Larey et al v. Allstate Property and Casualty Company
ORDER granting 65 Motion to Certify Class. Case stayed pending further order from the Court. (See Order for specific details.) Signed by Honorable Susan O. Hickey on September 25, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MICHAEL H. LAREY, individually
and on behalf of all others similarly
Case No. 4:14-cv-4008
ALLSTATE PROPERTY AND CASUALTY
Before the Court is Plaintiff’s Agreed Motion for Preliminary Approval of Class
Settlement, Class Certification for Settlement Purposes, Appointment of Class Representatives,
Appointment of Class Counsel. (ECF No. 65). Plaintiff and Defendant Allstate Property and
Casualty Insurance Company (“Allstate”) have agreed—subject to Court approval—to settle this
litigation pursuant to the terms and conditions stated in the Stipulation of Settlement (the
“Stipulation”) filed with the Court on June 2, 2017. (ECF No. 65-1). On August 28, 2017, the
Court held a hearing regarding the motion. The Court finds this matter ripe for consideration.
Pursuant to Federal Rule of Civil Procedure 23(e), the Court must approve this class
action settlement before it becomes effective. Review of a proposed class action settlement
typically proceeds in two stages. “At the first stage, the parties submit the proposed settlement to
the Court, which must make ‘a preliminary fairness evaluation.’” Martin v. Cargill, Inc., 295
F.R.D. 380, 383 (D. Minn. 2013) (quoting Fed. Judicial Ctr., Manual for Complex Litigation,
Fourth (“MCL”), § 21.632). “If the proposed settlement is preliminarily acceptable, the Court
then directs that notice be provided to absent class members, in order to afford them an
opportunity to be heard on, object to, and opt out of the settlement.” Id. (citing Fed. R. Civ. P.
23(c)(3), (e)(1), (e)(5)).
When making a preliminary fairness evaluation, the “fair, reasonable, and adequate”
standard imposed by Rule 23(e)(2) is lowered, and the Court’s focus is on whether the settlement
is “within the range of possible approval due to an absence of any glaring substantive or
procedural deficiencies.” Schoenbaum v. E.I. Dupont De Nemours and Co., No. 4:05-cv-1108
ERW, 2009 WL 4782082, at *3 (E.D. Mo. 2009).
Although proposed settlements are
presumptively reasonable at the preliminary-approval stage, the Court must nonetheless
“consider issues such as whether the settlement carries the hallmarks of collusive negotiation or
uninformed decision-making, is unduly favorable to class representatives or certain class
members, or excessively compensates attorneys.” Id. “Because there is typically no client with
the motivation, knowledge, and resources to protect its own interests, the judge must adopt the
role of a skeptical client and critically examine the class certification elements, the proposed
settlement terms, and procedures for implementation.” MCL at § 21.61.
IT IS HEREBY ORDERED THAT:
The Stipulation is incorporated by reference in this Order, and all terms defined in
the Stipulation shall have the same meanings in this Order.
The Stipulation and Proposed Settlement are preliminarily approved as fair,
adequate, and reasonable, and Plaintiffs’ motion for preliminary approval of the Proposed
Settlement is hereby GRANTED in all material respects, subject to further consideration at the
Final Approval Hearing. However, the Court does find that the Stipulation must be amended in
certain non-material respects, as specifically noted below. Provisions of this Order that deviate
from the terms of the Stipulation will be underlined.
Contingent upon final approval of the Proposed Settlement, and pursuant to
Federal Rule of Civil Procedure 23, Plaintiff’s motion for preliminary class certification is
hereby GRANTED. The following Class is conditionally certified for settlement purposes only:
All Persons in Arkansas who had a Covered Loss, where estimated labor
depreciation was initially deducted from the claim payment, and where the claim
was paid at less than the limit of liability (accounting for deductible) as set forth
on the declarations page of the applicable Policy.
Excluded from the Class are:
(1) Persons who received indemnification payment(s) for full
replacement cost with no initial deduction of any estimated labor
(2) Persons who received indemnification payment(s) in the full
amount of limit of liability shown on the declarations page of their
(3) Allstate and its affiliates, officers, and directors;
(4) Members of the judiciary and their staff to whom this action is
(5) Class Counsel.
“Covered Loss” means a first party insurance claim for physical damage, with a
date of loss from December 7, 2010 to November 22, 2013 on an Arkansas
homeowners insurance policy issued by Allstate Insurance Company, Allstate
Indemnity Company, Allstate Property & Casualty Insurance Company, Allstate
Vehicle and Property Insurance Company, or North Light Specialty Insurance
Company that resulted in an indemnity payment by any of those companies under
Coverages A or B.
