Russett et al v. Northwestern Mutual Life Insurance Company, No. 7:2019cv07414 - Document 51 (S.D.N.Y. 2020)
Court Description: FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE: IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS: Accordingly, the Settlement is hereby finally approved in all respects. 10. The Parties are hereby directed to implement the Settl ement Agreement according to its terms and provisions. The Settlement Agreement is hereby incorporated into this Final Judgment in full and shall have the full force of an Order of this Court. 11. This Court hereby dismisses the Action on the me rits and with prejudice. 12. Upon the Effective Date of this Final Judgment, Plaintiffs and each and every Settlement Class Member who did not opt out of the Settlement Class (whether or not such members submit claims), including such individuals respective present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parent companies, subsidiaries, associates, affiliates, employers, employees, agents, consultants, independent contractors, insurers, dire ctors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, underwriters, shareholders, lenders, auditors, investment advisors, legal representatives, successors in interest, assigns a nd companies, firms, trusts, and corporations shall be deemed to have released Defendant, as well as any and all of its respective present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parent companies, s ubsidiaries, licensors, licensees, associates, affiliates, employers, agents, consultants, independent contractors, insurers (collectively "Affiliates"), including without limitation, for each Affiliate, its employees, directors, managi ng directors, officers, trustees, partners, principals, members, attorneys, accountants, financial and other advisors, underwriters, shareholders, lenders, auditors, investment advisors, legal representatives, successors in interest, assigns and companies, firms, trusts, and corporations from any and all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims, demands, liabilities, rights, causes of action, contracts or ag reements, extra-contractual claims, damages, punitive, exemplary or multiplied damages, expenses, costs, attorneys' fees and or obligations (including "Unknown Claims," as defined below), whether in law or in equity, accrued or un -accrued, direct, individual or representative, of every nature and description whatsoever, whether based on New York General Business Law ("GBL") § 399-zzz, GBL § 349, or other state, federal, local, statutory or common law o r any other law, rule or regulation, against the Released Parties, or any of them, arising out of any facts, transactions, events, matters, occurrences, acts, disclosures, statements, representations, omissions or failures to act arising out of or in any way allegedly related to rates or fees, or differentials in rates or fees, associated with payments by mail, including but not limited to all claims that were brought or could have been brought in the Action relating to any and all Rele asing Parties. 13. Upon the Effective Date of this Final Judgment, the above release of claims and the Settlement Agreement will be binding on, and will have res judicata and preclusive effect on, all pending and future lawsuits or other proceedi ngs maintained by or on behalf of Plaintiffs and all other Settlement Class Members and Releasing Parties. All Settlement Class Members are hereby permanently barred and enjoined from filing, commencing, prosecuting, intervening in, or partici pating (as class members or otherwise) in any lawsuit or other action in any jurisdiction based on or arising out of any of the Released Claims. 14. The Court has also considered Plaintiffs' Motion For Attorneys' Fees, Costs, Expenses, And Incentive Awards, as well as the supporting memorandum of law and declarations (ECF Nos. 37-42), and adjudges that the payment of attorneys' fees, costs, and expenses in the amount of $198,333.33 is reasonable in light of the multi -factor test used to evaluate fee awards in the Second Circuit. See Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir. 2000). Such payment shall be made pursuant to and in the manner provided by the terms of the Settlement Agr eement. 15. The Court has also considered Plaintiffs' Motion, memorandum of law, and supporting declarations for an incentive award to the Class Representatives, Elizabeth Russett, Beth Calabrese, and Jan Bullard. See ECF No. 42 at 17-18. T he Court adjudges that the payment of incentive awards in the amount of $5,000 each to the Class Representatives to compensate them for their efforts and commitment on behalf of the Settlement Class, is fair, reasonable, and justified unde r the circumstances of this case. Such payments shall be made pursuant to and in the manner provided by the terms of the Settlement Agreement. 16. All payments made to Settlement Class Members pursuant to the Settlement Agreement that are not c ashed within one hundred and eighty (180) days of issuance shall revert to the Legal Aid Society, Inc., which the Court approves as an appropriate cy pres recipient. Except as otherwise set forth in this Order, the Parties shall bear their own costs and attorneys' fees. 17. The Parties, without further approval from the Court, are hereby permitted to agree and adopt such amendments, modifications, and expansions of the Settlement Agreement and its implementing documents (including all exhibits to the Settlement Agreement), including extensions of time, so long as they are consistent in all material respects with this Final Judgment and do not limit the rights of Settlement Class Members. 18. If this Final Judgment is rever sed or vacated on appeal, or the Settlement Agreement is terminated pursuant to its terms, all orders entered in connection herewith shall be null and void. 19. Without affecting the finality of this Final Judgment for purposes of appeal, until t he Effective Date the Court shall retain jurisdiction over all matters relating to administration, consummation, enforcement, and interpretation of the Settlement Agreement. 20. This Court hereby directs entry of this Final Judgment pursuant to Federal Rule of Civil Procedure 58 based upon the Court's finding that there is no just reason for delay of enforcement or appeal of this Final Judgment. IT IS SO ORDERED. (Signed by Judge Kenneth M. Karas on 10/6/2020) (va)
