1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Charles Miller, No. CV-22-01545-PHX-JJT
10 Plaintiff, ORDER
11 v.
12 Trumbull Insurance Company,
13 Defendant. 14 15 At issue is Plaintiff’s Motion for Preliminary Approval of Class Action Settlement 16 and Certification of the Settlement Class (Doc. 51, “Mot.”). After reviewing the Motion, 17 the attached documents, and the relevant case law, the Court will grant the Motion. 18 I. BACKGROUND 19 In 2021, this Court ruled that Arizona law requires stacking of uninsured motorist 20 (“UM”) or underinsured motorist (“UIM”) coverages within a multi-vehicle policy under 21 A.R.S. § 20-259.01(H), where the insurer did not provide the insured an opportunity to 22 elect which vehicle’s coverage was applicable to the claim. Heaton v. Metro. Grp. Prop. 23 & Cas. Ins. Co., No. CV-21-00442-PHX-SRB, 2021 WL 6805629, at *8 (D. Ariz. October 24 19, 2021). In the wake of that ruling, several plaintiffs filed similar cases, alleging the same 25 theory of liability. 26 The first such case before the Court was Franklin v. CSAA General Insurance Co., 27 No. CV-22-00540-PHX-JJT. While Franklin was pending, Plaintiff filed this case in state 28 court, alleging that he was injured in an automotive collision that resulted in over $170,000 1 in damages, and the non-party at fault was uninsured. Plaintiff was insured under a policy 2 with Defendant Trumbull Insurance Company that insured four vehicles at $50,000 per 3 person and an aggregate limit of $10,000 per collision. Plaintiff alleged that Trumbull 4 would not allow him to stack the four vehicles’ coverages despite not complying with 5 A.R.S. § 20-259.01(H). He also sought to certify two classes of similarly situated 6 individuals. Trumbull removed the case to federal court. 7 Meanwhile, in Franklin, the Court certified two questions to the Arizona Supreme 8 Court: “(1) Does A.R.S. § 20-259.01 mandate that a single policy insuring multiple 9 vehicles provides different underinsured motorist (UIM) coverages for each vehicle, or a 10 single UIM coverage that applies to multiple vehicles?” and “(2) Does A.R.S. 11 § 20-259.01(B) bar an insured from receiving UIM coverage from the policy in an amount 12 greater than the bodily injury liability limits of the policy?” Franklin, 2022 WL 16631090, 13 at *2–3. The Arizona Supreme Court answered: 14 (1) § 20-259.01’s text, history, and purpose provide that an insured covered 15 by a multi-vehicle policy has necessarily “purchased” multiple UIM 16 coverages for each vehicle under subsection (H); thus, rather than employing singular definitions of “coverage” in their policies, insurers must comply 17 with the statute’s requirements in order to prevent insureds from intra-policy 18 stacking; and (2) § 20-259.01(B) does not limit UIM coverage. 19 20 Franklin v. CSAA Gen. Ins. Co., 532 P.3d 1145, 1153 (Ariz. 2023). 21 After the Arizona Supreme Court’s answers to the certified questions, Plaintiff and 22 Trumbull engaged in pre-certification settlement negotiations, including a mediation. The 23 parties agreed to negotiate and settle all claims related to UM/UIM coverage for policies 24 sold in Arizona by Trumbull, Hartford Insurance Company of the Southeast, Twin City 25 Fire Insurance Company, Hartford Underwriters Insurance Company, Hartford Insurance 26 Company of the Midwest, and Hartford Casualty Insurance Company (collectively, 27 “Defendants”)1, which are all affiliated companies under common management. After two
28 1 Plaintiff has since filed an Amended Complaint adding each of these companies as a Defendant. (Doc. 44.) 1 mediations and several more months of negotiations, the parties agreed on key terms and 2 entered into a final settlement agreement, agreeing to settle the case for $13,940,000.00. 3 (Doc. 51-1, “Agreement”) 4 Plaintiff now moves for certification of the settlement class and preliminary 5 approval of the settlement agreement. 6 II. LEGAL STANDARD 7 A. Class Certification 8 Federal Rule of Civil Procedure 23(a) provides that a class action—that is, an action 9 in which one or more members of a class sue on behalf of all members of the class—may 10 proceed only if four prerequisites are met: 11 1. Numerosity: “the class is so numerous that joinder of all members is 12 impracticable”; 13 2. Commonality: “there are questions of law or fact common to the class”; 14
15 3. Typicality: “the claims or defenses of the representative parties are typical of the claims or defenses of the class;” and 16
