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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA

FT. MYERS DIVISION

Case No. 2:05-cv-186-FtM-99DNF

WILLIAM F. TURNER, on behalf
of himself and all others
similarly situated,
Plaintiff,
v.
GENERAL ELECTRIC COMPANY,
Defendant.

OPINION AND FINAL ORDER

This matter came before the Court on Plaintiff’s Motion for
Final Approval of Settlement, Certification of Settlement Class,
and Approval of Attorneys’ Fees and Settlement Class Representative
Incentive Awards (Doc. #72-1) filed on April 17, 2006, with a
supporting memorandum of law (Doc. #72-2). A fairness hearing was
conducted on April 27, 2006 and August 21, 2006. With some
modifications, the Court will conditionally grant the motion.

I.

On April 29, 2005, Plaintiff filed a Class Action Complaint
(Doc. #1) on behalf of himself and all others similarly situated
for damages allegedly caused by nine specific models of General
Electric Company (“GE”) side-by-side refrigerators made between
January 1, 2001 and December 31, 2002. Plaintiff alleged that,

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beginning in January 2001, GE manufactured, marketed, advertised,
warranted and sold these refrigerators nationwide. Plaintiff
further alleged that these refrigerators contained a defect that
may result in: (1) the formation of excessive moisture, especially
in the icemaker compartment, which causes, among other things,
condensation, moisture, or deterioration; (2) wavering temperature
controls; (3) excessive frost; and (4) moisture related problems.
These potential problems, plaintiff alleged, may have necessitated
repairs of these refrigerators.

After filing the Complaint, Plaintiff, through Class Counsel,
engaged in formal and informal discovery, and amended the Complaint
several times (Docs. #18, 31, 52) to reflect information gained by
Plaintiff through this discovery. The operative pleading is the
Third Amended Class Action Complaint (Doc. #52), which alleges a
nationwide class involving certain models of GE and Hotpoint
refrigerators (the Refrigerators). The Third Amended Complaint
sets forth four causes of action: Breach of express warranty,
breach
unjust
implied
enrichment/restitution.

negligence,

and

of

warranty,

GE and Plaintiff, through their respective counsel and company
representatives, also conducted extensive, arms-length negotiations
based on the information exchanged by the parties and their
examination and investigation of the facts and law relating to the
matters set forth in the complaints. This resulted in a proposed
Settlement Agreement (Doc. #53) and a consent Motion For

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Preliminary Approval of Settlement, Conditional Certification of
Settlement Class, Appointment of Settlement Class Counsel and
Settlement Class Representative, Approval of Class Notice, And
Scheduling of Fairness Hearing (Doc. #54). On December 22, 2005,
the Court entered an Order (Doc. #60) preliminarily approving
settlement, conditionally certifying the settlement class,
appointing settlement class counsel and settlement class
representative, approving a form of class notice, and scheduling a
fairness hearing.

On April 24, 2006, the parties filed a Joint Notice of Receipt
of Objections (Doc. #73), attaching objections received regarding
the Settlement Agreement. An additional objection was filed by
Catherine Connivet, pro se. (Doc. #74.)

On April 27, 2006, a fairness hearing was held before the
Honorable Virginia M. Hernandez Covington, who has since been
assigned to the Jacksonville Division of the Middle District of
Florida. The undersigned has read the transcript (Doc. #76) of
that hearing. At the hearing it developed that there was a
database identifying additional potential class members who might
not have received direct-mail notice. The hearing was continued to
allow counsel to provide notice to these additional persons. On
May 23, 2006, the parties filed a Stipulation Regarding
Supplemental Notice (Doc. #79), and on May 24, 2006, the Court
entered an Order Approving and Ratifying Stipulation Regarding

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Supplemental Notice (Doc. #81). The supplemental notice began on
June 6, 2006, and various deadlines were extended.

Additional objections were filed on August 4, 2006 (Doc. #83),
August 14, 2006 (Doc. #87), and August 18, 2006 (Doc. #89).
Plaintiff filed a Supplemental Memorandum in Support (Doc. #86) of
his motion and a Response (Doc. #92) to Catherine Cannivet’s
objections.

