1The parties filed copies of their Stipulation with their

"Joint Assented to Motion for Preliminary Approval of Class

Action Settlement Agreement," docket number 73. As used in this

order, "Stipulation" means the parties' Stipulation, filed as

Exhibit 3 and docketed as Exhibit 6; Amendment to Stipulation,

filed as Exhibit 4 and docketed as Exhibit 7; Second Amendment to

Stipulation, filed as Exhibit 5 and docketed as Exhibit 8; Third

Amendment to Stipulation, filed as Exhibit 6 and docketed as

Exhibit 9; and Conformed Copy of Stipulation of Settlement, filed

as Exhibit 7 and docketed as Exhibit 10. All of the exhibits

cited are to the Joint Assented to Motion, docket number 73.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

James Scott, et al.

v. Civil No. 06-286-JD

First American Title Insurance Company

O R D E R

A. On July 31, 2007, the parties to this class action (the

"Action") reached a tentative settlement ("Settlement") and they

advised the court of the Settlement on September 10, 2007. 

Subsequently, the parties submitted a detailed written

Stipulation of Settlement with attached Exhibits A through G

("Stipulation").1 On November 5, 2008, the court preliminarily

approved the proposed Settlement. The court directed the parties

to provide notice of the proposed Settlement to the potential

Class Members and scheduled a further hearing to determine

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whether the proposed Settlement and request for attorneys' fees

and costs are fair, reasonable, and adequate.

B. On March 12, 2009, the court held a hearing to

determine: (i) whether the proposed Settlement should be given

final approval as fair, reasonable and adequate as required by

Fed. R. Civ. P. 23(e)(1)(C); (ii) whether a final judgment should

be entered as required by the Stipulation and Exhibit F thereto;

(iii) whether an incentive award should be made to the Named

Plaintiffs as set forth in Section (V)(G) of the Stipulation; and

(iv) the amount of OLF's award of attorneys' fees, costs and

expenses not to exceed $83,334. Edward K. O'Brien of O'Brien Law

Firm PC appeared for the Named Plaintiff and the Class. Douglas

W. King of BRYAN CAVE LLP and Jennifer Parent, of MCLANE, GRAF,

RAULERSON & MIDDLETON, PA appeared for defendant First American

Title Insurance Company ("First American").

C. 81 putative class members timely requested exclusion

from the class settlement, and one objection (submitted by

Terrence Joyce) was filed with respect to the proposed

Settlement.

D. After reviewing the pleadings and evidence filed in

support of the request for final approval of the Settlement and

the request for attorneys' fees and costs, and hearing the

attorneys for the parties, the court finds, and

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IT IS ORDERED, ADJUDGED, AND DECREED AS FOLLOWS:

1. The court has personal jurisdiction over all Class

Members and First American, and the court has subject matter

jurisdiction to approve the Stipulation (including all exhibits

thereto).

2. The Stipulation, including the definitions applicable to

the Stipulation, is incorporated by reference into this Final

Judgment.

3. The Stipulation and the proposed Settlement are premised

upon certain critical agreed assumptions that are indispensable

to the Stipulation and make this case appropriate for settlement

on a classwide basis including: (a) pursuant to First American's

applicable rate manual, the Refinance Rate, as described in

Section (V)(A)(28) of the Stipulation, is not discretionary, but

rather mandatory; (b) evidence of a prior mortgage on the subject

property is sufficient proof that a prior policy of title

insurance insures the property; and (c) if a HUD-1 Settlement

Statement shows satisfaction of a prior mortgage on the property,

it is further presumed that: (i) a prior policy of title

insurance insures the property; (ii) there has been no change in

fee ownership of the property since the issuance of the prior

policy of title insurance; and (iii) the prior policy of title

insurance was issued within the last 10 years. These agreed

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presumptions have not been adjudicated by this court.

4. Pursuant to Fed. R. Civ. P. 23(e), the settlement of

this Action, as embodied in the terms of the Stipulation, is

hereby finally approved as fair, reasonable and adequate.

5. The objection filed by Terrence Joyce is overruled. Mr.

Joyce contends that because the settlement does not require First

American to refund the entire premium it collected, the

settlement is not fair and reasonable. Even if the plaintiffs

obtained final judgment in their favor, still there is no

statutory or common law basis, on the facts as alleged, for the

court to order First American to refund the entire premium it

collected. Instead, the disputed amount in this case is the

alleged overcharge, which is somewhat less that half of the

entire premium collected. The settlement requires First American

to refund between 50% and 100% of the alleged overcharge

(depending upon the number of successful claimants). The

settlement is fair and reasonable in this regard, as it is not at

all certain that plaintiffs would have recovered anything at all,

had this matter gone to final judgment.

6. Solely for the purpose of settlement and pursuant to

Fed. R. Civ. P. 23(a) and (b)(3), the court hereby finally

certifies the following Class:

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All owners of New Hampshire property who, during the

Class Period June 30, 2003 to December 31, 2007,

refinanced mortgages on such property within ten years

after the date of the issuance of a prior lenders

policy of title insurance insuring a mortgage covering

the same property, where there was no change in

ownership, and who paid a premium for a lenders policy

of title insurance issued by First American in an

amount in excess of the Reissue Rate.

