Gordon et al v. New West Health Services et al
Filing
168
AMENDED FINAL APPROVAL ORDER re 166 MOTION correct errors in Final Approval Order re 165 Order. **SEE ORDER FOR FULL DETAILS**. Signed by Judge Brian Morris on 10/23/2018. (MMS)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
LANCE R. GORDON and RONI
A. GORDON,
Plaintiffs,
CV-15-24-GF-BMM
AMENDED
FINAL APPROVAL ORDER
vs.
NEW WEST HEALTH SERVICES,
Defendant.
The Court entered its Final Approval Order (Doc. 165) on October 18, 2018.
The parties thereafter noted errors in its order via their Joint Motion to Correct
errors in the Final Approval Order (Doc.166). Good cause has been shown for the
necessity of correcting the Final Approval Order. Therefore, the Court has changed
the Final Approval Order to correct the errors noted by the parties’ motion.
WHEREAS, on June 4, 2018, the Court entered an Preliminary Approval
Order regarding the proposed Settlement pursuant to the terms of the Parties’
Settlement Agreement and directing that notice be given to the Settlement Class
(Doc. 154);
WHEREAS, pursuant to the notice requirements set forth in the Settlement
Agreement and in the Preliminary Approval Order, the Settlement Class was
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notified of the terms of the proposed Settlement, of the right of members of the
Settlement Class to opt-out, and of the right of members of the Settlement Class to
be heard at a Final Fairness Hearing to determine, inter alia: (1) whether the terms
and conditions of the Settlement Agreement, including the payment of attorneys’
fees and costs to Class Counsel, are fair, reasonable and adequate for the release of
the claims contemplated by the Settlement Agreement; and (2) whether judgment
should be entered dismissing all claims asserted in this action entitled Gordon et al
v. New West Health Services et al, United States District Court, District of
Montana, Great Falls Division, Case No. 4:15-cv-00024-BMM (the “Action”), on
the merits, with prejudice, and without leave to amend;
WHEREAS, a Final Approval Hearing was held on September 27, 2018.
Class Counsel submitted to the Court that Class Members were notified of their
right to appear at the Final Approval Hearing in support of, or in opposition to, the
proposed Settlement, the award of Attorney’s Fees and Costs to Class Counsel, and
the payment of the Incentive Award. The Court directed Class Counsel to notify
class members who had opted out of the case (Doc. 161.) Class Counsel filed a
Notice to the Court on September 28, 2018, confirming the class member’s
decision to opt out. (Doc. 163.)
NOW, THEREFORE, the Court, having heard the presentation of Class
Counsel and counsel for Defendant New West Health Services et al, having
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reviewed all of the submissions presented with respect to the proposed Settlement,
having determined that the Settlement is fair, adequate and reasonable, having
considered the Attorney’s Fees and Cost application made by Class Counsel and
the application for an Incentive Award to the Settlement Class Representative, and
having reviewed the materials in support thereof, and good cause appearing:
THIS COURT CONCLUDES AND ORDERS AS FOLLOWS:
1.
The capitalized terms used in this Final Approval Order and Judgment
shall have the same meaning as defined in the Settlement Agreement except as
may otherwise be ordered.
2.
The Court has jurisdiction over the subject matter of this Action and
over all claims raised therein and all Parties thereto, including the Settlement
Class.
3.
The Court hereby approves the Settlement, including the plans for
implementation and distribution of the settlement relief, and determines that the
Settlement is, in all respects, fair, reasonable and adequate to the Class Members,
within the authority of the parties and the result of extensive arm’s-length
negotiations. The Parties shall effectuate the Settlement Agreement in accordance
with its terms. The Settlement Agreement and every term and provision thereof
shall be deemed incorporated herein as if explicitly set forth and shall have the full
force of an Order of this Court.
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4.
There are no objections and one opt out to the Settlement.
5.
The Settlement Class, which will be bound by this Final Approval
Order and Judgment, shall include all members of the Settlement Class who did
not submit timely and valid requests to be excluded from the Settlement Class.
6.
