Case 1:11-cv-02971-WYD-KMT Document 188 Filed 10/22/13 USDC Colorado Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:11-cv-02971-WYD-KMT TOUCHSTONE GROUP, LLC, MARGRET GREENSPAN, AND RONALD GREENSPAN on behalf of themselves and all others similarly situated, Plaintiff, v. DANIEL J. RINK; TATUM, LLC; ASTOR, WEISS, KAPLAN & MANDEL; CHRISTOPHER FLANNERY, ESQ; STEVEN GRANOFF; KRASSENSTEIN & UNGER, LLC ESTILL & LONG, LLC; CARBON DIVERSION, INC.; TRACS GROWTH INVESTMENT; AND JOHN DOES 1 - 100, Defendants. ___________________________________________________________________________ PLAINTIFFS MOTION FOR PRELIMINARY APPROVAL OF PROPOSED PARTIAL CLASS ACTION SETTLEMENT, CERTIFICATION OF PROPOSED SETTLEMENT CLASS, AND DISSEMINATION OF NOTICE _________________________________________________________________________ PLEASE TAKE NOTICE that Plaintiffs1 to this Action hereby move for an order pursuant to Fed. R. Civ. P. 23(e) for preliminary approval of a proposed partial Settlement, certification of the Settlement Class, and approval of the form of Class Notice and other matters related to issuing notice to the Settlement Class. Pursuant to Local Rule 7.1, counsel for Plaintiffs has conferred with counsel for the Released Parties. The Released Parties do not oppose the relief requested in this motion. The remaining defendants, Tatum, LLC, Daniel J. Rink and Tracs Growth Investment have taken no position on the motion.

All capitalized terms not otherwise defined shall carry the meaning set forth in the Settlement Agreement entered by and between the parties on August 13, 2013. 1

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PLEASE TAKE FURTHER NOTICE that the Settlement Agreement with exhibits is attached hereto as Exhibit A. The proposed Preliminary Approval Order is attached as Exhibit B. The proposed Class Notice is attached as Exhibit C. PRELIMINARY STATEMENT Plaintiffs submit this motion, pursuant to Fed. R. Civ. P. 23, for an Order: (1) preliminarily approving the terms of the Settlement as set forth in the Settlement Agreement; (2) certifying a Settlement Class solely for the purpose of implementing the Settlement set forth in the Settlement Agreement; (3) approving the form and method for providing notice to the Settlement Class; and (4) scheduling a Fairness Hearing at which the request for final approval of the proposed Settlement, an award of attorneys fees and expenses, and entry of the Final Approval Order will be considered. FACTUAL AND PROCEDURAL BACKGROUND On November 15, 2009, the Securities and Exchange Commission filed suit to enjoin the Ponzi scheme operated by Mantria Corporation and Speed of Wealth, LLC. At its height, the scheme involved a series of fraudulent securities offerings at get rich quick seminars hosted by Speed of Wealth, a purported Colorado investment club. Many of the investors were unaccredited (as legally required to participate in the offering) and many were elderly or new retirees, urged to liquidate their traditional investment accounts and move at the speed of wealth to invest in Mantria Corporation, a purported green energy and real estate conglomerate. Ultimately, the District Court in the SEC action entered summary judgment against Mantria Corporation for various violations of the securities laws, including: the sale of unregistered securities; acting as unregistered broker-dealers; and fraud in the offer and sale of securities in violation of Section 10(b) of the Exchange Act, 15 U.S.C. 78j(b), and Rule 10b-5, 17 C.F.R. 240.10b-5. SEC v. Mantria Corp., et al., Civil Action No.: 09-cv-02676 (ECF No. 2

