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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

ORDER PRELIMINARILY APPROVING CLASS ACTION SETTLEMENT AND

CERTIFYING THE SETTLEMENT CLASS

Plaintiff Marlena Rosado and Defendant Barry University have agreed to settle this 

Action1 pursuant to the terms and conditions set forth in their executed Settlement Agreement 

and Release. The Parties reached the Settlement after arm’s-length negotiations with the help of 

an experienced mediator. Under the Settlement, subject to the terms and conditions therein and 

subject to Court approval, Plaintiff and the proposed Settlement Class will fully, finally, and 

forever resolve, discharge, and release their claims.

The Settlement has been filed with the Court, and Plaintiff and Class Counsel have filed 

an Unopposed Motion for Preliminary Approval of Class Settlement (“Motion”) (DE 71). Upon 

considering the Motion, the Settlement and all exhibits thereto, the record in these proceedings, 

and the representations and recommendations of counsel:

IT IS HEREBY ORDERED AND ADJUDGED as follows:

1. The Court has jurisdiction over the subject matter and Parties to this proceeding 

pursuant to 28 U.S.C. § 1332.

1 All capitalized defined terms used herein have the same meanings as those defined in Section 1 of the Settlement. 

(DE 71-1).

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Provisional Class Certification and Appointment of Class Representative and Class Counsel

2. It is well established that “[a] class may be certified solely for purposes of 

settlement [if] a settlement is reached before a litigated determination of the class certification 

issue.” Borcea v. Carnival Corp., 238 F.R.D. 664, 671 (S.D. Fla. 2006) (internal quotation marks 

omitted). 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 – except that the Court 

need not consider the manageability of a potential trial, since the settlement, if approved, would 

obviate the need for a trial. Id.; Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997).

Applying the December 2018 amendments to Rule 23(e)(1), the Court concludes that it is likely 

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

3. The Court finds, for settlement purposes, that the Federal Rule of Civil Procedure 

23 factors are present, and that certification of the proposed Settlement Class is appropriate under 

Rule 23. The Court therefore provisionally certifies the following Settlement Class:

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.

Excluded from the Settlement Class is any Student who previously signed a release with Barry 

University relative to their enrollment; Barry University, its parents, subsidiaries, affiliates, 

officers and directors; and all judges assigned to this litigation and their immediate family 

members.

4. Specifically, the Court finds, for settlement purposes only and conditioned on final 

certification of the proposed Settlement Class and on the entry of the Final Approval Order, that 

the Settlement Class satisfies the following factors of Federal Rule of Civil Procedure 23:

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(a) Numerosity: In the Action, there are over 6,000 Settlement Class members. 

The proposed Settlement Class is thus so numerous that joinder of all members is impracticable.

(b) Commonality: “[C]ommonality 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 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. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (citation omitted). Here, the 

commonality requirement is satisfied. Multiple questions of law and fact centering on Barry 

University’s class-wide practices are common to the Plaintiff and the Settlement Class, are alleged 

to have injured all members of the Settlement Class in the same way and would generate common 

answers central to the viability of the claims were this case to proceed to trial.

(c) Typicality: The Plaintiff’s claims are typical of the Settlement Class 

because they concern the same alleged Barry University practices, arise from the same legal 

theories, and allege the same types of harm and entitlement to relief. Rule 23(a)(3) is therefore 

satisfied. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) 

(typicality satisfied where claims “arise from the same event or pattern or practice and are based 

on the same legal theory”); Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001) (named 

plaintiffs are typical of the class where they “possess the same interest and suffer the same injury 

as the class members”).

(d) Adequacy: Adequacy under Rule 23(a)(4) relates to: (1) whether the 

proposed class representatives have interests antagonistic to the class; and (2) whether the 

proposed class counsel has the competence to undertake the litigation at issue. See Fabricant 

v. Sears Roebuck, 202 F.R.D. 310, 314 (S.D. Fla. 2001). Here, Rule 23(a)(4) is satisfied 

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because there are no conflicts of interest between Plaintiff and the Settlement Class, and 

Plaintiff has retained competent counsel to represent her and the Settlement Class. Class 

Counsel regularly engage in consumer class litigation, complex litigation, and other litigation 

similar to this Action, and have dedicated substantial resources to the prosecution of the 

Action. Moreover, Plaintiff and Class Counsel have vigorously and competently represented 

the Settlement Class in the Action. See Lyons v. Georgia-Pacific Corp. Salaried Employees 

Rel. Plan, 221 F.3d 1235, 1253 (11th Cir. 2000).

