McCreary v. Aetna Life Insurance Company

Filing 58

ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT AND DISMISSING CLAIMS OF CLASS MEMBERS WITH PREJUDICE. All of the claims in this Action shall be and hereby are dismissed with prejudice. (See Order/Final Judgment for specifics) Signed by Judge Larry R. Hicks on 3/28/2011. (Copies have been distributed pursuant to the NEF - MLC)

-RAM McCreary v. Aetna Life Insurance Company

Doc. 58

MATTHEW L. SHARP, ESQ. Nevada State Bar #4746 MATTHEW L. SHARP LTD. 419 Flint St. Reno, NV 89501 Tel: [phone] Fax: [phone] e-mail: [e-mail] CURTIS B. COULTER, ESQ. Nevada State Bar #3034 LAW OFFICES OF CURTIS B. COULTER PC 403 Hill St. Reno, NV 89501 Tel: [phone] Fax: [phone] e-mail: [e-mail] RON R. PARRY, ESQ. Admitted Pro Hac Vice PARRY DEERING FUTSCHER & SPARKS PSC 411 Garrard Street, P.O. Box 2618 Covington, Kentucky 41011 Tel: [phone] Fax: [phone] e-mail: [e-mail] Attorneys for Plaintiff and the Class UNITED STATES DISTRICT COURT DISTRICT OF NEVADA TERENCE L. McCREARY, On Behalf of Himself and all Others Similarly Situated, Plaintiff, : : : : v. : : AETNA LIFE INSURANCE COMPANY : Defendant. : __________________________________________: Case No. 3:08-CV-00654-LRH-RAM

[PROPOSED] ORDER AND FINAL JUDGMENT APPROVING SETTLEMENT AND DISMISSING CLAIMS OF CLASS MEMBERS WITH PREJUDICE

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Dockets.Justia.com

This matter came before the Court for hearing on January 4, 2011. At the hearing, the Court requested a supplemental report containing the final numbers regarding the participation of Class Members in the Settlement. This report was submitted on February 22, 2011. The Court having considered the Settlement Agreement, the response of the Class to the Settlement, the record in the above-captioned action (the "Action"), the evidence presented and the arguments and authorities presented by counsel both in writing and orally, and having held a Final Fairness Hearing on January 4, 2011, after being satisfied that notice to the Class had been provided in accordance with the Court's Order of Preliminary Approval, and for good cause appearing, NOW, THEREFORE, IT IS HEREBY ORDERED: 1. The Court, for purposes of this Final Judgment and Order Approving Settlement

and Dismissing Claims of Class Members with Prejudice ("Final Judgment and Order"), adopts the initial capitalized terms and their definitions set forth in the Settlement Agreement. The Court has jurisdiction over the subject matter of the Action, the Class Representative, the Class Members and Defendant Aetna Life Insurance Company ("Aetna"). 2. The Court finds that the Notices to Open Accounts Settlement Class Members and

Terminated Accounts Settlement Class Members of the pendency of the Action and of this Settlement, via first-class mail of Individual Notices and AD&D Application Forms as provided by the Settlement Agreement and by this Court's Order of Preliminary Approval, constituted the best notice practicable under the circumstances to all persons within the definition of the Settlement Class, and fully complied with the requirements of due process and of all applicable statutes and laws. 3. A list of those members of the Class who have timely elected to opt-out of the

Settlement and the Class and who therefore are not bound by the Settlement, the provisions of

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the Settlement Agreement, this Order and the Judgment to be entered by the Clerk of the Court hereon, has been submitted to the Court as Exhibit E to the Affidavit of Jenny Penning, sworn to on December 21, 2010. A copy of such exhibit is attached hereto and incorporated by reference herein. All other members of the Settlement Class (as permanently certified herein) shall be subject to all of the provisions of the Settlement, the Settlement Agreement, this Order and the Judgment to be entered by the Clerk of the Court. 4. The Court has held a hearing to consider the fairness, reasonableness and

adequacy of the Settlement, has been advised of all objections to the Settlement, and has given fair consideration to such objections. The Court has also considered the supplemental report from and submission of the class administrator regarding the final response of the Settlement Class to the proposed settlement. 5. The Settlement is the product of good faith, arm's length negotiations between the