17 4. Adequacy of Representation: “the representative parties will fairly and adequately protect the interests of the class.” 18 19 Fed. R. Civ. P. 23(a). 20 In addition, under Rule 23(b), a court may only certify a class action if there is at 21 least one of the following: 22 1. Risk of Inconsistency: the prosecution of separate actions by individual 23 class members would create a risk of inconsistent adjudications or 24 adjudications that would be dispositive of non-party class member interests; or 25
26 2. Appropriate Class-Wide Injunctive Relief: injunctive or declaratory relief is appropriate respecting the class as a whole because the conduct of the 27 opposing party applies generally to the class; or 28 1 3. Predominance and Superiority: “the court finds that the questions of law or fact common to class members predominate over any questions 2 affecting only individual members, and that a class action is superior to 3 other available methods for fairly and efficiently adjudicating the controversy.” 4 5 Fed. R. Civ. P. 23(b). 6 “Rule 23 does not set forth a mere pleading standard. A party seeking class 7 certification must affirmatively demonstrate his compliance with the Rule—that is, he must 8 be prepared to prove that there are in fact sufficiently numerous parties, common questions 9 of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Thus, 10 “‘sometimes it may be necessary for the court to probe behind the pleadings before coming 11 to rest on the certification question.’” Id. (quoting Gen. Tel. Co. of the Sw. v. Falcon, 457 12 U.S. 147, 160 (1982)). Class certification “is proper only if ‘the trial court is satisfied, after 13 a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,’” which will 14 frequently “entail some overlap with the merits of the plaintiff’s underlying claim.” Id. at 15 350–51 (quoting Falcon, 457 U.S. at 161). 16 B. Preliminary Approval 17 Class actions require the approval of the district court before settlement. Fed. R. 18 Civ. P. 23(e) (“The claims, issues, or defenses of a certified class—or a class proposed to 19 be certified for purposes of settlement—may be settled, voluntarily dismissed, or 20 compromised only with the court’s approval.”). The Ninth Circuit has declared a strong 21 judicial policy that favors settlement of class actions. Class Plaintiffs v. City of Seattle, 955 22 F.2d 1268, 1276 (9th Cir. 1992); In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 556 23 (9th Cir. 2019). 24 Procedurally, this process moves forward in two steps. The first step is preliminary 25 approval. During preliminary approval, the court conducts a preliminary fairness 26 evaluation to determine if notice of the class action settlement should issue to class 27 members and, if applicable, whether the proposed settlement class should be certified. See 28 1 David F. Herr, Ann. Manual Complex Lit. § 21.632 (4th ed. 2023). The court looks to 2 several factors to gauge fairness and adequacy, including: 3 (1) the strength of the plaintiffs’ case; (2) the risk, expense, complexity, and 4 likely duration of further litigation; (3) the risk of maintaining class action 5 status throughout the trial; (4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the experience 6 and views of counsel; (7) the presence of a governmental participant; and (8) 7 the reaction of the class members to the proposed settlement. 8 Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). However, some of 9 the eight Churchill factors cannot be fully assessed until the final fairness hearing. Alberto 10 v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008). 11 Therefore, at the preliminary approval stage, courts need only evaluate whether the 12 proposed settlement (1) appears to be the product of serious, informed, non-collusive 13 negotiations, (2) has no obvious deficiency, (3) does not improperly grant preferential 14 treatment to class representatives or segments of the class, and (4) falls within the range of 15 possible approval. Horton v. USAA Cas. Ins. Co., 266 F.R.D. 360, 363 (D. Ariz. 2009). 16 The second step is the final approval. “If the proposal would bind class members, 17 the court may approve it only after a hearing and only on finding that it is fair, reasonable, 18 and adequate.” Fed. R. Civ. P. 23(e)(2). In doing so, the court must consider several factors, 19 including whether “the class representatives and class counsel have adequately represented 20 the class”; “the proposal was negotiated at arm’s length”; “the proposal treats class 21 members equitably relative to each other”; and “the relief provided for the class is 22 adequate.” Id. When considering whether “the relief provided for the class is adequate,” 23 the court should also consider: 24
