Hornsby et al v. Macon County Greyhound Park, Inc.

Filing 193

MEMORANDUM OPINION AND ORDER directing that the 188 Joint Motion for Preliminary Approval of Settlement Agreement, including certification of a settlement class, approval of a notice plan, and setting of a fairness hearing scheduled to be held bef ore the court on April 22, 2013 at 10:00 a.m. at the United States Courthouse, Frank M. Johnson, Jr. U.S. Courthouse Complex, One Church Street, Montgomery, Alabama 36104 is GRANTED, as further set out. Signed by Honorable Judge Myron H. Thompson on 1/16/13. (Furnished to Calendar/AG) (Attachments: # 1 NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT, # 2 CLASS NOTICE OPTION SELECTION CLAIM FORM, # 3 Envelope cover, # 4 Release)(scn, )

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION
LUCRETIA HORNSBY, ANMARIE
YOUNG, PRESTON YOUNG,
DAWN HAMMOCK, CELINA
JORDAN, TABITHA ARLEDGE,
ERICA MILLER, OCIE BUTLER,
and DARRELL THOMAS, on behalf
of themselves and all others similarly
situated,
Plaintiffs,

Case No. 3:10-CV-680-MHT
CLASS ACTION
(WO)

v.
MACON COUNTY GREYHOUND
PARK, INC., MILTON McGREGOR,
McGREGOR ENTERPRISES, and
VICTORYLAND,
Defendants.

OPINION AND ORDER
Before the court is the parties’ Joint Motion for P r e l i m i n a r y A p p r o v a l
of Settlement Agreement and Certification of Settlement Class
[Doc No.188] that includes a request for approval of the Settlement
A g r e e m e n t certification of a "settlement class," approval of a notice plan, and setting
of a fairness hearing. In this putative class action, named-plaintiffs Lucretia Hornsby,
Anmarie Young, Preston Young, Dawn Hammock, Celina Jordan, Tabitha Arledge,
Erica Miller, Ocie Butler, and Darrell Thomas asserted claims for damages under the

Employee Retirement Income Security Act of 1974, 290 S.C. § 1001-1461 for alleged
violations of the Comprehensive Omnibus Budget Reconcilation Act (“COBRA”), 29
USC § 1166 as amended by the American Recovery and Reinvestment Act (“ARRA”)
Act Pub. L. 111-5, Div. B, Title III § 3001, 123 Stat. 462, with respect to the Macon
County Greyhound Park Blue Cross and Blue Shield (“BCBS”) health insurance plan
against defendants Macon County Greyhound Park, Inc. (doing business as Victoryland
and McGregor Enterprises) and Milton McGregor. The terms of the settlement are set out
in a Settlement Agreement (Doc. No. 188-1)executed on October 23, 2012, which has
been properly executed by or on behalf of the named parties. Pursuant to 29 U.S.C.
§ 1132, the court has jurisdiction over the subject matter of this action and over all
parties to this action, including all members of the settlement class. It is ORDERED that
the Joint Motion for P r e l i m i n a r y A p p r o v a l o f S e t t l e m e n t A g r e e m e n t ,
i n c l u d i n g certification of a settlement class, approval of a notice plan, and setting of a
fairness hearing (Doc. No. 188) is granted as follows:

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I. CLASS FINDINGS AND CERTIFICATION
The court preliminarily finds, for purposes of the settlement only, that the
requirements of the Federal Rules of Civil Procedure, the United States Constitution,
the Rules of the Court and any other applicable law have been met as to the
settlement class, in that:
(a) The settlement class is ascertainable from records kept by MCGP

and the members of the settlement class are so numerous that their
joinder before the court would be impracticable.
(b) B a s e d o n a l l e g a t i o n s i n t h e p l a i n t i f f s ' complaint, and

examination of the legal claims and facts necessary to prove them, the
court preliminarily finds that there are one or more q u e s t i o n s o f f a c t
a n d / o r l a w c o mmo n t o t h e settlement class.
(c) B a s e d o n a l l e g a t i o n s i n t h e p l a i n t i f f s ' complaint and otherwise

supported in the record, t h e c o u r t p r e l i m i n a r i l y f i n d s t h a t t h e
defendants engaged in uniform conduct affecting members of the
settlement class. The court further finds that the plaintiffs'
claims and their alleged legal injuries are typical of the claims and
injuries of the settlement class.