Class Representative and his counsel, on one hand, and Aetna Life Insurance Company ("Aetna"), on the other hand. 6. The Court finds that the terms contained within the Settlement Agreement are in

all respects fair, reasonable, and adequate and in compliance with all applicable requirements of Federal Rule of Civil Procedure 23 and federal law, as well as the United States Constitution (including the Due Process Clause), all other applicable laws, and are in the best interest of the Parties and the Settlement Class. In reaching this conclusion, the Court has considered a number of factors, including: (i) strength of plaintiff's case; (ii) the risk, expense, complexity, and likely duration of further litigation; (iii) the risk of maintaining class action status throughout the trial; (iv) the amount offered in settlement, the extent of discovery completed, and the stage of the proceedings; (v) the experience and views of counsel; (vi) the presence of a governmental

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participant; and (vii) the reaction of the class members to the proposed settlement. Accordingly, the Court directs the Parties and their counsel to implement and consummate the Settlement in accordance with the terms and conditions of the Settlement Agreement. 7. The Court finds that Aetna has served notification on the appropriate federal and

state officials, in compliance with 28 U.S.C. § 1715. 8. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Settlement

Class as finally certified shall consist of: Open Accounts Settlement Class Members: All Aetna life insurance beneficiaries who received interest payments on life insurance benefits from Aetna through an Aetna Benefits Checkbook Account during the Class Period and who, as of the Effective Date of this Settlement, have an open Aetna Benefits Checkbook Account. Terminated Accounts Settlement Class Members: All Aetna life insurance beneficiaries who received interest payments on life insurance benefits from Aetna through an Aetna Benefits Checkbook Account and whose Aetna Benefits Checkbook Account was terminated during the Class Period, and prior to the Effective Date. The Class Period is the time period beginning on December 16, 2002 and continuing through the Effective Date, which is the Preliminary Approval Date of August 27, 2010. For purposes of this Settlement only, the Settlement Class as certified satisfies all the requirements contained in Rule 23, the United States Constitution, and any other applicable law. The persons identified on the list submitted to the Court (and attached hereto as an exhibit) as having timely and properly elected to opt-out from the Settlement and the Class are hereby excluded from the Class and shall not be entitled to any of the monetary or other benefits afforded to the Class under the Settlement Agreement. 9. For purposes of this Settlement only, Representative Plaintiff is certified as the

representative of the Class and Class Counsel is appointed to the Class. The Court concludes

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that Class Counsel and Representative Plaintiffs have fairly and adequately represented the Class with respect to the Settlement and the Settlement Agreement. 10. Notwithstanding the certification of the foregoing Class and appointment of class

representative for purposes of effecting the Settlement, if this Order is reversed on appeal or the Settlement Agreement is terminated or is not consummated for any reason, the foregoing certification of the Class and appointment of class representative shall be void and of no further effect and the parties to the Settlement shall be returned to the status each occupied before entry of this Order, without prejudice to any legal argument that any of the parties to the Settlement Agreement might have asserted but for the Settlement Agreement. RELIEF TO THE CLASS 11. Aetna shall provide relief to the Settlement Class in the form and in the manner

specified in the Settlement Agreement, Sections V and VII. Specifically, Aetna will provide the relief specified within 60 days after this judgment is issued and it becomes the Final Judgment. Aetna shall also make the disclosures described in Section VIII of the Settlement Agreement. APPLICABILITY 12. The provisions of this Final Judgment and Order are applicable to and binding

upon and inure to the benefit of each of the Parties to the Action (including each Class Member and Aetna). 13. The "Released Parties" which shall include Aetna and its current and former

officers and directors, or any assignee, successor, predecessor, direct or indirect subsidiary, direct or indirect parent company, divisions, affiliates, attorneys, employees, agents, and any plan sponsors shall be and hereby are released and forever discharged by Plaintiff and all members of the Class who have not validly and timely elected to opt-out of the Settlement and the Class in accordance with the procedures set forth in the Order of Preliminary Approval, and
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by their respective heirs, successors, trustees, executors, administrators, principals, beneficiaries and assigns (collectively "Releasing Parties") from any and all claims, suits, judgments, demands, rights, liabilities, damages, losses, attorneys' fees, interest, expenses, costs and causes of action, known or unknown, accrued or unaccrued, arising on or before the Effective Date that are, were, or could have been asserted by the Class Representative or any member of the Class based on or arising from the factual allegations of the Complaint, or any federal or state law claims relating to Aetna's use of the ABCA for distribution of insurance benefits (collectively, "Released Claims"). 14. With respect to the Released Claims provided for in Paragraph 13 of this Order,

each Class Member who has not timely opted out of the Class shall be deemed to have waived and released any and all provisions, rights and benefits conferred either (a) by California Civil Code § 1542, which reads: "Section 1542: General release; extent. A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. or (b) by any law of any state or territory of the United States, or principle of common law, which is similar to § 1542 of the California Civil Code. 15. The Releasing Parties are permanently enjoined from: (a) filing, commencing,

prosecuting, intervening in, participating in (as class members or otherwise) or receiving any benefits from any lawsuit, administrative or regulatory proceeding or order in any jurisdiction based on any or all Released Claims against one or more Released Parties; (b) instituting, organizing class members in, joining with class members in, amending a pleading in or soliciting the participation of class members in, any action, including but not limited to a purported class action, in any court against one or more Released Parties based on, involving, or incorporating,

