1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

MARLENA ROSADO, on behalf of herself 

and all others similarly situated, 

Plaintiff,

v.

BARRY UNIVERSITY, INC,

Defendant.

CASE NO. 20-cv-21813-JEM

PLAINTIFF’S UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF CLASS

ACTION SETTLEMENT AND INCORPORATED MEMORANDUM OF LAW

Plaintiff Marlena Rosado, on behalf of herself and a proposed Settlement Class1of 

individuals similarly situated, with the consent of Defendant Barry University, respectfully 

requests entry of an order granting Preliminary Approval of the class action settlement set forth in 

the Parties’ Settlement Agreement, certifying a class, appointing Class Counsel, appointing 

Plaintiff as Class Representative for settlement purposes, providing for issuance of Notice to the 

Settlement Class, and scheduling a date for the Final Approval Hearing. 

I. INTRODUCTION

Plaintiff seeks preliminary approval of a proposed Settlement of claims asserted against 

Defendant. This Settlement is the culmination of one of many novel class actions that arose when 

colleges nationwide ceased in-person instruction in-response to the ongoing COVID-19 pandemic 

without issuing pro-rata refunds to students who paid to attend university programs they expected 

to be solely in-person and on-campus. Although many similar actions have been filed, this is the

first one in which the Parties announced a settlement. The Settlement represents excellent results 

1 All capitalized terms herein have the same meaning as those set forth in the parties’ Settlement Agreement, 

attached as Exhibit A.

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for the Settlement Class, which Class Counsel calculates to be approximately 60% of Settlement 

Class Members’ total likely recoverable damages for the portion of the Spring 2020 Semester 

following Barry University’s COVID-19 campus closure and transition to online learning. 

The Settlement is the result of arm’s-length negotiations achieved with the assistance of 

mediator D. Andrew Byrne, Esq. and provides for substantial and meaningful relief to the 

Settlement Class. If approved, the Settlement will create a $2,400,000 Settlement Fund and will 

resolve all claims Plaintiff and the Settlement Class Members have against Barry University

arising from Barry University’s transition to remote education during the Spring 2020 Semester

and limiting services on its campus. It will also avoid further delay in providing relief to the 

prospective Settlement Class and avoid further protracted litigation with uncertain results. 

The Parties’ proposed Settlement is exceedingly fair and well within the range of 

Preliminary Approval. See Joint Declaration of Class Counsel Jeff Ostrow, Anna Haac, and Daniel 

Warshaw, attached hereto as Exhibit B. 

II. BACKGROUND

A. Facts

As alleged in Plaintiff’s Complaint, in March 2020, in response to the COVID-19 

pandemic, Barry University moved all of its learning to remote platforms for the remainder of the 

Spring 2020 Semester, encouraged students living in on-campus housing to vacate, and limited 

other on-campus facilities and services. As a result, students no longer received in-person 

instruction and many students were unable to access campus housing, dining, and other on-campus 

resources for which they had paid or for which they had been charged prior to the start of the 

semester. Despite the move to remote education and closing of some campus facilities, Barry

University did not issue a full prorated refund of Tuition Fees or Fees for the Spring 2020 Semester.

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B. Procedural History

On May 1, 2020, Plaintiff filed a class action complaint on behalf of herself and all others 

similarly situated seeking a prorated refund of Tuition Fees and Fees paid towards the Spring 2020

Semester. [DE # 1]. On June 12, 2020, Barry filed a Motion to Dismiss. [DE # 12]. Plaintiff filed 

an Amended Complaint on June 26, 2020. [DE # 15]. The Amended Complaint alleged that 

because Barry moved in-person instruction online and restricted access to housing, dining, and oncampus resources without providing a refund, it was in breach of contract, or in the alternative,

unjustly enriched. Defendant filed a Motion to Dismiss Plaintiff’s Amended Complaint on July 

10, 2020, which was fully briefed by both Parties, including the filing of several Notices of 

Supplemental Authority. [DE # 21, #23, #27, #29, #34-#37, #41, #44-#45, and #49-#50]. 

Defendant also filed a Motion to Strike Class Allegations on October 16, 2020. [DE # 46]. On

October 30, 2020, this Court denied Defendant’s Motion to Dismiss and on November 2, 2020, 

the Court denied Defendant’s Motion to Strike. [DE # 51, #55]. Defendant filed an Answer and 

Affirmative Defenses on November 13, 2020. [DE#56]. The Parties began the discovery process 

seeking information about Plaintiff’s claims and Defendant’s defenses. Joint Decl. ¶5. 