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211-23). The Court entered judgment against Mantria Corporation and its principle shareholders for nearly $135 million in disgorgement, interest and penalties. This judgment is likely uncollectable due to the individual financial circumstance of the defendants. On November 15, 2011, Plaintiff, Touchstone Group, LLC, filed a class action complaint in the District of Colorado on behalf of itself and all other defrauded investors in Mantria Corporation and Speed of Wealth, asserting claims under the Federal Securities Exchange Act, both the Pennsylvania and Colorado Securities Acts, as well as common law negligent misrepresentation and unjust enrichment against those who had responsibility for the daily management and oversight of Mantria Corporation, including: Astor Weiss, Kaplan & Mandel, LLP, Christopher Flannery, Esquire, Estill & Long, LLC (collectively referred to as the Attorney Parties), Steven Granoff, CPA, Krassenstein, Granoff & Unger, LLC (collectively referred to as the Accounting Parties), Tatum LLC, Daniel J. Rink, Carbon Diversion, Inc., Tracs Growth Investment and John Does 1-100. (ECF No. 1). The named defendants served Mantria Corporation in such executive positions as special securities counsel, Chief Financial Officer, Chief Legal Counsel and Controller. After the investors filed their action, the court appointed equity receiver, John Paul Anderson, filed his own action on February 25, 2012, in the District of Colorado against nearly the same defendants named in the investors complaint.2 See Anderson v. Rink, et al., Case No., 12-cv-00488-RM (D. Col.)(ECF No. 1). The Receiver alleged claims on behalf of Mantria for
2

The Receivers Action did not assert claims against Estill & Long, LLC or Tracs Growth Investment. Additionally, the Receivers Action against Defendant, Tatum, LLC, is also subject to an arbitration agreement, which Tatum moved to enforce on April 5, 2012. Anderson, 12-cv00488-RM (ECF No. 18). On May 31, 2013, the Receiver and Tatum stipulated to a stay of the litigation and agreed to arbitrate the claims. Id. (ECF No. 54). Tatums arbitration agreement with Mantria also contains a damages cap which limits any recovery to the actual fees paid by Mantria to Tatum over the previous one year of the service agreement. 3

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legal malpractice, breach of fiduciary duty, aiding and abetting breach of a fiduciary duty, negligence, breach of contract, and unjust enrichment. Id. With the exception of one defendant (Tracs Growth Investment), the defendants moved to dismiss the investors complaint. (ECF No. 29, 60 63, 71). As a result, the Private Securities Litigation Reform Act (PSLRA) mandated a stay of all proceedings until the Court ruled on the defendants motions. Despite this, and while those motions were pending, the parties held a Fed. R. Civ. P. 26(f) Conference on May 10, 2012, where the topic of mediation was initially broached. The parties then later agreed to participate in a full-day mediation session on November 1, 2012, before the Honorable Richard Dana (Ret.) from the Judicial Arbiter Group, Inc., in Denver. Although no settlements were reached during the mediation, many of the parties continued to discuss settlement over the ensuing weeks. On December 21, 2012, the Court granted-in-part and denied-in-part the defendants motions to dismiss. (ECF No. 127). The Court dismissed defendant Astor, Weiss, Kaplan & Mandel, LLP, for lack of personal jurisdiction. Id. The Court also dismissed defendants Steve Granoff, CPA and Krassenstein, Granoff & Unger LLC for both lack of personal jurisdiction and failure to state a claim. Id. Lastly, the Court dismissed Plaintiffs unjust enrichment claim against the remaining defendants; while denying the remainder of the motions in all other respects. Id. Shortly after the Courts December 21 order, and with the assistance of Judge Dana, Plaintiff reached terms on settlements with defendants Krassenstein, Granoff & Unger, LLC, Steve Granoff, and Estill & Long for their entire insurance policy limits, including one personal contribution, and substantial cooperation in prosecuting the litigation against the remaining defendants. In addition, Class Representatives Margret and Ronald Greenspan filed a class 4

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action complaint in the Philadelphia Court of Common Pleas Trial Division against defendant, Astor, Weiss, Kaplan & Mandel, LLP, captioned Greenspan v. Astor, Weiss, Kaplan & Mandel, LLP.3 Although the parties continued to discuss settlement, it was not until April 2013, that Class Counsel,4 the Receiver, and defendants Astor, Weiss, and Christopher Flannery, Esq., finalized a settlement for the remaining balance of Astor, Weisss insurance policy limits.5 SUMMARY OF THE PROPOSED SETTLEMENT The proposed Settlement will be funded with a total payment of $950,000 from the Attorney and Accounting Parties insurers, including one personal contribution from the partners of Estill & Long, LLC. The Settlement amount will be divided amongst the defendants as follows: Astor, Weiss, Kaplan & Mandel, LLP/ Christopher Flannery: $750,000 Estill & Long, LLC: $100,000 Krassenstein, Granoff & Unger / Steve Granoff: $100,000

