Opinion
Case No. C-97-1421-MMC
February 28, 2003
Daniel C. Girard, Eric H. Gibbs, Ann Saponara, GIRARD GIBBS De BARTOLOMEO LLP, for defendant BANKFIRST
Robert S. Green, Jenelle Welling, GREEN JIGARJIAN LLP, for defendant BANKFIRST
Jane Michaels, Peter Houtsma, Jennifer Harvey HOLLAND HART LLP, for defendant BANKFIRST
Timothy M. Flaherty, LANAHAN REILLEY LLP, San Francisco, California, for defendant BANKFIRST
Douglas L. Hendricks, MORRISON FOERSTER LLP, San Francisco, California, for Defendants American Fair Credit Association, Inc. and Phillip Gray
Fredrick S. Levin, MAYER, BROWN, ROWE MAW, Los Angeles, California, for Defendants United Membership Marketing Group, LLC and UICI f/k/a/ United Insurance Companies, Inc.
[PROPOSED] SETTLEMENT APPROVAL ORDER AND FINAL JUDGMENT
Plaintiff Dadra Mitchell, through her counsel, has submitted to the Court a motion for final approval of the Settlement Agreement and of her proposed Plan of Allocation for the Cash Consideration ("Motion"). Defendants BANKFIRST, American Fair Credit Association, Inc. ("AFCA"), United Membership Marketing Group, LLC, UICI, and Phillip A. Gray (collectively, "Defendants"), through their counsel, support the Motion to the extent it seeks final approval of the Settlement Agreement and take no position with respect to Plaintiff's proposed Plan of Allocation.
Unless otherwise defined herein, all terms used herein shall have the meanings set forth in
By the Preliminary Approval Order, this Court granted preliminary approval of the Settlement Agreement. Due notice of the pendency of this Action, the proposed Settlement, the proposed Plan of Allocation, and the Settlement Hearing was mailed by first-class mail, postage prepaid, to the last known addresses of all identifiable Settlement Class Members, as determined by AFCA's records, in the form and manner approved and directed by the Preliminary Approval Order. All interested Persons were given an opportunity to be heard at the Settlement Hearing.
This Court has reviewed the papers filed in support of the Motion, including the Settlement Agreement, the Plan of Allocation, memoranda and briefs submitted by Plaintiff and Defendants, and supporting declarations. The Court held the Settlement Hearing on February 28, 2003, at which time Plaintiff, Defendants, and all other interested Persons were heard in support of and in opposition to the proposed Settlement Agreement and Plan of Allocation.
Based on the papers filed with the Court and the presentations made to the Court by Plaintiff, Defendants, and other interested Persons at the hearing, it appears to the Court that the Settlement is fair, adequate, and reasonable. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED:
1. The Court has jurisdiction over the subject matter of this Action and over all parties to this Action, including all Settlement Class Members.
2. By its Preliminary Approval Order, the Court conditionally certified the following Settlement Class for settlement purposes only:
all Persons who entered into a membership agreement with AFCA during the period from October 22, 1992 through the Effective Date, inclusive, except Defendants (as defined in the Settlement Agreement), any entity in which Defendants have a controlling interest, and the legal representatives, successors, or assigns of any such excluded party.
3. The Court hereby reaffirms its conclusion, set forth in its Preliminary Approval Order, that, for settlement purposes, this Settlement Class meets the prerequisites for the bringing of a class action and the requirements for maintenance of a class action under Rule 23(a) and Rule 23(b)(3) of the Federal Rules of Civil Procedure. The Court hereby makes final its previously conditional certification of the Settlement Class and approval of Plaintiff and Class Counsel to represent the Settlement Class.
4. By its Preliminary Approval Order, the Court also approved the form of Notice of Pendency Of Class Action, Proposed Settlement, And Settlement Hearing ("Notice") and ordered that the Notice be mailed by first-class mail, postage prepaid, no later than January 3, 2003, to the last known addresses of all identifiable Settlement Class Members, as determined by AFCA's records. As shown by the Declaration of John Pizzuto, filed January 24, 2003, the Notice was mailed in accordance with the Preliminary Approval Order. As the Court found in its Preliminary Approval Order, the dissemination of the Notice in this manner was the best notice to the Settlement Class practical under the circumstances, and satisfied the requirements of due process and all applicable laws.
