SHENANDOAH HOMES LLC, and CAPITAL PROPERTIES OF RALEIGH II, LLC v. TOWN OF CLAYTON

Frequently Asked Questions

1. BASIC INFORMATION

1. Why is there a notice?

   If you received Notice of the Settlement by mail, then you have been identified as a Settlement Class Member. The Court authorized that you be sent notice because you have a right to know about a proposed Settlement of a class action lawsuit involving the payment of Capacity Fees, and about your options under the Settlement. The Notice summarizes the lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for them, how those benefits will be provided, and other important information.

   However, the Notice is only a summary of the Settlement Agreement, titled “Stipulation of Settlement and Release,” (“Settlement” or “Settlement Agreement”) which is available for review at here. If there is any conflict between this Notice and the Settlement, the Settlement Agreement governs. You should review the full Settlement Agreement before deciding what to do.

2. What is this lawsuit about?

   The case alleges that the Town unlawfully collected Capacity Fees on or between February 26, 2016 and June 30, 2018. “Capacity Fee” means any fee alleged to have been collected improperly by the Town for connection to water service as a condition of building a structure in the planning jurisdiction of the Town from February 26, 2016 to June 30, 2018.

   The Plaintiff’s Complaint, the Settlement Agreement, and other case-related documents are posted here. The Settlement resolves the lawsuit.

   The Parties agreed to conduct a court ordered mediation before Patricia Holland, Esq. and a mediation was thereafter held by the Parties on February 27, 2020, in an effort to negotiate in good faith and at arms-length to determine if a settlement between the Parties was possible or if protracted litigation would be required.

3. Why is this a class action?

   In a class action, one or more people, called “Class Representatives” (in this case Shenandoah Homes LLC and Capital Properties of Raleigh II, LLC) sue on behalf of people who have similar claims. Together, all these people with similar claims (except for those who exclude themselves) are members of the Settlement Class.

4. Why is there a settlement?

   The Parties agreed to a settlement to avoid the costs and risks of further litigation and provide benefits to Settlement Class Members. The Class Representative and the lawyers representing him (called “Class Counsel”) believe that the Settlement is in the best interests of all Settlement Class Members.

5. WHO IS IN THE SETTLEMENT?

5. How do I know if I am in the settlement?

   You are in the Settlement Class you are a person or organization who paid Capacity Fees on or between February 26, 2016, and June 30, 2018 which are at issue in this action. The Settlement Class specifically excludes any person or entity that entered into a development agreement with Clayton containing terms regarding payment for water or sewer capacity.

6. What if I am still not sure if I am included in the settlement?

   If you are not sure whether you are a Settlement Class Member, or have any other questions about the Settlement Agreement, contact the Settlement Administrator. You can send questions by mail to: Clayton Capacity Fee Settlement Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103; by emailing info@claytoncapacityfeesettlement.com; or calling toll- free 1-833-725-0185.

7. SETTLEMENT BENEFITS

7. What does the settlement provide?

   If the Settlement is approved, the Town will provide payments to Settlement Class Members who file a complete and timely claim form, for paid Capacity Fees. The Town will establish a Settlement Fund equal to two million and seven hundred and fifty thousand dollars ($2,750,000.00).

   What Settlement Class Members who paid Development Fees can get:
   Payments to Settlement Class Members who file a timely and valid claim for Settlement Claims (Settlement Claimants), including attorneys’ fees and fees for the Settlement Administrator, are subject to a maximum payout, or maximum settlement value of $2,750,000 (“Fund”). The Final Settlement amount shall be determined after receipt of all claim forms within the prescribed claim form filing period. Payments for Settlement Claims will be disbursed as follows:

   • On or before July 1, 2021, the Town will pay $1,250,000 from the Fund to Settlement Class Members, from which Claimants will be eligible to receive no more than 39% of a Claimant’s Capacity Fee claim. In total, Settlement Class Members will be eligible to receive no more than 78% of the total Capacity Fees paid by the claimants to the Town from February 26, 2016 to June 30, 2018.
   • In the event the Fund is oversubscribed at the conclusion of the claims period, attorneys fees, service awards, and expenses will reduce the percentage of payouts to Claimants to an appreciable percentage lower than 78% on a pro rata basis.
   • In no way shall any attorneys’ fees, expenses, service awards, or any other cost reduce a Claimant’s refund percentage from 78% as long as the Fund is undersubscribed. Attorneys fees, expenses, and the service award shall not be individually deducted from each claimants recovery as long as the fund is under subscribed at the conclusion of the claims period. Any unclaimed funds remaining in the Settlement Fund after all valid claims, attorney’s fees, costs, expenses, administrative fees, and the class service award have been paid shall revert to the Town.