25 (i) the costs, risks, and delay of trial and appeal; 26 (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims; 27 28 1 (iii) the terms of any proposed award of attorney’s fees, including timing of payment; and 2 (iv) any agreement required to be identified under Rule 23(e)(3). 3 4 Id. After the final fairness hearing, the Court will fully analyze the Churchill factors and 5 the above considerations of Rule 23(e) in making its final decision on the settlement. 6 But at this juncture, the Court will review the parties’ proposed settlement 7 agreement according to the four preliminary approval considerations and conduct a cursory 8 review of its terms in deciding whether to order the parties to send the proposal to the class 9 members and conduct a final fairness hearing. See Alberto, 252 F.R.D. at 665. Because 10 “[s]ettlement is the offspring of compromise; the question . . . is not whether the final 11 product could be [better], but whether it is fair, adequate and free from collusion.” Hanlon 12 v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998). 13 III. ANALYSIS 14 A. Class Certification 15 Under the terms of the settlement agreement, the proposed settlement class is: 16 All persons insured under one of Defendants’ personal lines automobile 17 policies issued in Arizona that provided uninsured (“UM”) or underinsured 18 (“UIM”) motorist coverage for more than one motor vehicle, and who received a claim payment equal to the limit of liability for the UM or UIM 19 benefits for only one person/one vehicle (or whose payment was based on 20 the limit of liability for UM or UIM coverage for only one vehicle where the full per accident single vehicle limit was paid to multiple individuals) and 21 who were not notified of their right to select which vehicle’s coverage was 22 applicable during the Class Period, as reflected in the agreed-upon list transmitted by Defendants’ counsel to Plaintiff’s counsel on May 29, 2024.2 23 24 (Agreement ¶ 3.) The Court will consider whether this class meets the requirements of Rule 25 23(a) and (b). 26 2 The agreement further defines the “Class Period” as follows: “For individuals 27 insured by Trumbull, their dates of loss occurred between August 11, 2016 through the date the Parties sign [the] Settlement Agreement, and for those who were insured by the 28 remaining Defendants, their dates of loss occurred between October 10, 2017 through the date the Parties sign [the] Settlement Agreement.” 1 1. Rule 23(a)(1)—Numerosity 2 Known as the numerosity requirement, Rule 23(a)(1) provides that a class action 3 may be maintained only if “the class is so numerous that joinder of all members is 4 impracticable.” Fed. R. Civ. P. 23(a)(1). “In determining whether numerosity is satisfied, 5 the Court may consider reasonable inferences drawn from the facts before it.” In re Yahoo 6 Mail Litig., 308 F.R.D. 577, 589–90 (N.D. Cal. 2015). Impracticality has been interpreted 7 to mean that joinder of all the claims would be difficult and inconvenient. See In re 8 Modafinil Antitrust Litig., 837 F.3d 238, 249 (3d Cir. 2016) (citing Robidoux v. Celani, 9 987 F.2d 931, 935 (2d Cir. 1993)). Although there is no precise number required to meet 10 this prerequisite, a proposed class of 40 or more members tends to indicate that joinder is 11 impracticable. Rannis v. Recchia, 380 F. App’x 646, 651 (9th Cir. 2010) (“In general, 12 courts find the numerosity requirement satisfied when a class includes at least 40 13 members.”); Huynh v. Harasz, 2015 WL 7015567, at *5 (N.D. Cal. 2015) (“As other 14 district courts have noted, ‘the numerosity requirement is usually satisfied where the class 15 comprises 40 or more members.’”) (quoting Twegbe v. Pharmaca Integrative Pharmacy, 16 Inc., No. CV 12-5080 CRB, 2013 WL 3802807, at *3 (N.D. Cal. 2013)). In the present 17 case, Plaintiff proposes the above-defined putative class, which consists of over 350 18 members. (Mot. at 16.) Joining over 350 plaintiffs would be impracticable. Accordingly, 19 numerosity is satisfied. 20 2. Rule 23(a)(2)—Commonality 21 Under Rule 23(a)(2), a class action must present “questions of law or fact common 22 to the class.” Fed. R. Civ. P. 23(a)(2). Courts have interpreted this section to require a 23 minimum of only one common question of law or fact shared by the class. Dukes, 564 U.S. 24 at 359 (“[F]or purposes of Rule 23(a)(2), even a single common question will do.” 25 (alteration and quotation marks omitted)); Mazza v. Am. Honda Motor Co., 666 F.3d 581, 26 589 (9th Cir. 2012) (“[C]ommonality only requires a single significant question of law or 27 fact.”). Satisfying Rule 23(a)(2) is a “‘relatively light burden’ that ‘does not require that all 28 the questions of law and fact raised by the dispute be common . . . or that the common 1 questions of law or fact predominate over individual issues.’” Esparza v. SmartPay 2 Leasing, Inc., No. C 17-03421 WHA, 2019 WL 2372447, at *2 (N.D. Cal. 2019) (quoting 3 Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009)). 