(e) Predominance and Superiority: Rule 23(b)(3) is satisfied because the 

common legal and alleged factual issues here predominate over individualized issues, and 

resolution of the common issues for the members of the Settlement Class in a single, 

coordinated proceeding is superior to thousands of individual lawsuits addressing the same legal 

and factual issues. With respect to predominance, Rule 23(b)(3) requires that “[c]ommon issues 

of fact and law . . . ha[ve] a direct impact 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 quotation marks omitted). Here, common 

questions present a significant aspect of the case and can be resolved for all members of the 

Settlement Class in a single adjudication. In a liability determination, those common issues 

would predominate over any issues that are unique to individual members of the Settlement 

Class. Moreover, each member of the Settlement Class has claims that arise from the same event

as well as the same legal theories.

5. The Court appoints Plaintiff Marlena Rosado as Class Representative.

6. The Court appoints the following people and firms as Class Counsel: Jeff Ostrow, 

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Jonathan M. Streisfeld, and Kristen L. Cardoso of Kopelowitz Ostrow P.A.; Anna Haac of Tycko 

& Zavareei LLP; and Daniel L. Warshaw of Pearson, Simon & Warshaw, LLP.

Preliminary Approval of the Settlement

7. At the preliminary approval stage, the Court’s task is to evaluate whether the 

Settlement is within the range of reasonableness. “Preliminary 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.” Smith v. Wm. Wrigley Jr. Co.,

2010 WL 2401149, at *2 (S.D. Fla. Jun. 15, 2010). Settlement negotiations that involve arm’slength, informed bargaining with the aid of experienced counsel support a preliminary finding 

of fairness. See Manual for Complex Litigation, Third, § 30.42 (West 1995) (“A presumption of 

fairness, adequacy, and reasonableness may attach to a class settlement reached in arm's-length 

negotiations between experienced, capable counsel after meaningful discovery.”) (internal 

quotation marks omitted).

8. The Court preliminarily approves the Settlement, together with all exhibits 

thereto, as fair, reasonable, and adequate. The Court finds that the Settlement was reached in 

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

between the Parties and their capable and experienced counsel. The Court further finds that the 

Settlement, including the exhibits thereto, is within the range of reasonableness and possible 

judicial approval, such that: (a) a presumption of fairness is appropriate for the purposes of 

preliminary settlement approval; and (b) it is appropriate to effectuate notice to the Settlement 

Class, as set forth below and in the Settlement, and schedule a Final Approval Hearing to assist 

the Court in determining whether to grant Final Approval of the Settlement and enter a Final 

Approval Order.

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Approval of Notice Program and Settlement Administrator

9. In accordance with Federal Rule of Civil Procedure 23(e)(1)(B), the Court 

approves the Notice Program and the form and content of the Notices, substantially in the forms 

attached to the Motion. The Parties may make non-substantive revisions to the forms of notice 

without further order by the Court. The Court further finds that the Notice Program described in 

the Settlement is the best practicable under the circumstances. The Notice Program is reasonably 

calculated under the circumstances to inform the Settlement Class of: (a) the pendency of the 

Action; (b) certification of a Settlement Class; (c) the terms of the Settlement; (d) Class 

Counsel’s to be filed attorneys’ fees application and request for reimbursement of litigation 

costs; (e), Class Counsel’s to be filed request for a Service Award for the Class Representative; 

(f) of the right and process to opt-out of the Settlement Class or object to the Settlement, and (g) 

the right to fill out the optional Election Form. The Notice Program constitute sufficient Notice 

to all persons entitled to Notice. The Settlement Class Notice and Class Notice Program satisfies

all applicable requirements of law, including, but not limited to, Federal Rule of Civil Procedure 

23 and the Constitutional requirement of Due Process.

