CourtListener opinion 11281854

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UNITED STATES DISTRICT COURT 
 FOR THE DISTRICT OF NEW HAMPSHIRE 

Debra M. Adams, et al. 

v. Civil No. 22-cv-099-LM 
 Opinion No. 2026 DNH 027 P 
Dartmouth-Hitchcock Clinic, et al. 

 O R D E R 
Plaintiffs Debra Adams, Danillie Mars, and Michelle Miller (collectively, 
"plaintiffs") bring this putative class action against Dartmouth-Hitchcock Clinic, its 
Board of Trustees, the Administrative Investment Oversight Committee of 
Dartmouth-Hitchcock Clinic, and "John Does 1-30" ("defendants") asserting injuries 
arising from defendants' alleged breach of their fiduciary duties to effectively 
manage and monitor plaintiffs' retirement plans under the Employee Retirement 
Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. 
Defendants previously filed a motion to dismiss this action (doc. no. 22) which 
this court denied. The parties now report that they have reached a negotiated 
settlement. Before the court is plaintiffs' unopposed motion (doc. no. 65) seeking 
preliminary approval of the parties' proposed Class Action Settlement Agreement 
(doc no. 65-2) (hereinafter the "Agreement") as well as preliminary certification of 
the proposed class for purposes of settlement. The court has carefully reviewed the 
Agreement and its supporting exhibits. For the following reasons, the court: (1) 
preliminarily approves the Agreement; (2) preliminarily certifies the proposed class 
for settlement purposes; (3) appoints Analytics LLC to administer the settlement 
and preliminarily appoints plaintiffs as class representatives for the settlement 
class, and Capozzi Adler, P.C. as class counsel; (4) approves the objection 
procedures outlined by the parties, subject to changes described in this order; and 

(5) directs the parties to submit updated proposed notice forms to bring them into 
conformity with the requirements of due process and Fed. R. Civ. P. 23(e)(1). The 
court declines to set a schedule for the fairness hearing and related deadlines until 
the notices are approved. 

 BACKGROUND 
ERISA governs "employee benefit plans" that cover employees' retirement 
benefits and sets forth several civil enforcement provisions. See 29 U.S.C. § 1132(a). 
"If an ERISA fiduciary breaches their fiduciary duty, Section 409 makes them liable 
to the plan." Slim v. Life Ins. Co. of N. Am., No. CV 24-1162(GMM), 2024 WL 
4870537, at *3 (D.P.R. Nov. 22, 2024). In this case, plaintiffs are participants in the 
Dartmouth-Hitchcock Retirement Plan and the Dartmouth-Hitchcock Employee 

Investment Plan (collectively, the "Plans"). They assert two claims on behalf of the 
Plans, themselves, and all others similarly situated. In their first claim, plaintiffs 
allege that the Administrative Investment Oversight Committee of Dartmouth-
Hitchcock Clinic and its members ("Committee Defendants"), which directly oversee 
the Plans, breached their fiduciary duty of prudence by failing to sufficiently 
monitor and control recordkeeping and administrative costs and fees, and by 

imprudently investing certain funds. In their second claim, plaintiffs allege that 

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Dartmouth-Hitchcock Clinic and its Board of Trustees ("Monitoring Defendants") 
breached their duties to adequately monitor the Committee Defendants. 
Plaintiffs filed their complaint on March 18, 2022. On May 31, 2022, 

defendants filed a motion to dismiss, which the court later denied. Over the course 
of this litigation, the parties have engaged in discovery and employed the services of 
an independent mediator, who ultimately helped them arrive at this settlement. 
 DISCUSSION 

I. Court Approval of Class Action Settlements 
"The claims, issues, or defenses of a certified class—or a class proposed to be 
certified for purposes of settlement—may be settled, voluntarily dismissed, or 
compromised only with the court's approval." Fed. R. Civ. P. 23(e). The court's role 
in the settlement approval process is to serve as a fiduciary for the absent class 
members, and to protect them from an unjust or unfair settlement. Grenier v. 
Granite State Credit Union, 344 F.R.D. 356, 366 (D.N.H. 2023). 

