Allbaugh v. California Field Ironworkers Pension Trust et al

Filing 229

ORDER re 221 Motion to Conditionally Certify Class 1 and 222 Unopposed Motion for Preliminary Approval of Class Action Settlement and Directing Notice to Class Members. A Fairness Hearing is set for 6/25/2018 at 03:00 PM in LV Courtroom 6D before Judge Jennifer A. Dorsey. Signed by Judge Jennifer A. Dorsey on 4/13/2018. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:12-cv-00561-JAD-GWF Document 222-4 Filed 03/30/18 Page 2 of 8

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DONALD ALLBAUGH, on behalf of himself and )
all others similarly situated,
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Plaintiffs,
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vs.
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CALIFORNIA FIELD IRONWORKERS
)
PENSION TRUST; BOARD OF TRUSTEES OF )
THE CALIFORNIA FIELD IRONWORKERS
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PENSION TRUST, PLAN ADMINISTRATOR )
OF THE CALIFORNIA FIELD IRONWORKERS )
PENSION TRUST,
)
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Defendants.
)
)

CASE NO. 2:12-CV-00561-JAD-GWF

[PROPOSED] ORDER
CONDITIONALLY CERTIFYING
CLASS 1, GRANTING
PRELIMINARY APPROVAL TO
CLASS ACTION SETTLEMENT,
DIRECTING NOTICE AND
SETTING DATE AND TIME OF
FAIRNESS HEARING
ECF Nos. 221, 222

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THIS MATTER COMING before this Court on Plaintiff’s Motion for Preliminary
Approval of the Settlement Agreement (“Agreement”) and the Parties’ Joint Motion to
conditionally certify Class 1 for Settlement purposes, and the Court having considered

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the motions, the Parties’ Settlement Agreement, and all exhibits thereto and having

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considered all the arguments and evidence at the hearing on Plaintiff’s Motion for

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Preliminary Approval of the Settlement Agreement,

Case 2:12-cv-00561-JAD-GWF Document 222-4 Filed 03/30/18 Page 3 of 8

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IT IS HEREBY ORDERED that this Order incorporates by reference all
definitions in the Settlement Agreement and all terms used herein shall have the same

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meanings as set forth in the Agreement.

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IT IS FURTHER ORDERED that the Court conditionally certifies Class 1 for

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settlement purposes pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure

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consisting of:

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Individuals identified by Defendants who are or were participants in the
California Ironworkers Pension Trust (the “Plan”) (and their Eligible
Beneficiaries) who are vested under terms of the Plan and who: 1)
continued in employment past Normal Retirement Age; 2) did not receive
or are not scheduled to receive both an actuarial adjustment to their benefits
to compensate them for the delay in receipt of benefits after attainment of
Normal Retirement Age plus all of the retirement benefits each participant
accrued following attainment of Normal Retirement Age; and 3) were not
sent a notice of suspension of benefits describing the Plan’s suspension of
benefits procedures as of the first month following attainment of Normal
Retirement Age.

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IT IS FURTHER ORDERED:

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1.

The Court hereby preliminarily approves the Settlement described in the

Agreement as being fair, reasonable, and adequate for the members of Class 1 and Class

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2.
2.

The Court hereby approves, as to form and content, the Class Notice

filed at to the Settlement Agreement as Exhibit A.
attachedDocket # ECF No. 226-1 (with the redlined changes attached hereto).

3.

The Court hereby approves the Change of Information Form attached to

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filed at Docket # ECF No. 226-3.
the Settlement Agreement as Exhibit B.

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The Court finds that the mailing of the Notice constitutes the best notice

practicable under the circumstances and constitutes valid and sufficient notice to all
members of the Classes, complying fully with the requirements of Rule 23 of the Federal

Case 2:12-cv-00561-JAD-GWF Document 222-4 Filed 03/30/18 Page 4 of 8

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Rules of Civil Procedure, the Constitution of the United States, and any other applicable
law.

