FOR COURT USE CNLY se, 16 IN THE COURT OF COMMON PLEAS: HAMILTON COUNTY, OHIO , CIVIL DIVISION ANDREW WHITE, et al, : Case No. A1804206 Plaintiffs, JUDGE WENDE C. CROSS . CITY OF CINCINNATI, OHIO, et al. Defendants. ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND PLAINTIFFS’ UNOPPOSED MOTION FOR ATTORNEYS FEES Before the Court are (1) the August 30, 2022 Joint Motion of Plaintiffs (the “Class Representatives”), the members of the certified class (collectively referred to herein interchangeably fas “the Class” or “Plaintiffs"), and Defendants for entry of an order approving their Class Action Settlement Agreement (“Settlement”) as fair, adequate, and reasonable; (2) this Court's September 3, 2022 Order granting the foregoing Motion; (3) Plaintiffs’ Unopposed Supplemental Motion for ‘Approval of the Class Action Settlement; and (4) Class Counsel's Motion for an Award of Attomey Fees and Litigation Expenses. 1. BACKGROUND Plaintiffs initiated this civil rights action on July 31, 2018, challenging, facially and as applied to them, the City of Cincinnati’s restraint, through prior assessment, on seeurity-alarm- related self-defense and communications. More, specifically, the City required that “[a]larm users must register with FARU before an alarm system is activated,” that “[rJesidential alarm users must pay $50 every two years and nonresidential alarm users must pay $100 every two years,” and that“fees imposed on both alarm businesses and alarm users are nonrefundable, nontransferable, and location-specific.” White v, Cincinnati, 2021-Ohio-4003, 45, appeal not allowed, 2022-Ohio-743, §f 1-8, 166 Ohio St. 3d 1428, Thousands of residents, homeowners, and business owners, including the Named Plaintiffs, were forced to pay the Assessment. On November 11, 2021, the Court of Appeals for the First District of Ohio reversed the Court of Common Pleas’ January 11, 2021 holding, concluding as follows: “We remand the matter to the trial court for the court to grant an injunction enjoining the city from imposing the alarm assessments under Cincinnati Municipal Code 807-1-A4 and to determine damages, if any.” White, et al, v. City of Cincinnati, et al., 2021-Ohio-4003, at §47-48. ‘The Court’s Order acknowledged each of the following: ‘+ Named Plaintiffs are alarm users in the City. §7 (“Appellants are alarm users in the City”) ‘© The Court’s Opinion applies to a class of individuals it describes, parallel with the City’s Code, as “alarm users” consisting of “residential alarm users [that] must pay $50 every two ‘years and nonresidential alarm users [that] must pay $100 every two years.” Id., at €3, 5. «The Alarm Assessments are unlawful on their face, ie. as applied to everyone that has paid them. §44 (“the assessments, particularly the registration fees, do not bear a reasonable relationship to protections, benefits or opportunities provided by the City to those paying the assessments”); 45 (“We hold that the assessments imposed by Cincinnati Municipal Code 807-1-A4 violate the Due Process Clauses of the Ohio and United State Constitution”); {46 (the assessments are a tax and the imposition of that tax is unconstitutional”). Foreshadowing Plaintiffs’ entitlement to restitution, the Appellate Court expressly determined that “there are no services provided directly to the payers of the assessments that are not provided to all city residents,” and that “there are no separate or additional services provided to those paying the fee.” Id, at $33, 44 (“the city does not provide the alarm businesses or the alarm users with any services... The City has not given anything to them for which it can ask for the assessment in return”), On remand, on April 22, 2022, this Court granted Plaintiffs Motion for Class Certification, certifying the following two classes, pursuant to Civ. R. 23(B)(1) and Civ. R. 23(B)(2):‘Class One: Individuals and entities that have paid “Residential Alarm User Registration Fees” to the City of Cincinnati subsequent to January 1, 2014. Class Two: Individuals and entities that have paid “Non-Residential Alarm User Registration Fees” to the City of Cincinnati subsequent to January 1, 2014. Subsequent thereto, the parties determined there to be 22,674 Class Members, and entered into a Settlement, which must be approved by this Court before it can become effective. II, LAW AND ANALYSIS ‘The Settlement is conditioned on the Court approving its terms, and also on the payment of attorney fees and expenses to the lawyers who have represented Plaintiffs and the Class Members. ‘The total amount the City has agreed to pay under the Settlement is $3,280,602.25, which approximates the full amount of refunds demanded by Plaintiffs in the action. Of this amount, 52,558,869.76 will be available for pro rata