Court approval of a class action settlement proceeds in two stages. Rapuano 
v. Trs. of Dartmouth Coll., 334 F.R.D. 637, 642 (D.N.H. 2020). First, the parties 
present a proposed settlement to the court for "preliminary approval." 4 William B. 
Rubenstein, Newberg and Rubenstein on Class Actions § 13.10 (6th ed.). At the 
preliminary approval stage, the court must determine whether it "will likely be able 
to" grant final approval to the settlement proposal under Rule 23(e)(2) of the 
Federal Rules of Civil Procedure—i.e., the court must find it likely that the 

 3 
settlement is "fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(1)(B), (2); see 
Rapuano, 334 F.R.D. at 642-43. In addition, if the court has not yet certified the 
class, the preliminary approval stage typically involves a request from the parties 

that the court provisionally certify the class for purposes of settlement. See 
Rubenstein, supra, § 13.10. 
If the court is satisfied that it will "likely be able to" (1) certify the class for 
purposes of judgment on the proposed settlement; and (2) approve the settlement 
proposal under Rule 23(e)(2), then the court must "direct notice in a reasonable 
manner to all class members who would be bound" by the proposed settlement. Fed. 
R. Civ. P. 23(e)(1)(B); see Rapuano, 334 F.R.D. at 642. After notice to the class, the 

court holds a "fairness hearing" at which class members may appear to support or 
object to the proposed settlement. See Rubenstein, supra, § 13.10. 
At the second stage of the inquiry, the court determines whether it can grant 
final approval of the proposed settlement. See id. Under Rule 23(e)(2), the court 
may grant final approval of a class action settlement if it can certify the proposed 
class, see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997), and if it finds 

that the proposed agreement is "fair, reasonable, and adequate." Fed. R. Civ. P. 
23(e)(2). The First Circuit has recognized as an "important concern" the policy to 
encourage and facilitate class action settlements where appropriate under Rule 
23(e). Howe v. Townsend, 588 F.3d 24, 36 (1st Cir. 2009) (citing Durrett v. Hous. 
Auth., 896 F.2d 600, 604 (1st Cir. 1990)). 

 4 
II. Preliminary Certification of the Proposed Class for Settlement Purposes and 
Preliminary Appointment of Class Counsel and Class Representative 
To obtain certification of a class—whether for settlement or litigation 
purposes—the court must find that all four prerequisites set forth in Federal Rule of 
Civil Procedure 23(a) are met. See Amchem, 521 U.S. at 620-21. These are: (1) 
numerosity; (2) commonality; (3) typicality; and (4) adequacy. See Fed. R. Civ. P. 
23(a); Amchem, 521 U.S. at 613. In addition to those threshold requirements, a 
party seeking certification must also show that the action falls into one of the 

categories outlined in Rule 23(b). See Amchem, 521 U.S. at 614. Here, plaintiffs 
seek certification under Rule 23(b)(1)(B). To qualify for certification under Rule 
23(b)(1)(B), the party seeking certification must prove that separate actions by or 
against individual class members would create a risk of "adjudications . . . that, as a 
practical matter, would be dispositive of the interests of the other [class] members 
not parties to the individual adjudications or would substantially impair or impede 

their ability to protect their interests." Fed. R. Civ. P. 23(b)(1)(B); see Amchem, 521 
U.S. at 614. 
Here, plaintiffs seek preliminary class certification for purposes of 
settlement. The settlement class is defined as: 
 [A]ll persons, except Defendants and their immediate 
 family members, who were participants in or beneficiaries 
 of the Plans, and any Alternate Payee of a Person subject 
 to a QDRO [Qualified Domestic Relations Order] who 
 participated in the Plans, at any time during the Class 
 Period [March 18, 2016 through the date of the Preliminary 
 Approval Order]. 

 5 
Doc. no. 65-2 at 10. The court addresses the Rule 23(a) and 23(b)(1)(B) requirements 
below. 

A. Rule 23(a) Threshold Requirements 
 1. Numerosity 
Rule 23(a)(1) requires that the putative class be "so numerous that joinder of 
all members is impracticable." Fed. R. Civ. P. 23(a)(1). "No minimum number of 
plaintiffs is required to maintain a suit as a class action, but generally if the named 
plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first 

prong of Rule 23(a) has been met." Clough v. Revenue Frontier, LLC, Civ. No. 17-cv-
411-PB, 2019 WL 2527300, at *3 (D.N.H. June 19, 2019) (quoting Garcia-Rubiera v. 
Calderon, 570 F.3d 443, 460 (1st Cir. 2009)). Here, the settlement class consists of 
over 31,000 plan participants. See doc. no. 1 at 9. The size of the proposed class will 
likely be more than sufficient to satisfy the numerosity requirement because joinder 
of all the class members is impracticable. 

