Eastwood Enterprises, LLC v. Farha et al

Filing 290

ORDER: Lead Plaintiffs' Motion for Approval of Distribution Plan 288 is GRANTED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 4/24/2013. (LRM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EASTWOOD ENTERPRISES, LLC,
Individually and on Behalf
of All Others Similarly Situated,
Plaintiffs,
v.

Case No. 8:07-cv-1940-T-33EAJ

TODD S. FARHA, PAUL L. BEHRENS,
THADDEUS BEREDAY, and
WELLCARE HEALTH PLANS, INC.,
Defendants.
_____________________________________/
ORDER APPROVING DISTRIBUTION PLAN
Lead Plaintiffs, on notice to counsel for Defendant
WellCare Health Plans, Inc., moved this Court for an Order
approving a distribution plan for the Net Settlement Fund
on March 19, 2013. (Doc. # 288). No responses in opposition
to the Motion for Approval of Distribution Plan have been
filed and the time to file such responses is now elapsed.
Therefore, the Court considers the Motion as unopposed.
Having
submitted

considered
in

Plaintiffs’
Approval

of

support

Memorandum

all

the

materials

of

the

Motion,

of

Distribution

Law
Plan

in

Support

and

the

and

arguments

including
of

Motion

Declaration

Lead
for
of

Stephen J. Cirami in Support of Lead Plaintiffs’ Motion for

Approval

of

Distribution

Plan

(Doc.

#

289),

the

Court

grants the Motion for Approval of Distribution Plan.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
1.

Lead Plaintiffs’ Motion for Approval of Distribution
Plan (Doc. # 288) is GRANTED as set forth below.

2.

This Order incorporates by reference the definitions
in the Stipulation and Agreement of Settlement dated
December 17, 2010 (Doc. # 265-1) (the “Stipulation”)
and the Cirami Declaration (Doc. # 289) and all terms
used herein shall have the same meanings as set forth
in the Stipulation and the Cirami Declaration.

3.

This Court has jurisdiction over the subject matter of
the

Action

and

over

all

parties

to

the

Action,

including all Class Members.
4.

Lead

Plaintiffs’

plan

for

distribution

of

the

Net

Settlement Fund to Authorized Claimants is APPROVED.
Accordingly,
(a)

The administrative recommendations of the Courtapproved
Group,

Claims
Inc.

Administrator,

(“GCG”),

to

The

accept

Garden
the

City

Timely

Eligible Claims set forth in Exhibit C-1 to the
Cirami Declaration (Doc. # 289-6) and the Late

2

But

Otherwise

Exhibit

C-2

Eligible

to

the

Claims

Cirami

set

forth

Declaration

in

(Doc.

#

289-7), are adopted;
(b)

The

Claims

Administrator’s
to

recommendations
otherwise
Exhibit

administrative
ineligible

or

set

in

reject

deficient

C-3

to

wholly

claims,

the

Cirami

as

forth

Declaration

(Doc.

#

289-8), including the Disputed Claims set forth
in Exhibit B (Doc. ## 289-2, 289-3, 289-4) to the
Cirami Declaration, are adopted;
(c)

GCG

is

directed

to

conduct

an

initial

distribution (the “Initial Distribution”) of the
available

balance

of

the

Net

Settlement

Fund,

after deducting the payments previously allowed
and requested herein, and after payment of any
estimated

taxes

and

the

costs

of

preparing

appropriate tax returns and any escrow fees, as
set

forth

in

Declaration.

paragraph

47(a)

Specifically,

as

of
set

the

Cirami

forth

in

paragraph 47(a) of the Cirami Declaration, (i)
any Authorized Claimant whose Distribution Amount
calculates to less than $10 shall not receive any
payment

from

the

Net

3

Settlement

Fund;

(ii)

Authorized

Claimants

Distribution

Amount

whose

(after

calculated

removing

from

the

calculation all Claims that fall under the $10
minimum
shall

payment

be

paid

threshold)
their

full

is

less

than

Distribution

$100

Amount

(“Claims Paid in Full”) and shall not be eligible
for payment in subsequent distributions of the
Net Settlement Fund; and (iii) after

deducting

the payments to the Claims Paid in Full, 95% of
the remaining balance of the Net Settlement Fund
shall

be

distributed

Authorized

on

a

Claimants

Distribution

Amount

pro

rata

whose

(after

basis

to

calculated

removing

from

the

calculation all Claims that fall under the $10
minimum payment threshold) is $100 or more, with
the remaining 5% of the Net Settlement Fund held
in

reserve

(the

“Reserve”)

to

address

any

contingencies;
(d)

In

order

to

encourage

Authorized

Claimants

to

cash their Initial Distribution checks promptly
and to avoid or reduce future expenses relating
to

unpaid

Initial

Initial

Distribution

4

Distribution
checks

checks,

shall

bear

all
the

following notation:

“CASH PROMPTLY.

VOID AND

SUBJECT TO RE-DISTRIBUTION IF NOT CASHED BY [DATE
120 DAYS AFTER ISSUE DATE].” Lead Counsel and GCG
are

authorized

to

take

appropriate

action

to

locate and/or contact any Authorized Claimant who
has

not

cashed

his,

her,

or

its

Initial

Distribution check within said time as detailed
in paragraph 47(a)(6) footnote 10 of the Cirami
Declaration;
(e)

Authorized
Initial

Claimants

who

Distribution

allotted
paragraph

or

on

Declaration
recovery

checks

the

47(a)(6)

not

footnote

10

irrevocably

the

cash

within

conditions

shall

from

do

Settlement,

the

set
of

their
time

forth
the

Cirami

forfeit
and

in

the

all
funds

allocated to all such stale-dated checks shall be
available to be redistributed to other Authorized
Claimants in the Second Distribution of the Net
Settlement

Fund

described

below.