4 Plaintiff asserts here that all members of the proposed class purchased a Hartford 5 policy in Arizona that included multi-vehicle UM or UIM coverage and the same or 6 substantially the same limitation of liability language. Plaintiff also alleges that each 7 member requested UM or UIM coverage from Hartford but only received the policy limit 8 for one covered vehicle, even though Hartford did not provide the required notice under 9 A.R.S. § 20-259.01(H). Moreover, Plaintiff’s breach of contract and breach of the duty of 10 good faith and fair dealing claims are identical to those of the rest of the proposed class. 11 See McClure v. State Farm Life Ins. Co., 341 F.R.D. 242, 250 (D. Ariz 2022) (“Plaintiff 12 has satisfied the commonality requirement because each claim is based on a form contract 13 and a uniform course of conduct towards each policyholder.”). And finally, because all the 14 policies at issue are Arizona policies, Arizona law controls and applies to each member. 15 Plaintiff satisfies the commonality requirement. 16 3. Rule 23(a)(3)—Typicality 17 Rule 23(a)(3) requires that the “claims or defenses of the representative parties are 18 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality examines 19 whether other class members have the same or similar injury, whether the action is based 20 on conduct that is not unique to the named plaintiffs, and whether other class members 21 have been injured by the same conduct. Wolin v. Jaguar Land Rover N. Am., LLC, 617 22 F.3d 1168, 1175 (9th Cir. 2010); Parsons v. Ryan, 754 F.3d 657, 685 (9th Cir. 2014). The 23 named plaintiff’s claims and the rest of the class claims need not be identical to satisfy the 24 typicality requirement. Parsons, 754 F.3d at 685. Also, if the claims arise from a similar 25 course of conduct and share the same legal theory, certain factual differences or differing 26 damages may not necessarily defeat typicality. Just Film, Inc. v. Buono, 847 F.3d 1108, 27 1116–18 (9th Cir. 2017). 28 1 As mentioned, Plaintiff’s claims and the class claims are identical, as they all sound 2 in contract and arise out of virtually identical injuries. Plaintiff’s claims are therefore 3 typical of the class’s claims, and the typicality requirement is met. 4 4. Rule 23(a)(4)—Adequacy 5 Rule 23(a)(4) requires that the “representative parties will fairly and adequately 6 protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “The adequacy inquiry under 7 Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class 8 they seek to represent.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625 (1997). “[A] 9 class representative must be part of the class and ‘possess the same interest and suffer the 10 same injury’ as the class members.” E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 11 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 12 216 (1974)). To determine if the named plaintiffs adequately represent the class, courts 13 ask: “(1) Do the representative plaintiffs and their counsel have any conflicts of interest 14 with other class members, and (2) will the representative plaintiffs and their counsel 15 prosecute the action vigorously on behalf of the class?” Evon v. L. Offs. of Sidney Mickell, 16 688 F.3d 1015, 1031 (9th Cir. 2012). 17 There appears to be no conflict of interest between Plaintiff and the proposed class 18 here, especially in light of the commonality and typicality requirements being met. See 19 Zwicky v. Diamond Resorts Mgmt. Inc., 343 F.R.D. 101, 116 (D. Ariz. 2022) (finding no 20 conflict when commonality and typicality were met, and plaintiffs suffered the same 21 alleged injury as the rest of the proposed class). The Court also finds that Plaintiff’s counsel 22 has no conflict with the proposed class members, as counsel has previously litigated related 23 cases and achieved favorable results. For the same reason, the Court finds that Plaintiff’s 24 counsel is likely to “prosecute the action vigorously on behalf of the class.” Plaintiff has 25 shown adequacy. 26 5. Rule 23(b) 27 With the requirements of Rule 23(a) satisfied, the Court now turns to Rule 23(b). 28 Plaintiff seeks class certification pursuant to Rule 23(b)(3), (Mot. at 19), which provides 1 for class treatment (1) when questions of law or fact common to class members 2 predominate over questions affecting individual members—the predominance 3 requirement, and (2) when a class action is superior to other available methods for the fair 4 and efficient adjudication of the controversy—the superiority requirement. Fed. R. Civ. P. 5 23(b)(3). 