Moyle et al v. Liberty Mutual Retirement Benefit Plan et al

Filing 336

ORDER Granting 332 Motion Preliminary Approval of Class Action Settlement; Directing Issuance of Notice; and Setting Final Approval Hearing. A hearing on the Final Approval and Dismissal of the Action shall be held on March 2, 2018, at 1:30 p.m. before the undersigned Judge in Courtroom 2D. Signed by Judge Gonzalo P. Curiel on 11/15/17. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GEOFFREY MOYLE, an individual,
CASE NO.: 10-cv-02179-GPC-MDD
PAULINE ARWOOD, an individual,
12 THOMAS ROLLASON, an individual,
ORDER GRANTING
and, JEANNIE SANDERS, an individual,
UNOPPOSED MOTION FOR
13 on behalf of themselves and all others
PRELIMINARY APPROVAL OF
similarly situated, and ROES 1 through
14 500, inclusive,
CLASS ACTION SETTLEMENT;
DIRECTING ISSUANCE OF
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Plaintiffs,
NOTICE; AND SETTING FINAL
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v.
APPROVAL HEARING
17 LIBERTY MUTUAL RETIREMENT
BENEFIT PLAN; LIBERTY MUTUAL
[Dkt. No. 332.]
18 RETIREMENT PLAN RETIREMENT
BOARD; LIBERTY MUTUAL GROUP
19 INC., a Massachusetts company;
LIBERTY MUTUAL INSURANCE
20 COMPANY, a Massachusetts company;
and, DOES 1 through 50, inclusive,
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Defendants.
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10-cv-02179-GPC-MDD

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Plaintiffs Geoffrey Moyle, Pauline Arwood, Thomas Rollason, and Jeannie
Sanders (“Plaintiffs”) filed an unopposed Motion for Preliminary Approval of Class
Action Settlement. Based on the findings and reasoning below, the Court GRANTS
Plaintiffs’ Motion for Preliminary Approval.

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Discussion
I.

Preliminary Approval
Rule 23(e) requires the Court to determine whether a proposed settlement is

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“fundamentally fair, adequate, and reasonable.” Staton v. Boeing Co., 327 F.3d

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938, 959 (9th Cir. 2003) (internal quotations omitted). In making this

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determination, a court may consider: (1) the strength of the plaintiff’s case; (2) “the

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risk, expense, complexity, and likely duration of further litigation;” (3) “the risk of

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maintaining class action status throughout the trial;” (4) “the amount offered in

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settlement;” (5) “the extent of discovery completed and the stage of the

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proceedings;” (6) “the experience and views of counsel;” (7) “the presence of a

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governmental participant;” and (8) “the reaction of the class members to the

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proposed settlement.” Id. (internal quotations omitted). Moreover, the settlement

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may not be the product of collusion among the negotiating parties. In re Mego Fin.

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Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000); see also Barani v. Wells

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Fargo Bank, N.A., 2014 WL 1389329, at *4 (S.D. Cal. Apr. 9, 2014).

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In considering whether to preliminarily approve a class settlement, the Court
should consider whether the deal is both procedurally and substantively fair. In re
Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1080 (N.D. Cal. 2007)
(“preliminary approval of a settlement has both a procedural and a substantive
component”). Specifically, the Court should confirm that “(1) the proposed
settlement appears to be the product of serious, informed, non-collusive
negotiations, (2) has no obvious deficiencies, (3) does not improperly grant
preferential treatment to class representatives or segments of the class, and (4) falls
with[in] the range of possible approval.” Dilts v. Penske Logistics, LLC, No.

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10-cv-02179-GPC-MDD

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08cv318-CAB(BLM), 2014 WL 12515159, *2 (S.D. Cal. July 11, 2014) (citations
omitted).

