The City of Farmington Hills Employees Retirement System v. Wells Fargo Bank N.A.

Filing 686

FINAL ORDER AND JUDGMENT. 1. The Court, for purposes of this Final Order and Judgment (the "Judgment") adopts all defined terms as set forth in the Settlement, and incorporates them herein by reference as if fully set forth. 2. The Court has jurisdiction over the subject matter of the Action, and all matters relating to the Settlement, as well as personal jurisdiction over all of the Settling Parties and each of the Class Members. 3. The Notice, the publication of Notice on a dedicat ed website and the notice methodology implemented pursuant to the Settlement Agreement and the Court's orders: (i) constituted the best notice practicable under the circumstances to all persons within the definition of the Class; (ii) constitute d notice that was reasonably calculated, under the circumstances, to apprise Class Members of the pendency of the Action, of the effect of the Settlement Agreement, including releases, of their right to object to the proposed Settlement, of their rig ht to participate in the Settlement, and of their right to appear at the Final Approval Hearing; (iii) were reasonable and constituted due, adequate and sufficient notice to all persons or entities entitled to receive notice; and (iv) met all applic able requirements of the Federal Rules of Civil Procedure, the United States Constitution (including the Due Process Clause), the Rules of the Court and any other applicable law. (See Order for additional information.) (Written Opinion) Signed by Judge Donovan W. Frank on 8/18/2014. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

THE CITY OF FARMINGTON HILLS
EMPLOYEES RETIREMENT SYSTEM
AND THE BOARD OF TRUSTEES OF
THE ARIZONA STATE CARPENTERS
PENSION TRUST FUND AND THE
ARIZONA STATE CARPENTERS
DEFINED CONTRIBUTION TRUST FUND,
Individually and on Behalf of All Others
Similarly Situated,

Civil No. 10-4372 (DWF/JJG)

Plaintiffs
v.
WELLS FARGO BANK, N.A.,

FINAL ORDER AND JUDGMENT

Defendant.

WHEREAS, the Named Plaintiffs The City of Farmington Hills Employees
Retirement System, The Board Of Trustees Of The Arizona State Carpenters Pension
Trust Fund and The Arizona State Carpenters Defined Contribution Trust Fund
(collectively, the “Named Plaintiffs”) on behalf of themselves and the members of the
Class, and Wells Fargo Bank, N.A. (“Wells Fargo”) entered into a Settlement
Agreement dated May 28, 2014, that provides for the payment of $62,500,000 and a
complete dismissal with prejudice of the claims asserted in the above-referenced litigation
against Wells Fargo on the terms and conditions set forth in the Settlement Agreement,
subject to the approval of this Court (the “Settlement”);
WHEREAS, by Order dated June 5, 2014 (the “Preliminary Approval Order”), this
Court (a) preliminarily approved the Settlement; ( b) ordered that notice of the

proposed Settlement be provided to members of the Class; (c) provided Class
Members with the opportunity to object to the proposed Settlement; and (d) scheduled a
hearing regarding final approval of the Settlement;
WHEREAS, due and adequate notice has been given to the Class; and
WHEREAS, the Court conducted a hearing on August 14, 2014 (“Final
Approval Hearing”) to (a) determine whether the Settlement should be approved by the
Court as fair, reasonable and adequate; (b) determine whether judgment should be entered
pursuant to the Settlement Agreement, inter alia, dismissing the Action against
Wells Fargo with prejudice and extinguishing and releasing all Settled Claims (as
defined therein) against all Wells Fargo Releasees and all Class Member Releasees
(“Released Parties”); (c) rule on Class Counsel’s application for an award of attorneys’
fees and the reimbursement of Litigation Expenses; (d) rule on the Named Plaintiffs’
requests for Service Awards; and (e) rule on such other matters as the Court may deem
appropriate.
The Court has considered all matters submitted to it at the Final Approval
Hearing and otherwise, the pleadings on file, the applicable law, and the record.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

The Court, for purposes of this Final Order and Judgment (the “Judgment”)

adopts all defined terms as set forth in the Settlement, and incorporates them herein
by reference as if fully set forth.

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2.

The Court has jurisdiction over the subject matter of the Action, and all

matters relating to the Settlement, as well as personal jurisdiction over all of the
Settling Parties and each of the Class Members.
3.

The Notice, the publication of Notice on a dedicated website and the

notice methodology implemented pursuant to the Settlement Agreement and the
Court’s orders: (i) constituted the best notice practicable under the circumstances to
all persons within the definition of the Class; (ii) constituted notice that was reasonably
calculated, under the circumstances, to apprise Class Members of the pendency of the
Action, of the effect of the Settlement Agreement, including releases, of their right to
object to the proposed Settlement, of their right to participate in the Settlement, and
of their right to appear at the Final Approval Hearing; (iii) were reasonable and
constituted due, adequate and sufficient notice to all persons or entities entitled to receive
notice; and (iv) met all applicable requirements of the Federal Rules of Civil
Procedure, the United States Constitution (including the Due Process Clause), the
Rules of the Court and any other applicable law.
4.