Michael H. Larey is preliminary appointed as the representative of the Class (the
“Representative Plaintiff”), and the Court preliminarily finds that the following attorneys for
Plaintiff satisfy the adequacy requirement of Federal Rule of Civil Procedure 23, and appoints
such as counsel for the Class (“Class Counsel”):
D. Matt Keil
John C. Goodson
KEIL & GOODSON P.A.
406 Walnut Street
Texarkana, AR 71854
William B. Putman
TAYLOR LAW PARTNERS
303 E. Millsap Road
P.O. Box 8310
Fayetteville, AR 72703
R. Martin Weber, Jr.
Richard E. Norman
CROWLEY NORMAN LLP
Houston, TX 77056
A.F. “Tom” Thompson, III
Kenneth P. Castleberry
MURPHY, THOMPSON, ARNOLD,
SKINNER & CASTLEBERRY
P.O. Box 2595
555 East Main Street
Batesville, AR 72503
James M. Pratt, Jr.
JAMES M. PRATT, JR. P.A.
144 Washington NW
P.O. Box 938
Camden, AR 71701
Jason Earnest Roselius
Jack Austin Mattingly, Jr.
MATTINGLY & ROSELIUS, PLLC
13182 N. MacArthur Blvd.
Oklahoma City, OK 73142
Matthew L. Mustokoff
Richard A. Russo, Jr.
KESSLER TOPAZ MELTZER
280 King of Prussia Road
Radnor, PA 19087
If final approval of the Proposed Settlement is not granted, this Order, including
the above description of the Class, the preliminary certification of the Class, and the preliminary
appointment of the Representative Plaintiff and Class Counsel, shall be automatically vacated. If
the Stipulation is terminated, disapproved, or materially altered in whole or in part by the Court,
any appellate court(s), or any other court of review, or if the Stipulation is terminated as provided
in Paragraphs 66-67 of the Stipulation; the Stipulation or any provision of the Stipulation or the
fact of the Stipulation having been made, shall not be admissible or entered into evidence,
referenced or cited for any purpose whatsoever and shall not be subject to discovery as provided
in Paragraph 70 of the Stipulation.
Pending a final determination of whether the Proposed Settlement should be
approved as fair, reasonable, and adequate, neither Representative Plaintiff nor any potential
Class Member who has not opted out, whether directly, indirectly, representatively or in any
other capacity, shall start, join, continue, litigate or participate in, support, or accept any benefit
or relief from any other lawsuit, arbitration, or administrative or regulatory proceeding against
Allstate that is based on, relates to, or involves any of the claims, facts, circumstances, or subject
matters of this Lawsuit or the Stipulation. Accordingly, the Court hereby preliminarily enjoins
Representative Plaintiff and any Class Member who has not opted out from instituting,
maintaining, prosecuting, suing, asserting or cooperating in any action or proceeding, whether
new or existing, against any of the Released Persons for any of the Released Claims.
Epiq Class Action & Claims Solutions, Inc. (the “Administrator”) is preliminarily
appointed as third- party administrator.
The Parties have prepared the Class Notice, Claim Form, and Publication Notice,
which have been submitted to the Court as Exhibits 2, 3, and 4 to the Stipulation. (ECF No. 651). As set forth herein, the Court has reviewed and approves these forms. Counsel for the
Parties, along with the Administrator, are authorized to complete any missing information and to
make any non-substantive revisions to these documents, as necessary to fulfill the purposes of
As soon as practicable after the entry of this Order, but in any event no more than
thirty (30) days after entry of this Order, Allstate shall conduct a reasonable search and make
reasonable inquires of its records during the Class Period and provide to the Administrator the
following information, if reasonably available: the name, last known address, date of loss, policy
number, claim number, the total amount of dwelling and other structures payment(s), and the
address of the insured premise(s) of each Person who is a potential Class Member.
Prior to mailing the Class Notice and Claim Form, the Administrator will run
these addresses through the National Change of Address Database (“NCOA”), for a more current
name and/or address for each potential Class Member. Thereafter, the Administrator shall send a
copy of the Class Notice and a Claim Form by first-class mail to each potential Class Member
for whom Allstate has ascertained a name and address.
Upon completion of the updating efforts, the Administrator shall use its best
efforts to complete the mailing of the Class Notice and Claim Form to potential Class Members
not less than sixty (60) days prior to the Final Approval Hearing.
