ARcare Inc v. Alere Inc et al

Filing 82

FINAL APPROVAL ORDER AND JUDGMENT granting 71 motion for final approval of class action settlement. Signed by Judge Kristine G. Baker on 4/7/2020. (jbh)

THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
ARCARE, INC., On Behalf of Itself
and All Others Similarly Situated
v.

PLAINTIFF

Case No. 4:17-cv-00147-KGB

ALERE HOME MONITORING, INC.

DEFENDANT

FINAL APPROVAL ORDER AND JUDGMENT
Before the Court is a motion for final approval of class action settlement (Dkt. No. 71).
For the following reasons, the Court grants the motion.
Plaintiff ARcare, Inc., and defendant Alere Home Monitoring, Inc., formerly known as
Tapestry Medical, Inc. (“AHM”) (collectively referred to as the “Parties”), by their respective
counsel, entered into a Class Action Settlement Agreement (the “Settlement”) (Dkt. No. 64-1, Ex.
A). Plaintiff applied, pursuant to Rule 23 of the Federal Rules of Civil Procedure, for an order
preliminarily approving the proposed Settlement and preliminarily approving the form and plan of
notice and distribution as set forth in the Settlement (Dkt. No. 64). The Court entered an order and
an amended order preliminarily approving class action Settlement, directing notice, and scheduling
final approval hearing (the “Preliminary Approval Order”) (Dkt. Nos. 68, 69).
The Court provisionally certified the following class (the “Settlement Class”): Subscribers
of facsimile telephone numbers to which there was a successful transmission of one or more
facsimiles by or on behalf of any of the Released Parties from January 1, 2013, through November
1, 2019, that related in any way to the business of AHM, and/or any products, goods, or services
offered by AHM. The Court also approved the forms of notice of the Settlement to Settlement
Class Members, directed that notice of the Settlement be given to Settlement Class Members, and
scheduled a hearing on final approval.

In accordance with the Settlement Agreement and the Preliminary Approval Order,
Settlement Class Counsel caused the Notice to be disseminated as directed by the Court, giving
the best notice practicable under the circumstances (Dkt. Nos. 76, 80). On March 31, 2020, at 9:00
a.m., this Court held a hearing on whether the Settlement is fair, reasonable, adequate, and in the
best interests of the Class (the “Final Approval Hearing”) (Dkt. No. 81).
Based upon the foregoing, having heard the statements of Settlement Class Counsel and
AHM’s Counsel, and of those who appeared at the Final Approval Hearing; having considered all
of the files, records and proceedings in the above-captioned action (the “Lawsuit”); having
considered the benefits to the Settlement Class under the Settlement and the risks, complexity,
expense, and probable duration of further litigation; and being fully advised in the premises, the
Court orders as follows:
1.

Terms capitalized in this Order and not otherwise defined shall have the meanings

ascribed to them in the Settlement Agreement (Dkt. No. 64-1, Ex. A).
2.

This Court has jurisdiction over the subject matter of this Lawsuit and jurisdiction

over the Parties.
3.

The Court hereby adopts and reaffirms the findings and conclusions set forth in the

Preliminary Approval Order.
4.

The Plaintiff and Settlement Class Counsel fairly and adequately represent the

interests of the Settlement Class in connection with the Settlement.
5.

The Settlement is the product of good faith, arm’s-length negotiations, with the

assistance of a respected and experienced mediator, by the Plaintiff and Settlement Class Counsel,
and Defendant and its counsel, and the Settlement Class and Defendant were represented by
capable and experienced counsel.

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6.

The form, content, and method of dissemination of the Notice given to Settlement

Class Members––as previously approved by the Court in its Preliminary Approval Order––were
adequate and reasonable, constituted the best notice practicable under the circumstances, and
satisfied the requirements of Rules 23(c) and (e) and Due Process.
7.

The Settlement Agreement is fair, reasonable, adequate, and in the best interests of

the Class, and is approved in all respects. The Court hereby directs the Parties and their counsel
to effectuate the Settlement according to its terms.
8.

The Settlement Agreement provides for monetary benefits to Settlement Class

Members Eligible for Cash Payment. The Court approves those benefits and approves the
distribution plan for the Settlement Fund as provided in the Settlement Agreement, specifically
reserving to the Court only any determination that may be necessary regarding a cy pres award
(Dkt. No. 64-1, Ex. A, ¶¶ 57–61).
9.

The Court finds that there are no objections to the Settlement.

10.

The five Settlement Class Members, identified by the Settlement Administrator,

who have timely and validly excluded themselves from the Settlement Class are hereby excluded
from the Settlement (Dkt. No. 80, ¶ 6). Settlement Class Members who have not excluded
themselves shall be bound by the Settlement and the terms of the Settlement Agreement.
11.