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6/25
A Fairness Hearing shall be held on __________, 2018, at 3 p.m.

5.

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_.m., before the Honorable Jennifer A. Dorsey, United States District Court Judge, at the

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United States District Court for the District of Nevada, Lloyd D. George U.S.

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Courthouse, 333 Las Vegas Blvd South, Las Vegas, Nevada 89101 for the purpose of
determining:

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1. whether the proposed Settlement as set forth in the Agreement is fair,

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reasonable and adequate, is in the best interests of the members of the Classes, and

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should be approved by the Court;
2. whether an Order of Judgment should be entered, dismissing with

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prejudice the claims of the Named Plaintiff and the Classes against Defendants, and that

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provides for the following:

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1. adjudging the Settlement to be fair, reasonable and adequate;
2. ordering that the Settlement is approved, directing consummation of the

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terms and provisions of the Agreement, and requiring the Parties to take

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the necessary steps to effectuate the terms of this Settlement;

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3. entering the Final Judgment;
4. determining pursuant to Rule 23(c)(2) of the Federal Rules of Civil

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Procedure that the Class Notice constitutes the best notice practicable

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under the circumstances, and that due and sufficient notice of the

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Fairness Hearing and the rights of all Class 1 and Class 2 members has

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been provided;

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5. determining that Defendants complied with CAFA and their notice
obligations by providing appropriate federal and state officials with

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information about the Settlement;

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6. ordering that each member of the Classes who has not opted out shall

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be (i) conclusively deemed to have, and by operation of the Final

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Order shall have, fully, finally and forever settled, released,
relinquished, waived and discharged from all Released Claims, and (ii)

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barred from suing Defendants or the Related Parties in any action or

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proceeding alleging any of the Released Claims;

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7. dismissing with prejudice the Action and claims asserted in the
Complaint, and the First Amended Complaint, whether asserted by

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Named Plaintiff on his own behalf or on behalf of the Classes, without

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additional cost to any of the Parties other than as provided for in the

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Agreement;
8. directing Defendants pay Settlement Awards consistent with the terms
of the Agreement;
9. awarding attorneys’ fees and costs for Class Counsel pursuant to the
Fee Application consistent with the terms of the Agreement;
10. awarding the Case Contribution Award to Named Plaintiff consistent
with the terms of the Agreement;
11. ordering the Parties’ submission to, and the District Court’s
continuing retention of, exclusive jurisdiction over this matter for the
purpose of effectuating and supervising the enforcement,

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interpretation or implementation of the Settlement, and resolving any

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disputes that may arise hereunder;

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12. entering an injunction barring any Settlement Class member from

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filing a separate action with respect to the Released Claims; and

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13. entering an order stating that neither the Parties nor their counsel shall

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be liable to any person for any determinations made by Class Counsel

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on the Plan of Allocation or for any mistakes, incorrect or incomplete

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data relied upon by Plaintiffs in preparing and producing the Plan of

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Allocation.

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3.

The Parties are directed to add the date and time of the Fairness Hearing,

the deadline to object to the Settlement, Fee Award and Case Contribution Award and

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other dates and information as applicable to the Class Notice and Change of Information

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Form.

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4.

Defendants are directed to mail the Class Notice and Change of

Information Form to each Settlement Class Member at the last known address provided

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by Defendants or identified through the United States Postal Service or commercial

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address update service within 14 days following entry of this Preliminary Approval

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Order.

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5.

Defendants shall pay all of the costs and expenses of implementation of the

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Settlement including, but not limited to, Class Notice and attendant distribution expenses

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such as postage, printing, search expenses, duplicating and mailing of the Class Notice

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and Change of Information Forms. The cost of processing payments under the Agreement

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shall be borne by Defendants. If the Settlement or this Agreement is terminated for any

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reason, the Parties shall have no obligation to reimburse any other Party for any other
costs or expenses incurred under the Agreement.

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6.

