Gianzero et al v. Wal Mart Stores, Inc. et al
FINAL JUDGMENT AND ORDER OF DISMISSAL granting 483 Motion for Final Approval of Settlement, as set forth and approving the payment of Attorneys' fees (re: 484 Motion for Attorney Fees). Court directs judgment and immediate entry fo the Clerk of the Court, by Judge Robert E. Blackburn on 3/26/12.(gmssl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:09-cv-00656-REB-BNB
JOSEPHINE GIANZERO and
individually and on behalf
of all others similarly situated,
WAL-MART STORES, INC., a Delaware corporation;
CLAIMS MANAGEMENT, INC., an Arkansas corporation;
AMERICAN HOME ASSURANCE CO., a New York corporation;
CONCENTRA HEALTH SERVICES, INC., a Nevada corporation; and
JOHN DOES 1-10, whose true names are unknown,
FINAL JUDGMENT AND ORDER OF DISMISSAL
This matter came before this Court on the Plaintiffs’ Motion for Final Approval of
Settlement (“Final Approval Motion”) (Doc. #483) and Plaintiffs’ Unopposed Motion for
Award of Attorneys’ Fees, Reimbursement of Expenses, And for Payment of Incentive
Awards to the Class Representatives (Doc. # 484).
WHEREAS, a class action is pending before the Court entitled Josephine
Gianzero, et al. v. Wal-Mart Stores, Inc., et al., Civil Action No. 1:09-cv-00656-REBBNB (“Class Action”);
WHEREAS, pursuant to Federal Rules of Civil Procedure Rule 23(a), the Court
appointed Plaintiffs Josephine Gianzero and Jennifer Jensen settlement class
WHEREAS, the Court has received and reviewed the Settlement Agreement
(Dkt. #464) (the “Agreement”), and has considered the terms of the proposed settlement
set forth therein (the “Settlement”);
WHEREAS, all terms contained herein shall have the same meanings as set
forth in the Agreement, unless otherwise defined herein;
WHEREAS, on November 22, 2011, the Court entered its order preliminarily
approving the Settlement of this class action, approving the form and method of notice,
and setting a date and time for a fairness hearing to consider whether the Settlement
should be finally approved by the Court pursuant to Rule 23 of the Federal Rules Civil
Procedure as fair, adequate, and reasonable (the “Preliminary Approval Order”) (Doc. #
WHEREAS, the Preliminary Approval Order further directed that all members of
the Settlement Class be given notice of the Settlement and of the date for the final
WHEREAS, the Court has received a declaration from the Claims Administrator,
Gilardi, LLC, attesting to the mailing and publication of the Notice in substantial
accordance with the Preliminary Approval Order;
WHEREAS, the Court having considered all timely filed objections to the
WHEREAS, the Court having conducted a final fairness hearing on March 23,
2012 (the “Fairness Hearing”) to consider whether to approve the Settlement under
Federal Rule of Civil Procedure Rule 23(e), after due and adequate notice of said
hearing was given to Settlement Class Members as well as to all parties in the Class
WHEREAS, the court has considered carefully the motion for attorney fees in the
context of the twelve factors specified by the court in Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714 (5th Cir. 1974)1; and
WHEREAS, the Court has considered the Agreement, the information provided
to the Court before and at the Fairness Hearing, all papers filed and proceedings had
herein and all oral and written comments received regarding the Agreement, and has
reviewed and considered the entire record in the Class Action, and otherwise being fully
informed in the premises and good cause appearing therefore;
IT IS ORDERED, ADJUDGED, AND DECREED as follows:
The Court has jurisdiction over the subject matter of this action, and
personal jurisdiction over the Settlement Class Representatives, all Settlement Class
Members, and each of the Defendants.
In accordance with Rule 23 of the Federal Rules of Civil Procedure and
the requirements of due process, all Settlement Class Members have been given proper
and adequate notice of the Settlement. Based upon the evidence submitted by the
parties, the Agreement, the arguments of counsel, and all the files, records and
proceedings in this case, the Court finds that the Notice and notice methodology
implemented pursuant to the Agreement and the Court’s Preliminary Approval Order (a)
constituted the best practicable notice under the circumstances; (b) constituted notice
that was reasonably calculated, under the circumstances, to apprise members of the
Settlement Class of the pendency of the litigation, their right to object to the Settlement,
and their right to appear at the Fairness Hearing; (c) were reasonable and constituted
The court also approves, adopts, and incorporates the facts presented, reasons stated, arguments advanced and
authorities cited by the plaintiffs in their motion for attorney fees (Doc.#484) and during the fairness hearing on
March 23, 2012.
due, adequate and sufficient notice to all persons entitled to notice; and (d) met all
applicable requirements of Rule 23 of the Federal Rules of Civil Procedure, and any
other applicable law.