8. What am I giving up to stay in the Class?

   Unless you exclude yourself from the Settlement, you can’t sue the Town, continue to sue, or be part of any other lawsuit against the Town about the legal issues in this case. It also means that all of the decisions by the Court will bind you. The claims you will release are referred to as the “Released Claims”, which are fully described in the Settlement Agreement. The Settlement Agreement is available here.

9. HOW TO GET BENEFITS

9. How can I receive benefits?

   To receive benefits, each Settlement Class Member must timely complete and submit a valid Claim Form. A Claim Form should have been mailed to you. Your completed Claim Form must be mailed so that it is postmarked no later than October 20, 2020. Mail your Claim Form to:

   Clayton Capacity Fee Settlement Administrator
   1650 Arch Street, Suite 2210
   Philadelphia, PA 19103

   You can also submit a claim by email to info@claytoncapacityfeesettlement.com. Claims submitted via email must be received no later than October 20,2020.

   If you do not submit a timely and valid Claim Form by the deadline, you will not receive any settlement benefit.

10. When will I get my benefits?

    Settlement Class Members who submit timely, complete, and valid claim forms will receive the benefits for which they qualify after the Court grants “final approval” to the Settlement and after any appeals are resolved. If the Court approves the Settlement after a hearing on June 22, 2020 there may be appeals. It’s always uncertain whether these appeals can be resolved, and resolving them can take time.

11. EXCLUDING YOURSELF FROM THE SETTLEMENT

11. How do I get out of the settlement?

    If you want to keep the right to sue the Town over the legal issues in this case, then you must take steps to get out of this Settlement and give up your right to benefits under this Settlement. This is called asking to be excluded from—or sometimes “opting out” of—the Settlement Class. To exclude yourself from the Settlement, you must complete and mail to the Settlement Administrator a letter that includes the following:

    • A caption or title that identifies it as “Request for Exclusion in”; Shenandoah Homes, LLC and Capital Properties of Raleigh II, LLC. vs. Town of Clayton, (19-CVS-640), (Superior Court Division of Johnston County, North Carolina)”.
    • Your name, business address, and address of the property where the alleged Capacity Fees were paid and date of payment;
    • A statement that you wish to be excluded from the Settlement.

    You must mail your exclusion request, postmarked no later than May 22, 2020 to the following address, and mail copies to Class Counsel and the Town’s Counsel:

    Administrator	Class Counsel	The Town’s Counsel
    Clayton Capacity Fee Settlement Administrator Attn: Exclusions PO Box 58220 Philadelphia, PA 19102	Daniel Bryson Hunter Bryson Whitfield Bryson & Mason LLP 900 W. Morgan St. Raleigh, NC 27603	Stephen V. Carey Parker Poe Adams & Bernstein LLP 301 Fayetteville Street, Suite #1400 Raleigh, NC 27601	Dan Hartzog Jr. Hartzog Law Group 1903 N. Harrison Ave. Suite 200 Cary, NC 27513

    If you don’t submit your request for exclusion on time or if it is incomplete, you will remain a Settlement Class Member and will not be able to sue the Town about the claims in this lawsuit. You may opt out of the Settlement Class only for yourself. So-called “mass” or “class” opt outs, whether filed by third parties on behalf of a “mass” or “class” of Settlement Class Members or multiple Settlement Class members where no personal statement has been signed by each and every individual Settlement Class Member, are not allowed.

12. If I don’t exclude myself, can I sue the Town for the same thing later?

    No. Unless you exclude yourself, you give up any right to sue the Town for the claims that this Settlement resolves. The claims that this Settlement resolves are fully described in the Settlement Agreement. The Settlement Agreement is available here. If you have a pending lawsuit, speak to your lawyer in that lawsuit immediately. You must exclude yourself from this Class to continue your own lawsuit.

13. If I exclude myself, can I still get benefits?

    No. You will not receive any benefits from the Settlement if you exclude yourself. If you exclude yourself from the Settlement, do not send in a Claim Form asking for benefits.

