Eric B. Fromer Chiropractic, Inc. v. New York Life Insurance and Annuity Corporation et al

Filing 84

FINAL APPROVAL ORDER AND JUDGMENT by Judge Andre Birotte Jr.: This matter coming before the Court on the Motion for Final Approval of the Class Action Settlement 75 , IT IS HEREBY ORDERED that the Settlement Agreement should be and is APPROVED and s hall govern all issues regarding the settlement and all rights of the Parties, including the Class Members. Defendants have created a settlement fund (the "Settlement Fund") to pay valid class member claims, class action settlement notice a nd administration costs, attorney's fees, costs, and expenses, and an incentive award to Plaintiff as determined and awarded by this Court. If the value of the claims does not exceed 15% of the Settlement Fund ($165,000.00), the differ ence between the value of claims made and 15% of the Settlement Fund shall be paid to charity as cy pres. The Court has selected The Lawyers Committee for Civil Rights to receive cy pres in this case. The remaining unclaimed monies in the Settle ment Fund shall revert back to Defendants as outlined and agreed upon in the Settlement Agreement. The total amount to be paid for claims is $125,600.00. In accordance with the Settlement Agreement, the amount shall be paid from the Settlement F und as set forth in the Settlement Agreement. The total amount for the cy pres award to The Lawyers Committee for Civil Rights to receive will be $39,400.00. The Court approves Class Counsel's attorneys' fees in the total amount of � 36;106,177.50 and out-of-pocket expenses of $12,770.00, which includes the costs of settlement administration. The Court approves a $1,000 incentive award to Eric B. Fromer Chiropractic, Inc., for serving as the Class Representative. See document for further details. (MD JS-6, Case Terminated). (gk)

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NOTE: CHANGES MADE BY THE COURT

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JS-6

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ERIC B. FROMER CHIROPRACTIC,
INC., a California corporation,
individually and as the representative
of a class of similarly-situated persons,

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Case No.: CV 15-04767-AB (JCx)

CLASS ACTION

Plaintiff,
v.
NEW YORK LIFE INSURANCE
AND ANUITY CORPORATION,
NYLIFE SECURITIES LLC, and
JOHN DOES 1-10,

[PROPOSED] FINAL APPROVAL
ORDER AND JUDGMENT

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Defendants.

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This matter coming before the Court on the Motion for Final Approval of the

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Class Action Settlement (Dkt. No. 75) by Plaintiff, Eric B. Fromer Chiropractic,

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Inc. (“Plaintiff”), and Defendants, New York Life Insurance and Annuity

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Corporation and NYLife Securities LLC (“Defendants”), due notice given, the

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parties appearing through counsel,

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IT IS HEREBY ORDERED THAT:

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1.

This Court has jurisdiction over the parties, the members of the

Settlement Class, and the claims asserted in this lawsuit.
2.

Pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, the

Court considers the settlement of this action, as embodied in the terms of the
Settlement Agreement, a fair, reasonable and adequate settlement of this case in the
best interests of the Settlement Class in light of the factual, legal, practical and
procedural considerations raised by this case.
3.

The Settlement Class is defined as follows: “All persons who (1) on or

about March 25, 2015 or on or about March 31, 2015 (2) were successfully sent
telephone facsimile transmissions titled “Savings and Investing 20/20 for Medical
Professionals.” Excluded from the Settlement Class are (a) the Defendants and
their present and former officers, directors, shareholders, members, managers,
employees and their successors, assigns and legal representatives; (b) all persons
who opted out of the settlement by timely submitting their opt-out request; and (c)
the Court and its officers. The parties expressly agreed to the Settlement Class
definition for settlement purposes.
4.

The Court finds that the Settlement Agreement has been entered into in

good faith following arm’s-length negotiations.
5.

The Court finds that certification for purposes of settlement is

appropriate because (1) the class is no numerous that joinder of all members is
impractical; (b) there are questions of law and fact common to the class and they
predominate over any questions affecting only individual class members; (c)
Plaintiff’s claims are typical of the claims of the class; (d) Plaintiff and its attorneys
will fairly and adequately protect the of the class; and (e) a class action is the
superior means of resolving this controversy.
6.

Upon the Declaration of Dorothy Sue Merryman, the Court finds that

the notice provided to the Settlement Class Members was the best notice practicable

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under the circumstances and it satisfied the requirements of due process and Federal
Rule 23(e)(1).
7.

Upon the Declaration of Lewis S. Wiener the Court finds that notice

has been given to the appropriate State and Federal officials in accordance with the
Class Action Fairness Act, 28 U.S.C. § 1715.
8.

No objections were received.

9.

No persons/entities requested exclusion from the Settlement Class.

10.

