Baruh et al. v. Town of Hillsborough The Superior Court of California for the County of San Mateo
NOTICE OF PENDING CLASS ACTION SETTLEMENT
WITH THE TOWN OF HILLSBOROUGH
www.hillsboroughclassaction.com
IF YOU WERE A DOMESTIC WATER CUSTOMER OF THE TOWN OF HILLSBOROUGH DURING THE PERIOD JUNE 28, 2015, THROUGH APRIL 30, 2017, YOUR LEGAL RIGHTS ARE BEING AFFECTED.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT | |
Refunds For Current Customers And Former Customers Whose Addresses Can Be Located | If you had a domestic water customer account with the Town of Hillsborough during the period June 28, 2015 through April 30, 2017, and paid for water in Tiers 3, 4, and 5, you are entitled to a refund based upon the difference between the rate you paid and an agreed upon settlement rate. Current customers and former customers whose addresses can be located through a skip trace search performed by the Settlement Administrator will be paid refunds via check mailed by the Settlement Administrator in the amount calculated by Hillsborough and stated in the Summary Notice. The amount of this refund was provided to you in the Summary Notice sent by mail to your address. If you wish to receive the refund and be part of the Settlement, you do not need to take any further steps. |
Refunds for Former Customers Whose Addresses Cannot Be Located | If you had a domestic water customer account with the Town of Hillsborough during the period June 28, 2015 through April 30, 2017, and paid for water in Tiers 3, 4, and 5, but did not receive a notice by mail, you can receive a refund by submitting a Refund Claim Form to the Settlement Administrator. Refund Claim forms can be found by going to www.hillsboroughclassaction.com. The Refund Claim Form must be mailed or emailed to the Settlement Administrator, or can be made by calling the Settlement Administrator. Refund claims must be made by November 15, 2022. |
Opt-Out of the Settlement | If you do not wish to participate in the Settlement or be part of the Class, you may opt out of the class action and will not be entitled to any refund from the Settlement. In order to opt out of the class action, you need to submit the attached Opt-Out Form before November 15, 2022. |
Object to the Settlement | If you do not opt out of the Settlement, you have the right to file an objection to the Settlement and Class Counsel’s application for attorney’s fees and reimbursement of expenses with the Court. The Settlement will be considered by the Court on November 15, 2022. The deadline to file objections with the Court is November 15, 2022. |
CASE AND SETTLEMENT OVERVIEW
BRIEF EXPLANATION OF THE CASE
This Notice advises you of your rights to participate in a proposed class action Settlement with the Town of Hillsborough (“Hillsborough” or “Town”).
On November 8, 2016, Plaintiffs Charles Bolton, John Lockton, David Marquardt, Paul Rochester, and Charles Syers, individually and on behalf of all other similarly situated persons (“Plaintiffs”) filed a Class Action Complaint and Petition for Writ of Mandate against Hillsborough in the Superior Court of California for the County of San Mateo (the “Court”) as Case No. 18C1V02284 (the “Action” or “Lawsuit”). The Honorable V. Raymond Swope is presiding over the Action.
In the Action, Plaintiffs challenged Ordinance No. 725, which was adopted by Hillsborough and went into effect on June 9, 2015, and established a scheme of water rationing for water customers in the Town (“Drought Penalty Ordinance”), and Ordinance No. 731, which was adopted by Hillsborough and went into effect on February 1, 2016, and, in part, established new water rates for residential water users (“Rate Ordinance”). Plaintiffs contend the drought penalties adopted in Ordinance No. 725 violate the procedural and substantive requirements of Proposition 218, and that the water rates adopted in Ordinance No. 731 do not comply with Proposition 218 and that the water rates in effect prior to and after the adoption of Ordinance No. 731 also did not comply Proposition 218 (collectively, the “Claims”). Hillsborough filed an answer and has vigorously defended the drought penalties and water rates.
