Case 8:08-cv-00691-JSM-TBM Document 73 Filed 12/29/11 Page 1 of 14 PageID 2019
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CASE NO. 8:08-CV-691-T-30TBM
WAYNE ATKINSON, AS THE EXECUTOR
OF THE ESTATE OF RITA ATKINSON,
AND RICHARD ARMATROUT, AS THE
EXECUTOR OF THE ESTATE OF KAREN
WAL-MART STORES, INC., AND WAL-
WACHOVIA BANK OF GEORGIA, N.A.,
ORDER OF FINAL APPROVAL AND FINAL JUDGMENT
On this day, the Court considered the motion for final approval of the Settlement
Agreement, including the releases set forth therein, which was preliminarily approved by the
Court on August 11, 2011, pursuant to the remand of jurisdiction granted by the United States
Circuit Court of Appeals, Eleventh Circuit, 11th Cir.R. 12.1-1. A copy of the Settlement
Agreement is attached as Exhibit A and incorporated in this order by reference.
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
The Court finds that the Settlement Class, as defined in this Court’s order
granting preliminary approval, meets all of the requirements of FED. R. CIV. P. 23 and certifies a
Settlement Class for purposes of settlement consisting of the estates of the following persons
whose lives allegedly were insured under Corporate Owned Life Insurance ("COLI") policies
Case 8:08-cv-00691-JSM-TBM Document 73 Filed 12/29/11 Page 2 of 14 PageID 2020
purchased by Wal-Mart or the Trust while they worked as Wal-Mart associates in Florida and
whose deaths occurred no later than January 31, 2000 and allegedly resulted in the payment of
insurance policy benefits to Wal-Mart or the Trust:
Pablo Albisa, Carolyn J. Anderson (Lewis), John C. Andreu, Karen E. Armatrout,
Rita E. Atkinson, Margaret A. Attaway, Marian L. Auten, Shirley A. Ballard,
Robert J. Baltrus, Tracy Barrington, Patricia A. Barron, Phyllis J. Bauman,
Katherine Baumker, Barbara Beaudoin (aka Barbara J. Turner), Dorothy Beers,
Doris Belisairo, Gerald F. Bell, Lois Bell, Dale R. Bewes, Michael H. Birch,
Betty A. Bishop, Leslie W. Boatwright, Shirley R. Brazee, Kenneth Brechbill,
Miguel Brito, Sandra Broome, Debbie S. Brown, Deborah Brown, Mary E.
Brown, Kenneth J. Buchanan, Lloyd A. Budd, Patricia T. Byrd, Joanne E.
Campbell, Dena F. Canady, Albert R. Caramagna, Sheryl Cason, Frank R. Cassie,
Arthur F. Clawson, Wanda Clevenger, Charles L Cody, Deanie Collins (Raffield),
Arthur E. Collumbell, Helen E. Conly, Carol A. Conroy, Bobbie J. Conyers,
Teddy J. Cook, III, Betty Y. Cooper, Thomas R. Cooper, Mark Cornella, Sandra
M. Cornwell, Diana L. Correll, Ruth J. Cramer-Joyner, David R. Crum, Medeline
C. Current, Everette C. Curry, Richard W. Dahl, Barbara Daly, Thomas E. Davis,
Carol L. Dean, Patricia A. Delaney, Ernest A. Diggett, Jean Edwards (aka Clara
Jean Edwards), Maria M. Edwards, Marie A. Egan, Marjorie English, Sylvia J.
Ferguson, Donald R. Franz, Joyce Frederick, Carol J. Frye, Gail P. Ganster,
William R. Garrison, Jr., Ronald H. Gaub, Othar J. Gold, Kathleen M. Golden,
Juanita R. Graef, Gordon Graff, Jr., Elizabeth P. Greto, Doris I. Gunn, Rebecca
Habada, Jo Ann M. Harden, Earl Hamening, Kevin P. Harrington, Charles
Hasenbeck, James A. Hawkins, Sidney J. Hawkins, Adrian J. Hay, Jr., Clifford C.