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(d) The plaintiffs will fairly and adequately protect the interests of

the settlement class in that: (i) the interests of the plaintiffs and t h e
n a t u r e o f t h e i r a l l e g e d c l a i m s a r e consistent with those
of the members of the settlement class; (ii) there are no significant
conflicts between or among the plaintiffs and the settlement class;
and (iii) the plaintiffs a r e r e p r e s e n t e d b y q u a l i f i e d a n d
r e p u t a b l e counsel who are experienced in preparing and
p r o s e c u t i n g c l a s s actions of this type.
(e) The prosecution of separate actions by individual members of the

settlement class would create a risk of: (i) inconsistent or varying
adjudications as to individual class members, that would establish
incompatible standards of conduct for the parties opposing the claims
asserted in the action; or (ii) adjudications as to individual class members
that would, as a practical matter, be dispositive of the interests
of the other members not parties to the adjudications, or substantially
impair or impede those persons' ability to protect their interests.
Based on these findings, therefore, the court preliminarily certifies the
following settlement class under Federal Rule of Civil Procedure 23(b)(3):
All former employees of Macon County Greyhound Park (d/b/a
Victoryland and McGregor Enterprises)(“MCGP”) who participated in
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a group health insurance plan with BlueCross BlueShield of Alabama
that was provided by MCGP in this action for employees of MCGP,
including employees who signed an arbitration agreement as a condition
to employment, and who were laid off from employment at MCGP in
January and February of 2010 and who were not subsequently re-hired
by MCGP.
The court finds that the settlement class is sufficiently well-defined and cohesive
to warrant certification as a class under Rule 23(a) and 23(b)(3) for settlement
purposes only.
As required by Rule 23(g), the court has considered: (i) the work class counsel
has done in identifying or investigating potential claims in this action; (ii) class
counsel's experience in handling class actions, other complex litigation, and claims
of the type asserted in this action; (iii) class counsel's knowledge of the applicable
law; and (iv) the time and resources class counsel have committed to representing the
class. Based on these factors, the court finds that class counsel have and will
continue to represent fairly and adequately the interests of the settlement class.
Accordingly, pursuant to Federal Rule of Civil Procedure 23(g)(2) the
court preliminarily designates The Segrest Law Firm, Robert Simms Thompson,
P.C., Bailey & Glasser, LLP, The Martin Law Group, LLC, as co-lead class counsel
with respect to the settlement class in this action.

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As mentioned, the court finds that the named plaintiffs are adequate and
typical class representatives for the settlement class and, therefore, appoints these plaintiffs
as the representatives of the settlement class.
The court having determined preliminarily that this action may proceed as a class
action for settlement purposes only under Fed. R. Civ. P. 23(a) and 23(b) (3),
members of the settlement class that do not opt out for purposes of bringing
their own lawsuit shall be bound by any judgment concerning the settlement in
this action, subject to the court's final determination as to whether this action may so
proceed.
II. PRELIMINARY APPROVAL OF SETTLEMENT
The settlement documented in the Settlement Agreement (Doc. No. 188-1) is
preliminarily approved, as the court preliminarily finds that: (a) the proposed settlement
resulted from arm's-length negotiations and was mediated by Chief United States
Magistrate Judge Susan Walker; (b) the Settlement Agreement was executed only after
class counsel had researched and investigated multiple legal and factual issues pertaining
to the plaintiffs' claims; (c) there is a genuine controversy between the parties involving
the defendants' compliance with the law; (d) the settlement appears on its face to be fair,
reasonable, and adequate; and (e) the settlement evidenced by the Settlement Agreement

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is sufficiently fair, reasonable, and adequate to warrant sending notice of the action, and
its settlement, to the settlement class.

A. Fairness Hearing
A fairness hearing, pursuant to Fed. R. Civ. P. 23(e), is scheduled to be held
before the court on April 22, 2013 at 10:00 a.m. at the United States Courthouse,
Frank M. Johnson, Jr. U.S. Courthouse Complex, One Church Street,
Montgomery, Alabama 36104, to determine finally, among other things:
(a)

Whether the settlement should be approved as fair,

reasonable, and adequate;
(b)

Whether the settlement class satisfies the requirements

of Fed. R. Civ. P. 23 and should be finally certified as preliminarily
found by the court;
(c) Whether the litigation should be dismissed with p r e j u d i c e
p u r s u a n t t o t h e t e r m s o f t h e A g r e e m e n t of
Settlement;
(d)

Whether the final approval order attached to the Agreement
should be entered and whether the releasees should be released
of and from the released claims, as provided in the Agreement;

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(e)

Whether the notice and notice methodology implemented
pursuant to the Agreement (i) were reasonably calculated, under
the circumstances, to apprise members of the settlement class
of,
the pendency of the litigation, their right to object to the settlement,
and their right to appear at the fairness hearing; (ii) were
reasonable and constituted due, adequate, and sufficient notice
to all persons entitled to n o t i c e ; a n d ( i i i ) m e t a l l
a p p l i c a b l e requirements of the Federal Rules of Civil
Procedure and any other applicable law;

