               Case: 14-11443       Date Filed: 12/02/2015      Page: 1 of 17


                                                                  [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             _________________________

                                     No. 14-11443
                              _________________________

                       D.C. Docket No: 3:09-cv-00335-HLA-JBT

CHRISTOPHER GRECO,

                                                           Interested Party-Appellant,

JOHN DEMSHECK,
PALMETTO PROPERTIES DEVELOPMENT, LLC,
individually and on behalf of all others similarly situated,

                                                           Plaintiffs-Appellees,

                                            versus

GINN DEVELOPMENT COMPANY, LLC,

                                                  Defendant-Appellee.
                                _____________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                             _______________________

                                    (December 2, 2015)

Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR, * District
Judge.


      * Honorable R. David Proctor, United States District Judge for the Northern District of
Alabama, sitting by designation.
              Case: 14-11443     Date Filed: 12/02/2015     Page: 2 of 17


PROCTOR, District Judge:

      In this appeal, a lone objecting class member challenges the district court’s

approval of a class action settlement. Appellant Christopher Greco argues that the

district court erred in finding that (1) the settlement was “fair, reasonable and

adequate” under Federal Rule of Civil Procedure 23(e), and (2) the class members’

right to due process was not deprived by the manner in which notice of the

proposed settlement was given to the class. After reviewing the record, including

the parties’ briefs and the transcript of the fairness hearing, and with the benefit of

oral argument, we affirm.

I.    BACKGROUND

      In his class action complaint, Plaintiff John Demshek, “on behalf of a class

of all persons or entities that purchased real estate in one of Defendants’ residential

or resort developments,” alleged that: Defendants Ginn Development Company,

LLC (“Ginn”) and Lubert-Adler Partners, LP (“Lubert-Adler”) developed,

marketed, and sold residential real estate; Plaintiff and the putative class members

had purchased real estate in Defendants’ developments; and Defendants

circumvented the requirements for the sale of such real estate. Plaintiff also

alleged that these actions resulted in losses for Plaintiff and the putative class

members, and profits to Defendants.




                                           2
             Case: 14-11443     Date Filed: 12/02/2015   Page: 3 of 17


      The class action complaint asserted causes of action under 15 U.S.C. §§

1703 and 1707 (The Interstate Land Sales Full Disclosure Act (“ILSA”)) and 18

U.S.C. §§ 1962(c) and (d) (Racketeer Influenced and Corrupt Organizations Act

(“RICO”)). Both Ginn and Lubert-Adler moved to dismiss the complaint pursuant

to Federal Rule of Civil Procedure 12(b)(6). The district court granted Lubert-

Adler’s motion, but denied Ginn’s motion. The district court (1) dismissed

Plaintiff’s ILSA claim under 15 U.S.C. § 1707 as to both Lubert-Adler and Ginn,

with prejudice; (2) dismissed the ILSA claim under 15 U.S.C. § 1703 as to Lubert-

Adler, with prejudice; and (3) dismissed the RICO claims pursuant to 18 U.S.C. §

1962(c) and (d) against Lubert-Adler, without prejudice. Because Plaintiff did not

seek to amend the pleadings to reassert any claims against Lubert-Adler, it no

longer remained a party to the case.

      The remaining parties engaged in substantial discovery. They served initial

disclosures and interrogatories and requests for production of documents. They

exchanged almost 30,000 pages of documents, coordinated the production of

electronically stored information, worked toward scheduling depositions, and

prepared to disclose expert witnesses.

II.   SUMMARY OF RELEVANT FACTS

      Settlement negotiations in this matter first occurred during a court-ordered

status conference on March 11, 2010. On April 28, 2010, the district court entered


                                         3
                Case: 14-11443   Date Filed: 12/02/2015    Page: 4 of 17


an order appointing Jonathan B. Marks, the former Vice-Chairman of J.A.M.S/

Endispute and a member of the International Academy of Mediators and the

American College of Civil Trial Mediators, as mediator. The parties conducted

four in-person mediations over the course of more than two years. Marks

consistently expressed his approval of the parties’ conduct during their

negotiations.

      In June 2012, while the Parties continued their mediation efforts, Ginn

moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure

12(c). Ginn argued that: (1) Plaintiffs had failed to plead sufficient facts (as

opposed to legal conclusions) showing that Ginn engaged in or conspired to

engage in a pattern of racketeering activity; (2) Plaintiffs had failed to plead a

plausible fraud scheme and also had not plead necessary predicate acts with Rule

9(b) particularity; and (3) Plaintiffs had not adequately pled proximate cause.