On August 21, 2006, the Court held a continuation of the
fairness hearing. The Court heard from counsel for the parties, as
well as counsel for an objector and Ms. Cannivet pro se.

II.

“Public policy strongly favors the pretrial settlement of
class action lawsuits.” In re United States Oil and Gas Litig.,
967 F.2d 489, 493 (11th Cir. 1992). Settlement “has special
importance in class actions with their notable uncertainty,
difficulties of proof, and length. Settlements of complex cases
contribute greatly to the efficient utilization of scarce judicial
resources, and achieve the speedy resolution of justice. . . .”
Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 538 (S.D. Fla.
1988) aff’d, 899 F.2d 21 (11th Cir. 1990) (citations omitted).

“In order to approve the settlement agreement, the district
court [i]s required to determine that it was fair, adequate,
reasonable, and not the product of collusion.” Leverso v.
Southtrust Bank of Al., Nat. Assoc., 18 F.3d 1527, 1530 (11th Cir.
1994). See also Fed. R. Civ. P. 23(e)(1)(C). The Eleventh Circuit

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has outlined several factors useful in determining whether a
proposed class action settlement satisfied this standard, including
(a) the likelihood of success at trial; (b) the range of possible
recovery; (c) the point at or below the range of possible recovery
at which a settlement is fair, adequate and reasonable; (d) the
complexity, expense, and duration of the litigation; (e) the
substance and amount of opposition to the settlement; and (f) the
stage of proceedings at which the settlement is achieved. Leverso,
18 F.3d at 1530 (citing Bennett v. Behring Corp., 737 F.2d 982, 986
(11th Cir. 1984) and other cases).
III.


After full consideration of all the matters presented and the
arguments of the parties and the objectors, and a careful review of
the documents in the court file, the Court makes the following
findings (capitalized terms have the same meaning as set forth in
the Settlement Agreement (Doc. #53-1)):

1.

All prerequisites for a class action under Fed. R. Civ.

P. 23(a) have been satisfied. Specifically:

(A) The Settlement Class is so numerous that joinder of all
members is impractical. There are hundreds of thousands, and
perhaps as many as a million, Class Members who are geographically
dispersed throughout the nation. More than 700,000 direct-mail
Notices were sent to Settlement Class Members.

(B) There are questions of law and fact common to the
Settlement Class, thus satisfying the commonality requirement. The

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central issues posed by this litigation are the Moisture-Related
Problems that are alleged to affect the Refrigerators and whether
all Class Members have suffered any economic losses.

(C) The claims and defenses of the representative party are
typical of the claims and defenses of the Settlement Class. The
Claims of the representative Plaintiff and each of the Class
Members are predicated on the purchase and/or ownership of a
Refrigerator. In order to prevail, the named Plaintiff and each
Class Member would be required to make the same factual
presentation and legal argument with respect to common questions of
liability, regardless of the individual circumstances which may
affect their ability to prove individual causation and amount of
damages on an individualized basis.

(D) The representative party will fairly and adequately
protect the interests of the Settlement Class. The representative
Plaintiff has zealously pursued his claims since learning of the
Defendant’s alleged wrongful conduct. Mr. Turner appeared and
testified at the initial Fairness Hearing on April 27, 2006, and
was present at the continuation of the fairness hearing on August
21, 2006. Moreover, given the identical aspects of Claims among
the Plaintiff and the Class Members set forth above, there is no
potential for conflicting interests in this action. The Plaintiff
possesses the same interests and has suffered the same injury as
other Class Members. Contrary to the arguments of Ms. Cannivet,
the representative plaintiff’s past business and political

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relationships do not and have not created any conflict of interest
or impairment on his ability to serve as Settlement Class
representative. Therefore the Court overrules Ms. Cannivet’s
objections to the class representative.

(E) Class Counsel have diligently pursued the interests of
Plaintiff and the Settlement Class. Class Counsel are well
regarded members of their legal communities, collectively have
extensive experience in class action lawsuits, and have broad
experience in consumer-based, complex litigation, similar in size,
scope and complexity to the present case. It is clear that the
Settlement Agreement was not the result of collusion or lax
litigation efforts. During the six months leading up to the
signing of the Settlement Agreement, Plaintiffs’ Counsel, among
other things, collected, archived and analyzed thousands of pages
of documents and communicated with hundreds of Class Members about
the nature of the litigation, and the Moisture-Related Problems
allegedly suffered by the Refrigerators. Accordingly, the Court
overrules Ms. Cannivet’s objections as to the performance of Class
Counsel.

