State of Michigan.

CONSENT FINAL JUDGMENT

Pursuant to the Parties' Settlement Agreement, and the _____________, 2013 Consent Order Approving Class Settlement,

NOW THEREFORE IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:

1. This Court has jurisdiction over the subject matter of this action (the "Action") and over all Parties and all Class Members, and this matter is before the Court on Plaintiffs' motion.

2. Pursuant to Federal Rule of Civil Procedure 23, the Court has certified, for purposes of effectuating the Parties' settlement, a Class consisting of all persons who worked as laborers and construction mechanics for Thomas J. Moyle, Jr., Inc. ("Moyle, Inc.") on Federal Davis-Bacon Projects and State Prevailing Wage Projects in the years 2009-2012 (the "Class"). The term "laborers and construction mechanics" refers to persons who performed work of the type covered by applicable Federal Davis-Bacon and/or State Prevailing Wage laws.

3. Pursuant to Federal Rule of Civil Procedure 23, the Court has previously certified the Class for settlement purposes only and has found that:

4. Plaintiffs Benjamin Jousma, Mark Kela, Darin Burcar, Michael Newkirk, Daniel Ghazale and Richard Simons have been designated as the Class representatives. For settlement purposes only, the Court finds that the Class representatives and their counsel have fairly and adequately represented the interests of the Class.

5. The Notice of Pendency and Proposed Settlement of Class Action (the "Settlement Notice") was timely mailed to members of the Class pursuant to and in the manner directed by Court Order, and a full opportunity to be heard has been offered to all Parties, Class Members and persons in interest.

6. The form and manner of the Settlement Notice fully complied with each of the requirements of Federal Rule of Civil Procedure 23, the Constitution of the United States, and any other applicable law. It constitutes due and sufficient notice to all persons entitled to such notice.

7. On ______________, 2013, this Court entered a Consent Order Approving Settlement.

8. The Parties and all Class Members are bound by this Consent Final Judgment.

9. Pursuant to Federal Rule of Civil Procedure 23, the Settlement Agreement is hereby approved in its entirety and incorporated into this Consent Final Judgment. The Parties to the Settlement Agreement are hereby authorized, directed and ordered to comply with the Settlement Agreement.

10. Defendant Moyle, Inc. will:

These payments, which will be made by Moyle, Inc. alone, will be made according to the payment schedule discussed below. The $56,000 for lost opportunity costs shall be paid out of the first installment discussed below. The total amount due under this Judgment shall be reduced by any amounts already paid by Moyle, Inc., pursuant to the terms of the Parties' agreement.

11. The entire settlement amount, i.e., both contributions and lost opportunity costs, will be paid by September 30, 2014, according to the following payment schedule, regardless of when the jointly-retained CPA begins or completes his/her work, Accordingly, Moyle, Inc., will pay to the CPA;

As explained below, the final September 30, 2014 payment may be adjusted.

12. If Moyle, Inc. pays more than the agreed-upon minimum payment on any of the scheduled payment dates, the amount above the required payment will be credited towards Moyle, Inc's next required payment. Moyle, Inc., and the CPA shall provide Plaintiffs' counsel with proof of each settlement payment at the time of each such payment. The pension contributions to be paid under this Settlement Agreement shall be allocated to participant accounts consistently with Plan terms and federal law.

13. The costs and fees associated with this jointly-retained CPA shall be borne entirely and exclusively by the Moyle, Inc.

14. The CPA will collect all payments due under this Consent Judgment and transfer those amounts to the Plan. The Moyle Defendants will give the CPA full unhindered access to all files and records that the CPA, in its sole discretion, determines is necessary to assess the amount of the pension contributions owed to the Plan for Federal Davis-Bacon projects and State Prevailing Wage projects for the period of January 1, 2009 through December 31, 2012.

15. All source information obtained by the CPA is subject to confidentiality terms. The CPA will honor confidentiality terms and not produce any confidential information to Plaintiffs or to Plaintiffs' counsel without a protective order or confidentiality agreement. The CPA's final report, and the information included in that report, is not confidential and may be used for all purposes.

16. The last payment required under the payment schedule (September 30, 2014) will be adjusted, up or down based on the actual amount of pension contributions determined to be owed by the CPA. The amount of the last payment will be the amount needed to pay all remaining settlement amounts owed as determined by the CPA for the January 1, 2009 through December 31, 2012 period. By the end of the payment plan set forth in paragraph 11 above (September 30, 2014), Moyle, Inc. must pay the total settlement amounts as described in paragraphs 10 and 11 above, including the $56,000 in lost opportunity costs.

17. Moyle, Inc, has defaulted on Settlement Agreement-required payment schedule.

18. Moyle, Inc. did not timely cure its default.

19. This Consent Judgment is now entered against Moyle, Inc. for the entire amount owed, as determined by the jointly-retained CPA, less any amounts already paid by Moyle, Inc., pursuant to the terms of the Settlement Agreement.