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Russett et al v. Northwestern Mutual Life Insurance Company Doc. 51 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ELIZABETH RUSSETT, BETH CALABRESE, and JAN BULLARD, individually and on behalf of all others similarly situated, Plaintiffs, Civil Action No. 19-cv-07414-KMK v. THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Defendant. [PROPOSED] FINAL JUDGMENT AND ORDER OF DISMISSAL WITH PREJUDICE WHEREAS, a class action is pending before the Court entitled Russett, et al. v. The Northwestern Mutual Life Insurance Company, No. 7:19-cv-07414-KMK; and WHEREAS, Plaintiffs Elizabeth Russett, Beth Calabrese, and Jan Bullard, and Defendant The Northwestern Mutual Life Insurance Company have entered into a Class Action Settlement Agreement, which, together with the exhibits attached thereto, sets forth the terms and conditions for a proposed settlement and dismissal of the Action with prejudice as to Defendant upon the terms and conditions set forth therein (the “Settlement Agreement”) (ECF No. 30-1); and WHEREAS, on May 28, 2020, the Court granted Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement, conditionally certifying a Class pursuant to Fed. R. Civ. P. 23(b)(3) of “all Persons with a New York mailing address who from June 21, 2016 to and through the date of this Order were charged by Defendant an additional rate or fee or a differential in the rate or fee based on the method by which they chose to make payments.” (ECF No. 36 ¶ 9); and WHEREAS, the Court has considered the Parties’ Class Action Settlement Agreement Dockets.Justia.com (ECF No. 30-1), as well as Plaintiffs’ Motion for Final Approval of the Settlement Agreement (ECF No. 45), Plaintiffs’ Motion for Attorneys’ Fees, Costs, Expenses, And Incentive Awards (ECF No. 37), together with all exhibits thereto, the arguments and authorities presented by the Parties and their counsel at the Final Approval Hearing held on October 6, 2020, and the record in the Action, and good cause appearing; IT IS HEREBY ORDERED, DECREED, AND ADJUDGED AS FOLLOWS: 1. Terms and phrases in this Final Judgment shall have the same meaning as ascribed to them in the Parties’ Class Action Settlement Agreement. 2. This Court has jurisdiction over the subject matter of the Action and over all Parties to the Action, including all Settlement Class Members. 3. The Notice provided to the Settlement Class pursuant to the Settlement Agreement (ECF No. 30-1) and order granting Preliminary Approval (ECF No. 36) – including (i) direct notice to the Settlement Class via U.S. mail, based on the comprehensive Settlement Class List provided by Defendant, and (ii) the creation of the Settlement Website – fully complied with the requirements of Fed. R. Civ. P. 23 and due process, and was reasonably calculated under the circumstances to apprise the Settlement Class of the pendency of the Action, their right to object to or to exclude themselves from the Settlement Agreement, and their right to appear at the Final Approval Hearing. 4. Two individuals – listed in Exhibit C to the September 18, 2020 Declaration of Jennifer M. Keough (ECF No. 47-3) – have submitted timely, valid requests for exclusion and are therefore excluded from the Settlement Class. 5. The Court finds that Defendant properly and timely notified the appropriate government officials of the Settlement Agreement, pursuant to the Class Action Fairness Act of 2 2005 (“CAFA”), 28 U.S.C. § 1715. The Court has reviewed the substance of Defendant’s notice, and finds that it complied with all applicable requirements of CAFA. Further, more than ninety (90) days have elapsed since Defendant provided notice pursuant to CAFA and the Final Approval Hearing. 6. This Court now gives final approval to the Settlement Agreement, and finds that the Settlement Agreement is fair, reasonable, adequate, and in the best interests of the Settlement Class. The settlement consideration provided under the Settlement Agreement constitutes fair value given in exchange for the release of the Released Claims against the Released Parties. The Court finds that the consideration to be paid to members of the Settlement Class is reasonable, and in the best interests of the Settlement Class Members, considering the total value of their claims compared to (i) the disputed factual and legal circumstances of the Action, (ii) affirmative defenses asserted in the Action, and (iii) the potential risks and likelihood of success of pursuing litigation on the merits. The complex legal and factual posture of this case, the parties’ exchange of relevant information, and the fact that the Settlement is the result of arms’-length negotiations between the Parties involving a neutral mediator (the Honorable Wayne R. Andersen (Ret.)) support this finding. The Court finds that these facts, in addition to the Court’s observations throughout the litigation, demonstrate that there was no collusion present in the reaching of the Settlement Agreement, implicit or otherwise. 7. The Court has specifically considered the factors relevant to class action settlement approval, including: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through trial; (7) the ability of defendants to withstand a greater judgment; (8) the range 3 of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974); see also Fed. R. Civ. P. 23(e). 8. The Court finds that the Class Representatives and Class Counsel adequately represented the Settlement Class for the purposes of litigating this matter and entering into and implementing the Settlement Agreement. 9. Accordingly, the Settlement is hereby finally approved in all respects. 10. The Parties are hereby directed to implement the Settlement Agreement according to its terms and provisions. The Settlement Agreement is hereby incorporated into this Final Judgment in full and shall have the full force of an Order of this Court. 