10. JND Legal Administration is hereby appointed and shall serve as Settlement 

Administrator. The Parties shall jointly oversee the Settlement Administrator. JND shall 

implement the Notice Program, as set forth below and in the Settlement, using the Notice

substantially in the forms attached to the Motion as Exhibits C and D and approved by this 

Preliminary Approval Order. JND shall also fulfill all other administrative responsibilities as set 

forth in the Settlement or as instructed by the Parties. 

11. All fees and costs associated with the Notice Program shall be paid from the 

Settlement Fund.

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Final Approval Hearing, Opt-Outs, and Objections

12. A Final Approval Hearing shall be held before this Court on August 27, 2021, at 

1:30 p.m. to determine whether to grant Final Approval to the Settlement and to enter a Final 

Approval Order, and whether Class Counsel’s application for attorneys’ fees and litigation costs

and request for a Service Award for the Class Representative should be granted.

13. Any person within the Settlement Class who wishes to be excluded from the 

Settlement Class may exercise their right to opt-out of the Settlement Class by following the optout procedures set forth in the Settlement and in the Notices at any time during the Opt-Out Period. 

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

identification number(s), address, telephone number, and email address to the Settlements 

Administrator’s address indicated in the Settlement, on the Settlement Website, or in the Long 

Form Notice. To be valid and timely, opt-out requests must be postmarked no later than the last 

day of the Opt-Out Period, which is 30 days before the Final Approval Hearing. 

14. Any Settlement Class Member may object to the Settlement, Class Counsel’s 

application for attorneys’ fee and litigation costs or expenses, or the request for a Service Award 

for the Class Representative. Any such objections must be mailed to the Clerk of the Court, 

Settlement Administrator, Class Counsel, and Defendant’s Counsel, at the addresses indicated in 

the Settlement, on the Settlement Website, or in Long Form Notice. For an objection to be 

considered by the Court, the objection must be postmarked no later than 30 days before the Final 

Approval Hearing. To be valid, an objection must include the following information:

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;

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d. all grounds for the objection, accompanied by any legal support for the objection 

known to the objector or objector’s counsel;

e. the number of times the objector has objected to a class action settlement within the 

5 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 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 not sufficient).

Further Papers in Support of Final Approval of the Settlement

15. 45 Days before the Final Approval Hearing, Plaintiff and Class Counsel shall file 

their Motion for Final Approval of the Settlement, application for attorneys’ fees and litigation 

costs and expenses, and request for a Service Award for the Class Representative.

Effect of Failure to Approve Settlement

16. If the Settlement is not finally approved by the Court, or for any reason the Parties 

fail to obtain a Final Approval Order as contemplated in the Settlement, or the Settlement is 

terminated pursuant to its terms for any reason, then the following shall apply:

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(a) All orders and findings entered in connection with the Settlement shall 

become null and void and have no further force and effect, shall not be used or referred to for any 

purpose whatsoever, and shall not be admissible or discoverable in any proceeding; and

(b) Nothing in this Preliminary Approval Order is, or may be construed as, any 

admission or concession by or against Defendant or Plaintiff on any point of fact or law.

Stay/Bar of Other Proceedings

17. All proceedings in the Action are stayed until further order of the Court, except as 

may be necessary to implement the terms of the Settlement. Pending final determination of whether 

the Settlement should be approved, Plaintiff, all members of the Settlement Class, and persons 

purporting to act on their behalf are enjoined from commencing or prosecuting (either directly, 

representatively, or in any other capacity) against any of the Released Parties in any action or 

proceeding in any court, arbitration forum or tribunal asserting any of the Released Claims.

18. Based on the foregoing, the Court sets the following schedule for the Final 

Approval Hearing and the actions which must take place before and after it:

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

90 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 

expenses, and request for a Service Award 

45 days prior to the Final Approval Hearing

Deadline for Settlement Class members to 

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

30 days prior to the Final Approval Hearing 

Deadline for Settlement Class Members to 

Object to the Settlement

30 days prior to the Final Approval Hearing

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

Final Approval Hearing August 27, 2021 at 1:30 p.m.

DONE and ORDERED in Chambers in Miami, Florida, this 30th day of March 2021.

_______________________________________ 

JOSE E. MARTINEZ

UNITED STATES DISTRICT COURT JUDGE

Copies furnished to: Counsel of Record

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