If any Class Notice and/or Claim Form mailed to any potential Class Member is
returned to the Administrator as undeliverable, the Administrator will promptly log each Class
Notice and/or Claim Form that is returned as undeliverable and provide copies of the log to
Allstate’s Counsel and Class Counsel, as requested.
If such a mailing is returned with a
forwarding address, the Administrator will forward the returned mailing to that address. For any
returned Class Notice and/or Claim Form without a forwarding address, the Administrator will
use LexisNexis AllFind research to attempt to find a current address and will re-mail the Class
Notice and/or Claim Form to any new address obtained through such a search. The Class Notice
and Claim Form will also be available to Class Members upon request to the Administrator, who
shall send these documents via first-class mail as requested by any potential Class Member.
The Court finds that the procedures set forth in the preceding paragraphs
constitute reasonable and best notice practicable under the circumstances and an appropriate and
sufficient effort to locate current addresses of Class Members such that no additional efforts to
do so shall be required. Upon request, Allstate and the Administrator shall provide Class
Counsel reasonable access to the notice process as they may need to monitor compliance with
the notice campaign.
In addition to the Class Notice and Claim Form mailed in accordance with the
preceding paragraphs, the Administrator shall establish an automated toll-free telephone number
and a settlement website that will contain information on the Stipulation, relevant pleadings, the
opt-out form, and information regarding how to obtain a copy of the Stipulation, including
exhibits to the Stipulation; further, the Administrator shall also cause the Publication Notice to
be published twice in the Arkansas Democrat-Gazette – the first publication will be forty-five
(45) days prior to the Final Approval Hearing and the second publication will be five (5) days
after the Final Approval Hearing. The Publication Notices shall indicate in their bold heading
that this settlement involves Allstate.
At or before the Final Approval Hearing, the parties shall file a proof of mailing
the Class Notice and Claim Form from the Administrator.
The Court preliminarily finds that the dissemination of the Class Notice and
Claim Form under the terms and in the format provided for in this Order, together with the
establishment of an automated toll-free telephone number and settlement website, and the
Publication Notice as set forth above, constitutes the best practicable notice under the
circumstances; is reasonably calculated to apprise all potential Class Members who can be
identified through reasonable effort of: the pendency of the Lawsuit, this Stipulation, and the
Final Approval Hearing; and meets the requirements of the Federal Rules of Civil Procedure, the
requirements of due process under the United States Constitution, and the requirements of any
other applicable rules or law.
The costs of providing notice and effectuating all other settlement administration
shall be borne by Allstate, as provided in the Stipulation.
The Court will hold a Final Approval Hearing to consider the fairness,
reasonableness, and adequacy of the Proposed Settlement at 9:00 a.m., February 1, 2018, at the
United States Courthouse, Texarkana, Arkansas. This date shall be set forth in the Class Notice.
During the Final Approval Hearing, the Court will consider and determine, inter alia:
Whether the Stipulation for this Lawsuit should be approved as fair,
reasonable, and adequate,
Whether this action should be certified as a class action for settlement
purposes only and whether the requirements of;
Whether this Lawsuit should be dismissed with prejudice pursuant to the
terms of the Stipulation;
Whether members of the Class should be bound by the Release set forth in
Whether members of the Class (who have not opted out), whether acting
individually or together, should be permanently enjoined from instituting,
maintaining, prosecuting, suing, asserting or cooperating in any action or
proceeding, whether new or existing, against any of the Released Persons
for any of the Released Claims; and
Whether and in what amount Class Counsel’s application for an award of
attorneys’ fees and expenses, and the Representative Plaintiff’s request for
a service award should be approved;
Objections, if any, made to the Proposed Settlement or any of its terms.
Upon a showing of good cause, the Final Approval Hearing may be postponed, adjourned, or
rescheduled by the Court without further notice to the members of the Class. Any rescheduled
date for the Final Approval Hearing will be posted on the Settlement Website. All briefs and
materials in support of an Order for final approval and judgment and for a service award to the
Representative Plaintiff and payment to Class Counsel for its attorneys’ fees and costs shall be
filed with this Court no later than five (5) days prior to the Final Approval Hearing.
Class Members who wish to exclude themselves from the Class must complete
an opt-out form, which will be available on the settlement website, and electronically submit or
mail the completed opt-out form to the Administrator no later than twenty (20) days prior to the
Final Approval Hearing.