6 i. Predominance 7 The predominance requirement is more demanding than Rule 23(a)(2)’s 8 commonality requirement. See Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013). The 9 predominance inquiry “focuses on the relationship between the common and individual 10 issues and tests whether proposed classes are sufficiently cohesive to warrant adjudication 11 by representation.” Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 12 2009) (internal quotations omitted). “[C]ourts have a duty to take a close look at whether 13 common questions predominate over individual ones to ensure that individual questions do 14 not overwhelm questions common to the class.” Senne v. Kan. City Royals Baseball Corp., 15 934 F.3d 918, 927 (9th Cir. 2019) (internal quotations omitted). “In contrast to Rule 16 23(a)(2), Rule 23(b)(3) focuses on the relationship between the common and individual 17 issues. When common questions present a significant aspect of the case and they can be 18 resolved for all members of the class in a single adjudication, there is clear justification for 19 handling the dispute on a representative rather than on an individual basis.” Hanlon v. 20 Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998) (internal citations omitted). 21 Here, the common issues predominate over the individual issues. As mentioned, 22 liability will be established by policy forms, standardized letters, and the uniform practices 23 of the insurers. And although the members will have individualized damages, that “does 24 not defeat finding predominance.” Just Film, 847 F.3d at 1121. Damages here will be 25 calculated on a class-wide basis using a set formula, which is sufficient to satisfy this 26 element. See McClure, 341 F.R.D. at 254 (finding predominance where the damages model 27 was “applied on a class-wide basis to calculate damages for each individual policyholder 28 in the class”). 1 ii. Superiority 2 To satisfy the requirements of Rule 23(b)(3), Plaintiff must also show that “a class 3 action is superior to other available methods for fairly and efficiently adjudicating the 4 controversy.” Fed. R. Civ. P. 23(b)(3). “Where classwide litigation of common issues will 5 reduce litigation costs and promote greater efficiency, a class action may be superior to 6 other methods of litigation.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th 7 Cir. 1996). 8 Here, a class action will promote efficiency. Because each member’s claims involve 9 substantially similar contracts and conduct, filing hundreds of individual cases would 10 simply increase litigation costs and waste the parties’ and the Court’s time and resources. 11 Additionally, although damages vary among the members, many of their claims will be too 12 small to make individual litigation possible. See McClure, 341 F.R.D. at 254 (“[B]ecause 13 the recoveries of each individual class member will be relatively small, a class action is 14 superior to other methods of adjudication.”) Thus, the superiority requirement has been 15 met. 16 6. Conclusion 17 The Court finds that Plaintiff’s proposed settlement class meets the requirements of 18 Rule 23(a) and (b), and therefore the Court will certify the class for settlement purposes. 19 B. Preliminary Approval of the Settlement 20 Plaintiff also seeks preliminary approval of the class action settlement. Rule 23(e) 21 states that the claims of a certified class may only be settled with the Court’s approval. The 22 first step in the approval process is a preliminary review in which the court determines if it 23 “will likely be able to” approve the settlement proposal under the “fair, reasonable, and 24 adequate” standard of Rule 23(e)(2) such that it can direct notice under Rule 23(e)(1) to all 25 class members of the settlement proposal and set a hearing on the fairness of the settlement 26 “[i]f the proposed settlement appears to be the product of serious, informed, non-collusive 27 negotiations, has no obvious deficiencies, does not improperly grant preferential treatment 28 to class representatives or segments of the class, and falls within the range of possible 1 approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007) 2 (quoting Schwartz v. Dallas Cowboys Football Club, Ltd., 157 F. Supp. 2d 561, 570 n.12 3 (E.D. Pa. 2001)). 