Gianzero et al v. Wal Mart Stores, Inc. et al

Filing 492

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 by the Clerk of the Court, by Judge Robert E. Blackburn on 3/26/12.(gmssl, ) Modified on 3/27/2012 to correct spelling error (gmssl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:09-cv-00656-REB-BNB
JOSEPHINE GIANZERO and
JENNIFER JENSEN,
individually and on behalf
of all others similarly situated,
Plaintiffs,
v.
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,
Defendants.

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
representatives;
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. #
467);
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
fairness hearing;
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
Settlement; and
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
Action;

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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:
1.

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.
2.

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
1

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.

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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.
3.

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.
4.

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.

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5.

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.
6.

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.
7.

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.
8.

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.
9.

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
subclasses.

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10.

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
settlement check.
11.

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.
12.

The Litigation is DISMISSED WITH PREJUDICE and without costs to any

Party, other than as specified in the Agreement and this Order.
13.

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.
14.

This Judgment is the Final Judgment in the suit as to all Settlement Class

Member Released Claims.
15.

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

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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.
16.

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
#491].
17.

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.
18.

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.
19.

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

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Exhibit 1 to Final Judgment
Gianzero v. Wal-Mart Stores, et al., No. 1:09-cv-00656-REB-BNB
Class Members Requesting Exclusion
First Name

Last Name

SubClass

DEBORAH
JAMES
MAMADOU
CANDACE
INNA
BEVERLY
DAVID
DAVID
DIANA
FRANCIS
ALONZO
JOLENE
MICHAEL
EDWARD
GUILLERMO
TERRI
THERESA
NICOLE
JEFF
JOHN
MARY
BARBARA
MARY
ULISES
PAULA
CONNIE
STEVEN
HECTOR
RAUL (ROY)
BARBARA
KAREN
BRENDA
MICHAEL
TAZA
NICCOLO
CONNIE
PATRICIA
ROBIN
JENNIFER
REBECCA
CAROLE
MARCO

ABEYTA
ALLEN
ALY
ARCHIBEQUE
BALABAN
BAZATA
BETZ
BRADLEY
BRAUNSCHWEIG
BRITO
BRYAN
BUNTIN
CALOVICH
CECH
CERVANTES
CORNETT
DARNER
DAVIS
DORLAND
DORSEY
DUDEK
DYE
ESTERBROOK
ESTRADA
EVANS
EVES
FERNANDEZ
FLORES
FLORES
FRITSCHE
GLAZER
GOAR
GOSS
GOSSERT
GRANDO
GRATTAN
GROGAN
HANEY
HELLMAN
HOFFMAN
HOLT
HUERTA

C
C
C
C
B
C
B
B
C
C
B
C
C
C
C
C
C
C
B
B
B
B
C
C
C
C
C
C
C
B
C
C
C
C
B
C
C
C
C
B
B
B

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First Name

Last Name

SubClass

LINDA
DAVID
MARLENE
SARAH
KATHLEEN
JOHN
TOBY
JONATHAN
RENITA
ILENE
PAMELA
GREGORY
JANA
DEBBI
SHIRLEY
VIRGINIA
CYNTHIA
MARK
LESLIE
PRISCILLA
MARIO
DAVID
ELLEN
LARRY
ROSE
SANDRA
NICHOLAS
LOURDES
MARVILINE
KEVIN
KATIE
JAMES
MICAH
SONDRA
HEIDI

JAMESON
KIME
KNIZLEY
LEHMAN
LOGSTON
LOOS SR
LOPEZ
MALONEY
MANZANARES
MCFARLAND
MCILVANIE
MONDRAGON
MONDRAGON
NEILSON
OBERLIN
ODOM
PATRICK
PLUCINSKI
ROBERTS
SAMORA
SCALONA
SHAFFER
SHAFFER
SHED
SMITH
SNYDER
STARK
TANI HERNANDEZ
THOMAS
TOOLEY
TWISS YATES
WHEELER
WILDING
WILSON
WRIGHT

C
B
C
B
C
C
C
B
B
C
C
C
C
B
B
C
C
C
C
C
B
C
C
C
C
C
C
B
B
C
C
C
C
B
C

STEVEN

HORN (RECEIVED
LATE)
POLANCO
(RECEIVED LATE)

C

FRANCISCA

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B