2. Additionally, questions of law and facts common to the
members of the 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. Thus, the predominance requirement of Rule 23(b)(3)
is satisfied in this case. For example, all of Plaintiff’s and the

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Class Members’ Claims for compensatory relief are founded upon a
common legal theory concerning GE designing, creating,
manufacturing, testing, marketing, distributing and/or selling the
Refrigerators. Since Plaintiff’s and all of Class Members’ Claims
are premised upon their purchase and/or ownership of a
Refrigerator, and each has the opportunity to obtain the same type
of relief under the Settlement Agreement or to exercise the right
to pursue litigation outside the Settlement Agreement, predominance
is sufficiently demonstrated. Further, resolution by classwide
settlement is superior to individual adjudication of the Settlement
Class Members’ Claims for compensatory relief. This is a complex
case. The Settlement Class is estimated to number in the hundreds
of thousands stretching across the nation. In addition, in order
to prove their Claims at trial Plaintiff and Class Members would
need to adduce evidence demonstrating the nature of the alleged
Moisture-Related Problems their Refrigerators have suffered. Were
this litigation to continue, Defendant would actively and
aggressively litigate this action; although Defendant has not yet
filed an Answer, it is clear that Defendant would challenge at
least causation and damages and assert various affirmative
defenses. The costs of proving the case against Defendant would be
substantial. The Settlement Agreement provides Plaintiff and
Settlement Class Members with an ability to obtain predictable,
certain and defined compensatory relief promptly, and contains well
defined administrative procedures to assure due process in the

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application of the Settlement Agreement to each individual
claimant, including the right to “opt-out.” By contrast,
individualized litigation carries with it great uncertainty, risk
and costs, and provides no guarantee that the injured Plaintiff and
Settlement Class Members will obtain necessary and timely
compensatory relief at the conclusion of the litigation process.
Settlement also will relieve judicial burdens that would be caused
by repeated adjudication of the same issues in hundreds of
individualized trials against Defendant.

3. Accordingly, the Court certifies the following Settlement

Class:

All Persons in the fifty United States and
District of Columbia who, as of the Notice
Date, [January 13, 2006] or where applicable
the Supplemental Notice Date [June 6, 2006]
purchased, owned, or currently own a GE and/or
Hotpoint, side-by-side refrigerator sizes
twenty, twenty-two, and twenty-five cubic foot
models made between January 1, 2001 and
December 31, 2002 (the “Refrigerators”). The
complete list of Refrigerators affected by the
Settlement Agreement is provided in Exhibit A
hereto. Excluded from the Settlement Class
are: (1) GE and any entity in which GE has a
controlling
a
controlling interest in GE, and the legal
representatives, assigns and successors of GE;
(2) the Judge to whom this case is assigned
and any member of the Judge’s immediate
family; and (3) all Persons who, in
accordance with the terms of the Settlement
Agreement, properly execute and timely file a
Request for Exclusion with the Claims
Administrator under Section 8 of the
Settlement Agreement.

interest

has

or

which

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The Notice Date was set as January 13, 2006 in the Court’s December
22, 2005 Order (Doc. #60, p. 4), and the Supplemental Notice Date
was set as June 6, 2006 in the Court’s May 24, 2006 Order (Doc.
#81). This certification is for settlement purposes only and shall
not constitute, nor be construed as, evidence and/or an admission
on the part of GE that this Action, or any other proposed or
certified class action, meets the requirements of Rule 23 of the
Federal Rules of Civil Procedure, or otherwise is appropriate for
class treatment pursuant to the Federal Rules of Civil Procedure or
any similar class action statute or rule. Entry of this Opinion
and Order is without prejudice to the rights of GE to: (a) oppose
class certification in any other proposed or certified class action
or in this action, if for any reason this Order is not or cannot be
implemented; and (b) use the certification of a Class in the Action
to oppose certification of any other proposed or existing class
relating to or purporting to assert any Settled Claim(s).

