C.S. et al v. The Boeing Company Master Welfare Plan et al

Filing 47

ORDER GRANTING FINAL APPROVAL OF SETTLEMENT AGREEMENT; AND APPROVING AND DIRECTING DISBURSEMENTS FROM QUALIFIED SETTLEMENT TRUST FUND by Judge Ricardo S Martinez.(RS)

HON. RICARDO S. MARTINEZ

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9
10
11
12
13

C.S., by and through his parents and
guardians, S.S. and K.S.; and D.Z., by and
through his parents and guardians, E.Z.
and J.Z., each individually, on behalf of
similarly situated individuals, and on
behalf of THE BOEING COMPANY
MASTER WELFARE PLAN,
Plaintiffs,

14
15
16
17
18

v.

NO. 2:14-cv-00574-RSM
ORDER:
(1) GRANTING FINAL APPROVAL OF
SETTLEMENT AGREEMENT; AND
(2) APPROVING AND DIRECTING
DISBURSEMENTS FROM
QUALIFIED SETTLEMENT TRUST
FUND

THE BOEING COMPANY MASTER
WELFARE PLAN, and THE BOEING
COMPANY EMPLOYEE BENEFIT PLANS
COMMITTEE,
Defendants.

19
20

Upon consideration of Plaintiffs’ unopposed motion pursuant to Federal Rule of

21

Civil Procedure 23(e) for an order approving the settlement of this Action (the “Motion

22

for Final Approval”), in accordance with the Parties’ Settlement Agreement dated as of

23

June 5, 2015 (the “Agreement”), which together with the Appendices annexed thereto

24

sets forth the terms and conditions for a settlement of the Action, and the Court having

25

read and considered the Agreement, enters the following findings:

26

ORDER APPROVING
SETTLEMENT AGREEMENT, ETC.– 1
[Case No. 2:14-cv-00574-RSM]

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1
2
3

1.

The Court has jurisdiction over the subject matter of this Lawsuit, the

Named Plaintiffs, the Class Members, and Defendants pursuant to 29 U.S.C. § 1132(e).
2.

The Agreement, together with all of its exhibits, is incorporated herein,

4

and to the extent not otherwise defined herein, all capitalized words, terms, and

5

phrases used herein shall have the same meaning as used in the Agreement.

6

3.

The Settlement Class is that defined and preliminary certified by the

7

Court for settlement purposes only under Fed. R. Civ. P. 23(b)(1) on June 9, 2015 (Dkt.

8

No. 36).

9

4.

The Court finds that the requirements of Federal Rule of Civil Procedure

10

23 and due process have been satisfied in connection with the distribution of the notice

11

to class members. The record reflects that the Claims Processor mailed 1,428 approved

12

notices and claims material to participants or beneficiaries enrolled in a self-funded

13

health coverage option during the class period who have an Autism diagnosis and

14

made a claim for any Autism treatment provided while they were Washington State

15

residents (“Notices”). Dkt. No. 37. The Court finds that direct mail notice to class

16

members was the best notice practical, and meets the requirements of due process.

17

5.

The Court further finds that appropriate notice to state and federal

18

official was provided pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28

19

U.S.C. § 1715.

20

obligations under CAFA.

21
22
23

6.

The Court also finds that Defendants have fully satisfied their

The Class Processor did not receive any objections or comments to the

Agreement.
7.

Based on the record before it, the Court finds, pursuant to Federal Rule of

24

Civil Procedure 23(e), that the Agreement attached as Appendix 1 to the Motion for

25

Preliminary Approval is fair, reasonable, and adequate. The Court finds that: (a) the

26

Agreement resulted from extensive arm’s length negotiations; (b) there is no evidence
ORDER APPROVING
SETTLEMENT AGREEMENT, ETC.– 2
[Case No. 2:14-cv-00574-RSM]

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

of fraud, collusion, or overreaching or that the rights of absent Class Members were

2

disregarded; and (c) counsel has sufficient experience in similar litigation to propose

3

and recommend the Agreement. The Court further finds that the Agreement includes

4

Coverage Agreements pertaining to ABA therapy to treat ASD as set forth in

5

Paragraph 6 of the Agreement. The Court also finds that the Agreement provides

6

significant retrospective relief in that class members with approved claims will receive

7

full reimbursement for unpaid ABA claims during the class period.

8

8.

From the outset of this case, the Settlement Class faced and continues to

9

face numerous affirmative defenses and litigation risks that could create a complete bar

10

to recovery or leave Class Members with a recovery less than that presented under the

11

Agreement. The Agreement is fair and reasonable under the circumstances. Therefore,

12

the Agreement is approved under Federal Rule of Civil Procedure 23(e).

13

9.

The Court authorizes the payment of approved class member claims in

14

this action. The Claims Processor is directed to pay all valid claims from the Qualified

15

Settlement Trust Fund. There is a dispute over whether a late claim is valid. If

16

informal resolution is not possible, then the parties will seek resolution of the dispute.

17

10.

Class Counsel have sought an attorneys’ fees award, exclusive of costs

18

and expenses, in an amount equal to 25% of the Settlement Amount, i.e., $225,000, and

19

reimbursement for out-of-pocket litigation costs incurred totaling $9,737.45.

20

11.

