IN THE CIRCUIT COURT, SEVENTH
JUDICIAL CIRCUIT, IN AND FOR
VOLUSIA COUNTY, FLORIDA
CASE NO.: 2016 30105 CICI (DIV 32)
Nosshey F. Hanna, as Trustee of the HANNA
FAMILY TRUST; LINDA PURDY, individually;
and TNT MANAGEMENT COMPANY OF
VENICE, INC., a Florida corporation, and on
behalf of others similarly situated,
ARBOR REALTY TRUST, INC., a Maryland
corporation; PLAZA SPA OCEAN WATERS, LLC,
a Florida limited liability company; SOHO OCEAN
WATERS, LLC, a Florida limited liability
company; and BOYKIN MANAGEMENT
COMPANY LIMITED LIABILITY COMPANY,
an Ohio limited liability company,
If you are or were an owner of a unit or units in The Plaza Resort & Spa located at 600 North Atlantic Avenue in Daytona Beach, Florida (“The Plaza”) between September 2012 and the present, you could get a payment from a class action settlement.
A Court authorized this notice. This is not a solicitation from a lawyer.
- Three plaintiffs have sued ARBOR REALTY TRUST, INC., PLAZA SPA OCEAN WATERS, LLC, SOHO OCEAN WATERS, LLC, and BOYKIN MANAGEMENT COMPANY LIMITED LIABILITY COMPANY, together with each of their current, predecessor, and successor parents, subsidiaries, affiliates, purchasers, and related companies (collectively, “Defendants”), alleging that Defendants improperly deducted fees and charges including a packaging fee, standard percentage markup, hourly labor charge, and/or deep cleaning fee (collectively, the “Fees”) before disbursing the owner’s share of monies paid by guests for occupancy of units in The Plaza Resort and Spa (the “Plaza”).
- The Court has allowed the lawsuit to proceed as a class action on behalf of all persons who currently own a unit within the Plaza, or any person who previously owned a unit within the Plaza at any period of time from September 2012 to the present, and who has incurred a Packaging Fee, Standard Percentage Markup, Hourly Labor Charge, and/or Deep Cleaning Fee. The class shall not include any of the defendants or any person, firm, trust, corporation or other entity related to or affiliated with any of the defendants; any person or entity in bankruptcy; and any unit owner who was not charged one of the aforementioned improper charges or deductions.
- This settlement was reached after more than four years of litigation, several depositions, and a protracted mediation process lasting approximately one year and including sessions before mediators Terrence Schmidt (Jacksonville, Florida) and Terrence M. White (Daytona Beach, Florida). Two law firms have expended many hundreds of hours of attorney time pursuing this case for the plaintiffs.
- Your legal rights are affected whether you act or don’t act. The deadlines to exercise these rights are explained in this notice. Read carefully:
|YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT:|
|DO NOTHING AND RECEIVE AN AUTOMATIC PAYMENT||You may be a part of the Class. If so, by taking no action, you will automatically receive a payment as explained below.|
|OBJECT||Write to the Court about why you don’t like the settlement.|
|1. Why did I get this notice?|
You may own or have owned a unit in The Plaza and paid one or more of the Fees.
The case has been settled, and the Court has ordered that you be sent this Notice because you have a right to know your options before the Court decides whether to approve the settlement. If the Court approves it, settlement payments will be made to all class members.
This Notice explains the lawsuit, the settlement, your legal rights, what benefits are available, who is eligible for them, and how to get them.
