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Goertzen v. Great American Life Insurance Co.

United States District Court, N.D. California, Oakland Division

November 6, 2017

JOYCE GOERTZEN, an individual, individually and on behalf of herself all similarly-situated persons, by and through her power of attorney BEVERLY KRAUS, Plaintiff,


          Hon. Yvonne Gonzalez Rogers United States District Judge.

         The motion of Plaintiff Joyce Goertzen, individually and on behalf of the class, as defined in the Settlement Agreement, attached hereto as Exhibit A, for preliminary approval of the proposed class action Settlement reached with Defendant Great American Life Insurance Company (“Great American”) came on for hearing before this Court on October 31, 2017. Robert D. Phillips, Jr., appeared as attorney for Great American, and Ingrid M. Evans appeared as attorney for Plaintiff. After considering the Settlement Agreement, the moving papers, arguments of counsel, and all other matters presented to the Court, the Court finds that:

         1. Plaintiff filed a Class Action Complaint in this Action on December 1, 2015, alleging violations of California's Business and Professions Code §17200 and California's Elder Abuse statute - Cal. Welfare & Institutions Code § 15600, et seq. The Complaint alleges that Great American did not properly disclose the surrender charges on the face page of certain contracts issued in California to persons aged 60 or older.

         2. Great American denies any and all wrongdoing alleged in the pleadings and Plaintiff's other filings, and does not admit or concede any actual or potential fault, wrongdoing, or liability in connection with any facts or claims that have been or could have been alleged against it in the Action. Great American has asserted numerous legal and factual defenses to the Action. It contends its annuity products are lawful and beneficial and that Plaintiff received adequate notice of any applicable surrender charges. Great American contends that Plaintiff's allegations do not state a cause of action and are not sustainable as a matter of law. In addition, Great American contends that Plaintiff would be unable to prove the elements of the causes of action at trial, and that this would be fatal to both her individual and class claims.

         3. The proposed Settlement resulted from an arm's-length mediation session before the Honorable Ronald M. Sabraw (Ret.) and was concluded only after Plaintiff and Great American conducted their own investigations and evaluation of the factual and legal issues raised by Plaintiff's claims and Great American's defenses.

         4. Plaintiff and Class Counsel have agreed to settle the Action after considering such factors as (a) the benefits to Plaintiff and the Class provided by the Settlement Agreement; (b) the risks and uncertainty of litigation, and the difficulties and delays inherent in such litigation; and © the desirability of consummating the Settlement Agreement in order to provide relief to Plaintiff and the Class. Great American considers it desirable to settle and dismiss this Action because this proposed Settlement will finally put Plaintiff's claims and the underlying matters to rest. Great American is also entering into this Settlement Agreement to avoid the expense, burden, inconvenience, and inherent risk of litigation and the concomitant disruption of its business operations.

         5. The Parties have entered into the Settlement Agreement attached hereto as Exhibit A, which was previously filed with this Court and attached as Exhibit 1 to the declaration of Ingrid M. Evans.

         6. The Court has reviewed the Settlement Agreement and all the attachments thereto and determined the proposed Settlement to be fair, reasonable, adequate, and within the range of possible approval. The proposed Settlement does not improperly grant preferential treatment to the Plaintiff or any segment of the Class. The proposed Settlement is sufficient to warrant sending notice to the Class. The procedures for establishing and administering the benefits provided by the proposed Settlement and for notice of the proposed Settlement, exclusion from the proposed Settlement, and objections to the proposed Settlement are fair, reasonable, and in the best interests of the Class.

         7. Based on Plaintiff's motion, the Memorandum of Points and Authorities, the Settlement Agreement, and all supporting exhibits and attachments, the Court preliminarily certifies for settlement purposes the Class, as defined in Section II.13 of the Settlement Agreement, pursuant to Rules 23(a) and 23(b)(3). The Court hereby finds for settlement purposes that:

(a) the numerosity requirement of Rule 23(a)(1) is satisfied because the proposed settlement Class, comprised of more than 4, 000 class members, satisfies the requirement that a class be sufficiently numerous such that joinder of all members is impracticable;
(b) the commonality requirement of rule 23(a)(2) is satisfied because the Great American products owned by the various Class Members all have the same language on their cover pages;
(c) the typicality requirement of Rule 23(a)(3) is satisfied because the Great American product issued to Plaintiff was similar to those issued to the other members of the Class;
(d) the adequacy requirement of rule 23(a)(4) is satisfied because (i) Class Counsel is qualified and competent to prosecute the Action vigorously, (ii) Plaintiff's interests are not antagonistic to the interests of the Class, and (iii) Class Counsel and Plaintiff have fairly and adequately protected the interests of the Class; and
(e) in the context of settlement, common questions “‘predominate over any questions affecting only individual members'” and “class resolution [is] ‘superior to other available methods for the fair and efficient adjudication of the ...

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