Baptista v. Mutual of Omaha Insurance Company et al

Filing 44

FINAL ORDER AND JUDGMENT APPROVING SETTLEMENT AND DISMISSING THIS ACTION WITH PREJUDICE. So Ordered by Chief Judge Mary M. Lisi on 4/5/2012. (Duhamel, John)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND

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NANCY BAPTISTA, individually and
on behalf of all others similarly situated,
Civil Action No. CA 10-467 ML
Plaintiff,

v.
MUTUAL OF OMAHA INSURANCE
COMPANY and UNITED OF OMAHA
LIFE INSURANCE COMPANY,
Defendants.

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FINAL ORDER AND JUDGMENT APPROVING
SETTLEMENT AND DISMISSING THIS ACTION WITH PREJUDICE
This Lawsuit is a class action brought by Plaintiff Nancy Baptista ("Plaintiff' or "Named
Plaintiff'), individually and on behalf of the Class she represents, against Defendants Mutual of
Omaha Insurance Company and United of Omaha Life Insurance Company (collectively,
"Defendants"). Pursuant to Fed. R. Civ. P. 23(b)(3), a class action was conditionally certified by
the Court on September 30, 2011, consisting of all persons listed on the document attached as
Exhibit F to the Stipulation of Settlement dated September 28, 2011 (the "Stipulation"), the
original of which was filed with the Clerk of the Court (this settlement process hereafter referred
to as the "Settlement"), which represents Defendants' best reasonable effort to include all
persons satisfying each of the following criteria:
(a)
They were beneficiaries under ERISA-govemed employee welfare
benefits plans that were insured by group life insurance policies issued by

Defendants or any Affiliated Entity, under which Defendants or any Affiliated
Entity "paid" any death benefits or interest thereon through a TABS Account; and

(b)
Had a balance in their TABS Account at any time after November 16,
2004 and before July 1, 2011.
Plaintiff, on behalf of herself and the Settlement Class, and Defendants have agreed to
settle this class action suit (the "Lawsuit") on the terms and conditions set forth in the
Stipulation. Currently pending is an application for fmal approval of the Settlement pursuant to
Fed. R. Civ. P. 23(e); final certification of the Settlement Class and this action as a class action
under Fed. R. Civ. P. 23(b)(3); and the final appointment of Plaintiffs' counsel as Class Counsel
under Fed. R. Civ. P. 23(g).
On September 30, 2011, the Court entered an Order Preliminarily Approving Settlement
And Approving Notice to the Class, conditionally certifying the proposed Settlement Class and
appointing Plaintiff's counsel as Class Counsel, and directing that Notice be given to the
Settlement Class Members of the proposed Settlement and of a F aimess Hearing. The Court
approved the form and content of the Notice and Opt-Out-of-Settlement Form ("Opt-Out Form")
directed to Settlement Class Members, which were attached as Exhibit C to the Stipulation. The
Notice informed the Settlement Class Members of the Settlement terms and that the Court would
consider the following issues at the Fairness Hearing: (i) whether the Court should grant final
approval of the Settlement and finally certify the Settlement Class; (ii) whether the Court should
enter fmal judgment dismissing the Lawsuit with prejudice; (iii) whether the Court should
approve the amount of attorneys' fees, costs, and expenses to be awarded to Class Counsel; and
(iv) any objections by Class Members to any of the above that are timely and properly served in
accordance with the Order Preliminarily Approving Settlement and Proposed Notice to the
Settlement Class.

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In accordance with the Notice to Class Members, a Fairness Hearing was held on January
20, 2012. No objection(s) to the Settlement were filed with the Court. Nor were any
objection(s) to the Settlement made at the Fairness Hearing. Thirty-five (35) Class Members
chose to exclude themselves from the Settlement by submitting a timely and valid Opt-Out
Form. Twenty (20) of these class members have since requested that their Opt-Out requests be
retracted. See Affidavit of Christina Peters-Stasiewicz, ~ 23 (ECF No. 38, January 13, 20 12). In
addition, six (6) Class Members submitted valid Opt-Out forms in an untimely manner. Id. Of
those six (6) Class Members, three (3) have since requested that their Opt-Out designation be
retracted. Id.
The Court, having heard argument in support of the Settlement, certification of the
Settlement Class, and appointment of Class Counsel, and having reviewed all of the evidence
and other submissions presented with respect to the Settlement and the record of all proceedings
in this case, enters the following findings:
1.

The Court has jurisdiction over the subject matter and the Parties to this Lawsuit,

including the Settlement Class Members.
2.