Haycraft, Ann G. Heath, Greg E. Heffner, Randy Hendriques, Patricia A.
Harrington, Maureen Herstein (Squillacioti), Rae A. Hertzog, Buddy R. Hill,
Ernest L. Hodgkins, Erma L. Hoffman, Mary P. Hollinghead, Peggy Holt, Carl
Hornsby, Curtis Horton, Willard H. Hudson, Joan P. Iorio, Virginia L. Jergens,
Marshall L. Jewett, Joseph Jezorwski, Ronald J. Johnson, Sandra K. Johnson,
Ytosha D. Jolly, Irene P. Jones, Roberta J. Julock, Shirley J. Karns, George Karst,
Sharon A. Keel, Imogene Keener, Herbert E. Kendall, Jr., Shirley P. Kersey,
Nancy J. Kirkland, Barbara A. Klejmont, Jeanne N. Knoch, Bonnie Kochheiser,
Susan Kopka, Gary Koszalinski, Carole M. Kovacs, Mary A. LaPuzza, Joan
Lamparski, Gene Langston, Russell A. Lanier, Barbara J. Larson, Marilyn J.
Larsen, Markelda E. Ledezma, Marvis J. Lee, Sidney Lerner, Vincent I. Lincourt,
Jonathan A. Littlefield, William B. Lummus, Anges H. Maphet, Twila M. Martin,
Jessie L. Marzella, Margaret K. Mathieson, Doris F. Matulac, William E. Mau,
Curtis R. McCoy, Maxine M. McFarland, Phyllis J. McInerney, Kathleen V.
Meadows, John S. Meikle, Ronnie Messer, Nivia M. Millan, Dolores I.
Modaffari, John Montana, Donald Moses, Truman Muchler, Jr., Virginia M.
Mullins, Joan E. Nelms, Gordan U. Noreau, Quida Norris, Stephen G. Norton,
Joan Noseworthy, Patricia Nukala, Charles L. Olin, James Olsen, Juan Oquendo,
Frederick G. Orthaus, Mary L. Owens, Tamara Owens, Marlene Pangrazio
Order of Final Approval and Final Judgment, page 2.
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Behnke (aka Marlene J. Behnke), June C. Porzig, Cheyenne M. Potter (Cron),
Larry Prentky, Patricia B. Ralston, Madlyn G. Ramsey, Linda L. Reynolds,
Phyllis Ribelino, Ronnie Rice, Mary L. Riley, Tommie L. Rix, Jeffrey Russell,
Charles B. Sedergren, Daniel Serafine, Elvira G. Sevilla, Gerald Shea, Edward
Silk, Lawrence J. Skovran, Arthur S. Smith, Dwight D. Smith, Janice Smith, Marc
W. Smith, Nada J. Soblit, William I. Sonneman, III, Tina M. Sowell, Thomas
Spengler, Tamara Seiner, Harold A. Stephens, Christopher C. Stewart, Sherry L.
Stokes, William H. Syler, Karen J. Tack, Nanetta R. Tackett, Clementine A.
Toboe, Vinnie M. Thomas, Amy Tillis, Nancy Towne, Ernando Trancoso, Jr.,
Marjorie E. Upschulte, Jean Varney, Mary A. Vaught, Virginia R. Villers, George
F. Wachter, Peggy I. Waldrop, Sidney L. Weise, David T. Wells, Christopher A.
Whisenant, Kenneth D. Williams, Durwood Williford, Margie E. Wilson, Mary L.