4. The Court finds that the notification process given to
potential Class Members was more than adequate. Notice of the
proposed Settlement Agreement was given beginning January 13, 2006,
with direct-mail notice being sent by first class mail to 445,464
potential Settlement Class Members. GE also placed ads containing
the Summary Notice in the following national publications: Parade
magazine, USA Weekend, People magazine, Better Homes & Gardens
magazine, and Reader’s Digest magazine. GE also created and
promoted a web page concerning the litigation. A supplemental

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direct mailing of 263,822 notices was sent beginning June 6, 2006,
and supplemental deadlines were imposed (Doc. #81). The Court
therefore overrules the objections by Ms. Cannivet as to the
adequacy of notice.

5. The Settlement Agreement provides for four components of

possible Benefits to Settlement Class Members:

(A) Additional Warranty Protection for Moisture-Related
Problems: GE will provide Settlement Class Members with a one year
extension of warranty protection for the Refrigerators, beginning
on the Notice Date [January 13, 2006] and extending through January
12, 2007. In order to obtain this one year extended warranty, a
Settlement Class Member must submit a properly completed and
executed Claim Form within 90 days of the Notice Date or
Supplemental Notice Date, i.e., by April 13, 2006 or September 4,
2006. All service and labor under this Additional Warranty must be
performed by a GE factory service technician or an authorized GE
customer care servicer. For Settlement Class Members with existing
service contracts on their Refrigerators, if a timely and valid
Claim is submitted, the one year period will apply after the
expiration of the existing service contract. (Doc. #53-1, pp. 13-
14.)

(B) Refrigerator Exchange: GE will provide a new GE
replacement refrigerator for any Settlement Class Member whose
Refrigerator was not successfully repaired after three Moisture-
Related Service Calls. A claim form must be submitted within one

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year of the Notice Date, i.e., by January 12, 2007, and must
contain certain attachments. All Moisture-Related Service Calls
that occur after January 13, 2006 [the Notice Date], must be
performed by a GE factory service technician or an authorized GE
customer care servicer pursuant to the Additional Warranty
Protection. (Id. at 14-15.)

(C) Reimbursement of the Reasonable Costs: GE will reimburse
Settlement Class Members for the reasonable costs of Moisture-
Related Service Calls incurred and paid by the Settlement Class
Member between the date of purchase of the Refrigerators and the
Notice Date, i.e., January 13, 2006. A Settlement Class Member
must submit a proper Claim Form within 90 days of the Notice Date
or Supplemental Notice Date, i.e., by April 13, 2006, or September
4, 2006. (Id. at 15-16.)

(D) Refrigerator Replacement Cost Reimbursement: GE will
reimburse Settlement Class Members the reasonable replacement costs
(up to the original purchase price) of Refrigerators they replaced
before December 9, 2005, after three or more unsuccessful Moisture-
Related Service Calls. A Settlement Class Member must submit a
proper Claim Form within 90 days of the Notice Date or Supplemental
Notice Date, i.e., by April 13, 2006, or September 4, 2006. (Id.
at 16-17.)

6. All necessary reasonable funding to implement the Benefits
of the Settlement Agreement will be provided by GE. (Id. at 13, ¶
4.1.) Class Members were allowed to opt-out of the class by

12

serving a Request for Exclusion by March 14, 2006 (Doc. #60, p. 4)
or August 5, 2006 (Doc. #81).

7. The opposition to the Settlement has been very limited,
with only 5 total objections from the tens of thousands of
Settlement Class Members who already have submitted Claims and the
hundreds of thousand who were notified.

8. Ms. Theresa Surprise, Mr. Frank McGinnis, and Mr. Douglas
H. Lueken object to the requirement of three documented
unsuccessful repair attempts take place before the replacement
costs of a Refrigerator will be reimbursed. Allan and Lisa Higgins
object to the requirement that a GE factory service technician or
authorized GE customer care servicer perform the maintenance work.
The Court finds that these requirements are reasonable in the
context of the Benefits to the Settlement Class Members, and do not
render the Settlement Agreement unfair, inadequate, or
unreasonable. The Court overrules the objections.

