Benacquisto, et al v. American Express Fin, et al
Filing
536
ORDER granting 521 Motion to Enforce Settlement. Signed by Senior Judge David S. Doty on 8/5/2015. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 00-1980(DSD)
Lesa Benacquisto, Daniel
Benacquisto, Richard Thoresen,
Elizabeth Thoresen, Arnold
Mork, Isabella Mork, Ronald
Melchert, and Susan Melchert,
on behalf of themselves and all
others similarly situated,
Plaintiffs,
ORDER
v.
American Express Financial
Corporation, American Express
Financial Advisors, American
Centurion Life Assurance
Company, American Enterprise
Life Insurance Company,
American Partners Life
Insurance Company, IDS Life
Insurance Company and IDS Life
Insurance Company of New York,
Defendants.
This matter is before the court upon the motion to enforce
settlement
by
(RiverSource).1
defendant
RiverSource
Life
Insurance
Company
Based on a review of the file, record,
and
proceedings herein, and for the following reasons, the court grants
the motion.
1
RiverSource Life Insurance Company is the successor to IDS
Life Insurance Company.
BACKGROUND
This dispute arises out of the purchase of a flexible premium
variable life insurance policy (Policy) by unnamed class member
Cornelius Webster.
See Sheely Aff. Ex. 2 ¶ 7.
the Policy on or about September 5, 1995.
notice of
the
then-pending
class
Id.
Webster purchased
Webster received
action, referred
to
as
the
Benacquisto Action, which included the procedure for opting out of
the class.
Id. Ex. 1 ¶ 5; see also Lake Aff. ¶¶ 2, 5.
Webster did
not opt out of the class during the relevant period.
Lake Aff. ¶
8.
On May 15, 2001, the court issued an order certifying the
class,
approving
the
proposed
class
settlement
(Benacquisto
Settlement), dismissing the complaint, and entering final judgment
in the Benacquisto Action. ECF No. 94. The Benacquisto Settlement
included a broad release and waiver provision and covered the
period of January 1, 1985, to February 29, 2000 (Class Period).
Sheeley Aff. Ex. 5 ¶¶ II(26), XII(A).
In exchange for release of
all covered claims in the Benacquisto Settlement, Webster received
general relief
insurance.
in
the
form
of
free
accidental
death benefit
Id. Ex, 3, at 9; Ex. 5 ¶ V(A).
On February 13, 2015, Webster filed suit against RiverSource
in Michigan state court, alleging fraudulent misrepresentation,
innocent misrepresentation, and promissory estoppel.
Id. Ex. 2.
The complaint alleges that, when Webster purchased the Policy in
1995, a RiverSource agent falsely stated that his monthly premium
2
was $500.
Id. ¶ 8.
On September 9, 2010, RiverSource informed
Webster that his monthly premium was instead $986.83, and that he
owed $2,960.49 in delinquent payments.
Id. ¶¶ 13-14.
On October
3, 2014, RiverSource informed Webster that he must pay $6,039.73 in
past-due premiums to reinstate the Policy.
Id. ¶ 21.
RiverSource
moves for an order to enforce the settlement and bar the Michigan
action.
In response, the court issued a briefing schedule, and
Webster responded pro se.
court
ECF No. 534.
submissions,
the
determines
that
unnecessary.
After reviewing the
oral
argument
is
See Fed. R. Civ. P. 78(b).
DISCUSSION
In the Benacquisto Action, the court permanently enjoined
class members who did not opt out of the settlement from bringing
any subsequent action based on the policies and annuities that were
the subject of the litigation.
Sheely Aff. Ex. 1 ¶ 14.
The court
also expressly retained jurisdiction over “all matters relating to
the administration, consummation, enforcement and interpretation of
the Settlement Agreement and [the] Order and Judgment.”
Id. ¶ 19.
Specifically, the court reserved jurisdiction to determine whether
subsequent claims were barred by the order.
Id. ¶ 19(a).
The
court possesses the authority to issue injunctions to enforce its
final orders.
Thompson v. Edward D. Jones & Co., 992 F.2d 187, 189
(8th Cir. 1993).