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A. The Settlement Is the Product of Serious, Informed, Non-

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Collusive Negotiations
A settlement agreement is presumed to be fair if it is reached in arm’s length

6 negotiations after relevant discovery has taken place. Cohorst v. BRE Prop., Inc.,
7 No. 3:10cv2666-JM(BGS), 2011 WL 7061923, *12 (S.D. Cal. Nov. 14, 2011)
8 (stating that voluntary mediation before a retired judge in which the parties reached
9 an agreement-in-principle are factors “highly indicative of fairness”) (citations
10 omitted).
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In this case, the proposed Settlement is the product of over seven years of

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litigation. The Parties reached a settlement after completion of fact and expert

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discovery, an order certifying a class, a ruling in favor of Defendants on their

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motion for summary judgment, a cross-appeal to the Ninth Circuit, supplemental
briefing and argument on Defendants’ supplemental motion for summary judgment
and a pending motion for reconsideration.
The parties engaged an experienced class action and ERISA mediator and
attended two separate full-day mediations, which was followed by several weeks of
follow up over the telephone when the parties finally accepted the mediator’s
proposal on August 8, 2017.
Thus, the posture of the litigation and the process of negotiating the

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Settlement indicate that the deal is informed and non-collusive. Further, the

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Settlement’s terms demonstrate procedural fairness and lack of collusion.

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B. The Settlement Treats All Class Members Fairly

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Next, the Court should consider whether the proposed Settlement improperly

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grants preferential treatment to the Class Representatives or any segment of the

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Class. In re Tableware Antitrust Litig., 484 F. Supp. 2d at 1079. Here, the proposed

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Settlement affords all Class members relief based on the accrual of past service

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credit at a rate of 50% of their time at GEIC. The class members will receive
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different amounts under the Settlement but that is based on the differences in the
past service credit earned while at GEIC. The Settlement compensates each Class
member in proportion to the harm he or she suffered.

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C. The Settlement Has No Obvious Deficiencies and Falls Well

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Within the Range of Possible Approval
In determining whether a proposed settlement is “fair, adequate, and

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reasonable,” a court may consider the following factors: (a) the strength of the

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plaintiff’s case; (b) the risk, expense, complexity, and likely duration of further

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litigation; (c) the risk of maintaining class action status throughout the trial; (d) the

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amount offered in settlement; (e) the extent of discovery completed and the stage of

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the proceedings; (f) the experience and views of counsel; (g) the presence of a

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governmental participant; and (h) the reaction of the class members to the proposed

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settlement. See Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir.

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2004); see also Barani, 2014 WL 1389329 at *4-8.
Since some of these factors cannot be fully evaluated until notice has been
disseminated, “a full fairness analysis is unnecessary at this stage.” Barani, 2014
WL 1389329 at *4 (citation omitted). Even so, the other factors establish that the
proposed Settlement is an excellent result for the Class and worthy of this Court’s
approval.
a. The Strength of Plaintiffs’ Case and the Risk, Expense,
Complexity, and Likely Duration of Further Litigation
Given that almost all class actions involve risk, expense, and complexity, the

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Ninth Circuit has a particularly strong judicial policy in favor of settlements in class

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action litigation. Johnson v. General Mills, Inc., No. SACV 10-61-CJC(ANx),

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2013 WL 3213832, at *2 (C.D. Cal. June 17, 2013) (citing Linney v. Cellular

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Alaska P’ship, 151 F.3d 1234, 1238 (9th Cir. 1998)).

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Without settlement, the Parties would be forced to spend considerable time

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and resources on a trial. Moreover, trial and any post-trial motions and appeals

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would also further delay the resolution of this case.
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b. The Amount Offered in Settlement
The proposed Settlement provides a New Benefit in addition to the existing

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retirement benefits provided by the Plan. The New Benefit will grant “50% past

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service credit for years of employment by Golden Eagle Insurance Company for

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purposes of benefits accrual, and subject to all the other terms and conditions of the

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Plan.” (Dkt. No. 332-4, Nicholas Decl., Ex. B, Settlement at ¶ 13.1.)

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c. The Extent of Discovery Completed and the State of

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Proceedings

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Where a case is near trial, the Parties have conducted extensive discovery,

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and the issues have been thoroughly litigated, the stage of the proceedings weigh in

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favor of the proposed settlement. Low v. Trump University, LLC, Case Nos.