Wilson, Thomas Wilson, Lillian P. Wirth, David E. Wolfe, Diane L. Wood, Mary
I. Wood, Martin Yarbrough, Ronald Zamor.
For purposes of the settlement, the Court finds that the members of the Settlement
Class are so numerous that joinder of all members would be impracticable. The Court further
finds that there are questions of law and fact common to the claims of the Settlement Class
For purposes of the settlement, the Court finds that the claims of Wayne
Atkinson, as the Executor of the Estate of Rita Atkinson, and Richard Armatrout, as the Executor
of the Estate of Karen Armatrout, (collectively, the “Class Representatives”), are typical of the
claims of the members of the Settlement Class. The Court further finds that, for purposes of the
settlement, the Class Representatives adequately represent the Settlement Class and approves of
them as class representatives. The Court has considered the provisions of FED. R. CIV. P. 23(g)
and for purposes of the settlement, finds that McClanahan Myers Espey, L.L.P. and Aballi,
Milne, Kalil & Escagedo, P.A. are experienced and skilled counsel, capable of adequately
representing the Settlement Class and are approved as Settlement Class Counsel. For purposes
of the settlement, the Class Representatives and Settlement Class Counsel have no interest
antagonistic to or in conflict with the interest of the Settlement Class members. The Court finds
that, for purposes of the settlement, certification of the Settlement Class is appropriate under
Order of Final Approval and Final Judgment, page 3.
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FED. R. CIV. P. 23. The Court further finds, for purposes of the settlement, that the questions of
law or fact common to the Settlement Class predominate over questions affecting the individual
members and that a class action is superior to other methods available for adjudicating the
controversy and that certification is appropriate under Rule 23(b)(3).
In approving this settlement, the Court has considered: (1) the likelihood of
success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible
recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and
duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the
stage of proceedings at which the settlement was achieved. The Court concludes that these
factors support approval of the proposed settlement and therefore approves the settlement and
finds that it is a reasonable compromise of the claims of the Settlement Class and is fair, just,
reasonable and adequate to, and in the best interest of, the Settlement Class. The settlement
achieves a definite and certain result for the benefit of the Settlement Class that is preferable to
continuing litigation in which the Settlement Class would necessarily confront substantial risk,
uncertainty, delay and cost. The Court also finds that the settlement was reached by the parties
after extensive discovery and intensive arms-length negotiations.
The Court determines that the class action settlement notices were given as
required by this Court’s order dated August 11, 2011. The Court finds that the notice given of
the proposed settlement, as approved by the Court’s order dated August 11, 2011, was the best
practical notice under the circumstances and provided all class members desiring to object to the
settlement with fair and adequate notice of the terms of the proposed settlement and of the
hearing to consider final approval held on October 17, 2011. The Court finds that the notice
satisfied the requirements of FED. R. CIV. P. 23 and applicable law.
Order of Final Approval and Final Judgment, page 4.
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The Court grants final approval to the settlement.
The Settlement Agreement is binding on the parties to it and on all members of
the Settlement Class excepting only those executors or administrators of estates, if any, which
effectively excluded themselves from the settlement in accordance with the terms of the class
As of the date this judgment becomes final (meaning that the time for appeal has
expired with no appeal taken, all appeals are resolved and none are left pending, or this judgment
is affirmed after completion of the appellate process), the Class Representatives and the
Settlement Class members, excepting only those executors or administrators of estates, if any,
which effectively excluded themselves from the settlement in accordance with the terms of the
class notice, shall be forever barred from bringing or presenting any action or proceeding against
any of the parties released by the terms of the Settlement Agreement that involve or assert any of
the claims released by that Settlement Agreement. The Class Representatives and Settlement
Class members, excepting only those executors or administrators of estates, if any, which
effectively excluded themselves from the settlement in accordance with the terms of the class
notice, shall be deemed to have released and forever discharged the Released Parties, as defined
in the Settlement Agreement, from all claims released by the Settlement Agreement. All relief
not expressly granted to the Settlement Class members through the Settlement Agreement is
denied. The Settled Claims, as defined in the Settlement Agreement, are hereby compromised,
settled, released, discharged and dismissed as against the Released Parties on the merits and with
prejudice by virtue of the proceedings herein and this Order of Final Approval and Final
Order of Final Approval and Final Judgment, page 5.
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All Complaints in this Action are hereby dismissed with prejudice and without
costs as against all the Defendants.