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directly or indirectly, any or all Released Claims, and (c) filing, commencing, prosecuting, intervening in, participating in (as class members or otherwise) or receiving any benefits from any lawsuit, administrative or regulatory proceeding or order in any jurisdiction based on an allegation that Company's compliance with the provisions of the Settlement Agreement violates any legal right of any member of the Class. ATTORNEYS' FEES, REIMBURSEMENT OF EXPENSES 16. Aetna shall, within fifteen (15) days after the judgment entered by the Court

becomes the Final Judgment, deliver to Class Counsel, at the address set forth below, a check in the amount of $1,647,600.35, as attorneys' fees and costs, payable to Parry Deering Futscher & Sparks PSC, delivered to Ron R. Parry, Parry Deering Futscher & Sparks PSC, 411 Garrard Street, Covington, Kentucky 41011, unless other delivery instructions are provided to Aetna's counsel in writing by Ron R. Parry. 17. The Court approves the requested $2,000 incentive award for the Class

Representative Terence McCreary, which is to be paid from the attorneys' fees and costs awarded to Class Counsel by the Court. GENERAL PROVISIONS 18. This judgment shall be considered a "Final Judgment" (a) after the expiration of

the applicable appeals period following entry of judgment, if no appeal on any issue, including an appeal on an award of attorneys' fees, is taken during such period; or (b) if, during the aforesaid appeals period, an appeal is taken from such judgment, the date upon which all appeals, including petitions for review, rehearing, or certiorari, and any proceedings resulting therefrom, have been finally disposed of, or the date of the expiration of the time to initiate such petitions or proceedings.

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19.

The provisions of this Final Judgment and Order are entered as a result of an

agreement and stipulation of the Parties. The Parties' Settlement Agreement and this Final Judgment and Order are not intended to be, and shall not be construed as, any admission, express or implied, of any fault, liability or wrongdoing by Aetna. Neither the Settlement Agreement nor any provision therein, nor any negotiations, statements or proceedings in connection therewith shall be construed as, or be deemed to be evidence of, an admission or concession on the part of any of the Representative Plaintiff, Class Counsel, any members of the Class, Aetna, or any other person of any liability or wrongdoing by them, or that the claims and defenses that have been, or could have been, asserted in the Action are or are not meritorious, and this Order, provided, however, that the Settlement Agreement, this Order and the Judgment to be entered thereon may be filed in any action by Aetna or any Released Party seeking to enforce the Settlement Agreement or the Judgment by injunctive or other relief, or to assert defenses including, but not limited to, res judicata, collateral estoppel, release, good faith settlement, judgment bar or reduction or any theory of claim preclusion or issue preclusion or similar defense or counterclaim. The terms of the Settlement Agreement and of this Order and the Judgment shall be forever binding on, and shall have res judicata and preclusive effect in, all pending and future lawsuits or other proceedings that are subject to the Release and other prohibitions that are set forth in paragraphs 13-15 of this Order that are maintained by, or on behalf of, the Releasing Parties or any other Person subject to those provisions of this Order. 20. As of the Final Judgment date, each Class Member shall be deemed to have fully

released, waived, relinquished and discharged, to the fullest extent permitted by law, all Released Claims that the Class Member may have against the Released Parties, all as provided for in the Settlement Agreement and this Final Judgment and Order.

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21.

Jurisdiction is retained by this Court for the specific purpose of enabling any of

the Parties to this Final Judgment and Order to apply to the Court at any time for such further orders and directions as may be necessary and appropriate for the construction or carrying out of this Final Judgment and Order, for enforcement of compliance with the terms of the Final Judgment and Order, or to impose appropriate sanctions for any violation of this Final Judgment and Order. 22. All of the claims in this Action shall be and hereby are dismissed with prejudice.

IT IS SO ORDERED.
March, Dated this 28th day of _____, 2011. ___

Judge Larry R. Hicks United States District Court District of Nevada

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