20. For the duration of the payment plan set forth in Paragraph 11 above, Moyle, Inc. will make timely pension contributions to the Plan for post-December 31, 2012 work so that the payments required under the Settlement Agreement and Court-ordered payment schedule are not made or financed by deferring any of Moyle's current Plan contributions obligations. The CPA will verify compliance with the requirements of this paragraph and immediately report to Plaintiffs' Counsel any delinquent payment not made on its due date.

21. Plaintiffs' claims against the individual Defendants and Orchard are reinstated retroactive to February 24, 2012. All defenses of these Defendants are preserved except that the individual Defendants and Orchard are foreclosed from raising any statute of limitations or laches defense based on the lapse of time between the entry of the Consent Order Approving Settlement and 90 days after Plaintiffs received notice of Moyle, Inc.'s default. Pursuant to Federal Rule of Civil Procedure 54(b), this Consent Final Judgment is a Final Judgment against Moyle, Inc. only.

22. Orchard will not, during the agreed-upon and Court-ordered payment schedule set forth in Paragraph 11 above, increase its administrative fees to the Plan.

23. The Court hereby retains jurisdiction over the Parties and the Class Members for purposes of administering, interpreting, effectuating, and enforcing the Settlement Agreement and this Consent Final Judgment.

24. The Parties are entitled to enforce their Settlement Agreement, the Consent Order Approving the Settlement, and this Consent Final Judgment notwithstanding any previous Orders staying this litigation. Any such Orders are no longer of any force or effect,

25. There being no just reason for delay, the Court hereby directs that this Consent Final Judgment be entered by the Clerk of the Court.

IT IS SO ORDERED.

CONSENT ORDER APPROVING SETTLEMENT

WHEREAS, a Settlement Agreement was formed between Plaintiffs Benjamin Jousma, Mark Kela, Darin Burcar, Michael Newkirk, Daniel Ghazale, and Richard Simons (collectively referred to as "Plaintiffs"), Defendants Thomas J, Moyle, Jr., Inc., Thomas J. Moyle, Jr., Andrew Moyle, Gary Moyle, Kim Moyle and Thomas Helminen (collectively referred to as the "Moyle Defendants) and Orchard Trust Company (Orchard) which was expressly conditioned on this Court's certification of the Class for settlement purposes and this Court's approval of Hie Settlement; and

WHEREAS, at the request of all Plaintiffs and all Defendants (collectively referred to as the "Parties") and after a hearing, this Court issued an Order that certified the Class for settlement purposes, preliminary approved the settlement subject to a Fairness hearing, approved the Class notice regarding the pendency of the Class action and settlement and scheduled a Fairness hearing; and

WHEREAS, the certified Class was provided with Notice of the Class action, the proposed settlement and the date, time and place of the Fairness hearing as directed by Court Order, and this Notice was adequate and sufficient; and

WHEREAS, the Court held a Fairness hearing to consider the settlement and the attorneys for the respective Parties and the Class have been heard in support of the settlement, and an opportunity to be heard has been given to all other persons desiring to be heard as provided in the Notice sent to the Class; and

WHEREAS, the Court has heard and considered the entire matter of the proposed settlement, including all papers, memoranda of law, and material filed in connection therewith, and concludes that the settlement is fair and adequate and in the best interests of the Class and will be approved;

NOW THEREFORE IT IS HEREBY ORDERED as follows:

1. This Court has jurisdiction over the subject matter of this action (the "Action") and over all Parties and all Class Members.

2. Pursuant to Federal Rule of Civil Procedure 23, the Court has certified, for purposes of effectuating the Parties' settlement, a Class consisting of all persons who worked as laborers and construction mechanics for Thomas J. Moyle, Jr., Inc. ("Moyle, Inc.") on Federal Davis-Bacon Projects and State Prevailing Wage Projects in the years 2009-2012 (the "Class"). The term "laborers and construction mechanics" refers to persons who performed work of the type covered by applicable Federal Davis-Bacon and/or State Prevailing Wage laws.

3. Pursuant to Federal Rule of Civil Procedure 23, the Court has previously certified the Class for settlement purposes only and has found that:

4. Plaintiffs Benjamin Jousma, Mark Kela, Darin Burcar, Michael Newkirk, Daniel Ghazale and Richard Simons have been designated as the Class representatives. The Court finds that the Class representatives and their counsel have fairly and adequately represented the interests of the Class.

5. The Notice of Pendency and Proposed Settlement of Class Action (the "Settlement Notice") was timely mailed to Class Members pursuant to and in the manner directed by Court Order, and a full opportunity to be heard has been offered to all Parties, Class Members and persons in interest.

6. The form and manner of the Settlement Notice fully complied with each of the requirements of Federal Rule of Civil Procedure 23, the Constitution of the United States, and any other applicable law. It constitutes due and sufficient notice to all persons entitled to such notice.

7. The Parties and all Class Members are bound by this Consent Order.

8. Pursuant to Federal Rule of Civil Procedure 23, the Settlement Agreement is hereby approved in its entirety and incorporated into this Consent Order. The Parties to the Settlement Agreement are hereby authorized and directed to comply with the Settlement Agreement.