The Court finds that the Class Representatives expended substantial time and
effort pursuing Wal-Mart to achieve a recovery for the benefit of absent class members. The
Court therefore approves an incentive compensation award of $10,000 to be paid by Wal-Mart
from the Settlement Trust Payment, as defined in the Settlement Agreement, to each of the Class
Representatives, for a total of $20,000, separate and apart from any funds to be paid from the
Settlement Trust Proceeds as determined by the Settlement Administrator, who will be selected
by the parties, and whose responsibilities are outlined below. The Incentive Compensation
Award is to be paid by the Settlement Administrator from the Settlement Trust Account pursuant
to the terms of the Settlement Agreement.
The Settlement Agreement controls the terms of this final judgment and shall
survive this final judgment.
The Released Parties and each member of the Settlement Class are subject to the
exclusive jurisdiction and venue of the United States District Court for the Middle District of
Florida for any suit, action, proceeding, case, controversy, or dispute relating to the Settlement
Agreement that is the subject of this final judgment. All Settlement Class members, excepting
only those executors or administrators of estates, if any, which effectively excluded themselves
from the settlement in accordance with the terms of the class notice, and all persons and entities
in privity with them, are barred and enjoined from commencing or continuing any suit, action,
proceeding, case, controversy, or dispute relating to the Settlement Agreement that is the subject
of this Order of Final Approval and Final Judgment.
Order of Final Approval and Final Judgment, page 6.
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This Court shall have exclusive jurisdiction and authority to rule upon and issue a
final order with respect to the subject matter of any such action, suit, or proceeding whether
judicial, administrative, or otherwise, which may be instituted by any person or entity,
individually or derivatively, with respect to (i) the validity or enforceability of the Settlement
Agreement, (ii) the authority of any Released Party to enter into or perform the Settlement
Agreement in accordance with its terms, (iii) the remedies afforded by this Order of Final
Approval and Final Judgment and the Settlement Agreement, or the attorneys’ fees,
representatives’ fees, interest, costs or expenses provided for in this Order of Final Approval and
Final Judgment, (iv) any other foreseen or unforeseen case or controversy relating to or impacted
by this Order of Final Approval and Final Judgment and Settlement Agreement or (v) the
enforcement, construction, or interpretation of the Settlement Agreement or this Order of Final
Approval and Final Judgment. This reservation of jurisdiction does not limit any other
reservation of jurisdiction in this Order of Final Approval and Final Judgment nor do any other
such reservations limit the reservation in this sub-section.
Neither this Order of Final Approval and Final Judgment nor the Settlement
Agreement shall be construed or deemed evidence of or an admission or concession on the part
of Wal-Mart with respect to any claim or of any fault or liability or wrongdoing or damage
whatsoever, or any infirmity in the defenses that Wal-Mart has asserted.
The Court approves the following plan of distribution, as set forth in the
Settlement Agreement. The Court intends a fair distribution to each class member filing a valid
claim that is equal to 1/223rd of the amount available for distribution. The distribution will be
made from the Settlement Trust Account after a reduction for attorneys’ fees (as provided below)
and other deductions outlined in the Settlement Agreement at the times set forth in the
Order of Final Approval and Final Judgment, page 7.
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Settlement Agreement. Class Counsel are directed to implement the settlement and plan of
distribution in accordance with its terms. The rules for distribution are:
The Claim Period
The claim period begins on the date this Order of Final Approval is signed and will
continue for ninety (90) days until MARCH 28, 2012. This period will allow class members
ample time to file their claims.
Authorized Claimants and Required Proof for the Claim
Claims for a settlement distribution must be supported by evidence demonstrating that the
claimant is entitled to the receipt of settlement funds in the form of an order signed by a court
that establishes the claimant as executor or administrator of a proper class member’s estate.