Thereafter, the Parties began discussing the prospect of settlement and scheduled a 

mediation for January 7, 2020. Id. at ¶6. In advance of the mediation, the Parties exchanged 

informal discovery regarding the Plaintiff’s and the putative class’ damages and had multiple 

telephonic conversations to clarify questions or obtain additional information. Id. The Parties did 

not settle the day of mediation; however, they continued to engage in settlement discussions and 

ultimately reached an agreement in principle. Id. On February 9, 2021, the Parties filed a Notice 

of Settlement and Joint Motion to Stay All Deadlines, which was granted on February 10, 2021. 

Id. at ¶7. [DE #68 - #70]. Thereafter, for the next few weeks, the Parties negotiated the Settlement, 

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resulting in signing the Agreement on March 17, 2021. Joint Decl. ¶7.

III. MATERIAL SETTLEMENT TERMS

The following is a summary of the material terms of the Settlement. 

A. The Settlement Class

The proposed Settlement establishes a Settlement Class as follows: 

All Students who were enrolled during the Class Period as well as others who paid 

or were charged Tuition Fees, Room and Board Fees, Health Fees, Lab and 

Materials Fees, or Other Fees on behalf of such Students.

Settlement ¶ 1. The Settlement Class excludes the following: (1) any Student who previously 

signed a release with Barry University relative to their enrollment; (2) Barry University, its parents, 

subsidiaries, affiliates, officers, and directors; and (3) all judges assigned to this litigation and their 

immediate family members. Id. 

B. Settlement Consideration

Pursuant to the Settlement, Defendant has agreed to establish a Settlement Fund for the 

benefit of Settlement Class Members in an amount of $2,400,000. Settlement ¶ 3. The Settlement 

Fund is the maximum amount of money that Defendant shall be required to pay or credit to the 

Settlement Class to resolve this Action. Id. It also includes all monetary or other benefits paid 

under the Settlement by Defendant, including any Service Award for the Plaintiff, Class Counsel’s 

attorneys’ fees and litigation costs, and all Settlement Class Member Benefits, pre-judgment or 

post-judgment interest, and all Settlement administration costs. Settlement ¶¶ 3.

C. The Notice Program

Although Barry University reserves the right to self-administer a portion of the Settlement

limited to the distribution of the Settlement Class Member Benefits, the Parties have jointly 

retained JND Legal Administration, a third-party administrator, to assist with the dissemination of

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Notice and the implementation of the Settlement. The Notice Program consists of three types of 

direct Notice: (1) Email Notice; (2) Postcard Notice; and (3) Long Form Notice. Settlement ¶ 11. 

Former Students will receive a Postcard Notice and Current Students will receive an Email Notice, 

unless the email address on file at Barry University is no longer valid, in which case Current

Students will receive a Postcard Notice. Id. Long Form Notice will be available for review on the 

Settlement Website or will be sent by email or regular mail by Barry University or Class Counsel 

upon Settlement Class Member request. Id. If a notice sent by U.S. Mail is returned as 

undeliverable, the Settlement Administrator will run the Student’s name through the National 

Change of Address registry and remail the Notice within ten days. Id. The Notice Program begins 

30 days after the entry of a Preliminary Approval Order and will conclude 60 days after it begins. 

Id. The forms of the proposed Email Notice and Postcard Notice, which are the same, and Long 

Form Notice, agreed to by the Parties, subject to this Court’s approval and/or modification, are 

attached hereto as Exhibits C and D. 

The Notice Program is designed to provide the Settlement Class with important 

information regarding the Settlement and their rights thereunder, including a description of the 

material terms of the Settlement; a link to the Election Form; a date by which Settlement Class 

members may exclude themselves from or “opt-out” of the Settlement Class; a date by which 

Settlement Class Members may object to the Settlement, Class Counsel’s attorneys’ fee application 

and/or the request for a Service Award for the Class Representative; the date of the Final Approval 

Hearing; and information regarding the Settlement Website where Settlement Class members may 

access the Agreement, and other important documents, including the Long Form Notice. Complete 

opt-out and objection requirements are listed in the Settlement and in the Long Form Notice. 

Settlement ¶ 11; Long Form Notice ¶ 18. The Notice Program provides the best notice practicable 

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and complies with due process and Federal Rule of Civil Procedure 23 (c)(2).

D. Election Form

Although not required to participate in and receive benefits under the Settlement, 

Settlement Class Members may choose to complete an electronic Election Form to indicate 

whether they prefer a cash payment or a Tuition Credit. Settlement ¶ 11. The Notice will direct 

Settlement Class members to a link to the Settlement Website to submit an Election Form. 

Settlement Class Members who complete the Election Form, will receive the Settlement 

Class Member Benefit allocated to them in accordance with what they elected on their Election 

Form after Barry University exercises its option to first apply the Settlement Class Member Benefit 

to any outstanding balance owed to Barry University. Settlement ¶ 8. Those Settlement Class 

Members who do not complete an Election Form will receive their Settlement Class Benefit as 

follows: (a) Former Students will receive a cash payment to their address on file with Barry; and 

(b) Current Students who have not graduated when payment of the Settlement Class Member 

Benefit is due will receive a cash payment or a Tuition Credit, at Barry’s discretion. Id.