 2. Commonality 
Rule 23(a)(2) requires the existence of "questions of law or fact common to the 
class." Fed. R. Civ. P. 23(a)(2). Commonality is a "low bar," and complete 
commonality of questions among the putative class members is not required. In re 
New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 19 (1st Cir. 2008); 
7A Wright & Miller's Federal Practice & Procedure § 1763 (4th ed.). To establish 
commonality, a plaintiff must show that all putative class members "have suffered 

the same injury." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (quoting 

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General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982)). This 
means that the putative class members' "claims must depend upon a common 
contention . . . of such a nature that it is capable of classwide resolution—which 

means that determination of its truth or falsity will resolve an issue that is central 
to the validity of each one of the claims in one stroke." Id. 
Commonality is likely satisfied here. Every class member shares essentially 
identical questions of law and fact: did the Monitoring Defendants fail to monitor 
the Committee defendants, and did the Committee Defendants breach their 
fiduciary duties by failing to control the compensation paid for recordkeeping and 
administration services, failing to monitor investment management fees, and 

imprudently investing certain funds. These questions are very likely sufficient to 
establish commonality because they "are focused solely on Defendants and their 
actions, and will require the same proof for all class members." In re Nortel 
Networks Corp. ERISA Litig., No. 3:03-MD-01537, 2009 WL 3294827, at *8 (M.D. 
Tenn. Sept. 2, 2009); see also Stengl v. L3Harris Techs., Inc., No. 6:22-sc-572-PGB-
LHP, 2023 WL 11932263, at *2 (M.D. Fla. June 5, 2023) ("[A] common question 

exists as to whether Defendants breached ERISA's duty of prudence in connection 
with selecting and monitoring the Plan's investment options and monitoring the 
compensation paid for recordkeeping and administration services."). 
 3. Typicality 
The third threshold requirement of Rule 23(a)—typicality—requires the class 
representative to show that her claims are typical of the absent class members' 

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claims. Fed. R. Civ. P. 23(a)(3). To be typical, the representative's claims must 
"arise from the same event or practice or course of conduct that gives rise to the 
claims of other class members, and [be] based on the same legal theory." Garcia-

Rubiera, 570 F.3d at 460 (brackets and ellipsis omitted) (quoting In re Am. Med. 
Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)); see also Falcon, 457 U.S. at 156 
(observing that "a class representative must be part of the class and ‘possess the 
same interest and suffer the same injury' as the class members." (quoting E. Tex. 
Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 1977))). "The representative 
plaintiffs' claims and those of absent class members need not be identical; they need 
only ‘share the same essential characteristics.'" Rapuano, 334 F.R.D. at 648 

(quoting Ouadani v. Dynamex Operations E., LLC, 405 F. Supp. 3d 149, 162 (D. 
Mass. 2019)). 
As with commonality, plaintiffs are likely to meet the typicality requirement. 
All three proposed class representatives—Adams, Mars, and Miller—participated in 
the Plans and were subject to what they allege to be excessive administration and 
recordkeeping costs, imprudent management, and a lack of oversight. Plaintiffs 

allege that defendants' violations caused damage to the Plans themselves and all 
Plan participants' retirement savings. See doc. no. 1 at 29-31. Moreover, each of the 
plaintiffs' and class members' claims are predicated on the same underlying legal 
theory: that defendants breached their fiduciary duties under ERISA owed to the 
Plans and their participants by failing to adequately monitor, oversee, and 
prudently invest the Plans. Thus, because plaintiffs' claims arise from the same 

 8 
practice that gives rise to the claims of the other class members and all are based on 
the same legal theories, it is likely that the court will find that typicality is met.1 
See Garcia-Rubiera, 570 F.3d at 460. 