Distribution of Funds
After this judgment becomes final (meaning that the time for appeal has expired with no
appeal taken, all appeals are resolved and none are left pending, or this judgment is affirmed
after completion of the appellate process), the Claim Period has ended, and Wal-Mart has
advised the Class Counsel and the Settlement Administrator that it will not invoke the option
identified in Paragraph 15 of the Settlement Agreement, the Settlement Administrator will pay
all valid claims approved by the Parties' counsel. A valid claim is one that: (1) relates to a
former employee of Wal-Mart who is identified in the class definition; (2) is supported by a valid
order appointing claimant as the administrator or executor of the class member’s estate; and (3)
is postmarked on or before the last day of the claim period. A claim must state the name and
correct social security number of the proper class member whose life was covered by the COLI
policy as well as the notarized signature of the individual filing the form.
Order of Final Approval and Final Judgment, page 8.
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Each claimant will be paid an appropriate proportion of the Settlement Trust Proceeds as
set forth in the Settlement Agreement. The Settlement Trust Proceeds (meaning the amount of
the Settlement Trust Payment remaining after the reduction for Notice Costs, Incentive
Compensation Awards, and Fees and Costs Awards, as defined in the Settlement Agreement)
shall be allocated among the class, with each class member who files a valid claim entitled to
1/223rd of the amount available for distribution.
If a valid claim is submitted by the estate executor or administrator, and approved by the
Parties' counsel, the Settlement Administrator will pay the entire amount of the class member’s
claim to that claimant.
The Claim Form
The Court approves the claim form in substantially the same form as that attached to the
motion for final approval as Exhibit B. The claim form will also be accompanied by the tax
form W-9, an IRS letter opinion, and form SS-4.
Disputed or Inconsistent Claims
Should the Settlement Administrator receive a disputed or inconsistent claim to part of
the Settlement Trust that is unresolved at the end of the claim period, the Settlement
Administrator will calculate the amount of the “claim” as if it were a valid claim and Class
Counsel will file an action and deposit the funds into the registry of a Florida state court deemed
appropriate by Class Counsel.
Should an incomplete claim form be filed within the claim period, the Settlement
Administrator will notify the claimant submitting the form that the claim is incomplete and state
the deficiency. Claimants will have until the end of the claim period to cure any deficiencies.
Order of Final Approval and Final Judgment, page 9.
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Claim forms that remain deficient after the claim period will not be paid and the settlement funds
will be returned to Wal-Mart as described below.
The Settlement Administrator will distribute all funds from the Settlement Trust as soon
as practical after this Final Order of Approval has become final, the Claim Period has expired,
and Wal-Mart has advised that it will not invoke the option set forth in Paragraph 15 of the
Settlement Agreement. These payments will include the payment of valid claims approved by
the Parties' counsel, filing fees, if any, necessary for Class Counsel to file a proceeding to
dispose of disputed claims, and payment of the residual amount to Wal-Mart. Under no
circumstances shall these payments exceed the maximum Settlement Trust Payment of
Unclaimed Funds Returned to Wal-Mart
Assuming that Wal-Mart has advised that it will not invoke the option set forth in
Paragraph 15 of the Settlement Agreement, ten days after this Final Order of Approval has
become Final and the Claim Period has expired, the Settlement Administrator shall return all
unclaimed funds remaining in the Settlement Trust Account to Wal-Mart.
Form Communications to Class Members
Class Counsel and the Settlement Administrator may develop form communications to
update class members about the status of their claims. Form letters may be drafted, for example,
to inform class members that: (1) their claim form meets the necessary requirements and will be
paid within the time frame established by the Court, (2) their claim form was deficient and must
be amended to be considered valid, or (3) the claim is subject to a competing claim and will be
the subject of an interpleader proceeding.
Order of Final Approval and Final Judgment, page 10.
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Reliance on Business Records and Discovery Materials
Class Counsel and the Settlement Administrator are authorized to rely on business
records and discovery materials relating to Wal-Mart’s COLI program to determine whether
persons meet the eligibility requirements for class membership. Reliance on such records is
deemed to be reasonable and in the best interests of the class.