5. At the Settlement Hearing, Plaintiff appeared through Class Counsel, and Defendants appeared through their counsel. Annexed hereto as Exhibit "A" is a list of all Settlement Class Members who have submitted timely and proper requests for exclusion from the Settlement Class and have not revoked their requests ("Opt-Outs"). The Opt-Outs are hereby excluded from the Settlement Class and shall not participate further in this Action, shall not be entitled to participate in the Settlement, and shall not be bound by or share in the benefits of any subsequent determination in this Action.
6. The Court grants final approval of the settlement of this Action in accordance with the terms of the Settlement Agreement and Plan of Allocation, and finds that such settlement is fair, reasonable, and adequate for the Settlement Class as a whole in all respects.
7. The Settlement Agreement and Plan of Allocation are approved in all respects, and this Action is dismissed on the merits with prejudice as to Defendants and (except as provided for in the Agreement) without costs to any Party as against any other, and each Settlement Class Member, including Plaintiff, is forever enjoined and barred from commencing or prosecuting, either directly, representatively, derivatively, or in any other capacity, a class action, a derivative action, or any other action against the Released Persons, past and present, with respect to, based on, arising from, or for any and all Released Claims.
8. Without affecting the finality of this Judgment in any way, and pursuant to the request of the Parties, the Court retains jurisdiction to the full extent authorized by the Federal Rules of Civil Procedure.
9. Neither this Judgment nor the Settlement is an admission or concession by any Defendant of any fault, omission, liability, or wrongdoing. This Judgment is not a finding of the validity or invalidity of any claim in this Action or a determination of any wrongdoing by any Defendant. The final approval of the Settlement does not constitute any opinion, position, or determination of this Court, one way or the other, as to the merits of the claims and defenses of Defendants, Plaintiff, or the Settlement Class Members. Neither this Judgment, nor the Settlement, nor the settlement negotiations, nor any related document shall be used as an admission of any fault or omission by any Defendant or be offered or received in evidence as an admission, concession, presumption or inference of any wrongdoing by any Defendant in any proceeding other than such proceedings as may be necessary to consummate or enforce the Settlement.
10. If this Judgment does not become final or the Settlement otherwise does not become effective, or is set aside in accordance with the terms of the Settlement, this Judgment, except as to this paragraph, shall be rendered null and void and shall be vacated nunc pro tunc, the Settlement shall be terminated pursuant to its terms, and Plaintiff and Defendants shall be deemed to have reverted to their respective status and positions in the Action immediately prior to the entry of the Preliminary Approval Order.
11. Plaintiff and Defendants are ordered and enjoined to comply with all of the terms and provisions of this Judgment and the Settlement as reasonably necessary to effectuate all of the terms contained in the Settlement or this Judgment. The obligations of each Defendant shall not exceed those obligations expressly imposed on that particular Defendant by the Settlement and Judgment.
The Clerk is hereby directed forthwith to enter this Settlement Approval Order And Final Judgment as the judgment in this Action. It is so ordered.
MITCHELL V. AFCA FEDERAL OPT-OUTS