3
In the instant action, RiverSource argues that the release of
claims as set forth in the Benacquisto Settlement precludes Webster
from pursuing the Michigan action. Webster disagrees, arguing that
(1) he did not receive notice of the Benacquisto Settlement and (2)
his claims arose outside the Class Period.
I.
Notice of Settlement
For any certified class action, “the court must direct to
class members
the
best
notice
that
is
practicable
under
the
circumstances, including individual notice to all members who can
be
identified
23(c)(2)(B).
through
reasonable
effort.”
Fed.
R.
Civ.
P.
“Individual notice of class proceedings is not meant
to guarantee that every member entitled to individual notice
receives such notice, but it is the court’s duty to ensure that the
notice ordered is reasonably calculated to reach the absent class
members.”
Reppert v. Marvin Lumber & Cedar Co., 359 F.3d 53, 56
(1st Cir. 2004) (citations and internal quotation marks omitted).
If notice is adequate, absent class members are bound by the
settlement even if they never receive notice.
Id. at 56-57.
Notice of the Benacquisto Settlement was published in the most
widely circulated newspaper in each of the fifty states, and in the
national editions of the New York Times, The Wall Street Journal,
and USA Today.
that
Lake Aff. ¶ 5; see Reppert, 359 F.3d at 57 (noting
publication
in
a
newspaper
of
general
circulation
was
sufficient to confer notice of class action even though plaintiffs
4
did not receive personal notice by mail).
Moreover, RiverSource
sent notice to Webster via first class mail.
Lake Aff. ¶ 2.
The
court previously found that this “constituted the best practicable
notice” and was “reasonably calculated” to apprise class members of
their rights and the binding effect of the settlement. Sheely Aff.
Ex. 1 ¶ 5.
As a result, the court finds that Webster received
proper notice.
II.
Preclusion by Settlement Agreement
Pursuant
to
the
“Release
and
Waiver”
provision
of
the
Benacquisto Settlement, class members agreed to release all past or
present claims “that are based upon, related to, or connected with,
directly or indirectly, in whole or in part” to the Benacquisto
Action or the “released conduct.”
Sheely Aff. Ex. 1 ¶ 13(A)(1).
The released conduct broadly includes representations, omissions,
and
communications
administration,
related
servicing,
to
or
or
connected
performance
of
between January 1, 1985, and February 29, 2000.
with
the
policies
sale,
issued
Id. ¶ 13(B)(2).
Class members expressly reserved the right to assert various other
claims, however, including those that “independently arise[] from
acts, facts or circumstances that occur for the first time after
the last day of the Class Period.”
Id. ¶ 13(A)(3).
Webster admits that he purchased the Policy in 1995 and that
at the time of purchase a RiverSource agent misrepresented the cost
of his monthly premium.
He argues, however, that his claims in the
5
Michigan action fall outside of the Class Period because he was not
put on notice of the higher premium until September 9, 2010, and
because he continued to make monthly payments on the Policy well
after February 29, 2000.
See ECF No. 534, at 2.
Webster’s
Michigan
claims
in
the
misrepresentations made in 1995.
are “based
upon,
related to,
action,
The basis of
however,
rests
Those claims, at the very least,
or
connected
with,
directly
indirectly, in whole or in part” the misrepresentations.
Aff.
Ex.
1
¶
13(A)(1).2
on
As
a
result,
the
claims
or
Sheely
did
not
independently arise out of any circumstances that first occurred
after
the
close
of
the
Class
Period.
Enforcement
of
the
Benacquisto Settlement against Webster is therefore warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that
defendant’s motion to enforce settlement [ECF No. 521] is granted.
Dated: August 5, 2015.
s/David S. Doty
David S. Doty, Judge
United States District Court
2
Notably, although Webster was not informed of the higher
premium until September 2010, he does not allege either in the
Michigan action or in response to this motion that his monthly
premium was wrongfully increased after the close of the Class
Period. Thus, the court finds that his claims in the Michigan
action arise solely from the misrepresentations made in 1995.
6
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