In 2020, the Court approved a Ratepayer Class made up of “All residential water service customers of the Town of Hillsborough who have paid in excess of Tier 2 in a billing cycle during the time period from June 28, 2015 through April 30, 2017” and a Drought Penalty Class made up of “All residential water service customers of the Town of Hillsborough, who were assessed and paid penalties pursuant to Town of Hillsborough Ordinance No. 725, and exhausted their administrative remedies.” Petitioners Charles Bolton, John Lockton, David Marquardt, Paul Rochester, and Charles Syers were appointed as the Class Representatives of the Ratepayer Class (“Rate Class Representatives”). Petitioners Charles Bolton, John Lockton, and Charles Syers were appointed as the Class Representatives of the Drought Penalty Class (“Drought Penalty Class Representatives”). The Court designated Attorneys Beau Burbidge, Walter H. Walker, III, and Peter J. Koenig of Walker, Hamilton & Koenig, LLP, as Class Counsel (“Class Counsel”).
EXPLANATION OF THE SETTLEMENT
After years of litigating, the parties participated in mediation and have negotiated a proposed Settlement (the “Settlement”) of the Lawsuit. The Settlement is contingent upon final approval by the Court pursuant to California Rules of Court, Rule 3.769. The full Settlement Agreement is available at: www.hillsboroughclassaction.com.
The Settlement represents the compromise of highly-contested issues in the Lawsuit. Hillsborough has vigorously denied and continues to dispute all of the claims and contentions alleged in the Lawsuit, and denies any and all allegations of wrongdoing, fault, liability, or damage of any kind. Hillsborough further denies that it acted improperly or wrongfully in any way, and believes that the Lawsuit and Claims have no merit. Nonetheless, Hillsborough has carefully considered the risks and rewards of further litigation, and concluded that it is in the best interest of the Town to enter into this Settlement.
Class Counsel, who has substantial experience in Proposition 218 litigation, carefully reviewed the record, considered the risks and rewards of further litigation, and concluded that it was in the best interest of the Class to enter into this Settlement. The Rate Class Representatives and Drought Penalty Class Representatives support and have approved the Settlement.
Under the terms of the Settlement Agreement, Hillsborough will pay refunds automatically to all Class Members whose addresses are known or can be located through a search in the National Change of Address Database. Any Class Members who cannot be located may submit a claim form to receive a refund. The amount of each Class Member’s refund will be based upon the difference between the rate paid by the member of the Settlement Class for Tiers 3, 4, & 5 water and $11.09/hcf during the Rate Stabilization Period (February 10, 2016-November 16, 2016) and $9.06/hcf during the rest of the Refund Period.
All refunds, and all opt-outs and objections for the Settlement will be administered by a third- party claims administrator, Phoenix Settlement Administrators. If the Settlement is approved by the Court, the claims administrator will cause the refunds to be distributed to the Settlement Class as directed by the Court. Following approval of the Settlement, the claims related to the Drought Penalties will be dismissed with prejudice and all rights, claims, and actions arising out of, or relating to, the facts and circumstances giving rise to the Lawsuit’s water rate claims will be released.
Under the Settlement, Hillsborough has agreed to pay up to $450,000.00 for attorney fees, for expenses incurred by the Plaintiffs, and for service awards to the Class Representatives. Class Counsel will be seeking court approval for payment of a service award in the amount of $5,000 to $8,000 to be paid to each of the Class Representatives, and for approval of the balance of the $450,000 to be paid for attorneys’ fees and costs incurred by the Plaintiffs.
PRELIMINARY COURT APPROVAL OF SETTLEMENT
The Settlement is subject to Court approval. The Court has made a preliminary determination that the Settlement might be fair, adequate, and reasonable, and has preliminarily approved the Settlement. The Settlement must now be approved by the Court after notice to the Class and an opportunity for class members to object.
FINAL APPROVAL HEARING
The Court has scheduled a final approval hearing to be held on March 20, 2023, at 3:00 p.m. in Department 23 of the San Mateo County Superior Court located at 400 County Center, Redwood City, CA 94063 (“Fairness Hearing”). At the Fairness Hearing, the parties will seek approval from the Court and a final determination whether the Settlement is fair, adequate, and reasonable.
The date and time of the Fairness Hearing is subject to change. If there is a change, the new date and time will be posted on the website www.sanmateocourt.org. You are advised to check the website before you appear at the Fairness Hearing.