All Class Members who do not request exclusion in the manner set forth in the
Stipulation shall be bound by all proceedings, orders, and judgments in the Lawsuit, which will
have preclusive effect in all pending or future lawsuits or other proceedings, except that
Allstate, in its sole discretion, may allow a potential Class Member who does not timely request
exclusion from the Class to opt out of the Class up to and including the date of the Final
Class Members who do not request exclusion from the Class may object to the
Proposed Settlement by filing with the Court and mailing to the Administrator, a written notice
of intent to object as provided in the Stipulation no later than twenty (20) days before the Final
Approval Hearing. The right to object to the Proposed Settlement must be exercised individually
by a Class Member, not as a member or representative of a group or subclass, except in the case
of a legally authorized representative on behalf of a deceased, minor, or incapacitated Class
Member. To be considered, the written notice of intent to object to the Proposed Settlement
Contain a heading which includes the name of the case and case number
of this Action;
Provide the Objector’s name, address, telephone number, and signature;
Indicate the specific reasons why the Objector objects to the Proposed
Be filed with the Clerk of Court no later than twenty (20) days prior to the
Final Approval Hearing;
Be sent to the Administrator by first-class mail, and postmarked no later
than twenty (20) days prior to the Final Approval Hearing;
Contain the name, address, bar number, and telephone of the Objector’s
counsel, if represented by an attorney; and
State whether the Objector intends to appear at the Final Approval
Hearing, either in person or through counsel.
In addition, a notice of intent to object should contain the following additional information if the
Objector or his/her attorney requests permission to speak at the Final Approval Hearing:
A detailed statement of the specific legal and factual basis for each and
A list of any and all witnesses whom the Objector may call at the Final
Approval Hearing, along with the address of each witness and a summary
of his/her proposed testimony;
A detailed description of any and all evidence the Objector may offer at
the Final Approval Hearing, including photocopies of any and all exhibits
which the Objector may introduce at the Final Approval Hearing; and
Documentary proof of membership in the Settlement Class.
An Objector who does not include the above information in his/her notice of intent to object
will likely be limited in speaking and presenting evidence or testimony at the Final Approval
Hearing and may be prevented from doing so entirely.
Any Class Member who does not file and mail a timely and complete written
notice of intent to object in accordance with the Stipulation, waives the right to object or to be
heard at the Final Approval Hearing and is barred from objecting to the Proposed Settlement.
However, the Court retains discretion to hear objections absent full, technical compliance with
this Order upon a showing of good cause for failure to comply.
The Administrator shall provide Allstate’s Counsel and Class Counsel with
copies of any and all objections or opt-out forms received by the Administrator.
At or before the Final Approval Hearing, Class Counsel shall file with the Court
a declaration stating the number of Class Members who have timely excluded themselves from
the Class, the number of returned Class Notices, and the number of Objectors.
Class Members will be provided an opportunity to submit Claim Forms in the
form attached to the Stipulation as Exhibit 3, requesting Claim Settlement Payments in
accordance with the terms of the Stipulation.
Any Class Member who has not submitted a timely, complete opt-out form and
who has returned a timely, complete Claim Form that has been approved by the Administrator
may receive a Settlement Check according to the terms of the Stipulation, if the Effective Date
Not less than five (5) days prior to the Final Approval Hearing, Class Counsel
shall file with the Court a motion seeking the Court’s final approval of the Proposed Settlement
and Stipulation and entry of the final judgment in the form and content attached to the
Stipulation as Exhibit 5. Allstate, in its sole discretion, may also file a brief in support of final
approval of the Proposed Settlement.
This Order shall not be construed or used as an admission, concession or
declaration by or against Allstate of any fault, wrongdoing, breach or liability, or of the
appropriateness of certifying a class for litigation purposes. Nor shall the Order be construed
or used as an admission, concession, or declaration by or against the Representative Plaintiff or
the members of the Class that their claims lack merit or that the relief requested in their
pleadings is inappropriate, improper, or unavailable, or as a waiver by any party of any defenses
or claims he, she, or it may have.
The Proposed Settlement is preliminarily approved as fair, reasonable, adequate,
and in the best interest of the Class Members. The Parties and the Administrator are directed to
implement the terms of the Proposed Settlement in accordance with the Stipulation.
The parties are directed to amend the Stipulation and reflect the modifications
noted in this Order. A finalized, amended Stipulation must be filed with the Court for approval
by no later than October 2, 2017. Once the Court has approved the amended Stipulation, no
additional amendments may be made without prior approval of the Court.
Upon a showing of good cause, the Court may extend any of the deadlines set
forth in this Order without further notice to the Class.
Except for proceedings in furtherance of the Proposed Settlement, this action is
stayed pending further order from the Court. The trial of this matter, currently set for February
20, 2018, is cancelled.
IT IS SO ORDERED, this 25th day of September, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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