The Settlement as set forth in the Agreement in this action warrants final
approval pursuant to Rule 23 of the Federal Rule of Civil Procedure because it is fair,
adequate, and reasonable to those it affects, and resulted from vigorously contested
litigation, including nearly three years of discovery, motion practice and expert
discovery, and extensive good-faith arm’s length negotiations between the parties, and
is in the public interest considering the following factors:
(i) plaintiffs’ likelihood of success on the merits, weighed against the amount and
form of relief offered in the settlement;
(ii) the complexity, expense and likely duration of the litigation;
(iii) the stage of proceedings and the amount of discovery completed;
(iv) the nature of the settlement negotiations;
(v) the objections raised by members of the class; and
(vi) the judgment of experienced counsel.
The Final Approval Motion is hereby GRANTED, and the Settlement and
the Agreement are hereby APPROVED as fair, reasonable, adequate, and in the public
interest, and the terms of the Agreement are hereby determined to be fair, reasonable
and adequate, for the exclusive benefit of the Settlement Class Members (other than
those listed on Exhibit 1 hereto who have validly excluded themselves from this Class
Action). The Court has considered the single objection to the Settlement, and for good
cause shown, the objection is HEREBY OVERRULED. The Parties are directed to
consummate the Agreement in accordance with its terms and provisions.
The Court APPROVES the Plan of Allocation as fair and reasonable, and
the plan is supported by relevant factors, which have been considered by the Court.
The Court APPROVES payment of the Class Settlement Amount in
accordance with the terms of the Agreement and this Final Judgment and Order of
Dismissal. Class Counsel and the Claims Administrator are directed to administer the
Agreement in accordance with its terms and provisions.
The Court APPROVES payment of Incentive Awards to Josephine
Gianzero and Jennifer Jensen to be paid from the Class Settlement Amount in the
amount of $10,000 each. The Court finds that Class Counsel’s request for incentive
payments to the Settlement Class Representatives is reasonable, and that the request
is supported by relevant factors, which have been considered by the Court.
The Court APPROVES payment of Attorneys’ Fees and Costs to Class
Counsel to be paid from the Class Settlement Amount in the amount of $4,537,128. The
Court finds that Class Counsel’s request for attorneys’ fees and costs is reasonable,
and that the request is supported by relevant factors, including, but not limited to the
twelve factors enunciated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714
(5th Cir. 1974), which factors have been considered by the Court.
The Class Settlement Amount, Incentive Awards, and Attorneys’ Fees and
Costs Amount shall be distributed in accordance with the terms of the Agreement. The
Court further orders a reserve of $10, 000 from the Class Settlement Amount be set
aside to fund settlement payments, if necessary, to previously unidentified Settlement
Class Members in Subclasses “B” and “C” and for any contested payments within these
Settlement Class Members in Subclasses “B” and “C” eligible to receive a
settlement payment will have up to 120 days from the date of issuance to cash their
Any Class Members in Subclasses “B” and “C” eligible to receive a
settlement payment who have not been located as of the date of this Order will have up
to one (1) year from the date of this Order to contact the Claims Administrator, Gilardi &
Co LLC, to provide an address to receive payment and thereafter will have up to 120
days from the check issuance date to cash their settlement check.
The Litigation is DISMISSED WITH PREJUDICE and without costs to any
Party, other than as specified in the Agreement and this Order.
In consideration of the Class Settlement Amount, and for other good and
valuable consideration, each of the Releasing Settlement Class Members shall, by
operation of this Judgment, have fully, finally, and forever released, relinquished, and
discharged all Released Claims against the Releasees in accordance with Section 12 of
the Agreement, shall have covenanted not to sue any of the Releasees with respect to
all such Settlement Class Member Released Claims, and shall be permanently barred
and enjoined from instituting, commencing, prosecuting or asserting any such
Settlement Class Member Released Claim against any of the Releasees.
This Judgment is the Final Judgment in the suit as to all Settlement Class
Member Released Claims.
Without affecting the finality of this Judgment in any way, this Court retains
jurisdiction over (a) implementation of the Settlement and the terms of the Agreement;
(b) distribution of the Class Settlement Amount, the Incentive Awards, and the
Attorneys’ Fees and Costs; and (c) all other proceedings related to the implementation,
interpretation, administration, consummation, and enforcement of the terms of the
Agreement and/or the Settlement
The time to appeal from this Judgment shall
commence upon its entry.
Without affecting the finality of this Judgment in any way, this Court retains
jurisdiction over enforcement of the Order of Injunction dated March 26, 2012, [Dkt
In the event that the Settlement Effective Date does not occur, this
Judgment shall be rendered null and void and shall be vacated, nunc pro tunc, except
insofar as expressly provided to the contrary in the Agreement, and without prejudice to
the status quo ante rights of Plaintiffs, Settlement Class Members, and the Defendants.
Without further order of the Court, the Parties may agree to reasonable
extensions of time to carry out any of the provisions of the Agreement.
This Court finds that there is no just reason for delay and expressly directs
Judgment and immediate entry by the Clerk of the Court.
IT IS SO ORDERED.
Dated this March 26, 2012.
s/ Robert E. Blackburn
Robert E. Blackburn
United States District Court Judge
Exhibit 1 to Final Judgment
Gianzero v. Wal-Mart Stores, et al., No. 1:09-cv-00656-REB-BNB
Class Members Requesting Exclusion
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?