4 Having considered in detail Plaintiff’s Motion for Preliminary Approval of Class 5 Action Settlement (Mot. at 22–30), including the Settlement Agreement (Doc. 51-1) and 6 the Notice of Class Action Settlement (Doc. 51-3), and good cause appearing, 7 IT IS HEREBY ORDERED granting Plaintiff’s Motion for Preliminary Approval 8 of Class Action Settlement and Certification of the Settlement Class (Doc. 51). 9 IT IS FURTHER ORDERED as follows: 10 1. The Court certifies the following Class for the purposes of settlement only 11 (“the Settlement Class”): All persons insured under one of Defendants’ personal lines 12 automobile policies issued in Arizona that provided uninsured (“UM”) or underinsured 13 (“UIM”) motorist coverage for more than one motor vehicle, and who received a claim 14 payment equal to the limit of liability for the UM or UIM benefits for only one person/one 15 vehicle (or whose payment was based on the limit of liability for UM or UIM coverage for 16 only one vehicle where the full per accident single vehicle limit was paid to multiple 17 individuals) and who were not notified of their right to select which vehicle’s coverage was 18 applicable during the Class Period, as reflected in the agreed-upon list transmitted by 19 Defendants’ counsel to Plaintiff’s counsel on May 29, 2024, which list officially identifies 20 the members of the Settlement Class generally described herein.3 21 2. The Court designates Plaintiff Charles Miller as Class Representative for the 22 Settlement Class. 23 3. The Court appoints Hagens Berman Sobol Shapiro LLP as Class Counsel for 24 the Settlement Class. 25 4. This Order incorporates by reference the definitions in the Settlement 26 3 The “Class Period” shall be defined as follows: For individuals insured by 27 Trumbull, their dates of loss occurred between August 11, 2016 through the date the Parties sign the Settlement Agreement, and for those who were insured by the remaining 28 Defendants, their dates of loss occurred between October 10, 2017 through the date the Parties sign the Settlement Agreement. 1 Agreement as though fully set forth herein, and all capitalized terms used herein shall have 2 the same meaning as set forth in the Settlement Agreement. 3 5. The Court preliminarily approves the Settlement and finds on a preliminary 4 basis that: (a) the Settlement is fair, adequate and reasonable; (b) the Settlement Fund and 5 Common Fund are fair, adequate and reasonable when balanced against the risk, expense, 6 complexity, and likely duration of further litigation; (c) sufficient discovery, investigation, 7 and research have been conducted such that counsel for the parties at this time are able to 8 reasonably evaluate their respective positions; (d) settlement at this time will avoid 9 additional costs by all parties, as well as avoid the delay and risks that would be presented 10 by the further prosecution of the action; and (e) the Settlement has been reached as the 11 result of non-collusive, arm’s length negotiations. 12 6. The Court approves the proposed Notice (Doc. 51-3). The Court further finds 13 that the content of the Notice and proposed plan of notice, which includes direct mailed 14 notice to the Class Members as well as email notice, where email addresses are available, 15 meet the requirements of Rule 23 and due process, and are the best notice practicable under 16 the circumstances and shall constitute due and sufficient notice to all persons entitled 17 thereto. 18 6. The Court appoints Epiq Class Action & Claims Solutions, Inc. as the 19 Settlement Administrator. 20 7. The Court will hold a Fairness Hearing on December, 13, 2024, at 9:30 a.m. 21 (Arizona time) before District Judge John J. Tuchi in Courtroom 505, Sandra Day 22 O’Connor Federal Courthouse, 401 West Washington Street, Phoenix, Arizona 85003, to 23 determine whether to approve certification of the class for settlement purposes; whether 24 the proposed terms and conditions in the Settlement Agreement are fair, reasonable, and 25 adequate; whether a final judgment should be entered; whether the proposed plan of 26 distribution should be approved; the amount of fees and expenses that should be awarded 27 to Class Counsel; and the amount of the service award that should be provided to the Class 28 Representative. 1 8. Within 30 days of the date of this Order, Defendants shall pay from the 2 Settlement Amount an amount sufficient to cover costs of administration (as determined 3 by the Settlement Administrator) into an account established by the Settlement 4 Administrator for the Settlement Fund, to cover any costs of administration before final 5 approval of the Settlement. The Settlement Administrator is authorized to expend such 6 funds to pay notice and administration costs necessary to effectuate the approval process 7 as well as any incidental taxes or tax expenses as set forth in the Settlement Agreement. 