Regardless of whether Settlement Class Members complete an Election Form (or whether 

they are a Former Student or a Current Student), Barry University reserves the option to first apply 

their Settlement Class Member Benefit to any outstanding balance they have at Barry University,

prior to distributing the cash payment or Tuition Credit. Id. 

E. Allocation of the Settlement Class Member Benefits

Within 15 business days after Final Approval, or if there are objections, within 15 business 

days after the Effective Date, Settlement Class Member Benefits shall be distributed as follows:

a. Tuition Allocation: 78% of the Net Settlement Fund will be allocated towards 

a percentage of Settlement Class Members’ Tuition Fees for the Spring 2020 

semester. Barry shall determine the percentage of the net Tuition Fees it 

received for Spring 2020 from Full-Time Students and from Part-Time 

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Students. The percentage of net Tuition Fees received from Full-Time Students 

will be the percentage of the Tuition allocation of the Net Settlement Fund to 

disburse to the Full-Time Students, divided equally among all Settlement Class

Members who were Full-Time Students. The percentage of net Tuition Fees 

received from Part-Time Students will be the percentage of the Tuition 

allocation of the Net Settlement Fund to disburse to Part-Time Students divided 

equally among all settlement Class Members who were Part-Time Students.

b. Room, Board, and Fee Allocation: 22% of the Net Settlement Fund will be 

allocated towards a percentage of Settlement Class Members’ Room and Board 

Fees, Health Fees, Lab & Material Fees, and Other Fees for the Spring 2020 

semester, and distributed according to the following schedule:

i. 18% of the Net Settlement Fund will be allocated towards a percentage 

of Settlement Class Members’ Room and Board Fees and divided 

equally among those Settlement Class Members who were Residential 

Students.

ii. 2% of the Net Settlement Fund will be allocated towards a percentage 

of Settlement Class Members’ Health Fees and divided equally among 

those Settlement Class Members who were charged or paid a Health Fee 

in Spring 2020.

iii. 2% of the Net Settlement Fund will be allocated towards a percentage 

of Settlement Class Members’ Lab and Materials Fees and Other Fees 

and divided equally among all Settlement Class Members who were 

charged or paid a Lab and Materials Fees and Other Fees. 

Settlement ¶ 9.

F. Funds Remaining after Initial Distribution

Settlement Class Members who receive cash refunds shall have 90 days from the date on 

the checks to negotiate their Settlement Class Benefit. Any Settlement checks not negotiated by 

Settlement Class Members within this time period shall be used by Barry University for the direct 

benefit of Barry University students in a manner it sees fit in its discretion. Settlement ¶ 10.

G. Settlement Administrator

JND Legal Administration, the proposed Settlement Administrator, is a well-respected and 

reputable administrator. Joint Decl. ¶13. JND was selected after the Parties retained bids from 

multiple administrators and determined that engaging JND was in the best interests of the 

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Settlement Class. Id. JND’s costs will be paid from the Settlement Fund. Id.

H. Opt-Out and Objection Procedures

As detailed in the Long Form Notice, Settlement Class Members who do not wish to 

participate in the Settlement may opt-out up to 30 days prior to the Final Approval Hearing. Optout procedures are specified in the Settlement and in the Notice. Settlement Class Members who 

wish to opt-out must send a letter to the Settlement Administrator with the student’s name, student 

identification number(s), address, telephone number, and email address.

The Long Form Notice also specifies how Settlement Class Members may object to the 

Settlement and instructs them to send a written document to the Clerk of Court, Settlement 

Administrator, Class Counsel, and Defendant’s Counsel. The objection must include (a) the name 

of the Action; (b) the objector’s full name, address and telephone number; (c) an explanation of 

the basis upon which the objector claims to be a Settlement Class Member; (d) all grounds for and 

legal support for the objection known to objector or objector’s counsel; (e) the number of times 

the objector has objected to a class action settlement within the five years preceding the date that 

the objector files the objection, the caption of each case in which the objector has made such 

objection, and a copy of any orders related to or ruling upon the objector’s prior objections that 

were issued by the trial and appellate courts in each listed case; (f) the identity of all counsel who 

represent the objector, including any former or current counsel who may be entitled to 

compensation for any reason related to the objection to the Settlement or fee application; (g) a 

copy of orders related to or ruling upon counsel’s or the counsel’s law firm’s prior objections that 

were issued by the trial and appellate courts in each listed case in which the objector’s counsel 

and/or counsel’s law firm have objected to a class action settlement within the preceding 5 years; 

(h) any and all agreements that relate to the objection or the process of objecting—whether written 

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or oral—between objector or objector’s counsel and any other person or entity; (i) the identity of 

all counsel (if any) representing the objector who will appear at the Final Approval Hearing; (j) a 

list of all persons who will be called to testify at the Final Approval Hearing in support of the 

objection; (k) a statement confirming whether the objector intends to personally appear and/or 

testify at the Final Approval Hearing; and (l) the objector’s signature (an attorney’s signature is 

insufficient). See Long Form Notice, Ex. D.

