Abbit v. ING USA Annuity and Life Insurance Company

Filing 64

ORDER 62 Approving Proposed Class Notice and Granting Motion for Scheduling Order to Submit Notice Plan(s). The parties shall submit to the Court on or by January 5, 2016 either a joint proposed Notice Plan or separate proposed Notice Plans for the Courts approval and directive to issue notice to the Classes. Signed by Judge Gonzalo P. Curiel on 1/4/16. (dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ERNEST O. ABBIT, on behalf of himself
and on behalf of all persons similarly
situated,

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Case No.: 13-cv-2310-GPC-WVG
ORDER APPROVING PROPOSED
CLASS NOTICE AND GRANTING
MOTION FOR SCHEDULING
ORDER TO SUBMIT NOTICE
PLAN(S)

Plaintiff,

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v.

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ING USA ANNUITY AND LIFE
INSURANCE COMPANY, ING U.S.,
INC.,

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[ECF No. 62]

Defendant.

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On December 14, 2015, Plaintiff Ernest O. Abbit and Defendants ING USA Annuity

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and Life Insurance Company and ING U.S., Inc. (“Defendants” or “ING”) filed a joint

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stipulation and motion for entry of scheduling order to approve plan to disseminate notice

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of class action. (Mot. Class Notice, ECF No. 62.) For the reasons set forth below, the

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Court GRANTS the parties’ joint motion.

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BACKGROUND
On November 16, 2015, this Court certified the following classes and subclasses in
this case:

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The Multi-State Class

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All persons or entities, excluding defendants and their directors, officers,

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predecessors, successors, affiliates, agents, co-conspirator and employees, as well as the

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immediate family members of such persons, that, when a resident of either the state of

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California, Florida, Illinois, Pennsylvania or Texas, purchased a Secure Index fixed index

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annuity contract from ING USA Annuity and Life Insurance Company within the

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applicable statute of limitations.

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The California Class

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All persons or entities, excluding defendants and their directors, officers,

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predecessors, successors, affiliates, agents, co-conspirator and employees, as well as the

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immediate family members of such persons, that, when a resident of California, purchased

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a Secure Index fixed index annuity contract from ING USA Annuity and Life Insurance

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Company within the applicable statute of limitations.

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The California Seniors Subclass

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All members of the California Class that were age 65 or older on the date of

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purchase, excluding defendants and their directors, officers, predecessors, successors,

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affiliates, agents, co-conspirator and employees, as well as the immediate family members

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of such persons.

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(Order Granting in Part and Denying in Part Mot. Class. Cert. (“Class Cert. Order”), ECF

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No. 59.)

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The Court directed “the parties to meet and confer and submit a joint proposed notice

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to the Classes on or before December 14, 2015.” (Id. at 27.) The parties jointly submitted

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a proposed Class Notice (Mot. Class Notice, Ex. A, ECF No. 62-2) and requested a deadline

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of January 5, 2016 to submit to the Court either a joint proposed Notice Plan or separate

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proposed Notice Plans for the Court’s consideration. (Mot. Class Notice at 1, ECF No. 62)
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LEGAL STANDARD

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For classes certified under Rule 23(b)(3) of the Federal Rules of Civil Procedure, the

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court “must direct to class members the best notice that is practicable under the

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circumstances, including individual notice to all members who can be identified through

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reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The Federal Rules further provide that:

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The notice must clearly and concisely state in plain, easily understood language:

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i.

the nature of the action;

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ii.

the definition of the class certified;

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iii.

the class claims, issues, or defenses;

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iv.

that a class member may enter an appearance through an attorney if the member

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so desires;

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v.

that the court will exclude from the class any member who requests exclusion;

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vi.

the time and manner for requesting exclusion; and

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vii.

the binding effect of a class judgment on members under Rule 23(c)(3).

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Fed. R. Civ. P. 23(c)(i - vii).

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Notice provides an opportunity for class members to participate in the litigation, to

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opt-out of the litigation, to monitor the performance of class representatives and class

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counsel, and to ensure that predictions of adequate representation are fulfilled. Manual For

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Complex Litigation (Fourth) § 21.13 (2004). In the Rule 23(b)(3) context, due process is

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satisfied “where a fully descriptive notice is sent first-class mail to each class member, with

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an explanation of the right to ‘opt out,’” within a reasonable time. Phillips Petroleum Co.

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v. Shutts, 472 U.S. 797, 812 (1985).

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DISCUSSION

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Having reviewed the proposed Class Notice (ECF No. 62-1) and finding that the

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notice complies with the Court’s Class Cert. Order (ECF No. 59) and Rule 23(b)(3), the

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Court hereby APPROVES the proposed Class Notice. The parties are authorized to make

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non-substantive changes to the notice, as long as they are acceptable to both parties, to

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reflect deadlines, mailing addresses, and similar information or to format the notice for
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printing.

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The parties shall submit to the Court on or by January 5, 2016 either a joint

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proposed Notice Plan or separate proposed Notice Plans for the Court’s approval and

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directive to issue notice to the Classes.

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IT IS SO ORDERED.
Dated: January 4, 2016

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