8 The Court appoints the Settlement Administrator to supervise and administer the notice 9 procedure, and if final approval of the Settlement is granted, to distribute the Settlement 10 Fund, pursuant to the terms of the Settlement Agreement. 11 9. Within 60 days of the date of this Order (the “Notice Date”), the Settlement 12 Administrator shall mail the Notice by first class U.S. mail to all Class Members for whom 13 there is a valid mailing address, or whose mailing addresses can be identified with 14 reasonable effort, and shall email the Notice to all Class Members for whom an email 15 address is available in Defendants’ records. 16 10. All Class Members who do not request exclusion from the Settlement 17 (“Settlement Class Members”) shall be bound by all determinations and judgments in the 18 litigation concerning the Settlement, whether favorable or unfavorable to the Settlement 19 Class. 20 11. Class Counsel shall file its motion for attorneys’ fees, costs, and service 21 award for Class Representative, and all supporting documentation and papers, at least 30 22 days before the deadline for exclusions and objections. 23 12. Any person who desires to request exclusion from the Settlement Class shall 24 submit a request for exclusion. To be excluded from the Settlement, the exclusion request 25 must be received no later than 45 days after the Notice Date. Any request for exclusion 26 must include: 27 a) Full name, address, and email of the Class Member; 28 b) The unique ID on the Settlement Class Member’s Notice (if available); 1 c) The name of this case: Charles Miller v. Trumbull Insurance Company, et 2 al., No. 22-cv-01545-JJT; 3 d) A clear statement indicating that the Class Member wishes to be excluded 4 from the Class; and 5 e) The Class Member’s signature and date. 6 All persons who submit valid and timely requests for exclusion shall have no rights under 7 the Settlement Agreement, shall not share in the distribution of the settlement funds, and 8 shall not be bound by the final judgment relating to the Defendants entered in the litigation. 9 13. Any member of the Settlement Class who has not requested to be excluded 10 may enter an appearance in the litigation, at his or her own expense, individually or through 11 counsel of his or her own choice. If the member does not enter an appearance, he or she 12 will be represented by Class Counsel. 13 14. Any member of the Settlement Class who has not requested to be excluded 14 may, if desired, object, and show cause, if he or she has any reason, why the proposed 15 Settlement should or should not be approved as fair, reasonable, and adequate; why a 16 judgment should or should not be entered thereon; why the plan of distribution should or 17 should not be approved; why attorneys’ fees and expenses should or should not be awarded 18 to Class Counsel; or why the service award should or should not be awarded to Class 19 Representatives. Any objection must include the following: 20 a) Full name, address, and email of the Class Member; 21 b) The unique ID on the Settlement Class Member’s Notice (if available); 22 c) The name of this case: Charles Miller v. Trumbull Insurance Company, et 23 al., No. 22-cv-01545-JJT; 24 d) A statement of the objection(s), as well as the specific reasons for each 25 objection, including any legal authority the individual wishes to bring to the 26 Court’s attention; and 27 e) If the Class Member is represented by counsel, the name, address, and 28 phone number of the Class Member’s counsel. 1 If the Settlement Class Member plans to attend the Fairness Hearing, he or she must provide 2 a Notice of Intent to Appear. In addition to the above elements required for any objection, 3 the Notice of Intent to Appear must include: 4 a) A list of any witnesses her or she may call to testify at the hearing; 5 b) Copies of any documents he or she may use as evidence in support of his 6 or her objection; 7 c) A list of any prior class action cases in which he or she has filed an 8 objection. 9 All objections must be submitted to the Court either by mailing them to the Clerk of the 10 Court, United States District Court for the District of Arizona, with a copy mailed to Class 11 Counsel and Defendants’ Counsel at the addresses listed below, or by filing them at any 12 location of the United States District Court for the District of Arizona. All objections must 13 be either filed or received (not post-marked) on or before 45 days after the Notice Date. 14 Court: Clerk of the Court 15 United States District Court for the District of Arizona 16 401 W. Washington Street Phoenix, AZ 85003 17