 4. Adequacy 
The last of the Rule 23(a) threshold requirements is adequacy, which requires 
that the class representatives will "fairly and adequately protect the interests of the 
class." Fed. R. Civ. P. 23(a)(4). To satisfy the adequacy requirement, plaintiffs must 
show "first that the interests of the representative party will not conflict with the 
interests of any of the class members, and second, that counsel chosen by the 
representative party is qualified, experienced, and able to vigorously conduct the 

proposed litigation." Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 
1985). 
As for the first prong, all named plaintiffs have participated in and express a 
willingness to continue to participate in the litigation. See, e.g., docs. nos. 65-3; 65-
4; 65-5 (declarations of plaintiffs). Further, nothing in the record before the court 
suggests a conflict of interest between any of the potential class representatives and 
the absent class members. As for the second prong, the court is satisfied that the 

proposed class counsel (Capozzi Adler) is "qualified, experienced, and able to 

1 It is immaterial that class members likely did not invest in the Plans 
identically. See Boley v. Universal Health Servs., Inc., 36 F.4th 124, 134 (3d Cir. 2022) 
("Each participant's potential recovery, regardless of the fund in which he or she 
invested, is under the same legal theory—[defendant's] breach of its fiduciary duty 
under ERISA. . ."). 

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vigorously conduct the proposed litigation." Andrews, 780 F.2d at 130. Plaintiffs' 
counsel is experienced and frequently serves as class counsel in other ERISA cases 
of similar complexity. See infra Part II.C. The court will likely be able to find that 

plaintiffs and their chosen counsel meet the adequacy requirements of Rule 23(a)(4). 
B. Rule 23(b)(1)(B) 
Fed. R. Civ. P. 23(b)(1) generally "encompasses cases in which the defendant 
is obliged to treat class members alike or where class members are making claims 

against a fund insufficient to satisfy all of the claims." In re Tyco Int'l, Ltd., No. 
MD-02-1335-PB, 2006 WL 2349338, at *3 (D.N.H. Aug. 15, 2006) (quoting Allison v. 
Citgo Petrol. Corp., 151 F.3d 402, 412 (5th Cir. 1998)). Plaintiffs seek certification 
under Rule 23(b)(1)(B).2 A class is properly certified under Rule 23(b)(1)(B) when 
the Rule 23(a) threshold requirements are met, and "prosecuting separate actions 
by or against individual class members would create a risk of . . . adjudications with 
respect to individual class members that, as a practical matter, would be dispositive 

of the interests of the other members not parties to the individual adjudications or 
would substantially impair or impede their ability to protect their interests." Fed. R. 
Civ. P. 23(b)(1)(B). Certification under Rule 23(b)(1)(B) is appropriate in actions 
charging "a breach of trust by an indenture trustee or other fiduciary similarly 

2 In the alternative, plaintiffs argue that certification is also appropriate under 
Rule 23(b)(1)(A). Because the court finds that certification under Rule 23(b)(1)(B) is 
appropriate, it need not decide whether certification under Rule 23(b)(1)(A) would 
also be appropriate. 

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affecting the members of a large class of . . . beneficiaries, and which requires an 
accounting or like measures to restore the subject of the trust." Fed. R. Civ. P. 
23(b)(1)(B) advisory committee's note to 1966 amendment. "In light of the derivative 

nature of ERISA § 502(a)(2) claims, breach of fiduciary duty claims brought under § 
502(a)(2) are paradigmatic examples of claims appropriate for certification as a Rule 
23(b)(1) class, as numerous courts have held." Hochstadt v. Bos. Sci. Corp., 708 F. 
Supp. 2d 95, 105 (D. Mass. 2010) (brackets omitted) (quoting In re Schering Plough 
Corp. ERISA Litig., 589 F.3d 585, 604 (3rd Cir.2009)). 
Here, plaintiffs' claims fit this paradigm. They arise out of Section 502(a)(2) 
of ERISA (29 U.S.C. § 1132(a)(2)) and are brought on behalf of the Plan. Plaintiffs' 

claims that defendants breached their fiduciary duties will, "if true, be the same 
with respect to every class member." In re Schering Plough, 589 F.3d at 604-05. 
Moreover, because such suits are brought on the Plans' behalf, any individual 
success on the merits would result in plan-wide relief, and any individual failure 
could preclude other Plan participants from litigating their own claims for the same 
plan-wide relief. In re Tyco Int'l, 2006 WL 2349338, at *8. Accordingly, the court 

finds that it will likely be able to certify the proposed class for the purposes of 
settlement under 23(b)(1)(B). 
C. Appointment of Class Counsel Under Rule 23(g) 
In connection with class certification, the court must address appointment of 

class counsel under Federal Rule of Civil Procedure 23(g). The court considers the 