I. Release of Claims

Plaintiff and Settlement Class Members who do not timely and validly opt-out of the 

Settlement Class will be bound by the terms of the Settlement, including the release and discharge 

of the Released Claims against the Released Persons. The Released Claims are narrowly tailored 

and are limited to, “relating to, or in connection with Tuition Fees, Room and Board Fees, Health 

Fees, Lab and Materials Fees or Other Fees relating to or arising out of the Spring 2020 semester 

and paid by or charged to Settlement Class Members or on their behalf.” Settlement ¶ 14 (a).

J. Class Counsel Fees and Expenses and Plaintiff’s Service Award

Defendant has agreed not to oppose Class Counsel’s requests for attorneys’ fees and costs 

of up to 33.33% of the Settlement Fund. Settlement ¶ 3. Further, upon Court approval, Plaintiff 

shall receive a Service Award of $5,000 for serving as the Class Representative, payable from the 

Settlement Fund. Settlement ¶¶ 3, 9. The Court should consider whether to grant these awards 

separate and apart from its consideration of the fairness and reasonableness of the Settlement.

IV. THE PROPOSED SETLEMENT WARRANTS PRELIMINARY APPROVAL

A. The Legal Standard for Preliminary Approval

The Eleventh Circuit recognizes the strong public and judicial policy favoring the pretrial 

settlement of class-action lawsuits. See, e.g., In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th 

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Cir. 1992) (citing Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977)); Lee v. Ocwen Loan 

Servicing, LLC, 14-CV-60649, 2015 WL 5449813 *4 (S.D. Fla. Sep. 14, 2015). “A class may be 

certified ‘solely for purposes of settlement [if] a settlement is reached before a litigated 

determination of the class certification issue.’” Smith v. Wm. Wrigley Jr. Co., No. 09-cv-60646, 

2010 WL 2401149 at *3 (citation omitted). Approval of a class action settlement is a two-step 

process. Fresco v. Auto Data Direct, Inc., 2007 WL 2330895, at *4 (S.D. Fla. 2007). 

Preliminary approval is the first step, requiring the Court to “make a preliminary 

determination on the fairness, reasonableness, and adequacy of the settlement terms.” Id. (citations 

omitted). The threshold for granting preliminary approval is low: a proposed settlement will be 

preliminarily approved “as long it is ‘fair, adequate and reasonable and not the product of collusion 

between the parties.’” Borcea v. Carnival Corp., 238 F.R.D. 664, 671-72 (S.D. Fla. 2006) (quoting 

Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984)). Thus, “[p]reliminary approval is 

appropriate where the proposed settlement is the result of the parties’ good faith negotiations, there 

are no obvious deficiencies, and the settlement falls within the range of reason.” In re Checking 

Account Overdraft Litig., 275 F.R.D. 654, 661 (S.D. Fla. 2011) (quoting Smith, 2010 WL 2401149 

at *2). In the second step of approving a settlement, after notice to the settlement class and time 

and opportunity for them to object or otherwise be heard, the court considers whether to grant final 

approval of the settlement as fair and reasonable under Rule 23. Fresco, 2007 WL 2330895, at *4. 

Class Counsel and Barry University respectfully request that the Court take the first step 

in the process and grant Preliminary Approval of the Settlement. The Settlement is clearly within 

the range of reasonableness and it satisfies all standards for Preliminary Approval, including 

Plaintiff’s obligations under Rule 23(e)(1), as amended effective December 1, 2018.

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B. The Settlement Meets the Criteria for Preliminary Approval

A preliminary review of the fairness and adequacy factors demonstrates that the Settlement 

warrants Preliminary Approval under Rule 23(e)(2). The Settlement was reached in the absence of 

collusion, and is the product of good-faith, informed, and arm’s-length negotiations by competent 

counsel with the assistance of a well-respected and experienced mediator. Joint Decl. ¶21.

Any settlement requires the parties to balance the merits of the claims and defenses asserted 

against the attendant risks of continued litigation and delay. Joint Decl. ¶17. Class Counsel believe 

that the claims asserted are meritorious and that Plaintiff would prevail if this matter proceeded to 

trial, particularly given Plaintiff’s success on Defendant’s motion to dismiss. Id. at ¶18. Defendant

denies liability, believes it acted in good faith and in compliance with the law, believes it would 

prevail on a motion for summary judgment and in opposing class certification and has shown a 

willingness to continue vigorous litigation. Id. All that is certain is that with continued litigation, 

the putative class would face a notably longer wait before receiving any potential recovery, if they 

received any recovery at all. Id. at ¶19. Thus, in Class Counsel’s experience and informed 

judgment, the Settlement represents an excellent recovery for the Settlement Class, and the benefits 

of the Settlement outweigh the risks and uncertainties of continued litigation, including, the risks, 

time, and expenses associated with completing a trial and any appellate review. Id.