The Court approves class counsel request for attorneys’ fees totaling

21

$225,000. No Class Member has objected to this amount, which is evidence that the

22

Class Members find the request to be fair. This amount is fair and reasonable. This

23

award also results in a multiplier of 1.59, which is within an acceptable range. See

24

Vizcaino v. Microsoft, 290 F.3d 1043, 1051 (9th Cir. 2002) (multiplier of 3.65 “was within

25

the range of multipliers applied in common fund cases”). The Court awards these

26

attorneys’ fees to Class Counsel for its efforts in this action, and authorizes and directs
ORDER APPROVING
SETTLEMENT AGREEMENT, ETC.– 3
[Case No. 2:14-cv-00574-RSM]

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

the disbursement of $225,000 from the Qualified Settlement Trust Fund to Class

2

Counsel.
12.

3

The Court also approves Class Counsel’s request for reimbursement of

4

$9,737.45 in litigation costs. These costs were documented, are reasonable, and were

5

necessary to advance the interests of the class. No Class Member has objected to Class

6

Counsel’s request for reimbursement of litigation costs. In addition to the fees, the

7

Court also authorizes and directs the disbursement of $9,737.45 from the Qualified

8

Settlement Trust Fund to Class Counsel as litigation costs in this matter.
13.

9

The Court approves the payment of incentive awards to the two class

10

representatives. S.S. and K.S., the parents and guardians of C.S., are awarded $10,000

11

as an incentive award. E.Z. and J.Z., the parents and guardians of D.Z., are also

12

awarded $10,000 as an incentive award.

13

disbursement of $10,000 to each of the two families from the Qualified Settlement Trust

14

Fund.

15

14.

The Court authorizes and directs the

The Released Claims, as defined in the Agreement, are released and

16

discharged as of the Effective Date of the Agreement. The Named Plaintiffs on behalf

17

of themselves and, to the full extent permitted by law, on behalf of the Class Members,

18

are enjoined and barred from commencing or prosecuting, either directly or indirectly

19

any of the Released Claims against any Releasee directly, representatively,

20

derivatively, or in any other capacity, whether by a complaint, counterclaim, defense,

21

or otherwise, in any local, state, or federal court, or in any agency or other authority or

22

forum, where located.

23

15.

Defendants, upon the Effective Date of the Agreement, have released and

24

discharged the Named Plaintiffs, the Settlement Class, and Class Counsel from any and

25

all claims based on the institution or prosecution of the Action.

26

ORDER APPROVING
SETTLEMENT AGREEMENT, ETC.– 4
[Case No. 2:14-cv-00574-RSM]

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

16.

The Court recognizes that Defendants have denied and continue to deny

2

Named Plaintiffs’ and Class Members’ claims.

3

Approval Order, the Preliminary Approval Order, drafts of such orders, any papers

4

related to the Agreement, nor the fact of the Agreement shall be used as a finding or

5

conclusion of the Court, or an admission of Defendants or The Boeing Company, or

6

any other person or entity, of any fault, omission, mistake, or liability, nor as evidence

7

of Named Plaintiffs’ or any Class Member’s lack of conviction in the validity or

8

strength of their claims, and shall not be offered as evidence of any claimed liability in

9

this or any other proceeding. Evidence of the Agreement and the orders of this Court

10

approving same shall be admissible only in proceedings to enforce the Agreement or

11

this Order, but not as admission of liability in the underlying Action. This Order is not

12

a finding of the validity or invalidity of any of the claims asserted or defenses raised in

13

this Action.

14

17.

Neither the Agreement, this Final

Class counsel is directed to submit a final report to the Court regarding

15

claims processing and disbursement of funds from the Qualified Settlement Fund,

16

which shall be no later than 30 days after the Claims Processor processes all valid

17

claims. Within 60 days after the submission of this report, the Claim Processor shall

18

cause the Qualified Settlement Fund to return to The Boeing Company any remaining

19

funds in the Qualified Settlement Fund, minus any court-approved or agreed holdback

20

for expenses incurred by not yet paid, taxes, and estimated administrative expenses

21

necessary to complete the activities of, and close the Qualified Settlement Fund. Any

22

part of the holdback remaining after all expenses and other liabilities of the Qualified

23

Settlement Fund are paid shall be returned to The Boeing Company upon closure of the

24

Qualified Settlement Fund.

25
26

ORDER APPROVING
SETTLEMENT AGREEMENT, ETC.– 5
[Case No. 2:14-cv-00574-RSM]

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]

1

It is so ORDERED this 9 day of November 2015.

2
3

A

4

RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

5
6

Agreed and Presented by:

7
8

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER

9

11

/s/ Richard E. Spoonemore
Richard E. Spoonemore (WSBA #21833)
Eleanor Hamburger (WSBA #26478)

12

Attorneys for Plaintiffs

10

13
14
15
16
17
18
19
20
21

MORGAN LEWIS & BOCKIUS, LLP
/s/ Jeremy P. Blumenfeld
Jeremy P. Blumenfeld (admitted pro hac vice)
Nicole A. Diller (admitted pro hac vice)
Roberta H. Vespremi (admitted pro hac vice)
RIDDELL WILLIAMS, P.S.
/s/ Laurence A. Shapero
Laurence A. Shapero (WSBA #31301)
Attorneys for Defendants

22
23
24
25
26

ORDER APPROVING
SETTLEMENT AGREEMENT, ETC.– 6
[Case No. 2:14-cv-00574-RSM]

SIRIANNI YOUTZ
SPOONEMORE HAMBURGER
999 THIRD AVENUE, SUITE 3650
SEATTLE, WASHINGTON 98104
TEL. [phone] FAX [phone]