The Court in charge of the case is the Circuit Court for Volusia County, Florida. The judge in this case is the Honorable Michael Orfinger.
|2. What is a class action?|
In a class action, one or more plaintiffs, called “Class Representatives,” sue on behalf of all people and companies that have similar claims. All these other people and companies are “Class Members.” One court resolves the issues for all Class Members, except for those, if any, who already voluntarily excluded themselves from the class.
|3. What is this lawsuit about?|
The class action lawsuit alleges that in the fall of 2012 Defendants began increasing their profits at the expense of unit owners by deducting certain fees and charges from monies paid by guests to rent units at The Plaza before splitting these monies with unit owners. Specifically, the lawsuit alleged that Defendants (i) made a deduction to cover certain “packaged items” provided to the guest “for free” (the “Packaging Fee”); (ii) applied a 20-30% mark-up to the cost of replacement and upgrade items or to third-party labor in a unit (the “Standard Percentage Markup”); (iii) applied an hourly labor rate charged for work done in a unit by The Plaza’s maintenance staff (the “Hourly Labor Rate”); and (iv) imposed a fee for an annual or bi-annual “deep” cleaning of a unit (the “Deep Cleaning Fee”).
The lawsuit alleges that such charges and deductions are improper because they were made or applied without the unit owners’ knowledge or consent and/or because the services to which the fees allegedly applied were already covered by the terms of each unit owners’ Management Agreement. Specifically, the lawsuit alleges that Soho Ocean Waters, LLC, with whom each of the unit owners had entered into a Management Agreement, breached the terms of the Management Agreement by imposing these fees and charges before disbursing the monies owed to unit owners. The lawsuit also alleges that Soho Ocean Waters, LLC, and Boykin Management Company Limited Liability Company, which acted as property manager at The Plaza, breached the fiduciary duty they owed to unit owners by engaging in such self-dealing. The lawsuit further alleges that Soho Ocean Waters, LLC, and Boykin Management Company Limited Liability Company committed conversion by depriving unit owners of money owed to them. Finally, the lawsuit alleges that Defendants violated the Florida Deceptive and Unfair Practices Act by concealing the imposition of the fees and deductions from unit owners and/or failing to disclose how the fees and deductions were calculated to unit owners.
While not denying they have imposed and continue to impose such charges and deductions on the unit owners, Defendants argue that such charges and deductions are permitted by the terms of the Management Agreement and/or are merely a continuation of the prior management company’s practice. Defendants deny liability.
The Third Amended Class Action Complaint and Demand for Jury Trial has more information about the lawsuit, and it and the Settlement Agreement and General Release are available online at www.plazaresortandspaclassaction.com.
The Court previously ordered that notice be issued to the class on May 8, 2019. During that notice period, class members were given the opportunity to opt-out of the class or remain in the class. The Court ordered that an amended notice be issued to the class, correcting the location of the courthouse where case records could be reviewed, on July 10, 2020. During that notice period, class members were given another opportunity to opt-out of the class or remain in the class. Our records indicate that you did not exclude yourself from the class and instead chose to remain in the class and participate in any future recovery.
|4. Why is there a settlement?|
The Court did not decide in favor of either side. Instead, both sides agreed to a compromise settlement to avoid the cost and risk of a trial and a possible appeal. The settlement also ensures that the class members affected will get compensation. In return, Defendants get a general release of all claims against them that were made or could have been made regarding the Fees at issue in the lawsuit. The Class Representatives and Class Counsel believe the settlement is in the best interests of everyone affected.
WHO IS IN THE SETTLEMENT
|5. How do I know if I am part of the settlement?|
The Court has certified a class (the “Class” or “Settlement Class” or “Class Members”) defined as:
All persons who currently own a unit within the Plaza, or any person who previously owned a unit within the Plaza at any period of time from September 2012 to the present, and who has incurred a Packaging Fee, Standard Percentage Markup, Hourly Labor Charge, and/or Deep Cleaning Fee. The class shall not include any of the defendants or any person, firm, trust, corporation or other entity related to or affiliated with any of the defendants; any person or entity in bankruptcy; and any unit owner who was not charged one of the aforementioned improper charges or deductions.
If you received written notice of the settlement by mail or e-mail, then the parties believe that you are a member of the Class based upon Boykin Management Company Limited Liability Company’s records.
|6. What if I only paid one of the fees?|
You still are a class member even if you only paid one of the Fees.
|7. What if I’m still not sure if I am included?|
If you still are not sure whether you are included in the settlement as a Class Member, you can get additional information at www.plazaresortandspaclassaction.com or obtain free assistance by calling 904-396-1100.
