The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
)) ORDER (1) FINALLY APPROVING ) CLASS AND COLLECTIVE ACTION ) SETTLEMENT; (2) FINALLY ) CERTIFYING SETTLEMENT ) CLASSES; (3) AWARDING ) ATTORNEY'S FEES, COSTS, AND ) EXPENSES; (4) AWARDING AN . ) INCENTIVE PAYMENT TO THE ) REPRESENTATIVE PLAINTIFF; AND ) (5) DISMISSING THE CLAIMS ) WITH PREJUDICE
The parties' proposed Order, filed on the docket as ECF No. 74-6, and amended at the hearing on March 25, 2013, is hereby approved and reproduced below.
The parties to the above-captioned civil action ("Action"), Plaintiff Catherine Wilkie, individually and on behalf of others similarly situated ("Representative Plaintiff") and Defendant Gentiva Health Services, Inc., on behalf of itself and its past, present, or future subsidiaries, parent companies, affiliates, divisions, corporation in common control, successors or assigns and all past or present officers, directors, shareholders, partners, agents, insurers, employees, attorneys, advisors, accountants, representatives, trustees, heirs, executors, administrators, predecessors, successors or assigns of any of the foregoing entities (collectively "Gentiva"), have agreed, following notice to the proposed Settlement Classes, to settle the Action upon the terms and conditions set forth in the Settlement Agreement*fn1 ("Settlement"), which was filed with the Court in connection with the present motion by Representative Plaintiff for an Order Finally Approving Class and Collective Action Settlement, Finally Certifying Settlement Classes, Requesting an Award of Attorney's Fees, Costs, and Expenses to Plaintiff's Counsel, and Requesting an Incentive Award to the Representative Plaintiff.
On October 5, 2012, the Court entered its order Preliminarily Approving Settlement, Preliminarily Certifying Settlement Classes, Approving the Notice Plan and Setting a Fairness Hearing Date. The Court has received declarations attesting to the mailing of the Notice in accordance with the Order for Notice and Hearing. A hearing was held on March 25, 2013 ("Final Approval and Fairness Hearing") to: (i) determine whether to grant the Final Approval Motion; (ii) determine whether to grant the Fees and Expenses requested, and (iii) rule upon such other matters as the Court might deem appropriate.
Plaintiff's motion is unopposed by Gentiva and was submitted to this Court for review and approval on March 1, 2013. After considering Plaintiff's motion, the Settlement Agreement, the record and proceedings herein, and hearing from the parties and class members invited to attend the Final Approval and Fairness Hearing, the Court finds, concludes, and hereby orders as follows:
1. The Court has jurisdiction over the subject matter of this action, all members of the Class, and Defendant pursuant to 29 U.S.C. § 1132(e).
2. In accordance with Federal Rule of Civil Procedure 23 and the requirements of due process, the Stipulated Settlement Classes have been given proper and adequate notice of the Settlement, the Fairness Hearing, and such notice was carried out in accordance with the Preliminary Approval Order.
3. Prior to the final settlement approval hearing, a declaration was filed with the Court by the Settlement Administrator, The Garden City Group, confirming that Notice was given in accordance with the terms of the Court's previous Order preliminarily approving the Settlement.
4. No members of the Stipulated Settlement Classes objected to any part of the Settlement, including its substantive terms, the requests for fees and expenses or any other matter therein contained. Given the size of this Settlement, and the notice procedure utilized, this Court finds the lack of any material objections to be indicative of the fairness, reasonableness and adequacy of the Settlement, and, accordingly, all members of the Stipulated Settlement Classes are deemed to have waived any such objection by appeal, collateral attack, or otherwise.
5. Five individuals have sought to opt themselves out of the Settlement. They are Tosha Arness Engstrom, Karen Hull, Jennifer Mitosinka, Janice M. Robinson, and Karen Smith, and, accordingly, these individuals will not be bound by the terms of the Settlement or the Judgment in this case.
6. The Notice and notice methodology implemented pursuant to the Settlement Agreement and the Court's Preliminary Approval order (a) were appropriate and reasonable and constituted due, adequate, sufficient notice to all persons entitled to notice; and (b) met all applicable requirements of the Federal Rules of Civil Procedure and any other applicable law.
7. The Settlement Claims Administrator has received Claim Forms postmarked after the January 3, 2013 deadline for submission of timely Claim Forms. For good cause shown and by agreement of the parties, the Court grants leave to give effect to all the late Claim Forms received by the Settlement Claims Administrator up to and including the date of the Final Approval Hearing, which was held on March 25, 2013.
8. The Settlement was negotiated with the assistance of an experienced mediator at arm's-length by experienced counsel who were fully informed of the facts and circumstances of the action and of the strengths and weaknesses of their respective positions. The Settlement was reached after the parties had completed extensive discovery and investigation, conducted legal research and written discovery, deposed representative Plaintiff, opt-ins, and 30(b)(6) representatives of Defendant, and reviewed hundreds of thousands of documents produced by the parties. Plaintiff's and Defendant's Counsel are therefore well positioned to evaluate the benefits of the Settlement, taking into account the expense, risk, and uncertainty of protracted litigation over numerous questions of fact and law.
9. On the basis of all of the issues in this litigation, and the provisions of the Settlement Agreement, the Court is of the opinion that the Settlement is a fair, reasonable and adequate compromise of the claims against the Defendant in this case, pursuant to Rule 23 of the Federal Rules of Civil Procedure and 29 U.S.C. § 216(b). There are a ...