Pursuant to and in accordance with Rule 23 of the Federal Rules of

Civil Procedure, the Settlement, including, without limitation, the Settlement Amount,
the releases set forth therein, and the dismissal with prejudice of the Settled Claims
against the Released Parties set forth therein, is finally approved as fair, reasonable and
adequate. The Settling Parties are hereby authorized and directed to comply with and
to consummate the Settlement in accordance with the Settlement Agreement, and the
Clerk of this Court is directed to enter and docket this Judgment in the Action.
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5.

The Action and the Complaint and all claims included therein, as well

as all Settled Claims (defined in the Settlement Agreement), are dismissed with
prejudice as to the Class Member Releasees (defined in the Settlement Agreement),
and as against each and all of the Wells Fargo Releasees (defined in the Settlement
Agreement).
(a)

All Class Members on behalf of themselves and their

respective predecessors, successors and assigns, are hereby deemed to
have finally, fully, and forever released, relinquished, and discharged all
of the Wells Fargo Releasees from the Settled Claims.
(b)

Wells Fargo, on behalf of itself and its predecessors, successors

and assigns, is hereby deemed to have finally, fully, and forever released,
relinquished, and discharged all of the Class Member Releasees from the
Settled Claims.
The Parties are to bear their own costs, except as otherwise provided in the Settlement
Agreement.
6.

Notwithstanding Paragraph 5, nothing in this Judgment shall bar any action

or claim by any of the Settling Parties to enforce or effectuate the terms of the
Settlement Agreement or this Judgment.
7.

This Judgment and the Settlement Agreement, including any provisions

contained in the Settlement Agreement, any negotiations, statements, or proceedings in
connection therewith, or any action undertaken pursuant thereto:

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(a)

shall not be admissible in any action or proceeding for any

reason, other than an action to enforce the settlement terms; and
(b)

is not, and shall not be deemed, described, construed,

offered or received as evidence of any presumption, concession, or
admission by any person or entity of the truth of any fact alleged in the
Action; the validity or invalidity of any claim or defense that was or
could have been asserted in the Action or in any litigation; the amount of
damages, if any, that would have been recoverable in the Action; or any
liability, negligence, fault, or wrongdoing of any person or entity.
8.

The Court hereby appoints Garden City Group as Settlement

Administrator and Wells Fargo Bank, N.A. and Glancy Binkow & Goldberg LLP as
Joint Escrow Agents.
9.

The Plan of Allocation is approved as fair and reasonable, and Class Counsel

and the Settlement Administrator are directed to administer the Settlement in
accordance with the terms and provisions of the Settlement Agreement.
10.

The Court finds that the Settling Parties and their counsel have complied

with the requirements of Rule 11 of the Federal Rules of Civil Procedure as to all
proceedings herein, and that Named Plaintiffs and Class Counsel at all times acted in
the best interests of the Class and had a good faith basis to bring, maintain and
prosecute this Action in accordance with Federal Rule of Civil Procedure 11. The Court
further finds that the Named Plaintiffs and Class Counsel adequately represented the
Class Members in entering into and implementing the Settlement.
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11.

No Class Member shall have any claim against Class Counsel, the Claims

Administrator, or other agent designated by Class Counsel based on the distributions
made substantially in accordance with the Settlement and Plan of Allocation as
approved by the Court and further orders of the Court.
12.

Subject to the Settlement Agreement, neither Wells Fargo nor its counsel,

shall have any responsibility for, interest in, or liability whatsoever with respect to,
and no Class Member shall have any claim against the Wells Fargo Releasees or
Wells Fargo’s Counsel with respect to: (a) the provisions of the Notice, including
identifying and locating Class Members; (b) the design, administration or
implementation of the Plan of Allocation; (c) the determination or administration of
Taxes; (d) any act, omission or determination of Class Counsel, the Joint Escrow
Agents or the Claims Administrator, or any of their respective designees or agents, in
connection with the administration of the Settlement or otherwise; (e) the
management, investment or distribution of the Gross Settlement Fund and/or the Net
Settlement Fund; (f) the Plan of Allocation; (g) the determination, administration,
calculation or payment of claims asserted against the Gross Settlement Fund and/or
the Net Settlement Fund; (h) the administration of the Settlement Escrow Account;
(i) any losses suffered by, or fluctuations in the value of, the Gross Settlement Fund
and/or the Net Settlement Fund; or (j) the payment or withholding of any Taxes,
expenses and/or costs incurred in connection with the taxation of the Gross Settlement
Fund and/or the Net Settlement Fund or the filing of any tax returns; or (k) any
expenses, costs, or losses incurred in connection with any of the above.
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13.

Any order approving or modifying the Plan of Allocation set forth in

the Notice, the application by Class Counsel for an award of attorneys’ fees and
reimbursement of expenses, or the application for Class Representative Service Awards,
shall not disturb or affect the Finality of this Judgment or the Settlement Agreement.
14.

The Notice stated that Class Counsel would move for attorneys’ fees in

an amount not to exceed 33-⅓% of the Gross Settlement Fund, and Litigation
Expenses in an amount not to exceed $2,450,000. In their Motion for Final
Approval, Class Counsel requested attorneys’ fees of 33-⅓% of the Gross Settlement
Fund, totaling $20,833,333, and Litigation Expenses of $2,064,548.45.
15.