The Court generally is aware of three late claims, based on the information

identified by the Settlement Administrator (Id., ¶ 8). The Parties and their counsel indicated at the
Final Approval Hearing an intent to deny the late-filed claims. Courts have repeatedly held that,
until the fund created by a class-action settlement is actually distributed, the court retains its
traditional equity powers, including the power to allow late-filed proofs of claim and late-cured
proofs of claim. See Zients v. LaMorte, 459 F.2d 628, 630–31(2d Cir. 1972); Clark v. Runyon, 165

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F. Supp. 2d 920, 922 (D. Minn. 2001); In re Cendant Corp. Prides Litig., 189 F.R.D. 321, 323
(D.N.J. 1999), aff’d, 233 F.3d 188 (3d Cir. 2000); In re Agent Orange Prod. Liab. Litig., 689 F.
Supp. 1250, 1262–63 (E.D.N.Y. 1988). The Court reserves a ruling on whether the equities require
that the qualifying late claimants be permitted to participate in the Settlement Fund, provided that
the issue is timely presented by a Settlement Class Member.
12.

The Releasing Parties, each and every one of them, shall be deemed to have, and

by operation of the judgment shall have, fully and irrevocably released and discharged the
Released Parties from the Released Claims, all as defined in the Settlement Agreement. The terms
of the Settlement Agreement, which are incorporated by reference into this Order, shall have res
judicata and other preclusive effect as to the Released Claims as against the Released Parties. The
Released Parties may file the Settlement Agreement and/or this Order in any other litigation to
support a defense or counterclaim based on principles of res judicata, collateral estoppel, release,
good-faith settlement, judgment bar or reduction, or any similar defense or counterclaim.
13.

Defendant, by operation of the judgment, shall have fully and irrevocably released

and forever discharged the Settlement Class Representative and Settlement Class Counsel from
any Claims that have been or could have been asserted in connection with the Lawsuit that arise
from or are related to the Claims alleged in the Lawsuit, and any Claims that arise from or related
to the filing or prosecution of the Lawsuit.
14.

The Releasing Parties, each and every one of them, is hereby permanently barred

and enjoined from filing, instituting, prosecuting, or enforcing the Released Claims, directly or
indirectly, in any judicial, administrative, arbitral, or other forum, against the Released Parties.
This permanent bar and injunction is necessary to protect and effectuate the Settlement Agreement
and this Order, and this Court’s authority to effectuate the Settlement, and is ordered in aid of this

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Court’s jurisdiction and to protect its judgments. Notwithstanding the foregoing, nothing in this
Order and judgment shall preclude an action to enforce the terms of the Settlement Agreement.
15.

The above-captioned Lawsuit is hereby dismissed with prejudice, and each side

shall bear his, her, or its own fees and costs.
16.

This Order shall not be construed or used as an admission or evidence of the validity

of any claim or allegation made in the Lawsuit against Defendant or any other Released Party in
the Lawsuit or of any wrongdoing by or against Defendant or any other Released Party, nor as a
waiver by Defendant or any other Released Party of any right to present evidence, arguments, or
defenses, including without limitation to the propriety of class certification, in the Lawsuit or in
any other litigation.
17.

If the Effective Date does not occur for any reason, the Settlement Agreement shall

be rendered null and void ab initio, the Settlement and all proceedings had in connection therewith
shall be without prejudice, the Parties each shall return all rights, claims, and defenses as existed
prior to their execution of the Settlement Agreement and precedent agreement in principle to settle,
such that the case shall return to the status quo ante in the Lawsuit prior to October 24, 2018,
including all rights to oppose certification, and all Orders issued pursuant to the Settlement shall
be vacated nunc pro tunc.
18.

The Parties are hereby authorized, without requiring further approval from the

Court, to agree to adopt amendments and modifications to the Settlement Agreement, in writing
and signed by or as authorized by the Parties, that are not inconsistent with this Order and that do
not limit the rights of Settlement Class Members, including, without limitation, adopting a process
to collect Settlement Class Members’ W-9 information should the Settlement Administrator
determine that such is necessary and required under current Internal Revenue Service rules and

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regulations. The Court does not grant this permission to the Parties with respect to any cy pres
award that may be necessary; the Court specifically reserves and makes subject to Court approval
any determination that may be necessary regarding a cy pres award (Dkt. No. 64-1, Ex. A, ¶ 61).
19.

The Court shall retain jurisdiction over the Parties for purposes of effectuating the

administration and enforcement of the Settlement Agreement.
20.

This Order is final and appealable, and this Order shall constitute a final judgment

for purposes of the Federal Rules of Civil Procedure.
It is so ordered this 7th day of April, 2020.
_________________________________
Kristine G. Baker
United States District Judge

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