Sumpter v. Crittenden Hospital Association et al

Filing 162

ORDER granting as modified 158 MOTION for preliminary approval of the proposed class settlement. The deal is within the range of reasonable ways to resolve this case fairly - depending on the amount of claims received and the exposure to future collection efforts. A fairness hearing will be held at 10:00 a.m. on 10/25/2017 in Courtroom 324 of the E.C. "Took" Gathings Federal Building in Jonesboro. The Court will address the fairness of the proposed settlement and the fee dispute in one hearing. Signed by Judge D. P. Marshall Jr. on 3/14/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
YOLANDA GOODMAN,
on behalf of herself and all similarly
situated persons

v.

PLAINTIFF

No. 3:14-cv-229-DPM

CRITTENDEN HOSPITAL ASSOCIATION, INC.;
EUGENE K. CASHMAN, III; W. BRAD McCORMICK;
CIGNA HEALTH AND LIFE
INSURANCE CO.; JAMIE R. CARTER, JR;
DAVID G. BAYTOS; DAVID RAINES, JR;
JASON W. COLLARD; HERSCHEL F. OWENS;
ANDREW LUTTRELL; KEITH M. INGRAM;
RANDALL CATT; WILLIAM JOHNSON;
LANNIE L. LANCASTER; JULIO P. RUIZ;
SHERRYL. LONDON; NESS S. SECHREST;
RANDY R. SULLIVAN; and LEVEN WILLIAMS
DEFENDANTS
ORDER
1. The Court certified the following class under Federal Rule of Civil
Procedure 23(b)(1)(A) and (B):

From 1 January 2012 to 12 September 2014, Plaintiff and all
similarly situated participants and beneficiaries who were
included in the Plan, and excluding the defendants, their affiliates
and families, and the judge in this case and his staff.

Ng 103 at 12. In the same Order, the Court appointed Goodman as class
representative and her attorneys of record as class counsel.

2.

The motion for preliminary approval of the proposed class

settlement, NQ 158, is granted as modified and with some caveats. The deal
is within the range of reasonable ways to resolve this case fairly-depending
on the amount of claims received and the exposure to future collection efforts.
We'll see at the fairness hearing what the facts are on a full evidentiary record.
The Court will hold that hearing at 10:00 a.m. on Wednesday, 25 October 2017
in courtroom 324 of the E.C. "Took" Gathings Federal Building in Jonesboro.
The Court will address the fairness of the proposed settlement and the fee
dispute in one hearing.
3. The Court adopts the following schedule.

•

Notice mailed and publication begins

26 April 2017

•

CAF A notice provided

28 April 2017

•

Motion for attorney's fees filed

19 May 2017

•

Attorney's fees motion and supporting
papers posted on website

24 May 2017

•

Deadline for final newspaper publication

24 May 2017

•

Claim period ends

26 June 2017

•

O"Qjection deadline

26 June 2017

•

Proof of CAF A compliance filed
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31August2017

•

Final report of claims filed

•

Notice of hearing appearances
delivered

15 September 2017

Supplemental objections based on
final claims report due

15 September 2017

•

31 August 2017

•

Pre-hearing information sheets (listing
exhibits, witnesses, and appearing
objectors) and hearing briefs
(twenty-page limit) filed
29 September 2017

•

Report on supplemental objections
filed

29 September 2017

Motion and supporting papers for
final approval filed

29 September 2017

•
•

Hearing exhibits delivered to Court

13 October 2017

•

Fairness/ fees hearing

25 October 2017

4. Here are the modifications and caveats. They're designed to ensure
adequate notice to class members, provide adequate opportunity for
objections, and conform the proposed agreement to governing law.
•

In the circumstances presented, though he's still among
class counsel, Denny Sumpter is not barred from objecting
to the proposed settlement on behalf of Goodman or other
class members. His objections, Ng 159, are -to the extent
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not addressed in this Order- overruled without prejudice
as premature.

•

To maximize the chances of reaching class members, the
settlement administrator needs to do a bit more.
There should be two re-mailings of any returned mail.
The newspaper notice should be published on a
Wednesday, a Saturday, and another Wednesday.
This will cover what is usually the largest circulation
day (Wednesday) and a day when folks may have
more time to read it.
The newspaper notice should be published in the first
section, with the news, not in the want ads.