9. Defendant Moyle, Inc. will make the following Settlement payments:

These payments, which will be made by Moyle, Inc. alone, will be made according to the payment schedule discussed below. The $56,000 for lost opportunity costs shall be paid out of the first installment payment discussed below.

10. The entire settlement amount, i.e., both contributions and lost opportunity costs, will be paid by September 30, 2014 according to the following payment schedule, regardless of when the jointly-retained CPA begins or completes his/her work, Accordingly, Moyle, Inc. will pay to the CPA:

As explained below, die final September 30, 2014 payment may be adjusted.

If Moyle, Inc. pays more than the agreed-upon payment on any of the scheduled payment dates, the amount above the required payment will be credited towards Moyle's next required payment. Moyle, Inc., and the CPA shall provide Plaintiffs' counsel with proof of each settlement payment at the time of each such payment. The pension contribution amounts to be paid to the Plan under this Settlement Agreement shall be allocated to participant accounts consistent with the Plan terms and federal law.

11. The costs and fees associated with the jointly-retained CPA shall be borne entirely and exclusively by Moyle, Inc.

12. The CPA will collect all payments due under this Consent Order and Settlement Agreement and transfer those amounts to the Plan The Moyle Defendants will give the CPA full unhindered access to all files and records that the CPA, in its sole discretion, determines is necessary to determine and verify the amount of the pension contributions owed to the Plan for Federal Davis-Bacon projects and State Prevailing Wage projects for the period of January 1, 2009 through December 31, 2012.

13. All source information obtained by the CPA is subject to confidentiality terms. The CPA will honor confidentiality terms and not produce any confidential information to Plaintiffs or to Plaintiffs' counsel without a protective order or confidentiality agreement. The CPA's final report, and the information included in that report, is not confidential.

14. The last payment required under the payment schedule (September 30, 2014) will be adjusted, up or down based on the actual amount of pension contributions determined to be owed by the CPA. The amount of the last payment will be the amount needed to pay all remaining settlement amounts owed as determined by the CPA for the January 1, 2009 through December 31, 2012 period. By the end of the payment plan set forth in paragraph 10 above (September 30, 2014), Moyle, Inc. must pay the total settlement amounts as described in paragraphs 9 and 10 above, including the $56,000 for lost opportunity costs.

15. For the duration of the payment plan set forth in Paragraph 10, Moyle, Inc., will make timely pension contributions to the Plan for post-December 31, 2012 work so that the payments required under the Settlement Agreement payment schedule, described in Paragraph 10 of this Consent Order, arc not made or financed by deferring any of Moyle, Inc's current Plan contribution obligations. The CPA, retained under Paragraph 9 of this Consent Order, will verify compliance with the requirements of this paragraph and immediately report to Plaintiffs' Counsel if Moyle, Inc., is delinquent in any post-December 31, 2012 pension contributions,

16. The individual Defendants and Orchard shall have no obligations to remit the amounts owed under this Consent Order. Plaintiffs* claims against the individual Defendants and Orchard are dismissed without prejudice subject to reinstatement as set forth below. If Moyle, Inc. fails to make a payment required under this Consent Order, and fails to cure such default within 30 days of written notice of default, this Court shall, upon motion by Plaintiffs enter a Stipulated and Final Consent Judgment, which is attached as Exhibit A, against Moyle, Inc. for any amounts unpaid under the Settlement and this Consent Order and reinstate all Plaintiffs' claims against the individual Defendants and Orchard retroactive to the date of Plaintiffs' original complaint in this matter, viz., February 24, 2012.

If Plaintiffs' claims against the individual Defendants and Orchard are reinstated, all defenses of those Defendants are preserved. But, the individual Defendants and Orchard are foreclosed from raising any statute of limitations or laches defense based on the lapse of time between this Consent Order and ninety (90) days after Plaintiffs receive notice of Moyle, Inc's default. Written notice of default shall be sent to Keith Eastland, counsel for Moyle, Inc., 250 Monroe Avenue, NW, Suite 800, Grand Rapids, MI 49501-0306 and shall be effective upon mailing.

Once all conditions of settlement are met, no claims may be reinstated against any Defendant and this Consent Order Approving Settlement shall be the Court's final judgment disposing of all claims for pension contributions, lost opportunity costs for work performed through December 31, 2012, attorney's fees and litigation costs and all other claims or damages arising from or related to the Action and concludes this case.

17. Orchard will not, during this agreed-upon and Court-ordered payment schedule; increase its administrative fees to the Plan,

18. The Court hereby retains jurisdiction over the Parties and the Class Members for purposes of administering, interpreting, effectuating, and enforcing the Settlement Agreement and this Consent Order.

19. The Parties are entitled to enforce their Settlement Agreement and this Consent Order notwithstanding any previous Orders staying the litigation, Any such Orders are no longer of any force or effect.

20. There being no just reason for delay, the Court hereby directs that this Consent Order be entered by the Clerk of the Court.

IT IS SO ORDERED.