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work plaintiffs' chosen counsel has done so far in identifying and investigating class 
claims, counsel's class action and complex litigation experience, counsel's knowledge 
of the applicable law, and counsel's available resources for pursuing the litigation. 

See Fed. R. Civ. P. 23(g)(1)(A). In addition, counsel "must fairly and adequately 
represent the interests of the class." Fed. R. Civ. P. 23(g)(4). 
Here, plaintiffs' counsel has shown that they are fit to represent the class. 
Attorneys at Capozzi Adler, including counsel of record in this case, Attorney Mark 
K. Gyandoh, have investigated plaintiffs' claims and litigated this lawsuit for years 
before the court. As part of that litigation, counsel has conducted extensive 
discovery, successfully defeated a motion to dismiss, and negotiated a settlement. 

The attorneys at Capozzi Adler have a great deal of experience in ERISA litigation. 
Attorney Gyandoh is a partner and chair of Capozzi Adler's Fiduciary Practice 
Group and has been litigating ERISA fiduciary breach lawsuits for nineteen years. 
Capozzi Adler has been appointed class counsel in many cases and has successfully 
litigated at both the trial and appellate level. See, e.g., doc. no. 65-1 at 7-10. Capozzi 
Adler has also demonstrated that it has the resources to continue to pursue this 

litigation. Finally, the court is satisfied that Capozzi Adler will fairly and 
adequately represent the interests of the class. For these reasons, plaintiffs' counsel 
of record is provisionally appointed as class counsel for the purposes of preliminary 
certification, pursuant to Rule 23(g). 

 12 
D. Preliminary Certification of the Proposed Class and Appointment of 
 Class Representative and Class Counsel 
For the reasons discussed above, the court preliminarily certifies the 
proposed class for settlement purposes. The court provisionally appoints plaintiffs 
Adams, Mars, and Miller as the settlement class representatives, and their chosen 
counsel, Capozzi Adler, as settlement class counsel in this matter. In the event the 
court ultimately denies final approval of the parties' proposed settlement 
agreement, the court's preliminary certification of the class and provisional 

appointments of class counsel and class representative shall be vacated. See 
Rapuano, 334 F.R.D. at 643. 
The court now turns to whether the proposed class action settlement 
Agreement (doc. no. 65-2) merits preliminary approval. 

III. Preliminary Approval of the Proposed Settlement 
At this preliminary stage of the approval process, the court must determine 
whether it will "likely" be able to find that the proposed class action settlement is 
"fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2). "This threshold may be 
met by showing that the proposed settlement falls ‘within the range of possible final 
approval' and that it is not ‘illegal or collusive.'" Rapuano, 334 F.R.D. at 654 

(quoting Scott v. First Am. Title Ins. Co., Civ. No. 06-cv-286-JD, 2008 WL 4820498, 
at *3 (D.N.H. Nov. 5, 2008)). "In effect, the role of the court is to serve as a fiduciary 
for the absent class members, and to protect them from an unjust or unfair 
settlement." Wright v. S. N.H. Univ., 565 F. Supp. 3d 193, 206 (D.N.H. 2021). 

 13 
"There is a presumption that a negotiated settlement is within the range of 
reasonableness ‘when sufficient discovery has been provided and the parties have 
bargained at arms-length.'" Id. (brackets omitted) (quoting City P'ship Co. v. Atl. 