C. The Settlement Agreement is the Product of Good Faith, Informed, and 

Arm’s-Length Negotiations

“A proposed settlement action should be approved as long as it is ‘fair, adequate and 

reasonable and it is not the product of collusion between the parties.’” Borcea v. Carnival Corp., 

238 F.R.D. at 672 (quoting Bennett v. Behring Corp., 737 F.2d. at 986); see also Lipuma v. 

American Express Co., 406 F. Supp. 2d 1298, 1318-19 (S.D. Fla. 2005) (approving class settlement 

where the “benefits conferred upon the Class are substantial, and are the result of informed, arm’sCase 1:20-cv-21813-JEM Document 71 Entered on FLSD Docket 03/17/2021 Page 11 of 22
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length negotiations by experienced Class Counsel”). 

Here, the Settlement is the result of extensive, arm’s-length negotiations between 

experienced attorneys who are familiar with class action litigation and with the legal and factual 

issues at the center of this Action. Joint Decl. ¶21. Class Counsel are particularly experienced in 

the litigation, certification, trial, and settlement of class action cases. Id. at ¶15. This experience 

proved beneficial to Plaintiff and the Settlement Class during negotiations of the Settlement. Id.

Class Counsel ensured that informal discovery was conducted prior to mediation, see id. at ¶¶ 6,

17, that enabled them to gain an understanding of the evidence related to central issues in the 

Action, including damages and liability, and prepare for well-informed settlement negotiations.

Encarnacion v. J.W. Lee, Inc., 15-CIV-61927, 2015 WL 6437686 at *3 (S.D. Fla. Oct. 22, 2015) 

(granting final settlement approval where there was no formal discovery but parties exchanged

documents and opt-in plaintiffs were interviewed prior to mediation).

The Parties’ negotiations were assisted by a formal mediation with an experienced and 

respected mediator, Andrew Byrne. Joint Decl. ¶6. The mediation and the negotiations were 

conducted over several days and sessions at arm’s-length and were extensive. See Perez v. Asurion 

Corp., 501 F. Supp. 2d 1360, 1384 (S.D. Fla. 2007) (concluding that class settlement was not 

collusive in part because it was overseen by “an experienced and well-respected mediator”); Joint 

Decl. ¶¶ 6, 7. Moreover, there was no discussion of attorneys’ fees or a Service Award until all 

material terms of the Settlement were reached. Id. at ¶21.

D. The Facts Support a Preliminary Determination that the Settlement is Fair, 

Adequate, and Reasonable

The Settlement falls within the “range of reason” such that notice and a final hearing as to 

the fairness, adequacy and reasonableness of the Settlement is warranted. To determine whether a 

settlement is fair, adequate, and reasonable, the Court considers all relevant factors, including: 

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(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 the litigation; (5) the 

substance and amount of opposition to the settlement; and (6) the state of 

proceedings at which the settlement was achieved.

Ass’n For Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 466–67 (S.D. Fla. 2002). 

Each of these factors relevant to Preliminary Approval are discussed in more detail below. 

1. Likelihood of Success at Trial

Class Counsel are confident in the strength of Plaintiff’s case. Joint Decl. ¶18. However, 

they are also pragmatic that the law surrounding college liability for refunds arising out of the 

COVID-19 pandemic is just developing and has been inconsistent within courts across the United 

States. Id. They are aware that there are uncertainties in a trial, particularly given the novel case 

theory here. Id. Class Counsel are also aware of the risks inherent from any appeal and subsequent 

proceedings of a successful trial verdict. Id. Further, it still remains unclear whether Plaintiff would 

be able to certify a class for purposes of trial. Id. Under the circumstances, Class Counsel 

appropriately determined that the Settlement outweighs the risks of continued litigation. Id.

Even if Plaintiff and the Settlement Class ultimately prevailed at trial, recovery could be 

delayed for years by an appeal. Lipuma, 406 F. Supp. 2d at 1322 (likelihood that appellate 

proceedings could delay class recovery “strongly favor[s]” approval of a settlement). This 

Settlement provides substantial relief to Settlement Class Members without further delay and 

avoids the risk of an adverse judgment at trial or on appeal.