THE SETTLEMENT BENEFITS — WHAT YOU CAN GET
|8. What does the settlement provide?|
Defendants are creating a Settlement Fund in the amount of $2,650,000. Class Members will automatically receive their pro-rata share of the Settlement Fund, after any Court approved amounts for attorneys’ fees, class representative incentive awards, and reimbursed litigation expenses. You do not have to take any action to receive your settlement payment, and the settlement payment will be sent to you upon final approval by the Court of the settlement.
|9. Do I need to submit any documents or information?|
You do not need to submit any documentation or information to receive your settlement payment. If you need to update your address information for mailing of your settlement payment, please call or write Matthew Baggett, 904-396-1100 or at 9471 Baymeadows Road, Suite 105, Jacksonville, Florida 32256.
|10. When would I get my payment?|
The Court will hold a hearing on October 14 at 9:45 a.m. to decide whether to approve the settlement. If Judge Orfinger approves the settlement after that, and if any class member files an objection, there could be appeals. If there are any appeals, these appeals could delay payment of claims, possibly for more than a year. Updates, as necessary, will be provided online at www.plazaresortandspaclassacion.com.
|11. What claims are being released?|
As a result of the Settlement, the Settlement Class is releasing any and all causes of action, claims for damages, equitable, legal or administrative relief, interests, penalties, fees, costs, demands, losses, liabilities or rights, whether based on federal, state, or local laws, statutes or ordinances, regulations, contracts, common law or any other source, that Plaintiffs and the Settlement Class have against Defendants regarding Defendants’ imposition of the Fees or alleged in the Litigation regarding Defendants’ imposition of the Fees.
This means that you can’t sue, continue to sue, or be part of any other lawsuit against Defendants regarding the claims in this lawsuit. It also means that all of the Court’s orders legally bind you.
IF YOU DO NOTHING
|12. What happens if I do nothing at all?|
If you do nothing, you will automatically receive money from the settlement and will release all claims against Defendants about the legal issues in this case, as discussed above.
THE LAWYERS REPRESENTING YOU
|13. Do I have a lawyer in this case?|
The Court has appointed attorneys from the law firms of Rogers Towers, P.A., and Baggett Law, both in Jacksonville, Florida (“Class Counsel”), to represent you and other Class Members. If you want to be represented by your own lawyer, you may hire one at your own expense, but you are not required to do so.
|14. How will the lawyers be paid?|
Under the terms of the settlement, the appointed lawyers can ask the Court for an award of attorneys’ fees not to exceed 45% of the amount of the Settlement Fund and litigation expenses not to exceed $60,000. Class Counsel will file their Motion for Attorneys’ Fees and Reimbursement of Litigation Expenses as well as Class Representative Incentive Awards on or before September 14, 2020. After filing the motion, it will be available for review at www.plazaresortandspaclassaction.com. The attorneys’ fee award is to compensate the two law firms for the hours and more than four years of litigation they spent pursuing the cases and the risk they took that no resolution would ever be reached. The appointed lawyers may also seek payments up to $25,000.00 for each of the three (3) Class Representatives to compensate them for their time and effort in bringing these lawsuits.
OBJECTING TO THE SETTLEMENT
|15. How do I object to the Court if I don’t like the settlement?|
If you’re a Class Member, you may object to any part of the settlement you don’t like, and the Court will consider your views. You must submit any objection in writing and must provide evidence of your membership in the Class. The procedures for submitting written objections are set out below. A written objection (and any support for it) must be filed with the Clerk of Court and received no later than September 30, 2020 (the “Objection Deadline”) by all of the following.
|Circuit Court Clerk – Volusia County, Florida |
P.O. Box 6043
DeLand, FL 32721-6043
James M. Riley
Edward McCarthy, III
Rogers Towers, P.A.