Acquisition Ltd. P'ship, 100 F.3d 1041, 1043 (1st Cir. 1996)). 
As an initial matter, the presumption of reasonableness applies in this case 
because the record establishes that counsel for the parties negotiated the proposed 
settlement at arm's length, at times with the assistance with an experienced and 
neutral mediator, following a thorough investigation and exchange of evidence.3 See 
id. The parties have completed extensive fact discovery, including the exchange of 
thousands of pages of documents and taking the depositions of each named plaintiff 

and various defendant-affiliated witnesses. The parties have also begun expert 
discovery, with three experts issuing opening reports on behalf of defendants, and 
one expert issuing an opening report on behalf of plaintiffs. "As a result, the 
plaintiffs possess[] the facts necessary to understand the merits of their case." See 
Grenier, 344 F.R.D. at 367. 
Moreover, review of the parties' Agreement establishes that the court will 

likely be able to find that its terms are fair, reasonable, and adequate. As detailed 
above, see Part II.A.4, the class representatives and class counsel have adequately 
represented the class. Under the Agreement, defendants will pay $850,000 (the 
"Gross Settlement Amount") to a settlement fund. The fund, held in escrow, will be 

3 There are no agreements between the parties in this case, other than the 
Agreement itself. See Fed. R. Civ. P. 23(e)(3). 

 14 
used to pay class members' recoveries, administrative expenses, plaintiffs' counsel's 
attorney fees and costs, and class representatives' compensation, as awarded by the 
court. The participants' recoveries will be allocated on a pro-rata basis. In other 

words, funds from the settlement will be allocated to each class member based on 
the proportion of the sum of that class member's balance as compared to the sum of 
the balance for all class members. Class members with an active account (i.e., one 
with a positive balance) will have their proceeds paid directly into their Plan 
account. Former Plan participants will be paid by check.4 
The proposed payments to class members give adequate, reasonable, and fair 
relief to the settlement class without requiring class members to incur the risks, 

burdens, costs, or delay associated with continued litigation, trial, and possible 
appeal. As the length of this litigation shows, both parties have spent and, absent 
settlement, would continue to spend significant resources on discovery and motion 
practice. While the Gross Settlement Amount is significantly less than what 
plaintiffs originally estimated their damages to be (over $10,000,000), plaintiffs 
represent that information learned during discovery and the uncertainty of ongoing 

litigation has the potential to reduce plaintiffs' recovery significantly, if not 
completely. The court notes that under the Agreement's plan of allocation, class 
members will not have to submit a claim form, but will receive compensation 
directly into their accounts, or have a check mailed to them in the case of an 

4 Pursuant to the Agreement, those entitled to a check distribution of less than 
$5 will not receive a distribution. 

 15 
inactive account. Moreover, the fact that participants will be compensated on a pro 
rata basis appears to be both reasonable and equitable. See Wright, 565 F. Supp. 3d 
at 206-07 (explaining that pro rata distribution to class members and automatic 

receipt of payment suggested that proposed settlement was likely fair, reasonable, 
and adequate). Moreover, the court finds the released claims in paragraph 2.38 of 
the Agreement (doc. no. 65-2 at 7-9) to be reasonable in that they are limited "to 
those based on the facts alleged in the complaint." Grenier, 344 F.R.D. at 367 
(quoting Morgan v. United States Soccer Fed'n, No. 219-cv-01717RGKAGR, 2022 
WL 16859651, at *3 (C.D. Cal. Aug. 11, 2022)). 
Finally, the court turns to the Agreement's provision for class counsel's 

attorney fees, which are to be paid after the Settlement becomes final and amount 
to no more than one-third of the Gross Settlement Amount. The court does not find 
this percentage to be per se unreasonable, but it notes that such a figure, under the 
circumstances of this case, gives the court some pause.5 See In re Ranbaxy Generic 
Drug Application Antitrust Litig., 630 F. Supp. 3d 241, 245 (D. Mass. 2022) ("As a 
percentage of the relevant common fund, standard awards in the First Circuit range 

from 20% at the low end to 33% at the high end."). At the proposed fairness hearing, 

5 Under the Agreement, plaintiffs' counsel's attorney fees shall not exceed 
$283,333. (one-third of the Gross Settlement Amount) and their expenses shall not 
exceed $150,000. Plaintiffs' counsel also plans to seek case contribution awards for 
the three class representatives, not to exceed $10,000 each. If the court were to award 
the maximum of these potential requests, the remaining amount available to the 
class, not counting other administrative costs, will amount to approximately 
$386,667. 