      During the summer of 2012, while that motion was pending, the parties

reached an agreement in principle regarding settlement. However, the parties

continued to negotiate the terms of the settlement until Plaintiff moved for

preliminary approval of the settlement in July 2013.

      On September 30, 2013, the district court entered an order preliminarily

approving the proposed settlement. In its order, the district court conditionally

certified a settlement class consisting of “[a]ll entities and natural persons that took


                                           4
              Case: 14-11443      Date Filed: 12/02/2015    Page: 5 of 17


title to real estate . . . in a development operated or developed by Ginn . . . in

connection with a purchase contract that was fully executed between April 13,

2006 and April 13, 2009 . . . .” The order specified the manner in which the parties

were to provide notice to the members of the settlement class.

      Pursuant to the class notice, settlement class members were given an

opportunity to file a claim, request exclusion from the settlement class, and/or

object to the proposed settlement. A joint objection was filed on behalf of

Appellant Christopher Greco, Robert Torr, and J. Scott Simmons. Gary W. Francis

filed an objection on his own behalf. However, all objectors other than Appellant

Greco successfully opted out of the settlement class prior to the fairness hearing.

Greco did not opt out. In fact, he moved to intervene in the action. He was the

lone objector to the settlement to appear at the fairness hearing.

      In November 2006, Greco had purchased a lot for $259,000.00 in the Ginn

development named Cobblestone Park, near Columbia, South Carolina. Greco

claimed Defendants fraudulently induced him to pay this amount and that the lot in

reality had a de minimis, artificially inflated value. Greco also asserted that, as a

result of Defendants’ conduct, he lost the purchase price he paid for the property,

he was subjected to foreclosure, and his credit was virtually destroyed.




                                            5
                Case: 14-11443         Date Filed: 12/02/2015        Page: 6 of 17


       The district court denied Greco’s motion to intervene. However, the district

court granted Greco an additional fourteen days after the fairness hearing to opt out

of the settlement class. Greco, unlike the other objectors, declined that invitation.

       The district court overruled Greco’s objections, and granted final approval of

the settlement on March 5, 2014. In its Order and Judgment Approving Class-

Action Settlement and Directing Notice of Final Approval, the district court

astutely noted the interesting fact that Greco’s counsel was also counsel in a

competing, parallel action 1 that also asserted class claims, some of which would be

barred by the final certification of the class in this case.

       On April 4, 2014, Greco timely filed this appeal.

III.   STANDARD OF REVIEW

       We review the approval of a class action settlement for abuse of discretion.

Day v. Persels & Assocs., LLC, 729 F.3d 1309, 1316 (11th Cir. 2013). “A district

court’s decision will be overturned only upon a clear showing of abuse of

discretion.” Holmes v. Cont’l Can Co., 706 F.2d 1144, 1147 (11th Cir. 1983). A

district court abuses its discretion only “if it applies an incorrect legal standard,

       1
          In that parallel putative class action, Plaintiffs’ counsel was given four opportunities to
state viable claims against Defendants, including Ginn and Lubert-Adler. However, even
Plaintiffs’ Third Amended Complaint was dismissed because it “fail[ed] to adequately allege
causation.” Lawrie v. Ginn Dev. Co., LLC, No. 3:09-CV-446-J-32JBT, 2014 WL 4788067, *3
(M.D. Fla. Sept. 19, 2014). Although Plaintiffs’ initial complaint, and their first and second
amended complaints were dismissed without prejudice, the Third Amended Complaint was
dismissed with prejudice.

                                                  6
               Case: 14-11443        Date Filed: 12/02/2015      Page: 7 of 17


applies the law in an unreasonable or incorrect manner, follows improper

procedures in making a determination, or makes findings of fact that are clearly

erroneous.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir.

2014) (quoting Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1173 (11th Cir.

2010)). This deferential standard applies not only because settlements are favored,

but also because “[t]rial courts generally have a greater familiarity with the factual

issues and legal arguments in the lawsuit, and therefore can make an evaluation of

the likely outcome were the lawsuit to be fully tried.” United States v. City of

Miami, 614 F.2d 1322, 1334–335 (5th Cir. 1980). 2

IV. DISCUSSION

       Greco argues that the district court’s decision approving this class action

settlement should be reversed for two reasons. First, he argues that the district

court erred in finding the settlement to be fair, adequate and reasonable. Second,

he argues that the district court erred in finding that the class notice satisfied due

process requirements. We address each argument in turn.

