White v. VNA Homecare, Inc.

Filing 93

ORDER granting 84 Motion for Attorney Fees and granting 85 Motion for Settlement. Signed by Chief Judge David R. Herndon on 11/26/13. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
APRIL BECK, individually, and on
Behalf of All Others Similarly
Situated,
Plaintiffs,
v.

Case No.: 12-CV-00330-DRH-PMF

VNA HOMECARE, INC., d/b/a VNA
TIP HOMECARE,
Defendant.
GAYLE HATFIELD, individually, and
on
Behalf of All Others Similarly
Situated,
Plaintiffs,
v.

Case No.: 12-CV-00331-DRH-PMF

VNA HOMECARE, INC., d/b/a VNA
TIP HOMECARE,
Defendant.
______________________________________________________________________________

Page 1 of 7

MICHELE MARLOW AND
TONYA SMITH, individually, and on
Behalf of All Others Similarly
Situated,
Plaintiffs,
v.

Case No.: 12-CV-00332-DRH-PMF

VNA HOMECARE, INC., d/b/a VNA
TIP HOMECARE,
Defendant.
________________________________________
MICHELLE WHITE, individually, and
on
Behalf of All Others Similarly
Situated,
Plaintiffs,
v.

Case No.: 11-CV-00971-DRH-PMF

VNA HOMECARE, INC., d/b/a VNA
TIP HOMECARE,
Defendant.
______________________________________
ORDER APPROVING SETTLEMENT AND AWARDING ATTORNEYS’ FEES
This matter having come before the Court on the Class Counsels’ and VNA’s
motion for approval of the settlement set forth in the Stipulation of Settlement
dated July 21, 2013, and the exhibits attached thereto (the “Settlement
Agreement”), relating to the above-captioned class and collective action (the
“Litigation”), the Court having considered the submissions by the parties, its own
review of the pleadings in this matter, and the Fairness Hearing held on
November 25, 2013, IT IS HEREBY ORDERED:
1.
For purposes of this Order, the Court adopts and incorporates
herein the Settlement Agreement recently filed with the Court, including the
definitions set forth therein.
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2.
This Court has jurisdiction over the subject matter of the Litigation,
and over all parties to the Litigation, including all Class Members who did not
timely exclude themselves from the Litigation.
3.
The Court, having considered among other things the settlement
amount, the releases, and dismissal of the Litigation as to Class Members’ claims
against VNA provided for in the Settlement Agreement, hereby approves the
settlement set forth in the Settlement Agreement, and finds that the settlement is,
in all respects, fair, reasonable, adequate, and in the best interests of the Class
Members in accordance with Federal Rule of Civil Procedure 23, and directs
implementation of its terms and provisions.
4.
The Court finds that the Settlement Agreement is fair, reasonable,
adequate, and in the best interests of the Class Members based upon, among
other things, its familiarity with the Litigation, and upon the following findings of
fact and conclusions of law:
(a)

The Litigation between the Class and VNA was at all times
litigated in a competent, vigorous, and contested manner.
Class Counsel provided vigorous and skillful representation to
the Class Members, and was experienced and knowledgeable.
VNA was also represented by experienced, skilled, and
knowledgeable counsel.

(b)

The Settlement Agreement was negotiated at arms’ length. The
parties mediated their claims on May 1, 2013 and that led to
extended negotiations before a final agreement was reached in
July, 2013.

(c)

The Class Members faced a risk that they would not prevail in
the Litigation and that one or more of the defenses asserted by
Defendant would be sustained.

(d)

Prior to entering into the Settlement Agreement, the parties
exchanged substantial formal and informal discovery. Thus,
the parties were well-positioned to evaluate the settlement
value of the Litigation, as well as the risks of continued
litigation.

(e)

If the settlement had not been reached, the parties faced the
expense, risk and uncertainty of continued litigation before this
Court and on appeal. The Court takes no position on the
merits of either party’s case. The Court has considered the
parties’ positions on the merits and the risks of the Class
Members’ position in support of the fairness, reasonableness,
and adequacy of the settlement.
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(f)

The amount of the settlement is fair, reasonable, and adequate,
and it is appropriate in light of claimed maximum damages of
the Class Members. The settlement amount is within the range
of reasonable settlements that would have been appropriate in
this case. The Court observed nothing to indicate a better
settlement could or would have been obtained through
continued litigation or other action.

(g)

At all times, Class Plaintiffs and Class Counsel have acted
independently.

5.
The Court specifically finds that all Class Members who did not
timely exclude themselves from the Litigation are bound by the Settlement
Agreement, this Order, and the separate final judgment to be entered later.
6.
Neither the Settlement Agreement, this Order, the separate final
judgment to be entered later (or any of the terms or provisions of those
documents), nor the fact of settlement, nor any of the proceedings or negotiations
connected with settlement (or any of the documents, briefs or statements therein)
shall be: (a) construed as a concession or admission by VNA (or any other
Release) with respect to any of the released claims or be deemed evidence of any
violation of any statue or law or of any liability, fault or wrongdoing with respect
to any released claim; (b) offered or received against VNA as an admission of
concession that recovery could be had in any amount should the Litigation not be
settled; (c) construed as a concession or admission by Class Plaintiffs or any
Class Member that their claims lack merit or that the defenses asserted by VNA
have merit; (d) offered or received in evidence in any civil, criminal or
administrative action, arbitration or other proceeding other than such
proceedings as may be necessary to consummate or enforce the Stipulation of
Settlement; provided, however, that VNA may file the Stipulation of Settlement,
judgment and/or any release executed in connection therewith, in any action that
may be brought against VNA in order to support a defense or counterclaim based
on principles of res judicata, collateral estoppel, release, good faith settlement,
judgment bar or reduction, or any other theory of claim preclusion, issue
preclusion, or similar defense or counterclaim.
7.
In accordance with the parties’ motions, the Stipulation of Settlement
is amended in each of the following particulars:
a.
Section 5.02 is amended to include Mr. Scott Guschall
receiving $2,500 as an incentive payment and the total for incentive payments is
increased to $22,500.
b.
Section 7.01 is amended to provide that the judgments in the
Lawsuits shall not be entered until the Claims Administrator has provided