For purposes of the Settlement and this Final Approval Order and
Judgment, the Court hereby certifies the following Settlement Class:
All beneficiaries of ERISA benefit plans insured and
administered by New West in Montana from 2006 to 2012 who
made application for inpatient/residential alcohol and/or
substance abuse treatment in Montana and who were denied
said benefits by New West (in whole or in part) on the ground
that said treatment was not medically necessary.
The Court has been informed that there are approximately 28 members of the
Settlement Class (Doc. 150 at 4.)
7.
The Court determines that the plan for Notice, set forth in the
Settlement Agreement and effectuated pursuant to the Preliminary Approval Order,
was the best notice practicable under the circumstances; provided due and
sufficient notice to the Settlement Class of the pendency of the Action, certification
of the Settlement Class for settlement purposes only, the existence and terms of the
Settlement Agreement, and the Final Approval Hearing; and satisfied the
requirements of the Federal Rules of Civil Procedure, the United States
Constitution, and other applicable law.
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8.
The Settlement Agreement is, in all respects, fair, reasonable and
adequate, and is in the best interests of the Settlement Class. The Settlement
Agreement is therefore approved.
9.
All persons who have not made their objections to the Settlement in
the manner provided in the Settlement Agreement are deemed to have waived any
objections by appeal, collateral attack, or otherwise.
10.
Within the time period set forth in the Settlement Agreement, the cash
distributions provided for in the Settlement Agreement shall be paid to the various
Settlement Class members pursuant to the terms and conditions of the Settlement
Agreement.
11.
Upon the Effective Date, members of the Settlement Class who did
not validly and timely opt-out shall, by operation of this Final Approval Order and
Judgment, have fully, finally, and forever released, relinquished, and discharged
New West and the Released Parties from all claims that were or could have been
asserted in the Action, as specified in the Settlement Agreement.
12.
All members of the Settlement Class who did not validly and timely
opt-out are hereby permanently barred and enjoined from filing, commencing,
prosecuting, maintaining, intervening in, participating in, conducting or continuing,
either directly or in any other capacity, any action or proceeding in any court,
agency, arbitration, tribunal, or jurisdiction, asserting any claims released pursuant
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to the Settlement Agreement, or seeking an award of fees and costs of any kind or
nature whatsoever and pursuant to any authority or theory whatsoever, relating to
or arising from the Action and/or as a result of, or in addition to, those provided by
the Settlement Agreement.
13.
The terms of this settlement shall not be deemed an admission of
liability or fault by New West or by any other person, or a finding of the validity of
any claims asserted in the litigation or of any wrongdoing or of any violation of
law by New West. The proposed Settlement Stipulation shall not be a concession
and shall not be used as an admission of any fault or omission by New West or any
other person. Neither the terms of the Settlement Stipulation nor any related
document shall be offered or received into evidence in any civil, criminal, or
administrative action or proceeding, other than such proceedings that may be
necessary to consummate or enforce the terms of the Settlement Stipulation. New
West may file this Order, however, in any action that may be brought against New
West 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 or issue preclusion or similar
defense or counterclaim.
15.
Class Counsel requested an award of attorneys’ fees and costs from
the common fund created herewith. The Court hereby grants Class Counsel an
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award of reasonable Attorney’s Fees in the amount of $65,250 and Costs in the
amount of $4,198.49.
16.
The Settlement provided for a Class Representatives’ Service Fee of
$5,000. (Doc.150-1, ¶7.2) The Court hereby grants the Class Representatives’
Service Fee of $5,000.
16.
Class Counsel also filed a motion to Restrict Access to Doc. 157-1
with no objection by Defense counsel. (Doc. 158.) The Court hereby grants Class
Counsel’s Motion to Restrict Access to Doc. 157-1.
17.
The above-captioned Action is hereby dismissed in its entirety with
prejudice. Except as otherwise provided in this Final Approval Order and
Judgment, the parties shall bear their own costs and attorney’s fees. Without
affecting the finality of the Judgment hereby entered, the Court reserves
jurisdiction over the implementation of the Settlement, including enforcement and
administration of the Settlement Agreement.
DATED this 23rd day of October, 2018.
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