       A.     The Settlement was Fair, Adequate and Reasonable and Not the
              Product of Collusion
       In order to approve a settlement, a district court must find that the settlement

“is fair, adequate and reasonable and is not the product of collusion between the

       2
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to the close of business on September 30, 1981.
                                               7
              Case: 14-11443     Date Filed: 12/02/2015   Page: 8 of 17


parties.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977). In making this

determination, we have said a district court should consider the following factors:

      (1) the likelihood of success at trial; (2) the range of possible
      recovery; (3) the point on or below the range of possible recovery at
      which a settlement is fair, adequate and reasonable; (4) the
      complexity, expense and duration of litigation; (5) the substance and
      amount of opposition to the settlement; and (6) the stage of
      proceedings at which the settlement was achieved.

Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). But a district court

may also rely upon the judgment of experienced counsel for the parties. Cotton,

559 F.2d at 1330. Indeed, absent fraud, collusion, or the like, the district court

“should be hesitant to substitute its own judgment for that of counsel.” Id. The

trial court should examine the settlement in light of the objections, and provide a

reasoned response to those objections. Id. at 1331.

      Here, the record shows that the district court properly considered all of the

appropriate factors, explained its findings, and addressed Greco’s objections head

on. The district court gave Greco the opportunity to argue his objections at the

fairness hearing and an extension of time to opt out of the settlement. Thereafter,

the district court explained in detail why Greco’s objections were without merit.

      First, the district court properly found that there was no evidence of fraud or

collusion in the negotiation of the settlement. Although Greco’s objection argued

that the release of Lubert-Adler demonstrates that the settlement was the result of

collusion between the parties, he abandoned this position at the fairness hearing.

                                           8
              Case: 14-11443     Date Filed: 12/02/2015    Page: 9 of 17


In fact, at the hearing, Greco’s counsel made this clear: “I’m not alleging

fraudulent collusion. What I’m alleging is inadequate representation.”

      After making this finding, the district court then addressed each of the

Bennett factors in evaluating whether the settlement was fair, reasonable and

adequate. We agree with the district court’s well-reasoned application of those

factors.

      In assessing the likelihood of success at trial, the district court properly

observed that there were substantial hurdles that affected the class’s likelihood of

succeeding on the merits of its claims. In fact, the district court noted that it was

“unable to find a single instance where [a similar] action [against Ginn] has

survived beyond the dispositive motions stage.” As the district court explained, its

“research evidence[d] a history of dismissed claims based on substantially similar

fraud based claims alleged against Defendant, its subsidiaries and other associated

entities.” In addition, the district court analyzed the challenge Plaintiffs would

face, if their claims did survive on the merits, in proving damages. The district

court properly found that it would be “nearly impossible” for Plaintiffs to prove

that Defendants’ actions were the cause of their damages in light of the

contemporaneous “sharp rise and subsequent crash” of virtually every housing

market in United States.




                                           9
              Case: 14-11443       Date Filed: 12/02/2015      Page: 10 of 17


       The district court also explained that the unlikelihood of success negatively

affected the second Bennett factor — the possible range of recovery. So, too, did

Ginn’s limited resources.3 Ginn was, for all intents and purposes, not an ongoing

business entity. Therefore, the source of any recovery was limited to insurance

policies which may or may not have provided coverage as to any judgment.

Moreover, these insurance policies were being substantially eroded by continuing

defense costs incurred both in this litigation, and in defending other suits. That is,

as the district court correctly observed, the fact that the case is “complex,

expensive and time consuming,” combined with the limited source of recovery,

meant that the “range of possible recovery [continually] decreases.”

       As to the substance and volume of the opposition to the settlement, the

district court noted that, although there were originally six objectors to the

settlement, at the time of the fairness hearing, “Greco stands as the lone objector.”

The other initial objectors “successfully opted out of this action prior to the

fairness hearing.” Thus, Greco was the sole individual opposing the settlement.

The district court properly considered that Greco (or his counsel) may have had an

ulterior motive in objecting to the settlement, rather than opting out. See, e.g., In

re Prudential Ins. Litig., 148 F.3d 283, 318 (3d Cir. 1998) (determining that in

assessing the weight of objections to class settlement agreements, the district court

       3
         At the hearing, Greco addressed Lubert-Adler’s resources. But that discussion was
irrelevant as Lubert-Adler was no longer a defendant in the case.
                                              10
             Case: 14-11443     Date Filed: 12/02/2015    Page: 11 of 17


may properly consider the fact that the most vociferous objectors were persons

enlisted by counsel seeking control of the litigation). The district court observed,

“Mr. Greco’s counsel is also counsel in Lawrie, a competing action that also

asserts class based claims [against Ginn], some of which will be barred by the final

certification of this Class. Although not initially convinced of an ulterior motive

regarding Mr. Greco’s objections, the Court now has serious concerns.” There was

nothing improper about the district court’s concern about this fact.