The only agreements between the Released Parties about the Settlement are those in the Settlement Agreement. Class Counsel has examined and considered the benefits to be provided to the Settlement Class Members under the Settlement. In doing so, Class Counsel evaluated the financial condition of the Attorney and Accountant Parties, including the limited insurance assets

Pursuant to a stipulation amongst the parties, the Pennsylvania State Court action will be dismissed and the Greenspans have been added as Class Representatives to this action. (ECF No. 182).
4

On May 15, 2013, the Court appointed named Plaintiff Touchstone Group, LLC as lead plaintiff pursuant to 15 U.S.C. 78u-4(a)(3)(B) and the law firms of Saltz, Mongeluzzi, Barrett & Bendesky, P.C. and Hagens Berman Sobol & Shapiro LLP as Class Counsel pursuant to 15 U.S.C. 78u-4(a)(3)(B)(v). (ECF No, 152).
5

Astor, Weiss, had a $1 million self-depleting insurance policy, subject to a reservation of rights, to cover the claims in both the investors class action and the Receivers action. 5

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and other tangible assets available to satisfy any judgment. Class Counsel also considered the benefits provided to the Settlement Class Members through the terms of the Settlement, the costs and risks of litigation, the length of time that would be required to complete the litigation and any appeals, as well as the depleting nature of insurance policies available to defend and potentially indemnify against claims made against the Attorney and Accountant Parties. When considering all of the above, Class Counsel believes the Settlement is in the best interest of the Settlement Class Members. Additionally, Class Counsel is concurrently filing a Motion to Enforce Terms of the December 1, 2012, Proceeds Sharing Agreement with the Receiver. Following the mediation, on December 1, 2012, Class Counsel and the Receiver entered a written agreement to divide the proceeds from any settlement with Astor, Weiss, Kaplan & Mandel, LLP. The Receiver subsequently breached this agreement. The Courts ruling on this motion will ultimately determine the division of settlement proceeds between the Receiver and the investors class action.6 After the Courts ruling, the Settlement Class Fund, less any attorneys fees and/or expenses awarded by the Court to Class Counsel,7 notice and administration expenses, and any tax expenses payable from the fund, will be distributed to Settlement Class Members on a pro rata basis.

Estill & Long were not named as a defendant in the Receiver Action, so that settlement of $100,000 belongs solely to the investors.
7

As disclosed in the Notice, at the Settlement Hearing, Plaintiffs Counsel will move for an award of attorneys fees not to exceed 30% of the Settlement Fund in light of, inter alia,: (i) the time and labor spent by Class Counsel; (ii) the magnitude and complexities of the Action; (iii) the risk that the Settlement Class would not prevail in the Action; (iv) the quality of Class Counsels representation; (v) the fee in relation to the Settlement; and (vi) public policy considerations. See, e.g., Rosenbaum v. MacAllister, 64 F.3d 1439, 1445 n.3 (10th Cir.1995). 6

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Class Counsel continues to pursue the litigation against the remaining defendants: Daniel J. Rink, Tatum, LLC, and Tracs Growth Investment. ARGUMENT I. A. THE PROPOSED SETTLEMENT SATISFIES THE CRITERIA FOR PRELIMINARY APPROVAL Factors To Be Considered Fed. R. Civ. P. 23(e) requires judicial approval for any compromise of claims brought on a class basis. Approval of a proposed settlement is within the sound discretion of the district court. United States v. Hardage, 982 F.2d 1491, 1495 (10th Cir. 1993). As a matter of public policy, the law favors and encourages settlements. See,e.g., Amoco Prod. Co. v. Fed. Power Commn, 465 F.2d 1350, 1354 (10th Cir. 1972). This is especially true in complex actions such as this. Big O Tires, Inc. v. Bigfoot 4x4, Inc., 167 F. Supp. 2d 1216, 1229 (D. Colo. 2001). Preliminary approval of a class action settlement, in contrast to final approval, is at most a determination that there is . . . 'probable cause' to submit the proposal to class members and hold a full-scale hearing as to its fairness. In re Crocs, Inc. Sec. Litig., 2013 U.S. Dist. LEXIS 122593, *10 (D. Colo. Aug. 28, 2013)(citations omitted). Accordingly, at this stage the Court should determine whether the proposed Settlement is the product of an informed, arms-length negotiation and free of obvious deficiencies and, thus, whether it is within the range of what might later be found fair, reasonable and adequate. See In re Motor Fuel Temperature Sales Practices Litig., 286 F.R.D. 488, 492 (D. Kan. 2012). In other words, preliminary approval should be granted and notice of the proposed settlement given to the class if there are no obvious deficiencies in the proposed settlements. In re Med. X-ray Film Antitrust Litig., No. 93-5904, 1997 U.S. Dist. LEXIS 21936, at *19 (E.D.N.Y. Dec. 10, 1997). The circumstances underlying the proposed Settlement here fully support preliminary approval.