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10cv940-GPC-WVG, 13cv2519-GPC(WVG), 2016 WL 7387292, at *3 (S.D. Cal.

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Dec. 20, 2016). Here, the Parties have completed fact and expert discovery, legal

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issues have been litigated and setting a trial date was the next step after a ruling on
Defendants’ motion for reconsideration. This factor weighs heavily in favor of the
proposed Settlement.
d.

Plaintiffs’ counsel are well-versed in class action litigation, particularly
employee class actions, and believe the proposed Settlement is fair, just and in the
best interests of the Class.

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The Experience and Views of Class Counsel

e.

The Reaction of Class Members

The Class has yet to be notified of the Settlement and given an opportunity to
object; thus, it is premature to assess this factors.
After considering the papers and supporting documents, including the Class
Action Settlement Agreement and Release (“Settlement Agreement”), and good
cause appearing, IT IS HEREBY ORDERED as follows:
1.

For purposes of this Order, the Court adopts and incorporates all

definitions set forth in the Settlement Agreement unless a different definition is set

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forth in this Order.
2.

The Court finds that the requirements of Rule 23(b)(1) of the Federal

Rules of Civil Procedure and other laws and rules applicable to preliminary
settlement approval of class actions have been satisfied, and the Court preliminarily
approves the settlement of this Action as memorialized in the Settlement Agreement,
which is incorporated herein by this reference, as being fair, reasonable, and adequate
to the Class and its members, subject to further consideration at the Final Fairness
and Approval Hearing described below. The Court approves the Notice of Class
Action Settlement (“Class Notice”) attached as Exhibit A to the Settlement
Agreement, which is attached as Exhibit B to the moving papers. The Court finds that
the notice and objection process set out in the Settlement Agreement is the best notice
practicable under the circumstances and suffices to meet the due process
requirements imposed by the Constitution of the United States and Federal Rule of
Civil Procedure 23. The completion of the notice process described in the moving
papers shall constitute sufficient notice to all Class Members.
3.

Defendants shall cause the Notice of Class Action Settlement (“Class

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Notice”) to be provided to each Class Member, or in the case of any deceased Class

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Member, such Class Member’s beneficiary as determined under the Plan, by

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November 27, 2017, according to the procedures described in the Settlement
Agreement.
4.

Plaintiffs shall file their motion for attorneys’ fees and costs by

December 15, 2017.
5.

The deadline for objections by Class Members to the settlement is

January 16, 2018, in the form and manner described in the Class Notice.
6.

The deadline for a response to any objections by Class Members to the

settlement is January 30, 2018.
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The motion for Final Approval and Dismissal of the Action shall be filed

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by February 6, 2018.
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A hearing on the Final Approval and Dismissal of the Action shall be

held on March 2, 2018, at 1:30 p.m. before the undersigned Judge in Courtroom 2D
of the United States District Court for the Southern District of California, located at
221 West Broadway, San Diego, CA 92101.
9.

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At the above-mentioned hearing, the Court will determine:
a.

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and whether it should be finally approved;

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b.

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c.

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Whether to approve Class Counsel’s application for an award of
attorneys’ fees and costs, and named Plaintiffs’ application for an

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Whether judgment as provided in the Settlement should be
entered herein; and

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Whether the proposed Settlement is fair, reasonable, and adequate

incentive award.
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Defendants shall cause pension election kits to be sent to the Members

of the Settlement Class by March 9, 2018. The deadline for Defendants to receive
election forms from Class Members is May 11, 2018.
11.

The Court reserves the right to adjourn the date of the Final Fairness and

Approval Hearing and any adjournment thereof without further notice to the members
of the Class, and retains jurisdiction to consider all further applications arising out of
or connected with the settlement. The Court may approve the settlement, with such
modifications as may be agreed to by the parties to the settlement, if appropriate,
without further notice to the Class.

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IT IS SO ORDERED.
24 Dated: November 15, 2017
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