 16 
in addition to explaining the amount of attorney fees requested, the parties should 
be prepared to discuss how they reached the agreed settlement amount (i.e., how 
they weighed the potential recovery at trial against the plaintiffs' chances of success 

at trial). 
Still, considering the totality of the factors under Rule 23(e)(2), the 
settlement proposal, including the plan of allocation, appears fair, reasonable, and 
adequate at this preliminary stage of approval proceedings. The court therefore 
preliminarily approves the parties' proposed settlement, pending a fairness hearing. 

IV. Notice and Settlement Administration 
Having granted preliminary approval to the parties' Agreement, the court 
must next consider whether to approve the parties' selection of a settlement 
administrator and determine whether the parties' proposed notice of the settlement 
is sufficient. Under Rule 23(e)(1)(B), "[t]he court must direct notice in a reasonable 
manner to all class members who would be bound by the proposal." "To satisfy due 

process, the notice must be ‘reasonably calculated, under all the circumstances, to 
apprise interested parties of the pendency of the action and afford them an 
opportunity to present their objections.'" Hill v. State St. Corp., No. CIV.A. 09-
12146-GAO, 2015 WL 127728, at *14 (D. Mass. Jan. 8, 2015) (quoting In re 
Prudential Sec. Inc. Ltd. P'Ships Litig., 164 F.R.D. 362, 368 (S.D.N.Y. 1996)). "In 
general, the settlement notice must ‘fairly apprise the prospective members of the 

 17 
class of the terms of the proposed settlement and of the options that are open to 
them.'" Id. at 15 (quoting Greenspun v. Bogan, 492 F.2d 375, 382 (1st Cir. 1974)). 
The court has wide discretion "regarding the type of notice it finds must be 

provided to class members to satisfy constitutional due process concerns, including 
notice regarding the objection procedure class members will need to follow for the 
Court to consider their objections." Grenier, 344 F.R.D. at 369 (emphasis omitted) 
(quoting Lloyd v. Navy Fed. Credit Union, No. 17-cv-1280-BAS-RBB, 2018 WL 
5247367, at *10 (S.D. Cal. Oct. 22, 2018)). 
The court has reviewed the plan by which the parties propose to provide 
absent class members notice of the proposed settlement ("Settlement Notice") and 

the settlement's provision for a Settlement Administrator. The parties' Agreement 
provides that certain administrative duties (including providing notice to absent 
class members, serving as an escrow agent for the Settlement Fund, disbursement 
of payments to class members, and other such matters) will be performed by a 
"Settlement Administrator." See doc. no. 65-2 at 10, 20. Subject to the court's 
approval, the Agreement names Analytics LLC as the parties' proposed Settlement 

Administrator, a highly experienced administrator of class action claims. The court 
approves the appointment of Analytics LLC as Settlement Administrator. 
The Settlement Notice plan states that the Settlement Administrator will 
provide notice of the proposed settlement and its terms to the class members via a 
Short Form Postcard ("Postcard Notice") delivered by first-class U.S. mail (in the 
form attached as Exhibit A to the Agreement) to each class member's last known 

 18 
physical address. See doc. no. 65-2 at 34-37. The Postcard Notice provides basic 
information about the settlement and directs recipients to visit a website where 
additional, detailed information is available in the Long Form Settlement Notice 

("Long Form Notice") (in the form attached as Exhibit B to the Agreement). See id. 
at 38-44. 
While the court finds the general Settlement Notice procedure adequate, the 
form and substance of the notices proposed by the parties will comply with Rule 
23(e)(1)(B) and due process only after several corrections are made. To begin, the 
Postcard Notice states that "[t]he Court has authorized the parties to seek discovery 
from any person who files an objection, including the production of documents and 

appearance at a deposition." Id. at 36. While the court does not take issue with the 
parties' desire to have the option to issue reasonable requests for information to 
objectors,6 the court worries that advertising the potential of a document request 
and deposition in the Postcard Notice may deter would-be objectors from even 
visiting the settlement website (to view the Long Form Notice) to make an informed 