1301 Riverplace Boulevard, Suite 1500
Jacksonville, Florida 32207
9471 Baymeadows Road, Suite 105
Jacksonville, Florida 32256
Kenneth B. Jacobs
50 North Laura Street, Suite 1100
Jacksonville, FL 32202
Douglas Kahle, Esq.
Schwed Kahle & Kress P.A.
11410 North Jog Road, Suite 100
Palm Beach Gardens, FL 33418-1761
If you hire an attorney in connection with making an objection, that attorney must file with the Court and serve on the counsel identified above a notice of appearance. The notice of appearance must be filed with the Court and received by the addressees above no later than the Objection Deadline. If you do hire your own attorney, you will be responsible for payment of all fees and expenses that the attorney incurs on your behalf.
If you want to object, you must file your objection in writing to the Court. An objection to the Settlement Agreement shall be signed by the objector; shall clearly state a desire to object to the Settlement Agreement; shall reference the above case-style; and shall include the following information: (a) the objecting party’s name, signature, title, home and/or business addresses, home and/or business telephone numbers, and other information sufficient to identify the class member’s account; (b) a notice of intention to appear, either in person or through an attorney, with the name, address, and telephone number of the attorney, if any, who will appear; (c) certification that the objecting party is a member of the Settlement Class; (d) a statement of each objection asserted; (e) a detailed description of the basis and facts underlying and supporting each objection; (f) a detailed description of the legal authorities, if any, underlying and supporting each objection; (g) copies of exhibits and/or affidavits, if any, the objecting party may offer during the hearing; (h) a list of all witnesses, if any, the objecting party may call to testify at the hearing, along with a summary of each witness’s anticipated testimony; and (i) the signature, full name, firm name, and business address of all attorneys who have a financial interest in the objection.
If you make a written objection to the settlement as set out above, you may request to speak – either in person or through an attorney hired at your own expense – at the hearing the Court has set to consider whether to give final approval to the Settlement Agreement. You are not required to attend the hearing. Lack of attendance at the hearing will not prevent the Court from considering your objection. If you (or your attorney) intend to speak at the hearing, you must file with the Court and serve on the parties identified above a notice of intent to appear, and your attorney (if you hire one) must file a notice of appearance with the Clerk of Court. Again, the notice of intent to appear must be filed with the Court, and received by the parties above, no later than the Objection Deadline.
If you do not file an objection as described above, you will be deemed to have waived any and all objections to the settlement, to have consented to the Court’s certification of and jurisdiction over the Class, and to have released the claims as defined in the Settlement Agreement (which is available online at www.plazaresortandspaclassaction.com).
THE COURT’S FINAL FAIRNESS HEARING
|16. When and where will the Court decide whether to approve the Settlement?|
The Court will hold a hearing at 9:45 a.m. on October 14, 2020.. The hearing will be conducted by Zoom at the following link: https://zoom.us/j/91983478371. At this hearing, the Court will consider whether the settlement is fair, reasonable. and adequate. You are not required to attend the hearing but may do so if you wish. If there are objections that have been submitted in writing in advance of the hearing, Judge Orfinger will consider them. Judge Orfinger will listen to people who have made a prior written request to speak at the hearing. Judge Orfinger will also decide whether to pay Class Counsel the amount they are requesting for attorneys’ fees and reimbursement of litigation expenses, as well as class representative awards. After the hearing, the Court will decide whether to approve the settlement.
HOW DO I GET MORE INFORMATION?
|17. Are there more details about the settlement?|
This Notice is just a summary, and you are entitled, if you wish, to read the entire Settlement Agreement. The Settlement Agreement and some other documents filed in this lawsuit can be found online at www.plazaresortandspaclassaction.com.
|18. How do I get more information?|
You can call or write to Matthew Baggett at 904-396-1100 or 9471 Baymeadows Road, Suite 105, Jacksonville, Florida 32256. You can also visit the website at www.plazaresortandspaclassaction.com, where you will find answers to some common questions.
Please do not contact the Court or Clerk of Court with any questions regarding this case.