After due consideration of, among other things, the uncertainty about

the likelihood of: (a) the Class’s ultimate success on the merits; (b) the range of the
Class’s possible recovery; (c) the complexity, expense and duration of the
litigation; (d) the substance and amount of opposition to the settlement; (e) the state
of proceedings at which the settlement was achieved; (f) all written submissions,
declarations and arguments of counsel; and (g) after notice and hearing, this Court
finds that the settlement is fair, adequate and reasonable. This Court also finds that
the financial settlement terms fall within the range of settlement terms that would
be considered fair, adequate and reasonable. Accordingly, this Settlement
Agreement should be and is APPROVED and shall govern all issues regarding the
settlement and all rights of the Parties, including the Class Members. Each Class
Member (including any person or entity claiming by or through him, her or it, but
except those persons identified above who have previously excluded themselves
from the Settlement Class) shall be bound by the Settlement Agreement, including
being subject to the Releases set forth in the Settlement Agreement.
11.

Defendants have created a settlement fund (the “Settlement Fund”) to

pay valid class member claims, class action settlement notice and administration
costs, attorney’s fees, costs, and expenses, and an incentive award to Plaintiff as
determined and awarded by this Court. If the value of the claims does not exceed
15% of the Settlement Fund ($165,000.00), the difference between the value of

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claims made and 15% of the Settlement Fund shall be paid to charity as cy pres.
The Court has selected The Lawyers Committee for Civil Rights to receive cy pres
in this case. The remaining unclaimed monies in the Settlement Fund shall revert
back to Defendants as outlined and agreed upon in the Settlement Agreement.
12.

As agreed in and subject to the Settlement Agreement, each member of

the Settlement Class who submitted a timely and valid Claim Form will be mailed a
check not to exceed $400.00 from the Settlement Fund. The Claims Administrator
received 119 claims corresponding to 314 fax transmissions. The Claims
Administrator will cause those checks to be mailed after receiving the Settlement
Funds from Defendants. Checks issued to the claiming Settlement Class members
will be void 181 days after issuance and any amount from voided checks shall be
retained by Defendants. The total amount to be paid for claims is $125,600.00. In
accordance with the Settlement Agreement, the amount shall be paid from the
Settlement Fund as set forth in the Settlement Agreement.
13.

The total amount for the cy pres award to The Lawyers Committee for

Civil Rights to receive will be $39,400.00 ($165,000.00 minus $125,600.00). In
accordance with the Settlement Agreement, that amount shall be paid from the
Settlement Fund as set forth in the Settlement Agreement.
14.

The Court approves Class Counsel’s attorneys’ fees in the total amount

of $319,000.00 $106,177.50 and out-of-pocket expenses of $12,770.00, which
includes the costs of settlement administration. In accordance with the Settlement
Agreement, that amount shall be paid from the Settlement Fund as set forth in the
Settlement Agreement.
15.

The Court approves a $15,000.00 $1,000 incentive award to Eric B.

Fromer Chiropractic, Inc., for serving as the Class Representative. In accordance
with the Settlement Agreement, that amount shall be paid from the Settlement Fund
as set forth in the Settlement Agreement.

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16.

The Court expressly adopts and incorporates herein all of the terms of

the Settlement Agreement. The Parties to the Settlement Agreement shall carry out
their respective obligations under that Agreement.
17.

This action, by or on behalf of Plaintiff and all Settlement Class

members against Defendants by reason of the March 25, 2015 and March 31, 2015
fax transmissions titled “Savings and Investing 20/20 for Medical Professionals”
are hereby dismissed with prejudice and without taxable costs to any Party.
18.

If (a) the Settlement Agreement is terminated pursuant to its terms, or

(b) the Settlement Agreement or Final Approval Order and Judgment do not for any
reason become effective, or (c) the Settlement Agreement or Final Approval Order
and Judgment are reversed, vacated or modified in any material or substantive
respect, then any and all orders entered pursuant to the Settlement Agreement shall
be deemed vacated. If the settlement does not become final in accordance with the
terms of the Settlement Agreement, this Final Approval Order and Judgement shall
be void and be deemed vacated.
19.

The Court retains jurisdiction for 180 days over this action. Plaintiff

and all members of the Settlement Class and Defendants to determine all matters
relating in any way to this Final Judgment and Order, the Preliminary Approval
Order, or the Settlement Agreement, including but not limited to, their
administration, implementation, interpretation or enforcement. The Court further
retains jurisdiction to enforce tis Order.
20.

The Court finds that there is no just reason to delay the enforcement of

this Final Approval Order and Judgement.
IT IS SO ORDERED.

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DATED: September 22, 2017

________________________
Hon. André Birotte Jr.
United States District Judge

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