YOUR OPTIONS
AUTOMATIC REFUNDS FOR CURRENT AND LOCATED FORMER CUSTOMERS
Under the settlement, domestic water customers of Hillsborough during the period June 28, 2015 to April 30, 2017 (“Refund Period”), who paid in excess of Tier 2 water rates in a billing cycle during the Refund Period, are considered members of the Class and are entitled to refunds. For Class members who are current customers, and for those who are former customers and whose addresses could be located, a Notice was sent to each customer explaining the Settlement and stating the amount of each customer’s refund. These refunds will be issued automatically and no additional action is needed. Refunds will be issued upon final approval of the Settlement by the Court.
ALTERNATE PROCESS TO CLAIM A REFUND
Former customers who are members of the Class and who did not receive a Notice and/or whose addresses could not be located can still receive a refund under the Settlement by submitting a claim form. If you are a former customer and did not receive a Notice in the mail, you must take the following steps to participate in the Settlement and be eligible for a refund:
Phoenix Settlement Administrators
PO Box 7208
Orange, CA 92863
Telephone: (800) 523-5773
Email: notice@phoenixclassaction.com
NOTE: Your personal information will be kept confidential and will not be used for any purpose other than the administration of this Settlement.
Following submission of a claim, the claimant’s membership in the Class and their entitlement to a refund will be verified. Refunds will then be issued to verified Class members upon final approval of the Settlement.
OPTING OUT OF THE SETTLEMENT
If you do not wish to receive a refund or participate in the Settlement or this class action, you may opt out of the Settlement and class action by submitting an Opt-Out Form, which may be found at www.hillsboroughclassaction.com. By submitting this form, you will not be entitled to receive money from the class Settlement and you will not be bound by the terms of the Settlement. If you wish to assert any claims related to those set forth in the lawsuit, you will have to do so separately. Opt-Out Forms must be submitted to the Claims Administrator and must be postmarked by November 15, 2022 (the “Exclusion Deadline”).
OBJECTION TO SETTLEMENT
If you do not opt out of the Settlement, you will have the right to object to the fairness, adequacy, or reasonableness of the Settlement. You also have a right to object to Class Counsel’s application for attorney’s fees and expenses and the request for a service award.
If you wish for the Court to consider your objection(s), you mut complete an objection form, which may be found at www.hillsboroughclassaction.com, and then deliver the objections to the claims administrator by first class United States mail, postage paid, and postmarked no later than November 15, 2022. The claims administrator shall file any objections with the Court no later than November 15, 2022.
The address of the claims administrator is as follows:
Phoenix Settlement Administrators
PO Box 7208
Orange, CA 92863
The addresses for counsel and the Court are as follows:
Class Counsel | Hillsborough’s Counsel | Court |
WALKER, HAMILTON & KOENIG, LLP | BEST BEST & KRIEGER LLP | Superior Court of California, County of San Mateo |
If you submit a timely and proper objection, you may appear at the Fairness Hearing personally or through an attorney at your own expense. You are not required to appear at the Fairness Hearing to object. If you fail to comply with these requirements, you shall be deemed to have waived and forfeited any and all rights you may have to appear at the Fairness Hearing or to object to the Settlement, award of attorneys’ fees and expenses, and service award.
If the Court deems the Settlement to be fair, reasonable, and adequate, it will enter a Final Order and Judgment approving the Settlement. Following approval by the Court and entry of the Final Order and Judgment, under the terms of the Settlement, all Class Members will be deemed to have released and forever discharged Hillsborough from any and all water rates claims alleged in the Lawsuit.
MORE INFORMATION
The best way to obtain more information about this Settlement is to review the documents posted on the website www.hillsboroughclassaction.com. Other papers related to this lawsuit may be obtained from the Court at 400 County Center, Redwood City, CA 94063 during its regular business hours, or on the Court’s website: www.sanmateocourt.org.
PLEASE DO NOT CALL THE COURT OR HILLSBOROUGH
FOR ADDITIONAL INFORMATION OR ADVICE
If you have additional questions, you may contact the claims administrator, Phoenix Settlement Administrators, your own attorney, or Class Counsel.
Phoenix Settlement Administrators can be contacted at the following address:
Phoenix Settlement Administrators
PO Box 7208
Orange, CA 92863
Telephone: (800) 523-5773
Class Counsel can be contacted at the following address:
WALKER, HAMILTON & KOENIG, LLP
Beau R. Burbidge
50 Francisco Street, Suite 460
San Francisco, California 94133
Telephone: (415) 986-3339