The Court confirms for settlement purposes the certification of this action as a

class action and the Settlement Class under Fed. R. Civ. P. 23(b)(3), as was conditionally
certified by the Court on September 30, 2011, consisting of all persons, except those who filed a
valid and timely request for exclusion, listed on the document attached to the Stipulation as
Exhibit F, which represents Defendants' best reasonable effort to include all persons satisfying
each of the following criteria:
(a)
They were beneficiaries under ERISA-governed employee welfare
benefits plans that were insured by group life insurance policies issued by
Defendants or any Affiliated Entity, under which Defendants or any Affiliated
Entity "paid" any death benefits or interest thereon through a TABS Account; and

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(b)
Had a balance in their TABS Account at any time after November 16,
2004 and before July 1, 2011.
3.

The Court finds that Plaintiffs' counsel satisfy the requirements of Rule 23(g).

The Court further confirms for settlement purposes the appointment of Plaintiff's counsel as
Class Counsel under Fed. R. Civ. P. 23(g).
4.

The Stipulation, together with all of its exhibits (as filed with the Court), is

incorporated in this Judgment, including the definitions and terms set forth in the Stipulation.
5.

During the period October 1, 2011 through November 14, 2011, the Settlement

Administrator caused the Notice of Settlement (the "Notice") to be mailed to all Settlement Class
Members. On January 13, 2012, an Affidavit from the Settlement Administrator was filed with
the Court indicating, inter alia, that the mailing of the Notice was sent to the last known
addresses of all Settlement Class Members. In addition, a toll-free telephone number with
integrated voice response (IVR) and live operators was established to field questions from
Settlement Class Members. Finally, a website was created (''www.
BaptistaClassSettlement.com") that included general information, answers to frequently asked
questions, and a copy of the Notice (in English and Spanish).
6.

Notice to the Settlement Class Members has been given in an adequate and

sufficient manner and the Notice given constitutes the best notice practicable under the
circumstances, and was reasonably calculated to apprise interested parties of the pendency of this
Lawsuit, the nature of the claims, the definition of the Settlement Class, and their opportunity to
present their objections to the Settlement. The Notice complied in all respects with the
requirements of the Federal Rules of Civil Procedure, the United States Constitution (including
the Due Process Clause), the Rules of this Court, and any other applicable law.

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7.

Prospective Settlement Class Members were given the opportunity to exclude

themselves from inclusion in the class through submission of an Opt~Out Form, and fifteen (15)
prospective class members, identified in ECF No. 38-4, requested exclusion in a timely manner.
In response to the 6, 777 individually mailed notices, no Settlement Class Member filed any
objection to the Settlement prior to the Fairness Hearing. No objections were presented at the
Fairness Hearing.
8.

After considering (i) whether the Settlement was a product of fraud or collusion;

(ii) the complexity, expense, and likely duration of the Lawsuit; (iii) the stage of the proceedings
and amount of discovery completed; (iv) the factual and legal obstacles to prevailing on the
merits; (v) the possible range of recovery; (vi) the respective opinions of the Parties, including
Plaintiff, Class Counsel, Defendants, and Defendants' Counsel; and (vii) the objections
submitted by Settlement Class Members, the Court finally approves the Settlement including the
Plan of Allocation in all respects as fair, reasonable, adequate, and in the best interests of the
Settlement Class Members pursuant to Fed. R. Civ. P. 23(e). The terms of the Stipulation,
including all Exhibits to the Stipulation and to this Judgment, shall be forever binding on the
Settlement Class Members.
9.

The application by Class Counsel for reasonable attorneys' fees is granted in part

and denied in part. Plaintiffs' Attorney's Fees in an amount of$ 416,527.75 are hereby found to
be reasonable and are awarded to Class Counsel. The application by Class Counsel for
reimbursement of$12,033.99 in expenses is granted. Class Counsel shall recover such fees and
expenses from the Settlement Fund as and in the manner described in the Stipulation of
Settlement. The Court finds said attorneys' fees and expenses to be fair and reasonable
compensation and reimbursement in light of the result obtained for the Settlement Class; the risk

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of non-recovery or a greatly reduced recovery for individual class members; the quality of Class
Counsel's representation; the complexity of the litigation and novelty of some of the issues
presented; the skill and experience of opposing counsel; the significant time and resources
expended in prosecuting this action; and the percentage-of-the-fund award requested compared
to the range of awards granted in similar cases in this District and this Circuit. Additionally, the
Court finds that $2,000 should be paid to the named Plaintiff and Class Representative, Nancy A.
Baptista, as an incentive award for her efforts in prosecuting this case. The award to Ms.
Baptista shall be paid from the "Settlement Fund" as and in the manner described in the
Stipulation of Settlement.
10.