2. Range of Possible Recovery and the Point on or Below the Range of 

Recovery at Which Settlement is Fair

When evaluating “the terms of the compromise in relation to the likely benefits of a 

successful trial . . . the trial court is entitled to rely upon the judgment of experienced counsel for 

the parties.” Cotton, 559 F.2d at 1330. “Indeed, the trial judge, absent fraud, collusion, or the like, 

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

Settlements may be considered reasonable even where plaintiffs recover only part of their 

actual losses. See Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988) ( 

“that a proposed settlement amounts to only a fraction of the potential recovery does not mean the 

settlement is unfair or inadequate”). “The existence of strong defenses to the claims presented 

makes the possibility of a low recovery quite reasonable.” Lipuma, 406 F. Supp. 2d at 1323. 

The $2,400,000 Settlement Fund is more than reasonable, given the novelty of the situation 

presented, the complexity and uncertainty of certain issues in the litigation, particularly whether 

Defendant breached an express or implied contract for exclusively in-person education and the 

appropriate calculation of damages should the Settlement Class be successful, as well as the 

significant risks and barriers that loomed in the absence of settlement. Joint Decl. ¶9. The 

Settlement Fund is reasonable when considering the recovery achieved against the likely 

recoverable damages. Id. at 10. The Settlement Fund represents a refund of approximately 60% of 

Settlement Class Members’ total likely recoverable damages for the portion of the Spring 2020 

Semester following Barry University’s COVID-19 campus closure and transition to online 

learning. Id. By Class Counsel’s estimation, this is an excellent result for the Settlement Class and 

far more than a mere fraction that has been approved in other cases in this district and in the 

Eleventh Circuit. Id.; see also Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 542 (S.D. 

Fla. 1988) (approving of settlement amounting to only “a small fraction of desired recovery” for 

class members). There can be no doubt that this Settlement is a fair and reasonable recovery in 

light of Defendant’s vigorous defense, the uncertainty of class certification, and the challenging 

and unpredictable path the Settlement Class would face absent a settlement. Joint Decl. ¶10. 

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3. Complexity, Expense, and Duration of Litigation

The traditional means for handling claims like those at issue here would tax the court 

system, require a massive expenditure of public and private resources, and given the relatively 

small value of the claims compared to the cost of individual lawsuits by class members, would be 

impracticable. Thus, the Settlement is the best vehicle for Settlement Class Members to receive 

the relief to which they are entitled in a prompt and efficient manner. Joint Decl. ¶20.

4. Stage of Proceedings

Courts consider the stage of proceedings at which a settlement is achieved “to ensure that 

Plaintiffs had access to sufficient information to adequately evaluate the merits of the case and 

weigh the benefits of settlement against further litigation.” Lipuma, 406 F. Supp. 2d at 1324.

Although the Settlement here was reached fairly early in the proceedings, Defendant had 

moved to dismiss twice, moved to strike the class, and Plaintiff opposed those motions, all of 

which gave the Parties information about the evidence, claims and theories asserted by the other. 

Joint Decl. ¶17. Further, before mediation, the Parties engaged in informal discovery of the central 

issues of the litigation, learning the value of the claims asserted and the extent of the disclosures 

and promises made to enrolled students. Id. As a result, Class Counsel was well positioned to 

evaluate the strengths of Plaintiff’s claims, Defendant’s defenses, and prospects for success. Id.

E. Certification of the Settlement Class is Appropriate

For settlement purposes, Plaintiff and Class Counsel respectfully request that the Court 

certify the Settlement Class defined in the Settlement. “In deciding whether to provisionally certify 

a settlement class, a court must consider the same factors that it would consider in connection with 

a proposed litigation class – i.e., all Rule 23(a) factors and at least one subsection of Rule 23(b)

must be satisfied . . .” Papa v. Grieco Ford Fort Lauderdale, LLC, No. 18-21897-CIV, 2019 WL 

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11623985, at *2 (S.D. Fla. Jan. 28, 2019) (citations omitted). The manageability of a potential trial 

need not be addressed because if the Settlement is approved, the need for a trial would be 

eliminated. Id. 

Here, the Rule 23(a) requirements and Rule 23(b)(3) requirements are met. Certification of 

the proposed Settlement Class will allow notice of the Settlement to issue to inform Settlement 

Class members of the existence and terms of the Settlement, of their right to opt-out, of their right 

to object and be heard on its fairness, and of the date, time, and place of the Final Approval 

Hearing. See Manual for Compl. Lit., Fourth, at §§ 21.632, 21.633 (2004). For the reasons set forth 

below, certification is appropriate under Rule 23(a) and (b)(3). In accordance with the 2018 

amendments to Rule 23(e)(1), the Court should conclude that it is likely to certify the Settlement 

Class and approve the Settlement as fair, adequate, and reasonable. 

1. The Settlement Class satisfies the requirements of Rule 23(a)

Certification under Fed. R. Civ. P. 23(a) requires: 

(1) the class must be so numerous that joinder of all members is impracticable

(“numerosity”); (2) questions of law or fact common to the class must exist 

(“commonality”); (3) the claims or defenses of the representative parties must be

typical of the claims or defenses of the class (“typicality”); and (4) the

representative parties must fairly and adequately protect the interests of the class

(“adequacy of representation”).