      Finally, the district court also properly considered the stage of the

proceedings at which settlement was reached. The matter had been proceeding in

the district court for nearly five years. During that time, it had proven to be

“complex, expensive, and time consuming.” Again, as the court noted, “the longer

that Defendant(s) continue to successfully defend against these claims, the further

the range of possible recovery decreases.” Therefore, the district court correctly

found that the stage of the proceedings at which the settlement was achieved

weighed in favor of approval of the settlement.

      We find that the district court properly applied the correct legal standard, did

so in an entirely appropriate manner, and made no findings of fact that are clearly

erroneous. Therefore, it did not abuse its discretion by approving the proposed

settlement as fair, adequate, and reasonable.




                                          11
             Case: 14-11443    Date Filed: 12/02/2015    Page: 12 of 17


      B.     The Class Notice Satisfied Due Process Requirements.
      The standard for the adequacy of a settlement notice in a class action is

measured by reasonableness. See Fed.R.Civ.P. 23(e). “We have interpreted Rule

23 to require that class members be given ‘information reasonably necessary to

make a decision [whether] to remain a class member and be bound by the final

judgment or opt out of the action,’ though the notice need not include ‘every

material fact’ or be ‘overly detailed.’” Faught v. American Home Shield Corp.,

668 F.3d 1233, 1239 (11th Cir. 2011) (quoting In re Nissan Motor Corp. Antitrust

Litigation, 552 F.2d 1088, 1104–1105 (5th Cir. 1977)). As we have also noted,

“‘an overly detailed notice’ has the potential to ‘confuse class members and

impermissibly encumber their rights to benefit from the action.’” Faught, 668 F.3d

at 1239 (quoting In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d at 1104).

      Greco argues that the Notice deprived class members of their right to due

process in the following ways: (1) the Notice failed to apprise class members of the

scope of the release; (2) the deadline for submitting objections was “extremely

short;” and (3) the requirements for objections were “onerous” and too confusing

and complex for pro se litigants.

      First, the Notice did not set forth the scope of the release; however, the

content of the notice apprised the class members that the settlement agreements

were available for their review on various websites. As noted above, the Notice


                                         12
              Case: 14-11443   Date Filed: 12/02/2015    Page: 13 of 17


need not contain “every material fact.” Faught, 668 F.3d at 1239. In this instance,

all material facts were available to class members because a full copy of the

settlement agreement, and the release, were available on a website referenced in

the Notice.

      Second, class members were allowed forty-five (45) days from mailing of

the Notice to submit a claim, opt out, or object. “Courts have consistently held that

30 to 60 days between the mailing (or other dissemination) of class notice and the

last date to object or opt out, coupled with a few more weeks between the close of

objections and the settlement hearing, affords class members an adequate

opportunity to evaluate and, if desired, take action concerning a proposed

settlement.” 2 McLaughlin on Class Actions § 6:18 (11th ed.) (citing, inter alia,

DeJulius v. New England Health Care Employees Pension Fund, 429 F.3d 935,

940, 946–47 (10th Cir. 2005) (approving a 32-day opt-out period); Torrisi v.

Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir. 1993) (approving notice

mailed 31 days before the deadline for written objections and 45 days before the

fairness hearing); Miller v. Republic Nat. Life Ins. Co., 559 F.2d 426, 430 (5th Cir.

1977) (holding a period of “almost four weeks between the mailing of the notices

and the settlement hearing” was adequate); Marshall v. Holiday Magic, Inc., 550

F.2d 1173, 1178 (9th Cir. 1977) (approving notice mailed 26 days before the

deadline for opting out of a settlement); Grunin v. International House of


                                         13
              Case: 14-11443    Date Filed: 12/02/2015   Page: 14 of 17


Pancakes, 513 F.2d 114, 121 (8th Cir. 1975) (19 days’ notice was enough time to

object); United Founders Life Ins. Co. v. Consumers Nat. Life Ins. Co., 447 F.2d

647, 652 (7th Cir. 1971) (timing of notice was adequate where it was mailed on

May 28 and fairness hearing was held on June 22)). Therefore, we conclude the

forty-five day period to submit a claim, opt out, or object in this case was

reasonable.