•

The notices need tweaking .
All references to the settlement should be to the
"proposed settlement."
Add a § 6 (mailer version), and an echoing § 3
(publication version),

that lists

deadlines and dates in bullet points.

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all important

•

To give adequate time to correct deficiencies, the cure
period for claims,§ V, D, ~ 14, should be thirty (not twenty)
days.

•

As long as it's cost effective to do so, any rema1n1ng
settlement funds should be distributed to the class members

pro rata, instead of to a charity. In re Bankamerica Corporation
Securities Litigation, 775 F.3d 1060, 1064 (8th Cir. 2015);
PRINCIPLES OF AGGREGATE LITIGATION§ 3.07 (2010). If we
get there, the Court will approve any cy pres recipient after
hearing from the parties and considering the fitness of
nominated charitable organizations. Ibid.
•

Post a copy of this Order on the website.

•

Any modifications to the proposed settlement agreement
must, at a minimum, be disclosed, filed, and, if material,
approved by the Court. Compare FED. R. CIV. P. 23(e)(3),

with NQ 158, § I,
•

Section V, D,

il

il 3.
11, which covers how expenses must be

documented, appears incomplete.

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But the claim form

provides good specifics and alternatives, which the Court
approves.

•

Because the final claims report will contain important
information bearing on the proposed settlement's fairness
and adequacy, anyone who files a timely objection by 26
June 2017 to the proposed settlement may supplement his
or her objection - based solely on the final claims
report-by 15 September 2017.

5. CMM Settlement Solutions, LLC is appointed as the settlement
administrator in accordance with the provisions of Sections IV and V of the
proposed agreement.

The contact information for the settlement

administrator is:
CMM Settlement Solutions
P.O. Box 341303
Memphis, TN 38184
[phone]
6. The Court approves for publication the class notice (as modified by
this Order) that is attached as Exhibit C to the proposed agreement. The
Court also approves for mailing to the class members the class notice (as
modified by this Order) that is attached as Exhibit B.
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7. By 26 April 2017, the settlement administrator must send by first
class mail to the last known address of each class member a copy of the
modified class notice and the modified claim form in the manner detailed in
§ V, C,

~

6 of the proposed agreement.

8. The settlement administrator shall also publish the modified class
notice on a Wednesday, a Saturday, and another Wednesday in the first
section of Crittenden County's newspaper, The Evening Times. The published
version of the notice shall occupy at least 1/ 4 of a page, the bigger the better.
The third date of publication shall occur no later than 24 May 2017.
9. The Court tentatively concludes that the modified class notices and
the modified notice methodology implemented pursuant to the proposed
agreement accomplish several goals: (i) constitute the best practicable notice;
(ii) are reasonably calculated, under the circumstances, to apprise class
members of this case, their rights to remain in the class, to make a claim, and
to object to the proposed settlement; (iii) are reasonable and adequate notice
to all persons entitled to received notice; and (iv) satisfy due process. The
Court will revisit these tentative conclusions after the settlement
administrator reports on dissemination and claims.

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10. The Court directs the settlement administrator to file proof of
dissemination of class notice and a comprehensive final report of claims by
31 August 2017.
11. The Court approves the claim form, as modified by this Order and
with dates inserted.
12. Class members will have until 26 June 2017 to postmark and mail
claim forms to the settlement administrator. Claim forms postmarked after
that date will be untimely.
13. All class members are preliminarily enjoined from doing several
things: (i) filing, commencing, prosecuting, intervening in, or participating
as a plaintiff, claimant, or class member in any other lawsuit or
administrative, regulatory, arbitration, or other proceeding in any jurisdiction
based on, relating to, or arising out of the claims and causes of action, or the
facts and circumstances alleged in this case or relating to the released claims
(as defined in § VI, C, if 6 of the proposed agreement); and (ii) filing,
commencing, or prosecuting a lawsuit or administrative, regulatory,
arbitration, or other proceeding as a class action on behalf of any class
members (including by seeking to amend a pending complaint to include