The Court recognizes that Defendants have denied and continue to deny

Plaintiffs and Settlement Class Members' claims. Neither the Settlement, this Judgment, any
papers related to the Settlement, nor the fact of Settlement shall be used as a finding or
conclusion of the Court, or an admission of Defendants, or any other person, of any fault,
omission, mistake, or liability, nor as evidence of Plaintiffs lack of conviction in the validity or
strength of her claims, and shall not be offered as evidence of any claimed liability in this or any
other proceeding. Evidence of the Settlement and this Court's Orders approving same shall not
be admissible as an admission ofliability in the underlying Lawsuit.
It is, therefore, ORDERED, ADWDGED, AND DECREED that:
1.

The Parties shall carry out all the terms ofthe Settlement, including the payment

of the Individual Settlement Benefits by the Plan to the Settlement Class Members in accordance
with the terms of the Settlement. The Court finds this allocation of the Net Settlement Benefit to
be fair, reasonable, adequate, and in the best interests of the Class Members.
2.

Releases:

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A.

Each Settling Plaintiff is bound by this Judgment and, as a result of it, has

fully, finally, and forever released, acquitted and discharged Settling Defendants and their
Affiliated Entities from any and all Settled Claims (the "Release"). As used herein,
"Settling Plaintiffs" Settling Plaintiffs' means PlaintiffNancy Baptista and all
Settlement Class Members except those, as listed on Exhibit A hereto, who made
a valid and timely request for exclusion.
"Settling Defendants" means Defendants Mutual of Omaha Insurance Company
and United of Omaha Life Insurance Company.
"Settled Claims" means any and all past and present claims, actions, causes of
action, rights or liabilities, known or unknown, based on, arising out of, or in any
way relating or pertaining to the Settling Defendants' use ofTABS Accounts to
settle ERISA-govemed death benefit claims of the Settling Plaintiffs, the interest
paid on the TABS Accounts, or the investment of funds attributable to the TABS
Accounts. Without limitation, the Settled Claims include all claims, actions,
rights or causes of action arising under the statutory or common law applicable to
Settlement Class Members which were raised or could have been raised in this
litigation, including any violations of ERISA or state law, any intentional
wrongdoing, any fraud, any breach of fiduciary duty, and any prohibited
transactions.
"Affiliated Entities" means (i) any part, subsidiary, affiliate, employee, agent,
officer or director of Defendants Mutual of Omaha Insurance Company or United
of Omaha Life Insurance Company (for purposes of defining "Affiliated Entities,"
all individual persons in this clause are collectively referred to as "Affiliated
Individuals"); (ii) any trust of which any such Affiliated Individual is a grantor,
trustee or beneficiary; (iii) any corporation of which any such Affiliated
Individual or entity is a shareholder, or, as applicable, an employee, officer or
director; (iv) any partnership or any other unincorporated form of business, or
limited liability company in which any such Affiliated Individual or Defendants
own an interest; (v) ERISA-govemed employee welfare benefits plans that were
insured by group life insurance policies issued by Defendants or any Affiliated
Entity, under which Defendants or any Affiliated Entity "paid" any death benefits
or interest thereon through a TABS Account; and (vi) sponsors ofERISAgovemed employee welfare benefits plans that were insured by group life
insurance policies issued by Defendants or any Affiliated Entity, under which
Defendants or any Affiliated Entity "paid" any death benefits or interest thereon
through a TABS Account. Affiliated Entities also means any corporations,
business entities, partnerships or other unincorporated forms of business, or
limited liability companies which are controlled directly or indirectly by
Defendants or Affiliated Individuals, or which are controlling directly or

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indirectly by Defendants or the Affiliated Individuals, or which are directly or
indirectly under common control with Defendants or the Affiliated Individuals.

B.

Settling Plaintiffs, without limitation, are precluded, estopped, and forever

barred from bringing or prosecuting in the future any claim or cause of action released in
the preceding paragraph and are permanently enjoined from bringing any such claim or
cause of action.
C.

Settling Plaintiffs acknowledge that they are releasing both known and

unknown and suspected and unsuspected claims and causes of action, and are aware that
they may hereafter discover legal or equitable claims or remedies presently unknown or
unsuspected, or facts in addition to or different from those which they now know or
believe to be true, including those with respect to the allegations and subject matters in
the Lawsuit, or that concern or relate in any way to the sufficiency or correctness of
benefits paid from the Plan. It is the intention of Settling Plaintiffs to fully, finally, and
forever settle and release all such matters, and all claims and causes of action relating
thereto which exist, hereafter may exist, or might have existed (whether or not previously
or currently asserted in this Lawsuit).
D.

