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Ciuffitelli v. Deloitte & Touche LLP

United States District Court, D. Oregon, Portland Division

July 15, 2019

LAWRENCE P. CIUFFITELLI, for himself and as Trustee of CIUFFITELLI REVOCABLE TRUST, et al, Plaintiffs,
v.
DELOITTE & TOUCHE LLP; EISNERAMPER LLP; SIDLEY AUSTIN LLP; TONKON TORP LLP; TD AMERITRADE, INC.; INTEGRITY BANK & TRUST; and DUFF& PHELPS, LLC, Defendants.

          FINDINGS AND RECOMMENDATION PRELIMINARILY APPROVING GLOBAL SETTLEMENT AND PROVIDING FOR NOTICE

          John V. Acosta, United States Magistrate Judge

         WHEREAS, a class action lawsuit is pending before this Court entitled Ciuffitelli, et al. v. Deloitte & Touche LLP, et al., Civil Action No. 3:16-cv-00580-AC (the "Action");

         WHEREAS, Plaintiffs Lawrence P. Ciuffitelli (on behalf of himself and as Trustee of the Ciuffitelli Revocable Trust U/A 5/1/1996); Greg and Angela Mien (as Trustees of the Gregory and Angela Mien Revocable Trust U/A 7/2/2012); R.F. MacDonald Co.; James and Susan MacDonald (as co-Trustees of the MacDonald Family Trust U/A 12/05/2000); William Ramstein; Greg Warrick (on behalf of himself and as co-Trustee of the Warrick Family Trust); and Susan Warrick (as co-Trustee of the Warrick Family Trust) (collectively, the "Class Representatives"), and Defendants Deloitte & Touche LLP; EisnerAmper LLP; Sidley Austin LLP; TD Ameritrade, Inc.; and Duff & Phelps, LLC (the "Settling Defendants") have entered into a Stipulation and Agreement of Settlement dated My 8, 2019 (the "Stipulation");

         WHEREAS, the Stipulation sets forth the terms and conditions for a settlement and dismissal of the Action against the Settling Defendants (the "Settlement");

         WHEREAS, the Class Representatives have made an application, pursuant to Federal Rule of Civil Procedure 23(e), for an order preliminarily approving the Settlement (the "Motion"), and the Court having read and considered the Stipulation and submissions made relating to the Settlement; and

         WHEREAS the Court, having read and considered the Settlement and its exhibits, the Motion, the pleadings and other papers on file in this action, and statements of counsel, THE COURT HEREBY FINDS that the Motion should be GRANTED and that this Preliminary Approval Order should be entered. Terms and phrases used in this Preliminary Approval Order shall have the same meaning ascribed to them in the Stipulation.

         NOW, THEREFORE, IT IS HEREBY ORDERED, that:

         A. Preliminary Approval of Settlement

         1. The Court finds that: a) the Class Representatives and the Settling Defendants have participated in a mediation conducted by Judge Daniel Weinstein (ret.) and Ambassador David Carden (ret.); b) the Stipulation resulted from non-collusive good faith, arm's length negotiations; and c) the Stipulation is sufficiently fair, reasonable and adequate to the Class Members to warrant providing notice of the Settlement to the Class Members and holding a Settlement Hearing. Accordingly, the terms of the Settlement are hereby approved on a preliminary basis.

         B. Provisional Certification of the Settlement Class

         2. The Court finds that, with respect to the Settlement: a) the Class is so numerous that joinder is impracticable; b) numerous common issues exist; c) the Class Representative's claims are typical of the claims of the other Class Members; d) the Class Representatives and their counsel adequately represent the Class; e) common questions of fact and law predominate in this Action; and f) this class action is the superior method of adjudicating this dispute. Accordingly, the Class is provisionally approved and defined as all persons who purchased Aequitas Securities on or after June 9, 2010 and had an account balance as of March 31, 2016 as further defined in this paragraph and in paragraph 3 (the "Class"). "Aequitas Securities" means securities issued by Aequitas Commercial Finance, LLC; Aequitas Income Opportunity Fund, LLC; Aequitas Income Opportunity Fund II, LLC; Aequitas Capital Opportunities Fund, LP; Aequitas Income Protection Fund, LLC; Aequitas Enhanced Income Fund, LLC; Aequitas ETC Founders Fund, LLC; and MotoLease Financial, LLC. The findings in this paragraph shall have no effect on the Court's ruling on any motion to certify any class in this litigation for purposes other than the Settlement and no party may refer or cite to this Order as persuasive or binding authority with respect to any motion to certify such class.

         3. The Class does not include: (a) Defendants; (b) the past and present officers and directors of the Aequitas affiliated companies, including without limitation Robert Jesenik, Brian Oliver, Craig Froude, Scott Gillis, Andrew MacRitchie, Olaf Janke, Brian Rice, William Ruh, Steve Hedberg, Brett Brown, Tom Goila, Patricia Brown, Bill Malloy, and Thomas Szabo, and their respective families and affiliates; (c) the past and present members of the Aequitas Advisory Board, including without limitation William McCormick, L. Martin Brantley, Patrick Terrell, Edmund Jensen, Donna Miles, William Glasgow, Keith Barnes, Bob Zukis, and their respective families and affiliates; (d) registered investment advisors and investment advisor representatives; (e) any investor who received finder's fees or other consideration from Aequitas in connection with referring investors to Aequitas; and (f) any persons ("Individual Plaintiffs") that have filed individual actions asserting similar claims against any of the Defendants in this action ("Individual Actions"). The "Individual Actions" consist of the following cases:

Wurster et al. v. Deloitte & Touche LLP, No. 16CV25920, Multnomah County Circuit Court;
Pommier et al. v. Deloitte & Tonche, LLP, et al., No. 16CV36439, Multnomah County Circuit Court;
Ramsdell et al. v. Deloitte & Touche, LLP, et al., No. 16CV40659, Multnomah County Circuit Court;
Alters et al. v. Deloitte & Touche, LLP, et al., No. 2:16CV02239 (USDC D. Or.);
• Layton et al. v. Deloitte & Touche LLP et al., No. 16CV36439, Multnomah ...

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