Leszczynski v. Allianz Ins., 176 F.R.D. 659, 668 (S.D. Fla. 1997).

Numerosity. The numerosity requirement of Rule 23(a) is satisfied because the Settlement 

Class has nearly 6,000 members, and joinder of all is impracticable. See Fed. R. Civ. P. 23(a)(1); 

Kilgo v. Bowman Trans., 789 F.2d 859, 878 (11th Cir. 1986) (numerosity satisfied where plaintiffs 

identified at least 31 class members “from a wide geographical area”).

Commonality. “Commonality requires the plaintiff to demonstrate that the class members 

‘have suffered the same injury,’” and the plaintiff’s common contention “must be of such a nature 

Case 1:20-cv-21813-JEM Document 71 Entered on FLSD Docket 03/17/2021 Page 16 of 22
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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.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 2551 (2011) (citation omitted). Here, 

the commonality requirement is readily satisfied. Plaintiff has asserted multiple questions of law 

and fact – centering on whether students were owed refunds of tuition and fees as result of the 

change to remote instruction and the closure of campus facilities and services– that are common 

to the Settlement Class, that are alleged to have injured all Settlement Class members in the same 

or similar way, and that would generate common answers. Additionally, Plaintiff asserted that all 

Settlement Class members were subject to the same agreements, representations, instructions 

regarding COVID-19 prompted campus closures, and refund policies. There will be no issue 

demonstrating Class Members have suffered the same injury.

Typicality. Typicality is satisfied where claims “arise from the same event or pattern or 

practice and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc.,741 F.2d

1332, 1337 (11th Cir. 1984). Where Plaintiff’s claims arise from the same event as the absent 

Settlement Class Members’ claims, Plaintiff is typical of the entire Settlement Class. Here, 

Plaintiff was moved to online-only instruction and lost access to some on-campus housing, dining,

and other resources, services, and amenities just as her fellow Settlement Class Members were. 

Adequacy. Plaintiff and Class Counsel also satisfy the adequacy of representation 

requirement. Adequacy under Rule 23(a)(4) relates to: (1) whether the proposed class 

representative has interests antagonistic to the class; and (2) whether the proposed class counsel 

has the competence to undertake this litigation. Fabricant, 202 F.R.D. at 314-15; The 

determinative factor “is the forthrightness and vigor with which the representative party can be 

expected to assert and defend the interests of the members of the class.” Lyons v. Georgia-Pacific 

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Corp. Salaried Employees Ret. Plan, 221 F.3d 1235, 1253 (11th Cir. 2000) (internal quotations

omitted). Plaintiff’s interests are coextensive with, not antagonistic to, the interests of the 

Settlement Class, because Plaintiff and the absent Settlement Class members have the same 

interest in the relief afforded by the Settlement, and the absent Settlement Class members have no 

diverging interests. Further, Plaintiff and the Settlement Class are represented by qualified and 

competent Class Counsel. Each firm representing the class is a leader in the class action field and 

each attorney has extensive experience prosecuting complex class actions which has helped them

to vigorously litigate on behalf of the Settlement Class thus far. Class Counsel has devoted 

substantial time and resources and will continue to do so. See Joint Decl., Exhibits 1-3, attached.

2. The Settlement Class also satisfies the requirements of Rule 23(b)(3)

Rule 23(b)(3) requires that there is a “direct impact” of common issues of law and fact “on 

every class member’s effort to establish liability that is more substantial than the impact of 

individualized issues in resolving the claim or claims of each class member.” Sacred Heart Health 

Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1170 (11th Cir. 2010) 

(internal quotations omitted). Plaintiff readily satisfies the Rule 23(b)(3) predominance 

requirement because liability questions common to all Settlement Class members substantially 

outweigh any possible issues that are individual to some Settlement Class Member. Further, 

resolution of thousands of claims in one action is far superior to individual lawsuits, because it 

promotes consistency and efficiency of adjudication. See Fed. R. Civ. P. 23(b)(3). For these 

reasons, the Court should certify the Settlement Class.

F. The Court Should Approve the Proposed Notice Program

Rule 23(e)(1)(B) states “The court must direct notice in a reasonable manner to all class 

members who would be bound by the proposal if giving notice is justified by the parties’ showing 

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that the court will likely be able to (i) approve the proposal under Rule 23(e)(2), and (ii) certify 

the class for purposes of judgment on the proposal.” The best practicable notice is that which is 

“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.” Mullane v. Cent. Hanover 

Bank & Trust Co., 339 U.S. 306, 314 (1950). To satisfy this standard, substantive claims must be 

“adequately described” and “the notice must also contain information reasonably necessary to 

make a decision to remain a class member and be bound by the final judgment or opt-out of the 

action.” Twigg v. Sears, Roebuck & Co., 153 F.3d 1222, 1227 (11th Cir. 1998) (internal quotations 

omitted); see also Manual for Compl. Lit., Fourth, § 21.312 (2004) (listing notice requirements).