6 See, e.g., Noll v. Flowers Foods, Inc., No. 1:15-cv-00493-LEW, 2021 WL 
5614752, at *2 (D. Me. Nov. 30, 2021) (allowing parties to "take discovery on an 
expedited basis regarding the objection from the objector and related third parties"); 
Edwards v. N. Am. Power & Gas, LLC, No. 3:14-cv-01714 (VAB), 2018 WL 1582509, 
at *10 (D. Conn. Mar. 30, 2018) ("Class Counsel and Defendant's Counsel may take 
the deposition of the objecting Settlement Class Member under the Federal Rules of 
Civil Procedure at an agreed-upon time and location, and to obtain any evidence 
relevant to the objection."). Notwithstanding counsel's ability to ask objectors for 
information, the court expects that counsel will make only necessary and reasonable 
requests that are relevant to the objection. 

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decision about whether to object.7 Moreover, unlike the Long Form Notice, the 
Postcard Notice does not sufficiently advise class members that a settlement will 
cause class members to release claims against defendants; it only states that class 

members' rights "may be impacted." Id. at 35. Thus, the Postcard Notice should not 
advertise that objectors may be subject to discovery requests and depositions and 
instead make clear the rights that class members will give up if the settlement is 
ultimately approved. In other words, the Postcard Notice should briefly explain why 
one may want to object, not underscore a potential inconvenience of objecting. 
Turning to the Long Form Notice, that notice states that "Class Counsel 
intend to seek attorneys' fees equal to one-third of the Settlement Amount plus 

expenses, not to exceed $150,000." Id. at 42. This sentence has the potential to 
mislead class members into believing that the attorney fees and costs being sought 
will together amount to a maximum of $150,000. A revised notice should include the 
maximum dollar amount of attorney fees being sought. Finally, the Long Form 
Notice requires that objections be sent to the court, in addition to both class counsel 
and defendants' counsel. However, as this court explained in Grenier v. Granite 

State Credit Union, this procedure is redundant and unnecessary because counsel 
will automatically receive electronic notice of all objections sent to the clerk of the 

7 The Long Form Notice adequately warns potential objectors that they may be 
asked to provide information. See doc. no. 65-2 at 43 ("the Court's Order Granting 
Preliminary Approval of this Settlement provides that any party to the litigation may, 
but is not required to, serve discovery requests, including requests for documents and 
notice of deposition not to exceed two hours in length, on any objector."). 

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court once they are placed on the docket. 344 F.R.D. at 368–69. As in Grenier, the 
court is concerned that these unnecessary requirements will deter objectors. 
Accordingly, the court will accept and consider objections so long as they are sent to 

the clerk of court.8 
The parties shall submit new proposed notices reflecting these changes no 
later than April 9, 2026. The court will review the amended notices on an expedited 
basis. Once the court approves them, the court will schedule the fairness hearing 
and other related deadlines. 

V. Objections to Proposed Settlement 
As described above, the Agreement affords class members the opportunity to 
object by sending written notice to the clerk of the court, class counsel, and defense 
counsel. As already noted, the court shall require written notice of objections to be 
sent only to the clerk of the court. The court otherwise approves and adopts the 
objection procedure outlined in the Agreement. See doc. no. 65-2 at 43. 

 CONCLUSION 
For all the reasons discussed above, the court grants plaintiffs' unopposed 
motion for preliminary approval of the parties' proposed class action settlement 
(doc. no. 65) and finds it likely that the court will be able to certify the proposed 

8 The parties must also ensure that the address to which they direct class 
members to send objections is accurate and consistent across both notices. The proper 
address is: Clerk of the Court, U.S. District Court for The District of New Hampshire, 
55 Pleasant Street, Room 110, Concord, NH 03301. 

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class for the purpose of settlement. The court appoints Analytics LLC as the 
settlement administrator and provisionally appoints plaintiffs Adams, Mars, and 
Miller as settlement class representatives and Capozzi Adler as class counsel. Once 
the court approves the updated notices, the court will schedule the fairness hearing 
and other related deadlines. The court approves the objection procedures outlined 
by the parties, subject to the changes noted above, and directs the parties to submit 
updated proposed notice forms to bring them into conformity with due process and 
Fed. R. Civ. P. 23(e)(1) by April 9, 2026. 
 SO ORDERED. 

 & g 2 
 United Stags District Judge 
March 25, 2026 
cc: Counsel of Record 

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