distribution to the Class Members as a refund of the alarm user registration fees the Class Members paid since 2014. luals and/or entities Subsequent to the Settlement and this Court's initial Order, ten indi opted out of the Class Settlement, causing Plaintiffs to move to (1) reduce the amount of restitution to exclude amounts owed to those who opted out, ie. from $3,280,602.25 to $3,277,802.25; and (2) reduce Plaintiffs’ attorneys fees from $721,732.49 to $721,116. A. The terms of the parties’ Proposed Settlement remain fair, reasonable and adequate, and warrant preliminary approval. Nothing since the time of this Court’s September 3, 2022 Order preliminarily approving the Settlement alters the reality that this Settlement is fair, reasonable, and adequate, and warrants final approval First, there is ample precedent for restitution in instances, as here, where citizens have been required to pay unlawful assessments to a political subdivision. Pund v. City of Bedford, Ohio, 339 F. Supp. 34 701, 717 (N.D. Ohio 2018)(“In this case, if the first factor is assumed, i.e. that property ‘owners paid inspection fees under both ordinances, then the second is obvious the City was awarethey had received payments on those fees”); State ex rel. Zone Cab Corp. v. Indus. Comm., 132 Ohio St. 437 (1937), Arth Brass & Aluminum Castings, Inc. v. Conrad, 104 Ohio St.3d 547, 2004-Ohio- 6888 (BWC was unjustly enriched because it “collected premiums in violation of [an] Ohio statute”); Judy v. Ohio Bur. of Motor Vehicles, 100 Ohio St.3d 122, 2003-Ohio-5277 (affirming decision requiring the BMV to refund excess license reinstatement fees collected as a result of an erroneous interpretation of R.C. 4591.191(L)); State ex rel. Minutemen, 62 Ohio St.3d 158 (1991) (unlawful premium overcharges resulting from the BWC’s implementation of new manual classifications developed for administrative convenience must be reimbursed); Jordan v. City of Bucyrus, Ohio, 739 F.Supp. 1124, 1127-1128 (N.D. Ohio 1990)(*grant of restitution” for unconstitutional seizures of the plaintiffs’ funds through forced payment of agency fees); Samuel v. Univ. of Pittsburgh, 538 F.2d 991, 994, 995 (3 Cir. 1976)(“restitution is due any woman who paid the higher out-of-state tuition rate solely by reason of the application of the unconstitutional residency rules,” as “the Universities ‘were unjustly enriched in that they wrongfully secured a benefit which it would be unconscionable for them to retain,” because they “obtained the excess fees from the class under the pretext that the exaction was legal”); Allen v. Leis, 204 F.R.D. 401 (S.D. Ohio 2001)(“restitution of all funds illegally taken” by way of unconstitutional “$30.00 book-in-fees”); City of Monterey v. Del Monte Dunes at Momerey, Ltd, 526 U.S. 687, at 751-52 (1999)(“rights passing through the Section 1983, prism may in proper cases be vindicated by ... orders of restitution”). Moreover, the purpose of restitution “is to compensate [the plaintiff] for the benefit he has conferred on the defendant.” Johnson v. Microsoft Corp., 2005-Ohio-4985, Y¥]19-21, 106 Ohio St. 34 278, 286. Restitution is available when a plaintiff cannot “assert ttle or right to possession of particular property, but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him.’” Great-West Life & Annuity Ins. Co. v. Knudson, 534 US. 204, 213, 122 S.Ct. 708 (2002).Here, there is no doubt that the Named Plaintiffs and their Proposed Classes paid at least $3,277,802.25 in unlawful Alarm User Registration Fees to the City. The Court of Appeals’ findings display that the funds extracted from Alarm Users were solely for the benefit of the City, and not for themselves: the Appellate Court expressly determined that “there are no services provided directly to the payers of the assessments that are not provided to all city residents,” and that “there are no separate or additional services provided to those paying the fee.” Id., at $33, 44 (“the city does not provide the alarm businesses or the alarm users with any services. .. The City has not given anything to them for which it can ask for the assessment in return”). Further, the Court of Appeals determined all Alarm User Registration Fees to be unconstitutional: “we hold that the assessments imposed by Cincinnati Municipal Code 807-1-A4 violate the Due Process Clauses of the Ohio and United States Constitutions.” White v. Cincinnati, 2021-Ohio-4003, 9 45, 181 N.E.3d 583. Consequently, the primary feature of the Settlement ~ restitution — is fair and reasonable because it would be “unjust” for the City to retain the fees it has collected here. Second, following approval of the Settlement, the City will send a notice letter notifying to all Class Members who can be located, providing each with information on the case and giving each ‘of them the option either to accept a check for the Class Member's pro rata share of the $3,277,802.25,refund or to direct that the equivalent amount be donated to a public charity organized under Section 501(C)(3) of the Internal Revenue Code. In response to such notice letter, Class Members will be requested to indicate their decision whether to accept a check for their pro rata distribution or to donate the equivalent amount. Third, the City has agreed to pay the reasonable costs of settlement administration, including the expenses incurred in sending the notice and in implementing the Class Members’ individual decisions whether to accept their pro rata distribution or to donate the equivalent amount. An individual hypothetically bringing his or her own action would be required to, upon prevailing, pay all costs and fees associated with enforcing the judgement and recovering feFourth, this Settlement provide immediate and meaningful relief to individual Class ‘Members and represents an overall recovery equal to that which Plaintiffs sought via this litigation — there is no disparity between the amount of restitution the Classes would have recovered if they litigated the amount owed through summary judgment and the amount proposed to be awarded under ividual Class Members would be entitled if the this Settlement. In fact, the refund to which Settlement is approved is even more favorable to Class Members than relief attainable through g for Class Members the relief that individual actions of their own could have been. By obta Plaintiffs sought and a greater recovery than Class Members individually could have hoped for, this Settlement renders meaningless any hypothetical balancing of likelihood of ultimate success against the recovery obtained. ‘The successful result achieved through the Settlement likewise renders ‘meaningless any discussion of the evidence Plaintiffs might have presented had the case proceeded. Fifth, courts across the country recognize that to “secure a substantial benefit for the Class in ‘a highly complex action, undiminished by further expenses, and without delay, costs and uncertainty of protracted litigation” favors approving a proposed settlement.' ‘The total amount of the Settlement in this case, before reduction to reflect “opt-outs” is $3,280,602.25. This represents the full amount ‘demanded by Plaintiffs in their Complaint, which is the full amount of residential and non-residential alarm user registration fees paid by the Classes. By any definition, obtaining such a result for a certified class must be regarded as fair, adequate, and reasonable. ‘Sixth, a Class Member who, hypothetically, filed his or her own individual action would have needed to first overcome the City’s defenses to the alleged unlawfulness of its alarm user registration fees — which for over four years spanned across three Court of Common Pleas judges, the United States District Court for the Souther District of Ohio, the Court of Appeals for the First District of Ohio, and the Ohio Supreme Court, As such, a Class Member bringing a hypothetical In re Broadwing, 252 F.R.D. at 374 (S.D. Ohio 2006).individual action would almost certainly have had to pay more than $11 in attorneys fees to recover ‘$50, more than $22 in attorneys fees to recover $100, and so forth. Seventh, a Class Member would traditionally need to pay the typical one-third contingent fee, instead of the considerably reduced percentage that would be paid to Class Counsel under this Seitlement. The $3,280,602.25 Settlement to be paid by the City, holding opt outs aside, includes provisions, subject to court approval, for the award of $721,732.49 to cover aggregate attorney fees to Class Counsel, incentive awards, any, to class representatives, and filing fees paid and court costs owed. In general, this percentage of the fund method of compensating attorneys is the preferred in common fund cases. See Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513, 515-516 (6th Cir.1993)("'We are aware of the recent trend towards adoption of a percentage of the fund method in such cases.”). It has been observed that "the percentage of the fund method more accurately reflects the results achieved." Rawlings, 9 F.3d at 516 (internal citations omitted). "[U]nder the percentage of the fund method, the court simply determines a percentage of the settlement to award the class counsel.’ * Londardo, 706 F.Supp.2d at 789 (quoting In re Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig,, 268 F.Supp.2d 907, 922 (N.D-Ohio 2003). In Ohio and Michigan, "[cJourts have noted that the range of reasonableness in common fund cases is from 20 to 50 percent of the common fund." See Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 2015 WL. 1498888 (E.D.Mich), citing In re Telectronics Pacing Sys., Inc., Accufie Atrial “J” Leads Prods. Liab, Litig, 137 FSupp.2d 1029, 1046 (S.D.Ohio 2001); In re Cincinnati Gas & Elec. Co. Sec. Litig., 643 F.Supp. 148, 150 (S.D.Ohio 1986); see also Lonardo, 706 F.Supp.2d at 803 (26.4%); Kritzer v. Safelite Solutions, LLC, No. 2:10-ev-0729, 2012 WL 1945144, (S.D.Ohio May 30, 2012) (52%); Gascho v. Global Fitness Holdings, LLC, 2014 WL 1350509 (S.D. Ohio) (21%).Recent scholarly empirical studies find that (1) the percentage of the fund method is now preferred by courts; (2) nearly two-thirds of awards using the percentage of-the-fund method fell between 25% and 35%, with the most common percentages 25%, 30%, and 33%; (3) the mean award is 25.4% and the median is 25%; and (4) over 80% of all percentage-of-the-fund fee awards were greater than or equal to 20% of the total settlement amount (and often much greater). See Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical L. Stud. 811 (2010), at 833-34, 838, Here, Plaintiffs! counsel has applied for a fee at the low end of "the range of reasonableness”: 22 percent, This is even less than the percentage to which Plaintiffs’ attormeys are contractually entitled to by virtue of the specifications in the Plaintiffs’ fee agreement. Eighth, the proposed Settlement in this case provides substantial benefits to the Class Members — indeed, it in effect affords them all the relief they were seeking — while eliminating all risks of further litigation, including the delay, expense, and uncertainty that foreseeable future appeals would entail. Such proceedings would have prolonged the unwarranted retention of alarm user registration fees and would have been counterproductive for both Plaintiffs and the City. Most importantly, the Settlement avoids the need to litigate the amount of restitution owed, which can be especially complex with so many class members and payments over so many years. Even the ability to compromise on the method of notice and logistics of the refund payments ~ subjects that can often devolve into squabbling and fissures — is a helpful development. Ninth, the Class is represented by attorneys experienced in complex litigation and class actions, including cases involving similar issues. See, inter alia, Pund v. City of Bedford, Ohio, No. 1:16CV1076, 2019 WL 2026513, at 1 (N.D. Ohio May 8, 2019); Thompson v. City of Oakwood, Ohio, No. 3:16-CV-169, 2018 WL 4932091, at 1 (S.D. Ohio Oct. 11, 2018); Sanborn v. Hamilton Cty. Budget Comm, 2014-Ohio-5218, 142 Ohio St. 3d 20, 27. Class Counsel has advocated for the interests of the Class at multiple levels over four years, and now believes that it is in the best interestsof the Class to discontinue this lawsuit and that the Settlement provides what amounts to full relief for Class Members that in every respect is fair, adequate, and reasonable. Likewise, arm’s-length negotiations conducted by competent counsel constitute prima facie evidence of a fair settlement.? The proposed Settlement in this case is the result of intensive, arm’s- length negotiations between experienced attomeys who have extensive class action and complex litigation experience and who have extensive knowledge of the legal and factual issues of this case. ‘The parties’ attorneys are experienced in the litigation, certification, trial, and settlement of class actions cases, There is no evidence that any counsel or party engaged in any collusion or that any illegality has tainted the settlement process. igation against a public entity Tenth, it is unquestionably in the public interest to resolve 1 such as the City that has charged unlawful fees to residents. In addition, those Class Members who clect to direct that the amount of their share of the refund be donated to a public charity organized under Section 501(C)(3) of the Internal Revenue Code would be taking advantage of a creative option not otherwise available to them through litigation. That option furthers the public interest by providing a means for alarm users to make donations that benefit the local community. See Beder v. Cleveland Browns, Inc., 114 Ohio Misc.2d 26, 31, 758 N.E.2d 307, 311 (Cuyahoga Cty. C.P. 2001) (approving a class action settlement that included a provision allowing class members to exercise the option to donate their awards to charity, calling it “[pJerhaps the most compelling aspect of the settlement”), Finally, Plaintiffs’ Class Counsel 1851 Center for Constitutional Law, as a public charity and public interest law firm chartered under Section 501(C)(3) of the Internal Revenue Code, maintains a fiduciary duty to advance the public interest in all of its litigation, and its Director affirms that such is the case here. 2 Brotherton v. Cleveland, 141 F. Supp. 2d 894, 906 (S.D. Ohio 2001) (The absence of any evidence suggesting collusion or illegality supports “a determination that the agreed proposed settlement was fair, adequate and reasonable.”).Finally, to advance a greater refund to the Classes, the Named Plaintiffs are foregoing “incentives awards” to which they might otherwise be entitled. Courts approving incentive awards “have stressed that incentive awards are efficacious ways of encouraging members of a class to become class representatives and rewarding individual efforts taken on behalf of the class.” Hadi v. Johnson, 322 F.3d 895, 897 (6th Cir. 2003). ‘The Class Representatives devoted their time to this cause without any expectation of a bounty, or even any knowledge of the existence of incentive awards. Their initiative, time, and effort were essential to the prosecution of the case and were central to the remarkable results achieved. By virtue of their activities and dedication over the four- ‘year period and the courage they displayed, these individuals exemplified what class representatives should be. In every respect, they provided stellar representation, leadership, and service to those who nor assurance of a ultimately comprised the Class, and they did so without any expectat commensurate reward or profit. In sum, there simply are no grounds to doubt the fairness, adequacy, or reasonableness of the Seitlement: the weighing of risks and further workload, the restitution, amount of restitution, amount of attorneys fees, and notification provisions are each adequate? For the foregoing reasons, the Court approves the Settlement Agreement. B. Class Members received adequate notice and an opportunity to opt out. Under Civ. R. 23(E)(1), the Court must “direct notice in a reasonable manner to all class members who would be bound” by a proposed class action settlement.‘ Notice of a proposed settlement to class members must be the “best notice that is practicable under the circumstances.”* ° Thacker v. Chesapeake Appalachia, L.L,C.,259 F.R.D. 262, 271 (E.D. Ky. 2009). “Civ, R 23(E)(). * Civ. R 23(C)2)B), 10This means “individual notice to all members who can be identified through reasonable effort.”* In this instance, the Settlement Agreement contemplates notice of the settlement terms and Fairness Hearing through mailing to all Class Members. Exhibit 1, 3. Accordingly, the parties issued a court-approved posteard Notice to the available mailing addresses of all class members by regular mail well in advance of the Fairness Hearing. In addition, the PlaintiffS affirmed that they provided notice via email, telephone calls, and voicemails to over 1,100 class members whose mail was returned as undeliverable. ‘The foregoing method of individual notice by mail to all Class Members who can be reasonably identified and found, with email and telephone follow-ups where possible, represents the best notice practicable under the circumstances and satisfies the requirements of due process and Civ. R. 23.7 Moreover, Class Members received this Notice well in advance of the Fairness Hearing. The Settlement’s notice plan and the parties’ notification efforts are therefore reasonable. And the plan to notify Class Members via email that their refunds are soon to be delivered through mail is ‘exceedingly reasonable. There were no due process deficiencies in the form and manner of notice such as might warrant denial of final approval, nor is any deficiency evident in the Settlement ‘Agreement, I. CONCLUSION It is ordered that (1) the parties’ Settlement is approved, and judgment is entered accordingly; (2) Plaintiffs’ unopposed Motion for Attorneys Fees is granted; (3) Defendants shall transfer funds to Class Members and Plaintiffs’ counsel pursuant to the terms of the Settlement; and (4) approval of « Eisen v. Carlisle & Jacquelin, 417 US. 156, 173, 94 S. Ct. 2140, 2150 (1974). 7 Frost v, Household Realty Corp., 61 F. Supp. 34740, 745 (S.D. Ohio 2004); see also Weinberger v. Kendrick, 698 F.2d 61, 71 (24 Cir. 1982) (Notice sent to individuals’ last known address and notice published in the Wall Street Journal constituted adequate notice, even though some members of the class did not receive actual notice); Jordan ve Global Natural Res. Inc,, 102 F.R.D. 45, 1 (S.D. Ohio 1984) (due process does not require actual notice to all Class members, and constructive notice by publication will suffice to inform potential class members). athe Settlement and all approval of all motions are granted subject to Plaintiffs" proposed qualification that the amount of restitution and attorneys fees be reduced, pro-rata, to exclude amounts related to those Class Members to have opted out of the Settlement. SO ORDERED Lene 2. Hon. Wende C. Cross 2