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class allegations or seeking class certification in a pending action), based on,
relating to, or arising out of the claims and causes of action, or the facts and
circumstances relating thereto, asserted or that could have been asserted in
this case or the released claims.
14. All class members shall be bound by all proceedings, orders, and
judgments in this case.
15. Any class member may timely object to the fairness, reasonableness,
or adequacy of the proposed agreement, the proposed settlement, the
requested attorney's fees and expenses, or the proposed named-plaintiff
incentive award by 26 June 2017. Any objection should be sent to the
settlement administrator. Any objection must contain a short statement with
any relevant facts, law, or other evidence. The settlement administrator must
include all objections to date in the 31August2017 final claims report. The
settlement administrator must also note in that report any late objections.
Any timely objector may supplement his or her objection based solely on
information in the final claims report. Any supplemental objection must be
delivered to the settlement administrator and class counsel by 15 September

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2017. Class counsel must file a report of supplemental objections (attaching
copies) with the Court by 29 September 2017.
16. Any class member who makes a timely written objection may
appear at the fairness hearing, either in person or through counsel. The class
member must deliver to the settlement administrator a notice of intention to
appear by 15 September 2017. Class counsel must list all appearing objectors
in their pre-hearing information sheets due on 29 September 2017.
17. The Court directs the settlement administrator to rent a post office
box in its name, which will be used for receiving objections, notices of
intention to appear, and any other settlement-related communications. Only
the settlement administrator, class counsel, defendants' counsel, and their
designated agents shall have access to this post office box, except as otherwise
expressly provided in the proposed settlement agreement.
18. The settlement administrator shall promptly furnish class counsel

and defendants' counsel with copies of all objections, notices of intention to
appear, and other communications that come into its possession, except as
otherwise expressly provided in the proposed agreement.

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19. On 25 October 2017, the Court will hold a hearing on whether to
grant final approval of the proposed agreement (the "fairness/ fees hearing").
The Court will consider any objections by class members or others and decide
on the fairness, reasonableness, and adequacy of the proposed agreement.
The Court will also decide whether the proposed agreement- including the
release and the attorney's fees - should be finally approved by the Court.
20. By 28 April 2017, the settlement administrator shall provide notice
of the proposed settlement, the fairness/ fees hearing, and this Order to the
appropriate state and federal authorities in compliance with the Class Action
Fairness Act ("CAFA"), 28U.S.C.§1715. The Court finds that Defendants can
satisfy CAFA' s notice requirements, 28 U.S.C. § 1715(b), by providing
appropriate notice of the proposed agreement to the United States Attorney
General and the Attorneys General of the states of Arkansas, Tennessee, and
Mississippi. Defendants shall file proof of compliance with CAFA's notice
requirements by 31August2017.
21. Class counsel must file their motion for an award of attorney's fees
and expenses by 19 May 2017. The settlement administrator shall post the
motion and all supporting papers on the website by 24 May 2017.

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22. The motion and supporting papers seeking final approval of the
proposed agreement must be filed by 29 September 2017.
23. The Court recognizes that, pending final Court approval, the parties
reserve all of their defenses, claims, and litigation positions as they existed on
21July2016, and that any party has the right to withdraw from the proposed
agreement under the circumstances set forth in§ VIII, ifl.
24. The Court authorizes and directs Defendants to pre-fund the
attorney-fee-and-expense award by making an advance payment to class
counsel of $50,000. This amount will be used to pay class administration
expenses.

Defendants will be entitled to a $50,000 credit against any

fee/ expense award later made by the Court.
25. Neither the proposed settlement agreement, nor any of its terms or
conditions, nor any of the exhibits, nor any term of this Order, shall be
construed as an admission or concession by Defendants of any allegation in
this action, of liability, fault, or wrongdoing, or of the appropriateness of the
Court's certification Order.
26. This Order will become void, and be without prejudice to the rights
of the parties, all of whom shall be restored to their respective positions

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concerning the litigation as of 21July2016, if: (a) the proposed agreement is
not finally approved by the Court; or (b) any party withdraws from the
agreement under § VIII,

if 1 of the proposed agreement.

So Ordered.

D.P. Marshall Jr.
United States District Judge

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