NAME ADDRESS 1 Achkir, Abdenbi 5572 Arnold Palmer Dr., #333 Orlando, FL 32811 2 Almonte, Malby 146 Manhattan Avenue Apt. 9 Jersey City, N.J. 07307 3 Amoury, Paul J. 8206 Catbird Circle, #101 Lorton, VA 22079-2841 4 Baker, Heather 3245 S. Wilmot Rd., #2207-A Tucson, AZ 85730 5 Barlow, Carrie 1100 Fox Meadow #190 Alvin, TX 77511 6 Beveridge, Lisa A. 708 Brook Avenue Union Beach, N.J. 07735-3143 7 Bostock, Carlton 624 Nye Avenue #5-T Irvington, N.J. 07111 8 Budds-Fruggiero, Madalena 9231 Woodbury Court Orland Park, IL 60462 9 Clutts, Mary 8280 London Town PI. Lot 104 Spring, TX 77389 10 Corbett, Bonita Lee PO Box 121 Arnold, MO 63010 11 Davis, Debbie K. 16495 E. 13th Place Aurora, CO 80011 12 Doty-Goodner, Sue 3820 Bonita Drive Piano, TX 75025 13 Dvorak, Bronislava 2217 Prentiss Dr. Apt. 0309 Downers Grove, IL 60516-5329 14 English, Maria 6363 West Airport #723 Houston, TX 77035 15 George, Charles 83 South Main Street Apt. 4 Franklin, NH 03235-1508 16 Gilkes, Brian 4100 NE 19thAveApt. B Pompano Beach, FL 33064 17 Glissendorf, David 7114 E. Portland Drive Tucson, AZ 85730 18 Grimes, Randy 2887 Clare Ave. Bremerton, WA 98310 19 Hanna, Michael T. 7612 66th Place NE Marysville, WA 98270 20 Harvey, Alice 1056 Wallace Street Gary, Indiana 46404 21 Hervey, Denise 5523 Bainbridge Drive Arlington, TX 76018 22 Hill, Linda T. 115 Momingside Lane St. George, SC 29477 23 Hooker, Michael D. 4170 W. Nelson Street Chicago, IL 60641 24 Jarrett, Peter M. 65 Cedar St. Basement Apt. Norwalk, CT 06854 25 Johnson, Donestha 4709 Pearl Street Denver, CO 80216 26 Kendrick, Steve N. 17503 Lobo Tr Houston, TX 77084-1185 27 Layton, Preston S. 150 Skyway Court Lyman, SC 29365 28 Lepore, Paul A. 914 Tyson Avenue 29 Linkswiler, Harold 21739 Elroy Warren, Ml 48089 30 Maloof-Christman, Frances 35 Brookside Street Dracut, MA 01862 31 Mantise, Janette Marie 917 South Gray Avenue Webster Groves, MO 631 19 32 Nash, Evelyn L. 4546 Silver Lake Drive Dallas, TX 75211-7844 33 Petty, Paula 1793 See Avenue Hamilton, OH 45011 34 Pimentel, Karla D. 72 Irvington St. New Bedford, MA 02745 35 Pinkston, Donita 2560 North 28th Street Philadelphia, PA 19132 36 Porras, Andres L. 1102 Blitzen Drive Henderson, NV 89012 37 Rhodes, Jamie Lee 362 South Valley Drive Apache Jct., AZ 85220 38 Robertson, Dennis 1504 Broadway Highland, IL 62249 39 Salas, Patrick D. 11 Coyote Pass Road Santa Fe, NM 87508 40 Schiermeyer, Christina 6689 N. Positano Way Tucson, AZ 85741 41 Schwalbe, Maria R. 6828 North 18th Street Philadelphia, PA 19126 42 Sheffey, Dorothy R. 329 1/2 Lincoln Avenue Pittsburghm PA 15206-4114 43 Simmons, Jacqueline B. 5 West Washington Ave. Apts Stamford, CT 06902 44 Swepson, Melvin 928 B Emjay Way Carthage, N.Y. 13619 45 Thompson, Clinton PO Box 181 Boothville, LA 70038 46 Vallejo, Delia 2014 William Street Lansing, Ml 48915-1051 47 Weekes, Carolyn M. 2010 Deerfield Drive Bensalem, PA 19020-4481 48 Whiteman, Joseph W. 12215 Lois Street Bishopville, MD 21813 49 Zarrelli, Paul 6905 Beggs Road Orlando, FL 32810 [PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES
The law firms approved by this Court as Class Counsel, in connection with the class action settlement in this case, have moved for an award of attorneys' fees in the amount of $2.2 million, and for reimbursement of expenses in the amount of $114,355. The Court heard the motion February 28, 2003. The Court finds and orders as follows.
Class Counsel seek their fee under the lodestar-multiplier approach. The requested fee represents Class Counsel's lodestar enhanced by a multiplier of approximately 1.19. The Court has evaluated Class Counsel's fee request under the factors set forth in Kerr v. Screen Extras Guild. Inc., 526 F.2d 67 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976), and finds that the lodestar and requested multiplier are reasonable under all the circumstances, including the length and complexity of the federal litigation, the contingent risk borne by Class Counsel, the benefits obtained for the class through the settlement, multipliers applied in similar cases, and a "cross-check" of the requested fee under the percentage-of-recovery approach.
Therefore, the Court grants Class Counsel's request for an award of attorneys' fees in the amount of $2.2 million. The Court also grants Class Counsel's request for reimbursement of expenses in the amount of $114,355. These amounts are to be paid from the cash fund established under the settlement, plus interest at the same rate earned by the fund.
It is so ordered.