The Notice program satisfies all of these criteria. As recited in the Settlement and above, 

the Notice Program will inform Settlement Class members of the Settlement’s substantive terms. 

Joint Decl. ¶14. It will advise Settlement Class members of their options for remaining part of the 

Settlement Class or for opting-out of the Settlement; for electing Settlement Class Member 

Benefits afforded by the Settlement; for objecting to the Settlement, Class Counsel’s Attorneys’ 

fee application and/or request for Service Award; and how to obtain additional information about 

the Settlement. Id. The Notice Program is designed to directly reach a very high percentage of 

Settlement Class Members, with consideration that Settlement Class Members’ contact 

information is readily available and regularly updated by Barry University. Id. Therefore, the Court 

should approve the Notice Program and the form and content of the Notices.

V. PROPOSED SCHEDULE OF EVENTS

In connection with Preliminary Approval, the Court should also set a date and time for the 

Final Approval Hearing. Other deadlines in the approval process, including the deadlines for 

requesting exclusion from the Settlement Class or objecting to the Settlement, will be determined 

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based on the Final Approval Hearing date. Class Counsel propose the following schedule: 

Notice Program Begins (Email and 

Postcard Notices go out)

Notice Program Ends (remailing of 

bounced Emails or undeliverable Postcard 

Notices)

30 days after Preliminary Approval Order

60 days after Notice Program begins 

Deadline for Class Counsel to file their 

Motion for Final Approval of the 

Settlement, as well as application for 

attorneys’ fees and litigation costs and 

application for a Service Award 

45 days prior to the Final Approval Hearing

Deadline for Settlement Class members to 

Opt-Out of the Agreement (Opt-out Period)

30 days prior to the Final Approval Hearing 

Deadline for Settlement Class Members to 

make Objections

30 days prior to the Final Approval Hearing

Deadline to Submit Election Form 30 days prior to the Final Approval Hearing

Final Approval Hearing The week of July 26, 2021 (at least 120

days after Preliminary Approval Order)

VI. CONCLUSION

Based on the foregoing, Plaintiff and Class Counsel respectfully request that the Court: (1) 

grant Preliminary Approval to the Settlement; (2) certify for settlement purposes the proposed 

Settlement Class, pursuant to Rule 23(b)(3) and (e) of the Federal Rules of Civil Procedure; (3) 

approve the Notice Program and the form and content of the Notices; (4) approve the opt-out and 

objection procedures set forth in the Notice Program; (5) appoint Plaintiff as Class Representative; 

(6) appoint as Class Counsel the law firms and attorneys listed in the Agreement; and (7) schedule 

a Final Approval Hearing. A Proposed Preliminary Approval Order is attached as Exhibit E.

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CERTIFICATE OF COUNSEL PURSUANT TO LOCAL RULE 7.1(a)(3)

Counsel for Plaintiff conferred with counsel for Defendant, who does not oppose the relief 

requested in this Motion. 

/s/ Jeff Ostrow 

Jeff Ostrow FBN 121452

Jonathan M. Streisfeld FBN 117447

Kristen Lake Cardoso FBN 44401

KOPELOWITZ OSTROW 

FERGUSON WEISELBERG GILBERT

1 West Las Olas Blvd. Suite 500

Fort Lauderdale, FL 33301

Telephone: (954) 525-4100

Facsimile: (954) 525-4300

ostrow@kolawyers.com

streisfeld@kolawyers.com

cardoso@kolawyers.com

Daniel L. Warshaw (pro hac vice)

PEARSON, SIMON & WARSHAW, LLP

15165 Ventura Boulevard, Suite 400

Sherman Oaks, CA 91403

Telephone: (818) 788-8300

Facsimile: (818) 788-8104

dwarshaw@pswlaw.com

Anna C. Haac (pro hac vice)

Jennifer Thelusma FBN 1019776

TYCKO & ZAVAREEI LLP

1828 L Street NW, Suite 1000

Washington, D.C. 20036

Telephone: (202) 973-0900

Facsimile: (202) 973-0950

ahaac@tzlegal.com

jthelusma@tzlegal.com

Counsel for Plaintiff

and the Settlement Class

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CERTIFICATE OF SERVICE

I hereby certify that on March 17, 2021, I electronically filed the foregoing document with 

the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served 

this day on counsel of record via transmission of Notices of Electronic Filing generated by 

CM/ECF.

By: /s/ Jeff Ostrow 

 Jeff Ostrow

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