14. OBJECTING TO THE SETTLEMENT

14. How can I tell the Court if I do not like the settlement?

    If you are a Settlement Class Member, you can object to the Settlement or to Class Counsel’s request for attorneys’ fees and expenses. To object, you must send a notarized letter that includes the following:

    • A caption or title that identifies it as “Request for Exclusion in”; Shenandoah Homes, LLC and Capital Properties of Raleigh II, LLC. vs. Town of Clayton, (19-CVS-640), (Superior Court Division of Johnston County, North Carolina)”.
    • Identify whether the objection is to the Settlement Class;
    • Set forth the specific reason(s), if any, for each objection, including all legal support the Settlement Class Member wishes to bring to the Court’s attention and all factual evidence the Settlement Class Member wishes to introduce in support of the objection;
    • Include the name and address of the Settlement Class Member; Include the personal signature of the Settlement Class Member;
    • Include an identification, by case style and number, of any other class settlements the objector or the objector’s attorney(s) have asserted an objection; and
    • Include an identification of all attorneys having a financial interest or stake in the objection.
    • Include three different dates within the next two weeks from the date in which you are submitting the objection in which you will make yourself available for a deposition.

    Your objection, along with any supporting material you wish to submit, must be filed with the Court, with a copy delivered to Class Counsel, and the Town’s Counsel no later than May 22, 2020 at the following addresses:

    Class Counsel	The Town’s Counsel		Court
    Daniel Bryson Hunter Bryson Whitfield Bryson & Mason LLP 900 W. Morgan St. Raleigh, NC 27603	Stephen V. Carey Parker Poe Adams & Bernstein LLP 301 Fayetteville Street, Suite #1400 Raleigh, NC 27601	Dan Hartzog Jr. Hartzog Law Group 1903 N. Harrison Ave. Suite 200 Cary, NC 27513	Clerk of Superior Court Johnston County Superior Court 207 E Johnston St Smithfield, NC 27577

    
    

15. What is the difference between objecting and excluding?

    Objecting is simply telling the Court that you don’t like something about the Settlement. You can object to the settlement only if you do not exclude yourself from the Settlement. Excluding yourself from the Settlement is telling the Court that you don’t want to be part of the Settlement. If you exclude yourself from the Settlement, you have no basis to object to the Settlement because it no longer affects you.

16. THE LAWYERS REPRESENTING YOU

17. Do I have a lawyer in this case?

    Yes. The Court has appointed the following lawyers, called “Class Counsel,” to represent all Class Members: Daniel Bryson and Hunter Bryson of Whitfield Bryson & Mason LLP. You will not be personally charged for these lawyers. They will be paid under the terms of the Settlement. If you want to be represented by your own lawyer, you may hire one at your own expense.

17. How will the lawyers be paid?

    Class Counsel will ask the Court to approve attorneys’ fees and reimbursement of expenses not to exceed one third the value of the Settlement fund. The Court will determine the amount of fees and expenses to award. Class Counsel will also request that up to $12,500 be paid to each of the Class Representatives who helped the lawyers on behalf of the whole Class.

18. THE COURT’S FAIRNESS HEARING

18. When and where will the Court decide whether to approve the Settlement?

    The Court will hold a Final Approval Hearing on June 22, 2020, at the Johnston County Superior Courthouse, 207 E Johnston St, Smithfield, North Carolina 27577.

    The hearing may be moved to a different date or time without additional notice, so it is a good idea to check here for updates. At the Final Approval Hearing, the Court will consider whether the Settlement Agreement is fair, reasonable, and adequate. The Court will also consider how much to pay Class Counsel and the Settlement Class Representatives. If there are objections, the Court will consider them at this time. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take.

19. Do I have to come to the hearing?

    No. Class Counsel is willing to answer any questions that the Court may have. But you may come to the hearing at your own expense if you wish. If you send an objection, you don’t have to come to Court to talk about it. As long as you mailed your written objection on time to the proper addresses, the Court will consider it. You may also pay your own lawyer to attend the hearing, but it’s not required that your own attorney attend.

20. May I speak at the hearing?

    Yes. You may ask the Court for permission to speak at the Final Approval Hearing. If you are represented by an attorney, the attorney must file a notice of appearance by May 22, 2020 and serve a copy of the notice to Class Counsel and the Town’s Counsel. The Settlement Agreement, which is available here, contains the requirements for notices of appearance by attorneys.

21. IF YOU DO NOTHING

21. What happens if I do nothing at all?

    If you do nothing, you will not get any benefits from the settlement. Unless you exclude yourself, you won’t be able to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against the Town about the legal issues in this case, ever again.

22. GETTING MORE INFORMATION

22. How do I get more information?

    The notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can get a complete copy of the Settlement Agreement and other information here. If you have additional questions or want to request a Claim Form, you can email info@claytoncapacityfeesettlement.com, call toll-free 1-833-725-0185, or write to the Settlement Administrator at:

    Clayton Capacity Fee Settlement Administrator
    1650 Arch Street, Suite 2210
    Philadelphia, PA 19103

PLEASE DO NOT CONTACT THE COURT OR THE CLERK’S OFFICE CONCERNING THIS CASE.