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1.

The Proposed Settlement Is the Result of Well-Grounded, Good Faith, ArmsLength Negotiations.

A presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arms-length negotiations between experienced, capable counsel... WalMart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir. 2005); see also Lucas v. Kmart, 234 F.R.D. 688, 693 (D. Colo. 2006). As the discussion above indicates, the proposed Settlement is the product of extensive arms length negotiations that occurred between Class Counsel, the Attorney and Accounting Parties over the span of nearly six months. The Settlement was reached after lengthy settlement discussions before and with the mediator, the Honorable Richard Dana (Ret.), a highly respected mediator, recognized nationally for his work in complex cases with multiple parties. Importantly, the Settlement is comprised of all available insurance proceeds, and some personal contributions, from parties of limited financial resources to contribute more or withstand a verdict beyond this Settlement. In addition, the Settlement occurred only after the parties had a solid understanding of the strengths and weaknesses of the Settlement Class claims; had the benefit of fully-briefed and decided motions to dismiss; and had conducted research into the financial stability of both the Attorney and Accounting Parties and their ability to satisfy a judgment, as well as the available insurance coverage for the claims. There is every indication that the Settlement is the product of serious, informed and non-collusive negotiations among experienced counsel. Accordingly, it deserves preliminary approval. 2. The Proposed Settlement Warrants Notice And A Fairness Hearing In considering whether to enter into the Settlement Agreement, the parties weighed the value of an immediate settlement against the prospect that significant proceedings remained ahead, including extensive formal fact discovery, lengthy class certification proceeding,

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summary judgment proceedings, expert discovery, trial preparation, including Daubert motions, a trial, and probable post-trial appeals. Additionally, many courts recognize that the opinion of experienced counsel supporting the reasonableness of the settlement is entitled to considerable weight.8 Here, counsel for the parties have extensive experience in complex class action litigation and believe the Settlement is fair, reasonable and adequate in light of the circumstances of this case. Specifically, the parties considered: (1) the risks inherent in litigating a class action through trial; and (2) the particular risks at issue in this Action. Class actions are by their nature legally and factually complex and difficult.9 Here, there were real risks that, even if they prevailed, the Plaintiffs would be unable to collect any judgment against the Attorney and Accounting Parties. In sum, Class Counsel had a well-founded understanding of the Settlement Class claims and litigation risks, and believes in light of these facts the Settlement is fair, reasonable and adequate. 3. The Settlement Has No Obvious Deficiencies There are also no grounds to doubt [the Settlements] fairness and no other obvious deficiencies (such as unduly preferential treatment of class representatives or of segments of the class, or excessive compensation for attorneys). . . . Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 237 F.R.D. 26, 33 (E.D.N.Y. 2006). The Settlement Class Fund once determined

See, e.g., Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830, 852 (E.D. La. 2007) (stating that counsel are the courts main source of information about the settlement and, therefore, the Court will give weight to class counsels opinion regarding the fairness of settlement); Smith v. Dominion Bridge Corp., No. 96-7580, 2007 U.S. Dist. LEXIS 26903, at *21-*22 (E.D. Pa. Apr. 11, 2007).
9

See In re Luxottica Group S.P.A. Sec. Litig., 233 F.R.D. 306, 311-12 (E.D.N.Y. 2006) (noting the litigation being settled involved numerous difficult legal and financial issues typical in securities class actions); In re Sumitomo Copper Litig., 189 F.R.D. 274, 281 (S.D.N.Y. 1999). 9