No later than 28 days prior to date of Fairness Hearing Class Counsel shall

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file the Fee Application and motion for a Case Contribution Award and the Parties may

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separately or jointly file motions for final approval of the Settlement. The hearing on

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Class Counsel’s Fee Application and motion for Case Contribution Award shall be
consolidated with the Fairness Hearing.
7.

Class members who wish to opt-out of the Action must pursuant to Fed. R.

Civ. P. 23(b)(3) may do so provided he or she submits to the Court, with copies to Class
Counsel and Defendants’ Counsel, a written request setting forth the following: (1) the
Class Member’s name; (2) the Class Member’s mailing address and phone number; and

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(3) the statement “I want to be excluded from the Field Ironworkers Pension Trust

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Settlement.” To be timely, a written request to be excluded from the Classes must be

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postmarked on or before fourteen (14) days prior to the date set for the Fairness Hearing
and must be hand delivered or mailed, with sufficient postage prepaid and affixed. Any

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Party who receives an opt-out notice shall immediately inform the other Party. Any Class

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member (or his or her attorney) who fails to comply with the procedure for opting out set

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forth in this paragraph shall waive any rights the Class member may have to opt out of

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the Classes and shall be bound by all the terms of the Agreement and by all proceedings,
orders, and judgments in the Action.
8.

Class members who wish to comment or object to the Agreement, the Plan

of Allocation or to the Fee Application or Case Contribution Award must do so no later

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than fourteen (14) days prior to the Fairness Hearing in accordance with the instructions
set forth in the Class Notice.

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The Parties may file any written replies to objections no later than five (5)

calendar days before the Fairness Hearing.
10.

If the Settlement does not receive Final Approval, either Party shall have

the right to declare the Settlement null and void with no further force and effect within
five (5) days of an order denying approval or directing material modifications to the

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Agreement and/or the Plan of Allocation, and the Action shall resume without prejudice

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to the rights (including, but not limited to, appeal rights) of any Party, unless the Parties

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successfully renegotiate the settlement and obtain final approval of the renegotiated
settlement. In the event a Party declares the Settlement null and void, the Action and any

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orders entered in connection with the application for approval of the Settlement shall be

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restored to the status quo ante as it existed on December 6, 2017. In such event, any

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statements made by any Party in any documents, settlement documents, court appearance
or drafts in connection with this Agreement shall not be admissible in any proceeding or
otherwise used in connection with this Action.
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The Court reserves the right to continue or adjourn the date of the Fairness

Hearing and any adjournment thereof without further notice to Settlement Class members
and retains exclusive jurisdiction to consider all further matters arising out of or
connected with the proposed settlement.

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IT IS SO ORDERED.

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____________________________________
_________________
_ __ _ _ __
UNITED STATES DISTRICT COU
ES DISTRICT COURT JUDGE
S DIS
CT
CT
4/13/18
DATED: __________________________

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Case 2:12-cv-00561-JAD-GWF Document 226-1 Filed 04/12/18 Page 5 of 20

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connection with the Settlement Agreement. Capitalized terms in this Notice
have the same meaning as those set forth in the Settlement Agreement, which
has been filed with the Court. Please read it carefully.
You do not need to take any action at this time unless one of the following
applies:
you have a new address or need to provide notification of the death
of a Class Member;
you wish to be excluded from the Settlement by opting out of the
lawsuit; or
you wish to object to the Settlement or payment of Class Counsel’s
attorneys’ fees and costs or the Case Contribution Award to
Donald Allbaugh for the services he provided to the Classes that
helped result in this Settlement.

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YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT
Receive the Individual Settlement Award
DO NOTHING
approved by the Court
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Receive no Individual Settlement Award or
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EXCLUDE YOURSELF
rights under this Settlement. This is the only
option that allows you to bring your own
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lawsuit about the claims in this case
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Write to the Court about why you don’t like
OBJECT
the Settlement and speak in Court if you
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have filed a written objection
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These rights and options -- and the deadlines to exercise them -- are explained in
this Notice.