Settling Plaintiffs expressly acknowledge certain principles oflaw

applicable in some states, such as Section 1542 ofthe Civil Code of the State of
California, which provide that a general release does not extend to claims that a 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. Settling Plaintiffs expressly waive all rights related to the Settled Claims under
Section 1542 of the Civil Code of the State of California, which reads as follows:

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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.

Settling Plaintiffs acknowledge that they may have claims that are covered by the terms
of this Settlement that they have not yet discovered. Settling Plaintiffs acknowledge that
they intend to release any and all such unknown or unsuspected Settled Claims, and any
other known, unknown, or unsuspected claims arising out of Settling Plaintiffs' TABS
Accounts. Notwithstanding the choice oflaw provision in the Settlement, to the extent
that California or other law may be applicable and enforceable, Settling Plaintiffs hereby
agree that the provisions of Section 1542 of the Civil Code of the State of California and
all similar federal or state laws, rights, rules, or legal principles of any other jurisdiction
that may be applicable here, are hereby knowingly and voluntarily waived and
relinquished by Settling Plaintiffs, and Settling Plaintiffs agree and acknowledge that this
provision is an essential term of the Settlement and this Release.
E.

Nothing in this Release shall preclude any action to enforce the terms of

the Settlement.
F.

This Release may be raised as a complete defense to and will preclude any

action or proceeding that is encompassed by the Release. The Settling Plaintiffs and the
Settling Defendants intend that the terms of the Release are to be broadly construed in
favor of the Settling Defendants .
3.

Except as otherwise provided in the Settlement and this Judgment, Plaintiff and

the Settlement Class Members shall take nothing in this Lawsuit and the Court hereby dismisses

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the claims of Plaintiff and the Settlement Class Members against Defendants with prejudice and
without costs.
4.

Class Counsel shall be paid from the Total Settlement Amount attorneys' fees,

exclusive of costs and expenses and reimbursement of expenses, the amount indicated in ~ 9 of
my findings, supra, to be paid in accordance with the payment terms of the Settlement. Class
Counsel shall also be paid from the Total Settlement Amount reimbursement of expenses, the
amount indicated in~ 9 of my findings, supra, to be paid in accordance with the payment terms
of the Settlement. In addition, the named Plaintiff and Class Representative, Nancy A. Baptista,
shall be paid from the Total Settlement Fund in the amount of $2,000 to be paid in accordance
with the payment terms of the Settlement.
5.

Pursuant to the Plan of Allocation, the Settlement Administrator shall distribute

all unclaimed or unallocated funds, including any check that has not been negotiated within 180
days of issuance, to the United Way of the Midlands, Omaha, NE, as soon as is possible, under
the cy pres doctrine.
6.

Settling Defendants and their Affiliated Entities can and will continue to maintain

and administer TABS Accounts, or any other retained asset accounts that were opened prior to
the date of this Final Order and Judgment, including the investment of funds, earning and
retention of profits on those investments, and paying interest on those funds, as Settling
Defendants or their Affiliated Entities see fit.
7.

The Court finds that with the mailing of the Class Action Fairness Notice

("CAF A") forms preliminarily approved by the Court as attached to the Stipulation as Exhibit E,
the Defendants have complied with the notice requirements of CAF A.

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8.

Without affecting the finality of this Judgment in any way, this Court will retain

continuing jurisdiction over all Parties and Settlement Class Members solely for purposes of
enforcing this Judgment and, pursuant to it, the Settlement, and may order any appropriate legal
or equitable remedy necessary to enforce the terms of this Judgment and/or the Settlement.
9.

This is a final and appealable judgment.

SO ORDERED.

Dated:~~

'2012.

MaryM. L 1
Chief United States District Judge
District of Rhode Island

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Exhibit A
Individuals who submitted timely Opt-Out Forms not retracted
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.

Lois M. White
Celenia Da Cunha
Gloria Reyes
Valerie C. Siemon
Kimberly Phan
Michael Albero, Jr.
Allison Borghardt
Leonard G. Anderson
Sandra O'Heir
Thelma M. Hill
Marilyn S. Hayes
Damon D. Turley
Gerald R. Siereveld, Sr.
Frances A. and Russell W. Corkum
Olivia Nelson