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certification to the Court that VNA has submitted sufficient funds to meet its
obligations under the Stipulation.
c.
Section 9.08 is amended to provide that dismissal with
prejudice shall not be entered until the Claims Administrator has provided
certification to the Court that VNA has submitted sufficient funds to meet its
obligations under the Stipulation.
d.
Section 9.09 is amended to provide that the Claims
Administrator shall provide the listing of the amount of payments to be made by
VNA twenty (20) days after the Fairness Hearing.
e.
Section 9.10 is amended to provide that the Claims
Administrator shall issue the incentive payments, and payments to the Class
Members, within five (5) days of the Effective Date.
f.
Section 9.10 is amended to increase the time by which VNA
must deposit sufficient funds to meet its obligations from 25 days to 90 days after
the Fairness Hearing.
g.
Section 9.10 is amended to provide that within three (3) days
after it has received from VNA sufficient funds to satisfy VNA’s obligations under
the Settlement Agreement the Claims Administrator will provide certification of
that fact to Class Counsel and thereafter, as soon as practicable, Class Counsel
shall file the Claims Administrator’s certification, together with a stipulation that
all four lawsuits be dismissed with prejudice.
h.
Section 10.02 is amended to provide that the Claims
Administrator shall issue payment of attorneys’ fees, costs and expenses within
five (5) days of the Effective Date, as opposed to thirty (30) days.
8.
The Court finds that the notice given to Class Members was
appropriate under the circumstances, properly informed them of the proposed
settlement and the proceedings to be followed in connection with its approval, and
constituted valid, due, and sufficient notice to all Class Members, complying fully
with Federal Rule of Civil Procedure 23, the United States Constitution, and all
other legal requirements.
9.
The Class is defined pursuant to Rule 23(c)(3), and as defined in the
Court’s Order of August 2013, means the following:
“All Plaintiffs and all similarly-situated individuals who worked as
healthcare providers for VNA HomeCare, Inc. in Illinois and Missouri between
April 26, 2009 and May 31, 2013 (“Class Period”). “Healthcare Providers” shall
mean all persons who worked for VNA at any time during the Class Period in any
of the following positions: (1) Registered Nurses (RNs); (2) Licensed Practical
Nurses (LPNs); (3) Certified Occupational Therapy Assistants (COTAs); (4)
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Occupational Therapists (OTs); (5) Physical Therapists (PTs); (6) Physical
Therapy Assistants (PTAs); (7) Speech Therapists (STs); (8) Home Health Aides
(HHAs); and (9) Certified Nursing Aides (CNAs).”
The Final List of Class Members (filed separately under seal on November 15,
2013) is comprised of all individuals on the List of Class Members who did not
timely exclude themselves from the Litigation.
10. All Class Members receiving a Settlement Payment will receive an
Internal Revenue Service form W-2 for all 50% of the amounts paid under the
Settlement Agreement and a W-9 for all other payments. Settlement Payments
shall be subject to all required and customary payroll taxes (federal income taxes,
state income taxes, employee’s share of FICA taxes, and other state-specific
statutory deductions, including pension contributions). VNA shall pay the
employer’s portion of state and federal payroll taxes for the Settlement Payment,
and the Settlement Administrator shall deduct the employee share of all required
payroll taxes of the Claimants and Class Representatives from the Settlement
Payments.
11. The Court has considered Class Counsel’s Motion for Attorneys’ Fees
and Costs, as well as the record in the Litigation. The Court approves payment to
Class Counsel of $270,000.00 in attorneys’ fees and $15,000.00 in
reimbursement of litigation costs and expenses, to be paid in accordance with the
Settlement Agreement. The amount of fees is appropriate under the percentage of
recovery method of fee computation. In making this determination, the Court
further finds and concludes and bases its determination on the recognition that
settlement funds available to Class Members were created by the efforts of Class
Counsel, for which they are entitled to compensation.
In this case, the Class was represented by attorneys from four separate law
firms, Maduff & Maduff, LLC, Touhy, Touhy & Buehler, DiTommaso-Lubin P.C.,
and Onder Shelton O’Leary & Peterson LLC. These four law firms have analyzed
the work each has done and the value of that work in reaching the settlement
here. They have unanimously agreed that an appropriate division of the
$270,000.00 of attorneys’ fees should be $137,000.00 to Maduff & Maduff, and
$133,000.00 jointly to the remaining three firms. At this time, the aggregate of
costs and expenses incurred by all four law firms is $13,735.33, but additional
costs and expenses will likely be incurred by Class Counsel before the remaining
work on the case is completed. Therefore, the Court directs Class Counsel to
submit their expenses directly to the Claims Administrator at the conclusion of
the case and Orders the Claims Administrator to reimburse Class Counsel for
those costs and expenses up to a maximum of $15,000.00.

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12. Without affecting the finality of this judgment in any way, the Court
hereby retains exclusive jurisdiction over any and all issues, cases or matters
relating to or concerning the administration, effectuation, and enforcement of the
Settlement Agreement, and the parties, Class Members and counsel in connection
therewith, and for such other matters as may properly come before it.

Digitally signed by
David R. Herndon
Date: 2013.11.26
08:48:55 -06'00'

Dated: November 26, 2013

Chief Judge
United States District Court

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