18 Class Counsel: Robert B. Carey 19 HAGENS BERMAN SOBOL SHAPIRO LLP 20 11 W. Jefferson Street, Suite 1000 Phoenix, AZ 85003 21
22 23 24 25 26 27 28 1 Defendants’ Counsel: Kim E. Rinehart 2 Wiggin and Dana LLP 3 265 Church Street PO Box 1832 4 New Haven, CT 06510-1832 5 6 15. Plaintiff’s motion for final approval, which shall include all papers in support 7 of the Settlement and responses by Class Counsel regarding any objections or requests for 8 exclusions, shall be filed and served at least 14 days before the final Fairness Hearing. 9 16. Upon a showing of good cause, the Court may extend any of the deadlines 10 set forth in this Order without further notice to the Settlement Class. 11 17. Except for proceedings in furtherance of the Settlement Agreement, this case 12 is stayed pending further order of the Court. 13 18. Upon the entry of this Preliminary Approval Order, the Class Representative 14 and all members of the Settlement Class shall be provisionally enjoined and barred from 15 asserting any claims against Defendants and the Released Parties arising out of, relating to, 16 or in connection with the Released Claims before the Court’s decision as to whether to 17 grant final approval of the Settlement. 18 19. This Settlement, and any negotiations, statements, documents, actions taken 19 to effectuate the Settlement, or proceedings in connection with the Settlement, shall not be 20 construed or deemed to be an admission of the truth or falsity of any claims or defenses 21 heretofore made, or an acknowledgment or admission by any party of any fault, liability, 22 or wrongdoing of any kind whatsoever. Neither the Settlement, nor any act performed or 23 document executed pursuant to or in furtherance of the Settlement: (a) is or may be deemed 24 to be, or may be used as, an admission of, or evidence of, the validity of any claim made 25 by the Plaintiff or Settlement Class members, or of any wrongdoing or liability of the 26 Released Parties; or (b) is or may be deemed to be, or may be used as, an admission of, or 27 evidence of, any fault or omission of any of the Released Parties, in this case or in any 28 proceeding in any court, administrative agency, or other tribunal. 1 20. If final approval of the Settlement is not obtained, or if final judgment as 2 contemplated herein is not entered and the Agreement’s Effective Date is not reached, this 3 Preliminary Approval Order shall be vacated ab initio and the parties shall be restored 4 without prejudice to their respective litigation positions before the date of this Order. 5 Neither this Order, the Agreement, or any pleading or other paper related in any way to the 6 Agreement, nor any act or communication in the course of negotiating, implementing, or 7 seeking approval of the Agreement, shall be deemed an admission by Defendants that class 8 or subclass certification is appropriate in this case outside of the Settlement context or in 9 any other action or shall otherwise preclude Defendants from opposing or asserting any 10 argument they may have with respect to certification of any class(es) or subclass(es) in any 11 proceeding (including in this case should the Settlement not become final) or shall be used 12 as precedent in any way in any subsequent action against Defendants. 13 21. For the benefit of the Class Members, and to protect this Court’s jurisdiction, 14 this Court retains continuing jurisdiction over the Settlement proceedings to ensure the 15 effectuation thereof in accordance with the Settlement preliminarily approved herein and 16 the related Orders of the Court. 17 22. Class Counsel and Defendants’ Counsel are hereby authorized to use all 18 reasonable procedures in connection with approval and administration of the Settlement 19 that are not materially inconsistent with this Order or the Agreement, including making, 20 without the Court’s further approval, minor form or content changes to the Notice that they 21 jointly agree are reasonable or necessary. 22 23. The Court hereby sets the following schedule of events: 23 Event Deadline Deadline to provide Settlement Class Data to 30 days after entry of this Order 24 Settlement Administrator 25 Deadline to mail Notice (“Notice Date”) 60 days after entry of this Order 26 Deadline for filing Motion for Attorneys’ Fees 15 days after Notice Date and Costs 27 Deadline for Class Members to object to the 45 days after Notice Date 28 Settlement 2 Settlement
Approval of Settlement
5 (Arizona time) 6 Dated this 12th day of August, 2024. CN 11. 8 tei State isirict Tedge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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