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by the Court will provide a certain benefit for the Settlement Class, particularly when measured against the fact that Mantria and its principal shareholders are largely insolvent as well as the risks of prevailing, after many more years of hard-fought litigation, on their underlying claims. In avoiding those substantial risks and delay, Settlement Class Members will receive a pro rata distribution from the Settlement Class Fund, once approved by the Court. In sum, nothing in the course of the settlement negotiations or the terms of the Settlement raises any obvious doubt as to the Settlements fairness. Rather, the recovery to the Settlement Class; the arms-length nature of the negotiations; the involvement of independent and highly experienced mediator and the participation of sophisticated counsel throughout the litigation, compels the finding that probable cause exists for finding that the proposed Settlement is sufficiently fair, reasonable and adequate to justify dissemination of the Notice to the Settlement Class and the scheduling of the Settlement Hearing. Thus, Class Counsel and the Attorney and Accounting Parties respectfully urge the Court to preliminarily approve the Settlement. II. THE COURT SHOULD APPROVE THE FORM OF THE NOTICES AND PLAN FOR PROVIDING NOTICE TO THE SETTLEMENT CLASS The Court should also approve the form and content of the proposed Class Notice. See

Exhibit 2 to the proposed Settlement Agreement. Consistent with Fed. R. Civ. P. 23(c)(2)(B) and 23(e)(1), the Class Notice is written in clear, straightforward language, and the Class Notice uses a format that sets out the relevant information concerning the Settlement. Fed. R. Civ. P. 23(c)(2)(B) requires a certified class to receive the best notice . . . practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Similarly, Fed. R. Civ. P. 23(e)(1) requires the court to direct notice in a reasonable manner to all class members who would be bound by [a proposed 10

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settlement, voluntary dismissal, or compromise]. The proposed notice plan here readily meets these standards. Plaintiffs, through an experienced Settlement Administrator, Strategic Claims Services, will cause the Class Notice (which includes a detailed description of the action, the Settlement, and the parameters of Class Counsels request for an award of attorneys fees and reimbursement of expenses) will be sent by first class mail to every Settlement Class Member who can be identified through reasonable effort. This will be accomplished principally by using the investor spreadsheets complied from the Mantria documents and prepared by the Receiver, which contain both street and email addresses for the Settlement Class Members. The Class Notice will also be published on the Class Website (www.mantriaclasssettlement.com), together with the Settlement Agreement and other documents from the litigation. This proposed method of giving notice (similar if not identical to the method used in countless other class actions) clearly provides Settlement Class Members with the best notice practicable under the circumstances. See DeJulius v. New Eng. Health Care Emps. Pension Fund, 429 F.3d 935, 943-45 (10th Cir. 2005). This notice program clearly satisfies the requirements of Fed. R. Civ. P. Rule 23(c) and (e), and due process and should be approved by the Court. See Barone v. Safway Steel Prods., Inc., No. 03-4258, 2005 U.S. Dist. LEXIS 17645, at *18-*19 (E.D.N.Y. Aug. 23, 2005); Peters v. Natl R.R. Passenger Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992) (It is beyond dispute that notice by first class mail ordinarily satisfies rule 23(c)(2)s requirement that class members receive the best notice practicable under the circumstances.).

11

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III.

CERTIFICATION OF THE SETTLEMENT CLASS IS PROPER AND NECESSARY For settlement purposes only, Plaintiffs request the Court to certify the Settlement Class.

Certification of the Settlement Class for the purposes of this Settlement will further the interests of the parties. The parties respectfully request the Court certify the following Settlement Class defined as: ALL PERSONS OR ENTITIES WHO INVESTED IN ANY SECURITIES ISSUED OR PROMOTED BY MANTRIA CORPORATION OR SPEED OF WEALTH, LLC, OR ANY OF THEIR SUBSIDIARIES OR AFFILIATES SINCE SEPTEMBER 2007 AND INCURRED A NET LOSS OF THEIR INVESTMENTS (THE SETTLEMENT CLASS). EXCLUDED FROM THE SETTLEMENT CLASS ARE DEFENDANTS, MANTRIA CORPORATION, SPEED OF WEALTH LLC AND ANY OF THEIR OFFICERS, EMPLOYEES, OR AFFILIATES. A district court may certify a settlement class if it is "satisfied, after a rigorous analysis" that the requirements of Rule 23 are met and frequently a district court's "'rigorous analysis' will entail some overlap with the merits of the plaintiffs underlying claim." In re Crocs, Inc. Sec. Litig., 2013 U.S. Dist. LEXIS 122593 at *11 (quoting Dukes v. Wal-Mart, Inc., 131 S.Ct. 2541, 2551 (2011)). Here, the requirements of Fed. R. Civ. P. 23(a) are met: (a) the Settlement Class is so numerous that joinder of all members is impracticable. Mantria had more than 400 investors from across the country, all who suffered varying amounts of damage from the scheme;10 (b) the questions of law and fact are common to all Settlement Class Members and predominate over questions affecting individual Settlement Class Members. These common issues include whether the: (1) Released Parties were complicit in the Mantria scheme; (2) Released Parties acted negligently in omitting
10

See, e.g., Ashley v. Reg'l Transp. Dist., 2008 U.S. Dist. LEXIS 12950, 11 (D. Colo. Feb. 11, 2008) (Court certified Settlement Class consists of 208 individuals).