9. Ms. Cannivet objects to the Settlement Agreement because
of the broad releases required of consumers who choose to
participate in the settlement. The Settlement Agreement provides
that each Releasing Party shall release and forever discharge each
Released Party of and from any and all Settled Claims. (Doc. #53-
1, p. 21, ¶ 11.1). “Settled Claim” is defined as

any claim, liability, right, demand, suit,
matter, obligation, damage, loss, or cost
(including the cost of remediation), action or
cause of action, of every kind and description
that the Releasing Party has or may have,

13

including assigned claims whether known or
unknown, asserted or unasserted, latent or
patent, that is, has been, could reasonably
have been or in the future might reasonably be
asserted by the Releasing Party either in the
Action or in any action or proceeding in this
Court or any other court or forum, regardless
of legal theory, and regardless of the type or
amount of relief or damages claimed, against
any of the Released Parties arising from or in
any way relating to a Moisture-Related Problem
or the allegations of the Complaints (“Settled
Claims”). Claims for personal injury are
expressly excluded from the definition of
Settled Claim. . . .” (Id. at 9.)

The Court finds inclusion of such a release provision to be
reasonable in the context of the Settlement Agreement. While it is
indeed broad as it relates to Moisture-Related Problem claims, it
is limited to claims “arising from or in any way related to the
Moisture-Related Problems,” and does not bar unrelated claims
against GE. If any individual consumer finds the release unduly
burdensome to his or her potential claims, they had the ability to
opt out of the Settlement Agreement and pursue all the causes of
actions they may have. The Court overrules this objection.

10. Ms. Cannivet objects to the Settlement Agreement because
of GE’s role in the administration of claims processing, citing an
inherent conflict of interest given GE’s financial incentive to
determine that Class Members do not qualify for settlement
Benefits. The Settlement Agreement provides that GE or its
designated agent or employee will be the Claims Administrator (Id.
at 5.) In this capacity GE is required to take all reasonable
steps to administer the Claims. (Id. ¶ 6.1.) This obligation,

14

however, is not unsupervised. Settlement Class Counsel has the
right to monitor GE’s performance and review data related to Claims
Administration. (Id.) Additionally, GE must provided quarterly
reports to Settlement Class Counsel containing specific
information. (Id. ¶ 6.2.) Further, the Court retains exclusive
and continuing jurisdiction over the Settlement Class Members and
the Claims Administrator to interpret and enforce terms,
conditions, and obligations under the Settlement Agreement. (Doc.
#53-1, ¶ 10.2.) Disputes are resolved by a Special Master, subject
to de novo review by the Court. (Id. ¶¶ 14.1, 14.2.) The Court
finds that the claims administration process is fair, adequate, and
reasonable, and therefore the objection is overruled.

11. Brent Davis objects to the requirement that Settlement
Class Members must file a claim to obtain the Additional Warranty
Protection for Moisture-Related Problems. Mr. Davis asserts that
there is no reason to require a written claim for the additional
one year warranty, and the requirement only serves to cut off the
rights of Settlement Class Members to this Benefit. The one year
period turns out to be January 13, 2006 to January 12, 2007.
Claims had to be submitted by April 13, 2006 on a Claim Form. The
Claim Form is clear and simple (Doc. #53-8), and is a reasonable
administrative requirement. While the requirement could have been
negotiated away, the nature of arms-length bargaining results in
some provisions which are not as favorable as conceivably possible
for each side. The Court overrules the objection.

15

12. Mr. Davis also seems to object to the requirement that
Settlement Class Members have to file a claim to receive any of the
other Benefits under the Settlement Agreement. Filing of a claim
to obtain a replacement refrigerator or reimbursement is a
reasonable administrative procedure which does not impose an undue
burden on any Settlement Class Member. This objection is
overruled.

13. Mr. Davis further objects that the additional warranty
period includes a time period in the past, before the Settlement
Class Members had any right to make an extended warranty claim and
before they had notice of the right to make an extended warranty
claim. He points out that the extra “year” extends from January
13, 2006 to January 12, 2007, and most of this time will expire
prior to the approval of the Settlement Agreement. Thus, he argues
there is not really an “extra year” of warranty protection at all.
The one year warranty alleged in the Third Amended Complaint
(Doc. #52, ¶ 19) has long ago expired for all the Refrigerators
(the last of which was made on December 31, 2002). The extra year
warranty is indeed at least an extra year, beginning when notice
was first provided to Settlement Class Members. Settlement Class
Members had 90 days to claim the extended warranty protection, this
extended warranty period has not expired, and Settlement Class
Members who exercised this right can make Claims under the extended
warranty. The Court overrules the objections.