Any check that remains un-cashed four months from the end of the Claim Period will be
cancelled and the Settlement Administrator will pay the amount of the check to Wal-Mart as if it
were unclaimed funds.
The Settlement Administrator will treat the settlement benefits as “miscellaneous
income” and each class member will be responsible for the payment of his or her own state and
federal income tax obligations. Each claimant requesting payment from the Settlement Trust
should submit a completed W-9 form to assure accurate reporting.
The Court grants final approval of an award of attorneys’ fees and costs to
McClanahan Myers Espey, L.L.P. and Aballi, Milne, Kalil & Escagedo, P.A. (collectively “Class
Counsel”) of $673,266, or one-third of the maximum $2,020,000 common fund created by the
settlement in this case. In making this award, the Court has considered FED. R. CIV. P. 23(g), (h)
and 54(d)(2) as well as the following:
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the level of skill required;
(4) the effect on other employment by the attorney;
Order of Final Approval and Final Judgment, page 11.
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(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) the time limitations imposed by the client or the ability of the attorney;
(8) the amount involved and the result obtained;
(9) the experience, reputation, and ability of the attorney;
the undesirability of the case;
the nature and length of the attorney's relationship with the client; and
awards in similar cases.
As described below, the Court finds and concludes that these factors support an award of
the one-third fee requested by Class Counsel.
The Court finds that McClanahan Myers Espey, L.L.P. and Aballi, Milne, Kalil &
Escagedo, P.A. have collectively spent several hundred hours working on this case since it was
filed. The firms have spent additional time on this case since the settlement was given
preliminary approval and will also spend a significant amount of additional time taking calls
from class members, assisting them with their claim forms, and overseeing the distribution of the
settlement funds. The firms have also advanced tens of thousands of dollars in case expenses.
Thus, the requested fee will essentially only compensate the firms for billings at reasonable
hourly rates. It will not give much, if any, multiplier to compensate them for litigation risk or
advancing case expenses. This factor weighs in favor of awarding the requested fee.
The Court further finds that McClanahan Myers Espey, L.L.P. and Aballi, Milne, Kalil &
Escagedo, P.A. have extensive experience representing employees and estates of employees
whose lives were insured by policies of company owned life insurance. The firms also have
Order of Final Approval and Final Judgment, page 12.
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extensive experience with class actions and complex litigation. Class Counsel’s experience in
this type of litigation supports the requested fee award.
The maximum $2,020,000 settlement fund is a significant percentage of the policy
benefits Wal-Mart allegedly received from the COLI policies. Class action settlements routinely
recover substantially less for the class members. Here, class members will recover a reasonable
percentage of their alleged damages, net of attorneys’ fees and costs. This recovery for the class
justifies the requested fee.
The Court also finds that the risk assumed by Class Counsel was high because of prior
rulings that were adverse to the Class Representatives’ positions and because of the many
affirmative defenses raised in the case. Moreover, this case has consumed a substantial portion
of Class Counsel’s resources for several years. By pursuing this case, Class Counsel was
necessarily prevented from pursuing other projects. These matters weigh in favor of awarding
the requested fee.
Finally, the Court finds that Class Counsel’s fee agreements with clients usually provide
for a fee of between 33?% to 40% to trial, and 40% to 45% on appeal. The customary fee for
the clients and the class is at least 33?%. The fee requested is well within the range common for
class action fee awards.
The Court therefore awards Class Counsel the requested $673,266 to compensate them
for their time and effort in this case and to reimburse them for the expenses they have advanced
for this litigation.
Order of Final Approval and Final Judgment, page 13.
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Rust Consulting is hereby appointed Claims Administrator.
DONE and ORDERED in Tampa, Florida on December 29, 2011.
Copies furnished to:
Counsel/Parties of Record
Exhibit “A” – Settlement Agreement
S:\Odd\2008\08-cv-691 Order of Final Approval and FJ.doc
Order of Final Approval and Final Judgment, page 14.