12

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or misrepresenting material facts about Mantria; (3) Released Parties are liable for the acts and omissions of their agents; and (4) extent and measure of damages suffered by the Settlement Class;11 (c) the claims asserted by the Class Representatives against the Release Parties are typical of the claims of the other Settlement Class Members and prosecution of individual actions would create a risk of inconsistent adjudications;12 (d) the Class Representative are adequate representatives of the Settlement Class because they have retained qualified and experienced counsel and have acted fairly and adequately to protect the interests of the Settlement Class.13 In addition, the requirements of Fed. R. Civ. P. 23(b)(3) are satisfied because common questions of law or fact predominate over any questions affecting only individual class members. Indeed, where, as here, the Complaint alleges a single, common fraudulent scheme, the predominance requirement is met. See Amgen v. Conn. Retirement Plans and Trust Funds, 133 S.Ct. 1184, 1196-94 (2013)(the focus of the predominance inquiry is whether the proposed class is sufficiently cohesive to warrant adjudication by representation.); see also Jenson v. Fiserv Trust Co., 256 Fed. Appx 924, 926 (9th Cir. 2007)(a Ponzi scheme presented a center of gravity for the fraud that predominated over individual issues.). And district courts routinely certify litigated classes of investors who invested in Ponzi schemes under the rationale that the investors losses all stem from a centrally orchestrated scheme. See Anwar v. Fairfield Greenwich, 289 F.R.D. 105 (S.D.N.Y. Feb. 22, 2013) (although the defendants

11

See, e.g., Lucas v. Kmart Corp., No. 99-01923, 2006 U.S. Dist. LEXIS 21521, at *6-*8 (D. Colo. Mar. 22, 2006) (commonality satisfied where claims of the plaintiffs and other class members are based on the same legal or remedial theory).
12

Id.

13

See Lucken Family L.P., LLP, 2010 U.S. Dist. LEXIS 80846, at *6-*8 (plaintiff found to be an adequate class representative where it had no conflicts with the class members, and its counsel had significant experience litigating class actions). 13

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communications to class members may not [be] uniform, they allegedly were uniformly misleading [about Madoff].variations are therefore immaterial and [do] not defeat class certification. ).14 Here, all statements in the Private Placement Offerings presented to the Class by Mantria were uniformly misleading as orchestrated from a centrally orchestrated scheme, Mantria. Mantria was operating as a Ponzi scheme as it was not earning any profits, but and instead simply using new investor funds to re-pay earlier investors. And just like in other Ponzi scheme cases, because Mantria was not a public company, the only available information about Mantrias financial well-being came from Mantria itself, and therefore, the investors relied upon and were uniformly misled. See Anwar, 289 F.R.D. at 113. In addition, a class action is superior to other methods of adjudication. Lucas, 2006 U.S. Dist. LEXIS 21521, at *15. In the settlement context, class certification criteria are easily met because the class is unified by a common interest in a reasonable recovery. Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 618-19 (1997). Although class action requirements must be met when certifying a settlement class, the settlement must be taken into account. Id. In fact, courts have viewed the creation of a settlement class as nothing more than a tentative assumption indulged
14