Class Counsel is hereby awarded a total of $ 20,833,333 in fees and

$2,064,548.45 in Litigation Expenses, which sum the Court finds to be fair and
reasonable. The foregoing award of fees and expenses shall be paid to Glancy Binkow
& Goldberg, LLP from the Gross Settlement Fund, and such payment shall be made
at the time and in the manner provided in the Settlement Agreement, with interest
from the date the Gross Settlement Fund was funded to the date of payment at the
same net rate that interest is earned by the Gross Settlement Fund. The appointment and
distribution among Plaintiffs’ Counsel of any award of attorneys’ fees shall be within
Glancy Binkow & Goldberg, LLP and the Miller Law Firm, PC’s sole discretion.
16.

The Named Plaintiffs, Farmington and Arizona, are each awarded $50,000

(for a total combined award of $100,000) for their service, costs and expenses directly
relating to the representation of the Class, which sum the Court finds to be fair and
reasonable. The foregoing award shall be paid to the Named Plaintiffs from the Gross
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Settlement Fund, and such payment shall be made at the time and in the manner provided
in the Settlement Agreement, with interest from the date the Gross Settlement Fund was
funded to the date of payment at the same net rate that interest is earned by the Gross
Settlement Fund.
17.

In making this award of attorneys’ fees and Litigation Expenses and the

Class Representative Service Awards to be paid from the Gross Settlement Fund, the
Court has considered and found that:
(a)

the Settlement has created a fund of $62,500,000 in cash

that is already on deposit, plus interest thereon, and that numerous
Class Members will benefit from the Settlement;
(b)

Notice was disseminated to Class Members stating that

Class Counsel were moving for attorneys’ fees not to exceed 33-⅓% of
the Gross Settlement Fund in a total amount not to exceed $20,833,333,
and for Litigation Expenses in an amount not to exceed $2,450,000.
Class Counsel filed their application for attorneys’ fees and
reimbursement of expenses 14 days prior to the deadline for objections in
this Action, and one (1) objection was filed by a Class Member against
the terms of the proposed Settlement or the fees and expenses contained
in the Notice and Class Counsel’s application;
(c)

Class Counsel has conducted the litigation and achieved the

Settlement in good faith and with skill, perseverance and diligent
advocacy;
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(d)

The Action involves complex factual and legal issues and

was actively prosecuted for over three years, proceeded until trial was
imminent, and, in the absence of a settlement, would involve further
lengthy proceedings with uncertain resolution of the complex factual and
legal issues;
(e)

During discovery in this case, the Plaintiffs’ Counsel

produced and/or reviewed over approximately 7,000,000 pages of
documents: in total, approximately 6,800,000 pages were produced by
Wells Fargo, more than approximately 130,000 pages by Named
Plaintiffs, and more than approximately 135,000 pages by third parties.
Plaintiffs’ Counsel took, defended and/or had access to more than 90
depositions. These depositions resulted in approximately 22,725 pages of
recorded testimony and the inclusion of approximately 2,399 exhibits.
The parties filed various motions including motions for partial summary
judgment;
(f)

Had Class Counsel not achieved the Settlement there would

remain a significant risk that the Named Plaintiffs and the Class may have
recovered less or nothing from the Defendants;
(g)

The amount of attorneys’ fees and Litigation Expenses

awarded from the Gross Settlement Fund are fair and reasonable under all
of the circumstances and consistent with awards in similar cases; and

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(h)

The Class Representative Service Awards are fair and

reasonable considering the time commitment and diligence of the Named
Plaintiffs in prosecuting this action on behalf of the class members and is
consistent with service awards in similar cases.
18.

Without affecting the Finality of this Judgment in any way, the Court

reserves exclusive and continuing jurisdiction over the Action, the Class Member
Releasees and the Wells Fargo Releasees for purposes of: (a) supervising the
implementation, enforcement, construction, and interpretation of the Settlement
Agreement, the Plan of Allocation, and this Judgment; (b) supervising the distribution
of the Gross Settlement Fund and/or the Net Settlement Fund; and (c) resolving any
dispute regarding a party’s right to terminate pursuant to the terms of the Settlement
Agreement.
19.

In the event that the Settlement is terminated or does not become Final in

accordance with the terms of the Settlement Agreement for any reason whatsoever, then
this Judgment shall be rendered null and void and shall be vacated to the extent provided
by and in accordance with the Settlement Agreement, including with respect to the
repayment by Class Counsel of attorneys’ fees and Litigation Expenses awarded by the
Court, and, in such event, all orders entered and releases delivered in connection herewith
shall be null and void to the extent provided by and in accordance with the Settlement
Agreement.

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20.

There is no reason for delay in the entry of this Judgment and immediate

entry by the Clerk of the Court is expressly directed pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure.

21.

Therefore, the Motion for Attorney Fees and Costs and Class

Representative Service Awards (Doc. No. [670]) and the Motion for Approval of
Settlement and Plan of Allocation of Settlement Proceeds (Doc. No. [675]) are
GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: August 18, 2014

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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