7. The above class is certified for settlement purposes

only, and the certification should not be construed as an

admission by First American with respect to any of the

requirements of Fed. R. Civ. P. 23 or the allegations made

against it in this action by or on behalf of the members of the

Settlement Class.

8. The court appoints James and Sue Scott and Stephen and

Ellen St. Louis as Class Representatives, and finds that they

meet the requirements of Fed. R. Civ. P. 23 (a)(4).

9. The court appoints OLF as counsel for the Settlement

Class ("Class Counsel") pursuant to Fed. R. Civ. P. 23 (c), and

finds that the firm meets the requirements of Fed. R. Civ. P.

23(a)(4) and 23(g)(1)(C).

10. The court appoints OLF as claims administrator.

11. The court finds that:

a. the above-described Settlement Class contains

members so numerous that the joinder of all of them is

impracticable;

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b. there are questions of law or fact common to the

above-described Settlement Class;

c. the claims of the Class Representatives are typical

of the claims of the Settlement Class that Plaintiffs seek to

represent;

d. the Class Representatives and Class Counsel have

fairly and adequately protected the interests of the abovedescribed Class.

12. The court further finds that certification under Rule

23(b)(3) is appropriate because:

a. questions of law or fact common to members of the

Settlement Class, and which are relevant for settlement purposes,

predominate over the questions affecting only individual members;

and

b. certification of the Settlement Class is superior

to other available methods for the fair and efficient

adjudication of the controversies between the Settlement Class

Members and Defendant.

13. The court does not make a finding as to the

difficulties likely to be encountered in the management of a

class action pursuant to Fed. R. Civ. P. 23(b)(3)(D) and is not

required to make such a finding pursuant to Amchem Prod., Inc. v.

Windsor, 521 U.S. 591 (1997).

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14. The parties and their counsel are ordered to implement

and to consummate the Stipulation according to its terms and

provisions.

15. The Settlement Notice and the notice methodology

implemented pursuant to the Stipulation constituted the best

notice practicable under the circumstances, constituted due and

sufficient notice of the matters set forth therein to all persons

entitled to receive notice, fully satisfied the requirements of

due process and Fed. R. Civ. P. 23, and fully and satisfactorily

advised potential Class Members of their rights to object to or

to exclude themselves from the proposed Settlement.

16. The Action is dismissed on the merits and with

prejudice, without an award of fees, costs or expenses to any

party except as provided in the Stipulation.

17. The terms of the Stipulation and this Final Judgment

are binding on the Named Plaintiffs and all other Class Members,

as well as their heirs, executors and administrators, successors

and assigns, and those terms shall have res judicata, collateral

estoppel and all other preclusive effect in all pending and

future claims, lawsuits or other proceedings, including all forms

of alternative dispute resolution, maintained by or on behalf of

any such persons, to the extent those claims, lawsuits or other

proceedings involve matters that were or could have been raised

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in this Action or are otherwise encompassed by the Stipulation

including, without limitation, the failure to compute or collect

premiums in accordance with the Reissue Rate as defined in

Section (V)(A)(28) of the Stipulation.

18. The Named Plaintiffs and all Class Members are deemed

to have conclusively released all rights, claims, complaints or

causes of action against First American or its agents or any of

their predecessors, successors, parents, subsidiaries and related

and affiliated entities, and each and all of their respective

present and former officers, directors, employees, agents,

brokers, attorneys, insurers and representatives, and each and

all of their respective successors, heirs and assigns, arising

out of, based upon or otherwise related to the Released Claims,

and forever discharging First American and the Releasees from all

such rights, claims, complaints or causes of action.

19. The Named Plaintiffs and all Class Members and any

person or entity acting on their behalf are permanently barred

and enjoined from filing, commencing, prosecuting, intervening

in, participating in (as class members or otherwise), or

receiving any benefits or other relief from, any other lawsuit,

in any state or federal court, arbitration, or administrative,

regulatory or other proceeding or order in any jurisdiction based

on or relating to the claims and causes of action, or the facts

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and circumstances relating thereto, asserted in the Action or

otherwise related to the Released Claims.

20. The parties are authorized, without further approval

from the court, to agree to and to adopt such amendments,

modifications and expansions of the Stipulation and all exhibits

attached thereto which (i) are consistent with the Final

Judgment, and (ii) do not limit the rights of Class Members under

the Stipulation.

21. The court hereby grants an incentive award of $3,000 to

James and Sue Scott, for their time and effort in support of the

Action.

22. The court hereby grants an incentive award of $3,000 to

Stephen and Ellen St. Louis, for their time and effort in support

of the Action.

23. The court hereby grants OLF's request for an award of

attorneys' fees, costs and expenses in the amount of $83,334.

24. Without affecting the finality of the Final Judgment,

the court shall retain continuing jurisdiction over the Action,

and the parties, the class, and the administration and

enforcement of the Settlement. Any disputes or controversies

arising with respect to the enforcement or implementation of the

Settlement shall be presented by motion to the court; provided

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however, that nothing in this paragraph shall restrict the

ability of the parties to exercise their rights hereunder.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 3, 2009

cc: Christopher D. Baucom, Esquire

Elizabeth T. Ferrick, Esquire

Wilbur A. Glahn, III, Esquire

Terrence Joyce, pro se

Douglas W. King, Esquire

Charles A. Newman, Esquire

Edward K. O'Brien, Esquire

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