See, e.g., Facciola v. Greenberg Traurig LLP, 281 F.R.D. 363 (D. Ariz. 2012)(certifying a class of Ponzi scheme victims who bought numerous different securities [b]ecause lead plaintiffs, as well as their proposed class members, suffered the same injury from the same fraudulent scheme, and share a common statutory remedy, we conclude that the lead plaintiffs have standing to assert claims on behalf of the proposed classes regardless of the specific type of security offering they purchased.); Joint Equity Comm. of Investors of Real Estate Partners, Inc. v. Coldwell Banker Real Estate Corp., 281 F.R.D. 422 (C.D. Cal. 2012)(certifying Ponzi scheme victims under negligent misrepresentation and holding that "where a centrallyorchestrated scheme to mislead is alleged, it is the scheme and not the details of any individual's experience that forms the nucleus of the class claims.); In re Med. Capital Secs. Litig., 2011 U.S. Dist. LEXIS 126659 (C.D. Cal. July 26, 2011)(certifying class of Ponzi scheme victims and noting that courts routinely have rejected attempts to defeat class certification on the grounds that the class members purchased stock on different dates and alleged reliance on slightly different misleading representations.) Walco Invs. v. Thenen, 168 F.R.D. 315 (S.D. Fla. 1996)(certifying class in Ponzi scheme consisting of purchasers of numerous different limited partnership offerings). 14

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in by the court to facilitate the amicable resolution of the litigation. See In re Beef Indus. Antitrust Litig., 607 F.2d 167, 177 (5th Cir. 1979) (citation omitted). IV. SCHEDULE OF EVENTS In connection with preliminary approval of the Settlement, Plaintiffs request that the

Court set the date for a Fairness Hearing. The parties request that the Court set a date for the Settlement Fairness Hearing no earlier than ninety (90) days after entry of the Preliminary Approval Order accompanying this motion (the Preliminary Approval Order). The proposed Preliminary Approval Order sets forth the following schedule: Mailing of Class Notice and activation of Class Website within ten (10) days of Preliminary Approval Order; All objections and/or exclusions must be postmarked within sixty (60) days of mailing of Class Notice; Motion for Final Approval of the proposed settlement, including any for the approval of attorneys fees and expenses for Class Counsel and incentive awards of Named Plaintiffs, thirty (30) days prior to the Fairness Hearing any papers, in response to any objections, in further support of the Settlements or Class Counsels request for an award of attorneys fees and reimbursement of expenses: twenty (20) days before the Fairness Hearing

V.

CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court enter the

proposed Preliminary Approval Order (i) preliminarily approving the proposed Settlements, (ii) approving the forms and methods of Class Notice, (iii) certifying the Settlement Class, and setting a date for a Fairness Hearing. Respectfully submitted, Date: October 22, 2013 By: _s/Patrick Howard_________ Simon B. Paris Patrick Howard SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C. 15

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One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103 Tel (215) 575-3986 Fax (215) 575-3894 sparis@smbb.com phoward@smbb.com ckocher@smbb.com Anthony D. Shapiro Karl P. Barth HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Tony@hbsslaw.com karlb@hbsslaw.com Investors Class Counsel

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on October 22, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: John Paul Anderson Katie.Debord@bryancave.com Peter Korneffel Peter.Korneffel@btyancave.com Karl P. Barth karlb@hbsslaw.com,shelbys@hbsslaw.com Scott Mark Browning sbrowning@rothgerber.com,phenke@rothgerber.com Richard C. Cornish cannfitz@aol.com Kathryn Reed DeBord Katie.Debord@bryancave.com Kelley Allison Duke kbergelt@irelandstapleton.com,s Victoria Elena Edwards victoria.edwards@akerman.com, Carolyn J. Fairless fairless@wtotrial.com,hart@wtotrial.com,sun@wtotrial.com Alan S. Fellheimer alan@fellheimer.net Leif Garrison leifg@hbsslaw.com,chrism@hbsslaw.com,GordonB@hbsslaw.com Tamara F. Goodlette tgoodlette@rothgerber.com,kdaily@rothgerber.com Mark E. Haynes mhaynes@irelandstapleton.com,strujillo@irelandstapleton.com,bmoore@irelandstapleto n.com,kchristiansen@irelandstapleton.com

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John Joseph Jacko , III john@fellheimer.net Michael T. McConnell mmcconnell@mfhlegal.com,vgonzales@mfhlegal.com,rsteinmetz@mfhlegal.com,mmill er@mfhlegal.com,djohnson@mfhlegal.com,hbishop@mfhlegal.com Simon B. Paris sparis@smbb.com,pdurkin@smbb.com Ryan Alan Roman ryan.roman@akerman.com,dorothy.matheis@akerman.com Robert James Zavaglia , Jr zavaglia@tamlegal.com,vreimche@tamlegal.com

Dated: October 22, 2013

By:

s/Patrick Howard Patrick Howard SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C. One Liberty Place, 52nd Floor 1650 Market Street Philadelphia, PA 19103

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