(f)

Whether class counsel adequately represents the settlement class for
purposes of entering into and implementing the Agreement as required
by Fed. R. Civ. P. 23(g) and as preliminarily found by the court;

(g)

Whether the proposed method of allocation of the settlement is fair,
reasonable, and adequate and should be approved by the court;

(h)

Whether the settlement has been negotiated at arm's length by class
counsel on behalf of the plan and the settlement class, whether
the plaintiffs have acted independently, whether the plaintiffs'

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interests are identical to the interests of the plan and the
settlement class;
(i)

Whether the application for attorneys' fees and expenses to be filed
by class counsel should be approved;

(j)

W h e t h e r c a s e s e r v i c e a w a r d s s h o u l d b e awarded to the
plaintiffs; and

(k)

Any other issues necessary for approval of the
settlement.
B. Class Notice

The parties have presented to the court a proposed Class Notice (Exhibit B to doc.
No. 188-1), consisting of a mailed notice which is appended hereto as exhibit A. The
court approves the form and content of the Class Notice, finding that it fairly and
adequately: (1) describes the terms and effect of the Agreement and of the settlement; (2)
gives notice to the settlement class of the time and place of the fairness hearing; and (3)
describes how the recipients of the class notice may object to approval of the
settlement.
The parties have proposed the following manner of communicating the notice
to members of the settlement class, and the court finds that such proposed manner is
adequate and directs that the plaintiffs shall:
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(a)

By no later than 14 days from the date of this Order, cause the

mailed notice, with such non-substantive modifications thereto as may be
agreed upon by the parties, to be disseminated pursuant to the Agreement, to the last
known address of each member of the settlement class who can be identified
by reasonable effort. At or before the fairness hearing, class counsel shall file with
the court a proof of timely compliance with the foregoing mailing requirements.
The defendants shall, no later than 30 days prior to the date of final
hearing, file with the court proof of compliance with the Class Action Fairness Act
of 2005, as specified in 28 U.S.C. § 1715 and Paragraph 11 of the Settlement
Agreement.
Reasonable expenses of effecting class notice shall be paid out of the
settlement fund.
C. Objections to Settlement
"Objector" shall mean any member of the settlement c l a s s w h o w i s h e s
t o o b j e c t t o t h e f a i r n e s s , reasonableness, or adequacy of the settlement; to
the plan of allocation; to any term of the Settlement Agreement; to the proposed
case contribution awards; or to the proposed award of attorney's fees and
expenses. Any objector must complete, sign and return the Class Notice Option form to
the Third Party Administrator in the self addressed stamped envelope that is to be sent out
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with the Class Notice. The objectors will be required to state the reason for objecting on
the Class Notice Option Form. Also, if any objector wishes to appear at the hearing on
final approval, it must be indicated on the required form. The Claim Notice Option Form
must be post marked no later than 45 days from the date the Class Notice is mailed out.
The Third Party Administrator will receive the objection notices and will notify Class
Counsel of all, if any, objectors. Class counsel will notify Defense Counsel and the Court
of any objectors 30 days prior to the final hearing.

III. OTHER FEES AND EXPENSES
Any application by class counsel for attorneys’ fees and reimbursement of expenses;
for a case contribution award to the plaintiffs, and all papers in support thereof, shall be
filed with the court and served on all counsel of record at least 28 calendar days prior to the
fairness hearing.
IV. FINALIZATION OF SETTLEMENT
Class counsel shall file with the court a motion for entry of the final approval order
and approval of the plan of allocation at least 28 calendar days prior to the fairness hearing.
Pending final determination of whether the settlement should be approved, all
members of the settlement class are each BARRED AND ENJOINED from instituting or
prosecuting any action that asserts any released claim against Defendants including but not
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limited to their agents, officers, directors, employees (past and current), affiliates and
related companies.
If the settlement is terminated in accordance with the Agreement of Settlement or
does not become final under the terms of the Agreement of Settlement for any other reason,
this order and all class findings shall become null and void, and shall be without
prejudice to the rights of the parties, all of whom shall be restored to their respective
positions existing immediately before the court entered this order.
In the event this order becomes of no force or effect, no part of it shall be
construed or used as an admission, concession, or declaration by or against the
defendants of any fault, wrongdoing, breach, or liability, nor shall the order be
construed or used as an admission, concession, or declaration by or against the plaintiffs or
the settlement class that their claims lack merit or that the relief requested in the action
is inappropriate, improper, or unavailable, or as a waiver by any party of any defenses or
claims he, she, or it may have. The court reserves the right to continue the fairness hearing
without further written notice.

DONE, this the 16th day of January, 2013.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE