Griffiths v. Aviva London Assignment Corporation et al
Filing
153
Judge Nathaniel M. Gorton: ORDER entered allowing 140 Motion to Certify Class (For Final Approval of the Class Action Settlements and Award of Attorneys' Fees, Reimbursement of Litigation Expenses, and Class Representative Service Award) (McDonagh, Christina)
United States District Court
District of Massachusetts
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Plaintiff,
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v.
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AVIVA LONDON ASSIGNMENT CORPORATION, et )
al.,
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Defendants.
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JOHN W. GRIFFITHS,
Civil No.
15-13022-NMG
ORDER
GORTON, J.
Upon consideration of the record and proceedings herein,
and after a Final Fairness Hearing on October 18, 2018,
Plaintiff’s Motion for Final Approval of Settlements and for
Award of Attorney’s Fees and Expenses and Service Award (Docket
No. 140) is hereby ALLOWED.
In connection with the allowance of the subject motion,
the Court finds, concludes and hereby orders as follows:
1.
For the purpose of this Order, the Court adopts all
defined terms as set forth in the Settlement Agreements entered
into with the defendants and previously filed with this Court on
May 1, 2018.
2.
The Court has jurisdiction over the subject matter of
this action and personal jurisdiction over the parties thereto
and the Settlement Class Members.
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3.
Having preliminarily certified a Settlement Class for
settlement purposes only and appointed Class Counsel by Order on
June 29, 2018 (Docket No. 132) (the “Preliminary Approval
Order”), the Court now grants final approval of the Settlement
Class as defined below.
4.
The Court finds that the distribution of Notice of the
Settlements as provided by the Settlement Agreements, and as
ordered by this Court upon preliminary approval, constituted the
best notice practicable under the circumstances and fully meets
the requirements of due process under the United States
Constitution and Federal Rule of Civil Procedure 23.
The Court
finds that the distribution of the Notice has been achieved
pursuant to the Preliminary Approval Order and the Settlement
Agreements.
The Court further finds that the Notice was
adequate and reasonable and that it apprised the Settlement
Class Members of the nature and pendency of this action and the
terms of the Settlement Agreements as well as their rights to
request exclusion, object and/or appear at the Fairness Hearing.
5.
The Court finds that the Settlement Class
Representative is similarly situated to absent Settlement Class
Members, is typical of the class and that Class Counsel and the
Settlement Class Representative have fairly and adequately
represented the Settlement Class.
The Court grants final
approval to its appointment of Marcus & Auerbach LLC and
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Krasnoo, Klehm & Falkner LLP as Class Counsel and its
designation and appointment of Jerome M. Marcus and Jonathan
Auerbach (Marcus & Auerbach LLC) as lead counsel for the
Settlement Class, and its appointment of John W. Griffiths as
Settlement Class Representative.
6.
The Court certifies the following Settlement Class
under FED. R. CIV. P. 23(a) and 23(b)(3):
All beneficiaries of structured settlement annuities
assigned to Athene London Assignment Corporation (formerly
known as Aviva London Assignment Corporation and as CGNU
London Annuity Service Corp.), which includes all annuities
covered by the Capital Maintenance Agreement between CGU
International Insurance plc and CGNU London Annuity Service
Corp., dated February 1, 2002, where such annuities
remained in force as of October 2, 2013.
Excluded from the proposed class are the officers and
directors of any defendant and members of their immediate
families and any entity in which any defendant has a
controlling interest, the legal representatives, heirs,
successors or assigns of any such excluded party, the
judicial officer(s) to whom this action is assigned, and
the members of their immediate families.
7.
Also excluded from the Settlement Class are those
persons identified in Exhibit A of Docket No. 150 (Declaration
of Mabel L. Card), who submitted timely and valid requests for
exclusion from the Settlement Class.
Such persons shall not
receive any monetary benefits of the Settlement Agreements and
shall not be bound by this Final Judgment.
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8.
The Court finds that the settlements defined above
satisfy the requirements of FED. R. CIV. P. 23(a) and (b)(3) in
that:
(a)
the Settlement Class is so numerous that joinder of
all Settlement Class Members would be impracticable
(numerosity);
(b)
there are issues of law and fact that are common to
the Settlement Class (commonality);
(c)
the claims of the Settlement Class Representative are
typical of and arise from the same operative facts and
seek similar relief as the claims of the Settlement
Class Members (typicality);
(d)
the Settlement Class Representative and Class Counsel
have fairly and adequately protected the interests of
the Settlement Class, as the Settlement Class
Representative has no interest antagonistic to or in
conflict with the Settlement Class and has retained
experienced and competent counsel to prosecute this
matter on behalf of the Settlement Class (adequacy);
(e)
questions of law or fact common to Settlement Class
Members predominate over any questions affecting only
individual members 1 (predominance) and
(f)
a class action and class settlement are superior to
other methods available for a fair and efficient
resolution of this controversy.
9.
The Court finds that the Settlements provide
substantial relief to the Settlement Class and orders defendants
to pay for the capped costs of Class Notice and Settlement
1
Manageability prong of predominance is not a consideration when
approving settlement class. Amchem v. Windsor Products, 521 U.S.
591 (1997)
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Administration, all as set forth in greater detail in the
Settlement Agreements.
10.
The Court finds that the Settlements are fair,
reasonable and adequate and are in the best interests of the
Settlement Class Members.
The Court also finds that the
Settlements were the product of a lengthy arms-length
negotiations conducted in good faith among the parties and their
experienced counsel and is not the product of fraud or
overreaching by, or collusion between the parties to this
litigation.
The Court further finds that the parties face
significant risks, expenses, delays and uncertainties, including
on appeal, of continued litigation of this complex matter, which
further supports the Court’s finding that the Settlement
Agreements are fair, reasonable, adequate and in the best
interests of the Settlement Class Members.
11.
No objections have been timely filed to the Settlement
Agreements or the Final Approval Motion.
12.
Distribution of Funds.
(a)
Any money remaining from the Settlement Amount and any
Contingent Settlement Payment, including any accrued
interest thereon, after the payments for
administration costs, taxes, service award, attorney’s
fees and expenses are made, shall be distributed as
follows to Class Members who have not excluded
themselves from the Settlement Class, provided that
the payment to each such class member shall be equal
to or greater than $10.00.
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(1)
(2)
The “Annuity Recovery” shall be calculated for
each annuity by multiplying the Annuity
Proportion by the Settlement Amount and any
Contingent Settlement Payment.
(3)
13.
The “Annuity Proportion” shall be calculated for
each annuity by dividing the premium paid for
each annuity by the total premium paid for all
annuities assigned to Athene London Assignment
Corporation where such annuities remained in
force as of October 2, 2013.
The “Individual Recovery” shall be calculated for
each beneficiary of each annuity by dividing the
Annuity Recovery by the number of beneficiaries
of that annuity remaining in the Settlement
Class.
The Settlement Administrator shall make a distribution
to each Class Member who has not served an Exclusion Request in
the amount of that Class Member’s Individual Recovery, as
defined above.
14.
The Court finds that the interests of Greater Boston
Legal Services is reasonably approximate to the interests of the
Settlement Class.
Therefore, the Court designates Greater
Boston Legal Services as a cy pres recipient and directs that it
receive any funds remaining after payments are made as set forth
in the Settlement Agreements.
15.
Accordingly, the Court hereby grants final approval of
the Settlements and all of the terms of the Settlement
Agreements.
Plaintiff, defendants and the Settlement
Administrator are ordered to carry out the Settlements according
to the terms of the Settlement Agreements, the exhibits attached
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thereto, and the orders of this Court.
Furthermore, the
Settlement Administrator is authorized to resolve questions
regarding the allocation of settlement payments among multiple
beneficiaries of the same annuity policy.
16.
As provided in greater detail in the Settlement
Agreements, the Settlement Agreements, their terms and any
agreement, exhibit or order relating thereto are not a
concession or admission, shall not be offered by any party to be
received in evidence in any proceeding or utilized in any manner
as a presumption, concession or admission of any fault,
wrongdoing or liability on behalf of the defendants.
Notwithstanding the foregoing, nothing in this Order shall be
interpreted to prohibit the use of this Order in a proceeding to
consummate or enforce the Settlement Agreements or this Order,
or to defend against the assertion of any claims released under
the Settlement Agreements or this Order in any other proceeding,
or as otherwise required by law.
17.
The Settlement Agreements include releases and waivers
of settled claims.
The releases and waivers set forth in the
Settlement Agreements are valid and binding and are specifically
adopted and made a part of this Order as if fully set forth
herein.
All such releases and waivers shall enter into effect
upon the Effective Dates set forth in the Settlement Agreements.
As of the Effective Dates, all Members of the Settlement Class
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who did not timely and adequately exclude themselves from the
Settlements shall be permanently barred from prosecuting against
any of the Defendant Released Parties claims that are released
pursuant to the release provisions in the Settlement Agreements.
18.
The Court hereby directs that 1) Class Counsel be
awarded $4,155,123.27 in fees plus reimbursement of attorney’s
litigation expenses of $144,826.73 and 2) a service award in the
amount of $25,000 should be granted to John W. Griffiths, the
Settlement Class Representative.
The amount awarded as
attorney’s fees and reimbursement of litigation expenses shall
be paid from the Class Settlement Fund and shall be distributed
in accordance with the agreements entered into among Class
Counsel.
The First Circuit has approved the use of the percentageof-fund method in which a reasonable percentage of the common
fund is awarded to counsel. In re Thirteen Appeals Arising Out
of San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 305
(1st Cir. 1995).
Courts in this Circuit generally award between
20% and 30% of the amount reserved for the class. In re Lupron
Mktg. & Sales Practices Litig., 228 F.R.D. 75, 98 (D. Mass.
2005) (holding that attorney’s fees shall not exceed 30% of the
settlement fund).
This Court finds that Class Counsel has
adequately shown that the settlement relief to the Settlement
Class Members is in the range of $27 million to $34 million and
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thus Class Counsel’s request for 12% of the valuation is
appropriate.
Furthermore, under the lodestar calculation, which serves
as a cross-check to the percentage-of-fund method, this Court
finds counsel’s proposed multiplier of 1.98 to be appropriate.
Counsel has asserted that they spent over 3,000 hours on this
litigation, the case involved complex economic, financial and
legal issues, the large settlement is representative of
counsel’s skill and tenacity despite significant legal
obstacles, the time spent precluded other employment, the fees
are within the prescribed percentage range of 20% to 30%, the
Class Members significantly and directly benefited from this
substantial and non-reversionary settlement and that the case
was undesirable because it would have involved multiple experts,
complex issues and extensive discovery.
Accordingly, this Court
approves the proposed award of attorney’s fees.
19.
The Court finds that the expenses incurred and
advanced by Class Counsel are reasonable and orders that they be
reimbursed from the Settlement Fund, in the amount of
$144,826.73.
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20.
The Court finds that an individual service award to
the Settlement Class Representative of $25,000 for representing
the Class is warranted under the circumstances of this case and
is approved by the Court.
The Court finds that the Settlement
Class Representative, John W. Griffiths investigated and
discovered the facts giving rise to this case, that he searched
for and found counsel to prosecute the case and that he worked
with such counsel throughout the case, both in producing
discovery and in monitoring the progress of the case and of
settlement negotiations.
The Settlement Class Representative
undertook the obligations of this action, including providing
information and conferring with and advising counsel with
respect to all aspects of the litigation and settlement.
21.
Other than as set forth in this Order, the parties
shall bear their own attorney’s fees and costs.
22.
This action is dismissed with prejudice.
23.
Consistent with the Settlement Agreements, if the
Effective Dates do not occur, or if for any other reason the
Settlement Agreements are terminated, disapproved or fail to
become effective, the parties shall be deemed to have reverted
to their respective status in the action as of September 19,
2017 and December 22, 2017, which shall then resume proceedings
in this Court, and, except as otherwise provided in the
Settlement Agreements, the parties shall proceed in all respects
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as if the Settlement Agreements, the Preliminary Approval Order,
this Order and any other related orders had not been entered.
So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated:
October 23, 2018
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