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The Court in charge of this case will decide whether to approve the Settlement.

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Settlement Awards will be paid only if the Court approves the Settlement and any

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appeal is resolved without affecting the Settlement. Please be patient.
WHY DID YOU RECEIVE THIS NOTICE?

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This Notice was sent to you because you have been identified as a Class 1 or Class

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2 Member in the lawsuit titled Allbaugh v. Cal. Field Ironworkers Pension Trust, No. 2:12-

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cv-00561-JAD-GWF, which is currently pending in the United States District Court for the
**add page numbers (they stop after page 1)**

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prior to retirement and who as of the date of death did not have a surviving

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^insert comma

^insert comma

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spouse eligible to receive benefits under the Plan will receive an Individual

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Settlement Award of $1,000.

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C.

Settlement Statistics
There are a total of 286 Members of the Classes. Of this amount,

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approximately 75 are Members of Class 1 only, 55 are Members of Class 2

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only, and 156 are Members of both Class1 and Class 2.

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^insert space

The highest Individual Settlement Award being paid to a Class 1 Member
who is in Class 1 only is $ 4,948.33; the lowest amount is $1,000.

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The highest Individual Settlement Award being paid to a Class 2 Member is

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$ 376,311.77; the lowest amount is $1,000.

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Your estimated Individual Settlement Award is based on data unique to you and is
listed on the first page of this Notice. These amounts are calculated based on Court approval

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of the Fee Application and the requested Case Contribution Award. However, your actual

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Individual Settlement Award may be higher or lower depending on whether new or

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corrected data is provided or discovered and the Court’s rulings on the Fee Application and
Case Contribution Award.

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WHAT MUST YOU DO TO RECEIVE INDIVIDUAL SETTLEMENT BENEFITS?

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If you are a Class 1 or Class 2 Member and you received an individualized Notice

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addressed to you with an Individual Settlement Award estimate, you do not need to do
anything to receive your Individual Settlement Award.

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It is important that Defendants have current information for you. If your mailing

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address is incorrect on this Notice, you should complete the enclosed Change of

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pocket expenses for expert actuaries, depositions and other costs that have not been

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reimbursed. It has done so with the understanding that, if it obtained a recovery for the

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Classes, its expenses would be reimbursed and Class Counsel would receive fees from the

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common fund established through their efforts.

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WHAT IS THE CASE CONTRIBUTION AWARD?
Named Plaintiff has requested a Case Contribution Award of $50,000. The Case

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Contribution award is designed to compensate the Named Plaintiff for his significant time

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and effort that contributed to making the Settlement possible. The Named Plaintiff brought

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this lawsuit, made numerous efforts to obtain important documents, engaged in an extensive
investigation, answered extensive interrogatories and requests for production, provided

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declarations that were filed with the Court, prepared for, traveled to and participated in

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depositions, traveled to and attended Court in order to participate in the Settlement

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Conference and consulted with Class Counsel throughout the lawsuit and mediation efforts.

WHAT IS THE PROCEDURE FOR APPROVING THE SETTLEMENT OR
OBJECTING TO THE SETTLEMENT OR THE REQUEST FOR ATTORNEYS’
18 FEES AND COSTS OR CASE CONTRIBUTION AWARD?
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The Court will hold a hearing on June 25, 2018, at 3:00 p.m. at the United States
^in Courtroom 6D

District Court for the District of Nevada, 333 Las Vegas Blvd. South, Las Vegas, NV 81901

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to decide whether to approve the Settlement. This time and date may be changed without

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further notice. If you are planning to attend in person, you should check with Class Counsel

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at the email address or phone number listed on the last page of this Notice to verify the date
and time. At the hearing, the Court will consider whether the Settlement is fair, reasonable

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and adequate. If there are written objections, the Court will consider them. The Court will

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also consider the motion for attorneys’ fees and costs and for a Case Contribution Award.