16

14. Ms. Cannivet objects to the attorney fees because of her
dissatisfaction with the performance of Class Counsel. The Court
has previously overruled her objections as to the adequacy of Class
Counsel, and therefore overrules Ms. Cannivet’s objection to
attorney fees and expense reimbursement.

Mr. Davis objects to the attorney fees because they are
excessive in relation to the benefits being provided to the
Settlement Class, especially the “one year” period discussed above,
and because Class Counsel had not filed an application specifically
addressing attorney fees. The attorney fees are to be paid by GE,
and payment of the fees are not from any fund which is shared by
Settlement Class Members. Attorney fees and expenses therefore do
not diminish Benefits to the Settlement Class Members, and were
agreed to in arms-length negotiations. These objections are
overruled.

The Court approves the provision that Class Counsel be awarded
attorney fees and expenses in the total amount of $1,325,000,
consisting of: (1) $1,250,000 for fees, costs and expenses
allocable to work performed and costs and expenses incurred prior
to the Effective Date and payable within thirty (30) days after the
Effective Date of the Settlement; (2) $50,000 for fees allocable to
work performed after the Effective Date and payable 30 days after
all Benefits have been provided to Settlement Class Members
pursuant to Section 5 of the Settlement Agreement; and (3) $25,000
for actual out-of-pocket costs and expenses, if any, incurred after

17

the Effective Date and payable thirty (30) days after all Benefits
have been provided to Settlement Class Members pursuant to Section
5 of the Settlement Agreement.

15. The Court has reviewed Plaintiffs’ request for a
Settlement Class Representative Incentive Award. No objection has
been lodged to this item, and the Court finds it reasonable. The
Settlement Class Representative is awarded the requested $1500.00.
16. For the reasons stated above, the Court finds the

Settlement Agreement to be fair, reasonable and adequate.

Accordingly, it is now
ORDERED:
1. Plaintiff’s Motion for Final Approval of Settlement,
Certification of Settlement Class, and Approval of Attorneys’ Fees
and Settlement Class Representative Incentive Awards (Doc. #72-1)
is GRANTED.

2. The Court certifies the following Settlement Class:

All Persons in the fifty United States
and District of Columbia who, as of the Notice
Date, [January 13, 2006] or where applicable
the Supplemental Notice Date [June 6, 2006]
purchased, owned, or currently own a GE and/or
Hotpoint, side-by-side refrigerator sizes
twenty, twenty-two, and twenty-five cubic foot
models made between January 1, 2001 and
December 31, 2002 (the “Refrigerators”). The
complete list of Refrigerators affected by the
Settlement Agreement is provided in Exhibit A
hereto. Excluded from the Settlement Class
are: (1) GE and any entity in which GE has a
controlling
a
controlling interest in GE, and the legal
representatives, assigns and successors of GE;
(2) the Judge to whom this case is assigned

interest

or

which

has

18

and any member of the Judge’s immediate
family; and (3) all Persons who, in
accordance with the terms of the Settlement
Agreement, properly execute and timely file a
Request for Exclusion with the Claims
Administrator under Section 8 of the
Settlement Agreement.

3. The Court approves the Settlement Agreement (Doc. #53),
the Attorneys’ Fees, and the Settlement Class Representative
Incentive Award as set forth in the Settlement Agreement.

4. All actions, claims, defenses, and complaints made, filed
or asserted in Case No. 2:05-cv-186-99DNF are hereby dismissed with
prejudice, subject to the terms of the Settlement Agreement.

5. The Clerk shall enter judgment adopting and incorporating
this Opinion and Final Order and the Settlement Agreement. The
Clerk is further directed to close the case and terminate any
remaining deadlines and motions as moot.

DONE AND ORDERED in Fort Myers, Florida this 13th day of

September, 2006.

Copies:
Counsel of Record

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