      Finally, the Notice required certain information from class members seeking

to object to the proposed settlement, including their full name, address and

telephone number, information identifying the lot the objector purchased, and a

written statement explaining the reasons for their objection, together with any legal

support. Greco contends that this “for all practical purposes, requir[ed] [objectors]

to seek out counsel in order to meet the above requirements.” We disagree. The

Notice did not require an objector to file legal or documentary support with their

objections. Rather, the Notice simply required information regarding the basis for

any objection so that it could be considered by the district court. There is nothing

unreasonable about requiring an objector to explain the basis for the objection.

      The Notice in this case was sufficient to inform class members of the terms

of the settlement in a manner that allowed them to make their own determination

regarding whether the settlement served their interests before deciding to

participate, opt out, or object. See Int’l Union, United Auto., Aerospace, and


                                          14
             Case: 14-11443     Date Filed: 12/02/2015     Page: 15 of 17


Agric. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 630 (6th

Cir. 2007). Therefore, the Notice in this case was reasonable under the

circumstances and satisfied requirements of due process.

      C.    The Scope of the Release

      Finally, Greco argues that the scope of the release contained in the

settlement is overly broad and grossly unreasonable. We conclude this argument is

without merit. The Notice contains the following summary of the effect of the

release:

      Settlement Class members will be barred from pursuing lawsuits
      against Ginn or Lubert-Adler based on their purchase of Ginn
      Property directly from the Ginn Developers in a development
      operated or developed by the Ginn Developers for which the purchase
      contract was executed during the aforementioned time frame. Thus, if
      you want to bring your own lawsuit against Ginn (or any of its
      affiliates) or Lubert-Adler (or any of its affiliates) relating to your
      purchase of such Ginn Property, you must exclude yourself from this
      settlement.
The Notice also contains a link which permits class members to review the entire

settlement agreement, including the release. The relevant portion of the Settlement

Agreement’s release provides as follows:

      Plaintiff and the Settlement Class Members . . . hereby release and
      forever discharge Defendants and each of their respective past or . . .
      principals, . . . from any and all charges, complaints, claims,
      counterclaims, third-party claims, defenses, liabilities, obligations,
      promises, agreements, controversies, demands, damages, actions,
      causes of action or suits of any kind or nature arising out of or related
      to the Litigation [or] . . . arising from or related to any potential claim
      of abusive litigation or misconduct arising out of the Litigation . . . .

                                          15
               Case: 14-11443    Date Filed: 12/02/2015       Page: 16 of 17


(Emphasis added).

      The brief summary of the release, together with access to the full text of the

release itself, is sufficient. We do “‘not believe that due process requires further

explanation of the effects of the release provision in addition to the clear meaning

of the words of the release.’” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d

96, 116 (2nd Cir. 2005) (quoting O’Brien v. Nat’l Prop. Analysts Partners, 739

F.Supp. 896, 902 (S.D. N.Y. 1990)); see also Bell Atl. Corp. v. Bolger, 2 F.3d

1304, 1317–18 (3d Cir. 1993); Maher v. Zapata Corp., 714 F.2d 436, 452–53 (5th

Cir. 1983)).

      Furthermore, Greco’s argument that class members have waived all defenses

to future foreclosures or suits on promissory notes is simply inapposite. The

release properly settles all matters between the class members and released parties

“arising out of or related to the Litigation.” That is, the release covers claims based

on the same factual predicate as the litigation being settled. See In re Corrugated

Container Antitrust Litig., 643 F.2d 195, 221 (5th Cir.1981) (federal court “may

release not only those claims alleged in the complaint and before the court, but also

claims which could have been alleged by reason of or in connection with any

matter or fact set forth or referred to in the complaint”).

      The district court properly held that the release “is tailored to prevent the

relitigation of settled questions at the core of this class action.” If Greco was


                                           16
             Case: 14-11443      Date Filed: 12/02/2015    Page: 17 of 17


displeased with the consideration provided to him under the settlement in exchange

for this release, he was free (as all other original objectors chose to do) to opt out

of the settlement. He chose not to do so; therefore, he is bound by the settlement.

V.    CONCLUSION

      After carefully reviewing the settlement in this case, we conclude that the

district court did not use the wrong legal standards, apply our precedents

unreasonably or incorrectly, follow improper procedures, or make clearly

erroneous findings of fact in deciding that the settlement was fair, reasonable, and

adequate. Accordingly, we affirm the district court’s Final Order and Judgment

Approving the Class Action Settlement.

      For all these reasons, the district court’s findings and conclusions, and its

approval of this class action settlement are

      AFFIRMED.




                                           17