Similarly,

Authorized Claimants who do not cash subsequent
distributions within the time allotted or on the
conditions
footnote

set
10

of

forth
the

5

in
Cirami

paragraph

47(a)(6)

Declaration

shall

irrevocably forfeit any further recovery from the
Net Settlement Fund;
(f)

After

GCG

has

made

reasonable

and

diligent

efforts to have Authorized Claimants cash their
Initial

Distribution

paragraph

47(a)(6)

checks

(as

footnote

set

10

of

forth

the

in

Cirami

Declaration), but no earlier than one (1) year
after the Initial Distribution, GCG shall conduct
a second distribution (the “Second Distribution”)
of the Net Settlement Fund, pursuant to which any
amount remaining in the Net Settlement Fund after
the Initial Distribution (including the Reserve
and the funds for all void stale-dated checks),
after deducting GCG’s unpaid costs and expenses
incurred

in

connection

with

administering

the

Settlement for which it has not yet been paid
(including

the

Distribution),
estimated

estimated
and

taxes

costs

after

and

the

the

of

such

payment

costs

of

Second
of

any

preparing

appropriate tax returns, will be distributed to
all

Authorized

Distribution
Full,

(2)

who

Claimants
(1)

cashed

were

their

6

from
not

the

Claims

Initial

Initial
Paid

in

Distribution

check, and (3) are entitled to at least $10 from
the distribution based on their pro rata share of
the remaining funds;
(g)

In order to allow a final distribution of any
funds remaining in the Net Settlement Fund after
completion of the Second Distribution, whether by
reason of uncashed checks, returned funds, tax
refunds, or otherwise:
(1)

If

cost

months

effective,
after

the

not

less

Second

than

six

(6)

Distribution

is

conducted, a further distribution of the Net
Settlement Fund, pursuant to which the funds
remaining in the Net Settlement Fund, after
deducting
incurred

GCG’s
in

unpaid

costs

connection

with

and

expenses

administering

the Settlement for which it has not yet been
paid (including the estimated costs of such
distribution), and after the payment of any
estimated taxes and the costs of preparing
appropriate

tax

redistributed

to

returns,
Authorized

shall
Claimants

be
who

cashed their Second Distribution checks and
who would receive at least $10.00 from such

7

redistribution,

with

redistributions
intervals,

additional

thereafter

subject

to

in

six-month

the

conditions

previously noted, until GCG and Lead Counsel
determine that further redistribution is not
cost-effective; and
(2)

At

such

time

as

Lead

Counsel

and

GCG

determine that the redistribution of funds
remaining in the Net Settlement Fund is not
cost-effective, any otherwise valid late or
late adjusted Proofs of Claim received after
March 7, 2013 shall be paid in accordance
with subparagraph (i) below.
shall

remain

in

the

Net

If any funds

Settlement

Fund

after payment of such late or late adjusted
Claims,

the

remaining

balance

of

the

Net

Settlement Fund shall be contributed to nonsectarian,

not-for-profit

501(c)(3)

organizations recommended by Lead Plaintiffs
and approved by the Court;
(h)

All persons involved in the review, verification,
calculation, tabulation, or any other aspect of
the processing of the Proofs of Claim submitted

8

herein,

or

otherwise

involved

in

the

administration or taxation of the Settlement Fund
or the Net Settlement Fund, are hereby released
and discharged from any and all claims arising
out of such involvement, and all Class Members,
whether or not they receive payment from the Net
Settlement Fund, are hereby barred from making
any

further

claims

against

the

Net

Settlement

Fund, Lead Plaintiffs, Lead Counsel, the Claims
Administrator,

the

Escrow

Agent

or

any

other

agent retained by Lead Plaintiffs or Lead Counsel
in connection with the administration or taxation
of the Settlement Fund or the Net Settlement Fund
beyond

the

amount

allocated

to

Authorized

Claimants;
(i)

No further Proofs of Claims may be accepted for
payment, and no further adjustments to Proofs of
Claim may be made for any reason, after March 7,
2013,

subject

to

the

following

exception.

If

Proofs of Claim are received or modified after
March 7, 2013 that would have been eligible for
payment or additional payment under the Courtapproved Plan of Allocation had they been timely

9

received, then, at the time that GCG and Lead
Counsel agree that a redistribution is not cost
effective

as

provided

in

subparagraph

(g)(2)

above, such Claims may be paid the distribution
amounts or additional distribution amounts on a
pro rata basis that would bring them into parity
with other Authorized Claimants who have cashed
all their prior distribution checks to the extent
possible;
(j)

Unless otherwise ordered by the Court, one year
after the Second Distribution, GCG shall destroy
the paper copies of the Proofs of Claim and all
supporting documentation and, one year after all
funds

in

the

Net

Settlement

Fund

have

been

distributed, GCG shall destroy electronic copies
of the same; and
(k)

All

of

GCG’s

connection

fees

with

and

the

expenses

incurred

administration

of

in
the

Settlement and to be incurred in connection with
the Initial Distribution of the Net Settlement
Fund as set forth on Exhibit D to

the Cirami

Declaration (Doc. # 289-9) are approved, and Lead
Counsel is directed to pay $497,325.51 out of the

10

Settlement Fund to GCG in payment of such fees
and expenses.
5.

This

Court

retains

jurisdiction

to

consider

any

further applications concerning the administration of
the Settlement, and such other and further relief as
this Court deems appropriate.
DONE and ORDERED in Chambers, in Tampa, Florida, this
24th day of April, 2013.

Copies:

All Counsel of Record

11