11. This Court hereby dismisses the Action on the merits and with prejudice. 12. Upon the Effective Date of this Final Judgment, Plaintiffs and each and every Settlement Class Member who did not opt out of the Settlement Class (whether or not such members submit claims), including such individuals’ respective present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parent companies, subsidiaries, associates, affiliates, employers, employees, agents, consultants, independent contractors, insurers, directors, managing directors, officers, partners, principals, members, attorneys, accountants, financial and other advisors, underwriters, shareholders, lenders, auditors, investment advisors, legal representatives, successors in interest, assigns and companies, firms, trusts, and corporations shall be deemed to have released Defendant, as well as any and all of its respective present or past heirs, executors, estates, administrators, predecessors, successors, assigns, parent companies, subsidiaries, licensors, licensees, associates, affiliates, employers, agents, consultants, independent contractors, insurers (collectively “Affiliates”), including 4 without limitation, for each Affiliate, its employees, directors, managing directors, officers, trustees, partners, principals, members, attorneys, accountants, financial and other advisors, underwriters, shareholders, lenders, auditors, investment advisors, legal representatives, successors in interest, assigns and companies, firms, trusts, and corporations from any and all actual, potential, filed, known or unknown, fixed or contingent, claimed or unclaimed, suspected or unsuspected, claims, demands, liabilities, rights, causes of action, contracts or agreements, extra-contractual claims, damages, punitive, exemplary or multiplied damages, expenses, costs, attorneys’ fees and or obligations (including “Unknown Claims,” as defined below), whether in law or in equity, accrued or un-accrued, direct, individual or representative, of every nature and description whatsoever, whether based on New York General Business Law (“GBL”) § 399-zzz, GBL § 349, or other state, federal, local, statutory or common law or any other law, rule or regulation, against the Released Parties, or any of them, arising out of any facts, transactions, events, matters, occurrences, acts, disclosures, statements, representations, omissions or failures to act arising out of or in any way allegedly related to rates or fees, or differentials in rates or fees, associated with payments by mail, including but not limited to all claims that were brought or could have been brought in the Action relating to any and all Releasing Parties. 13. Upon the Effective Date of this Final Judgment, the above release of claims and the Settlement Agreement will be binding on, and will have res judicata and preclusive effect on, all pending and future lawsuits or other proceedings maintained by or on behalf of Plaintiffs and all other Settlement Class Members and Releasing Parties. All Settlement Class Members are hereby permanently barred and enjoined from filing, commencing, prosecuting, intervening in, or participating (as class members or otherwise) in any lawsuit or other action in any jurisdiction based on or arising out of any of the Released Claims. 5 14. The Court has also considered Plaintiffs’ Motion For Attorneys’ Fees, Costs, Expenses, And Incentive Awards, as well as the supporting memorandum of law and declarations (ECF Nos. 37-42), and adjudges that the payment of attorneys’ fees, costs, and expenses in the amount of $198,333.33 is reasonable in light of the multi-factor test used to evaluate fee awards in the Second Circuit. See Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir. 2000). Such payment shall be made pursuant to and in the manner provided by the terms of the Settlement Agreement. 15. The Court has also considered Plaintiffs’ Motion, memorandum of law, and supporting declarations for an incentive award to the Class Representatives, Elizabeth Russett, Beth Calabrese, and Jan Bullard. See ECF No. 42 at 17-18. The Court adjudges that the payment of incentive awards in the amount of $5,000 each to the Class Representatives to compensate them for their efforts and commitment on behalf of the Settlement Class, is fair, reasonable, and justified under the circumstances of this case. Such payments shall be made pursuant to and in the manner provided by the terms of the Settlement Agreement. 16. All payments made to Settlement Class Members pursuant to the Settlement Agreement that are not cashed within one hundred and eighty (180) days of issuance shall revert to the Legal Aid Society, Inc., which the Court approves as an appropriate cy pres recipient. Except as otherwise set forth in this Order, the Parties shall bear their own costs and attorneys’ fees. 17. The Parties, without further approval from the Court, are hereby permitted to agree and adopt such amendments, modifications, and expansions of the Settlement Agreement and its implementing documents (including all exhibits to the Settlement Agreement), including extensions of time, so long as they are consistent in all material respects with this Final Judgment 6 and do not limit the rights of Settlement Class Members. 18. If this Final Judgment is reversed or vacated on appeal, or the Settlement Agreement is terminated pursuant to its terms, all orders entered in connection herewith shall be null and void. 19. Without affecting the finality of this Final Judgment for purposes of appeal, until the Effective Date the Court shall retain jurisdiction over all matters relating to administration, consummation, enforcement, and interpretation of the Settlement Agreement. 20. This Court hereby directs entry of this Final Judgment pursuant to Federal Rule of Civil Procedure 58 based upon the Court’s finding that there is no just reason for delay of enforcement or appeal of this Final Judgment. 6 October IT IS SO ORDERED, this ______ day of _______________, 2020. _________________________________ The Honorable Kenneth M. Karas United States District Judge 7
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