Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs, vs. Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan, and Plan Administrator of Honeywell Secured Benefit Plan, Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV04-0424 PHX ROS ORDER AND JUDGMENT PURSUANT TO FED R. CIV. P. 54(b) APPROVING PARTIAL SETTLEMENT

This matter having come before the Court for hearing on February 7, 2008 pursuant to the Court s Order Preliminarily Approving Partial Settlement and Settlement Class ( Preliminary Approval Order ), entered November 6, 2007, on the application of the Named Plaintiffs, the Settlement Class members and Defendants (collectively referred to as the Settling Parties ) for approval of the Partial Settlement set forth in the Class Action Partial Settlement Agreement dated October 26, 2007 (the Agreement ), and due and adequate

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 1 of 9

notice having been given to the Settlement Class Members as required in the Preliminary Approval Order, the Court having considered all papers filed and proceedings had herein,, including the parties Joint Motion for Order and Judgment Pursuant to Fed. R. Civ. P. 54(b) Approving Partial Settlement, and otherwise being fully informed in the premises and good cause appearing therefore, IT IS HEREBY ORDERED: 1. This Order and Judgment Approving Partial Settlement and Settlement Class

( Partial Judgment ) incorporates by reference the definitions in the Agreement, and all capitalized terms herein shall have the same meanings as set forth in the Agreement. 2. This Court has jurisdiction over the subject matter of this Litigation and over

all members of the Settlement Class. 3. Pursuant to the Preliminary Approval Order and Joint Motion and

Order to Amend Class Certification, the Court reaffirms that the Settlement Class is certified under Fed. R. Civ. P. 23(a)(1)-(4) and 23(b)(1) and (b)(2) for the reasons set forth in the Joint Motion and Order to Amend Class Certification and the Court s Order entered November 6, 2007. (Doc. 318.) . 4. The Class Notice given to the Settlement Class of the Partial Settlement was

the best Class Notice practicable under the circumstances, including individual notice to all members of the Settlement Class who could be identified through reasonable effort. The Class Notice provided due and adequate notice of these proceedings and of the matters set forth in the Agreement, including the proposed Partial Settlement, to all persons entitled to such notice, and the Class Notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process, and complied with the Preliminary Approval Order.

2

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 2 of 9

5.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this Court hereby

approves the Partial Settlement as set forth in the Agreement, finds that said Partial Settlement is, in all respects, fair, reasonable, adequate and in the best interests of Settlement Class Members, directs that the Partial Settlement be consummated in accordance with the terms and conditions set forth in the Agreement and orders all Parties to take the necessary steps to effectuate the Partial Settlement as set forth in the Agreement. 6. A. The Court hereby approves the following findings of fact: Class counsel has vigorously prosecuted this case and conducted extensive investigation of the governing law, relevant facts and relevant documents. During the prosecution of the Class Action, Class Counsel undertook substantial discovery efforts and the parties have exchanged numerous documents. Throughout the litigation, Class Counsel has worked with actuarial experts to determine damages and has abundant information on which to make an informed decision about the Partial Settlement; B. The Partial Settlement provides a fund totaling $35,000,000, to be distributed among those participants who submit claim forms after adjustment for the Initial Fee Award. The Partial Settlement will provide 90% of the total damages to the Fractional Reduction Settlement Class members (before adjustment for the Initial Fee Award) and the remainder of the Partial Settlement amount will be divided equally among Per Capita class members who submit claim forms. All of the $35,000,000 settlement

3

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 3 of 9

fund will be paid out. In addition, the Partial Settlement provides for the elimination of Ordinary Administrative Fees on SBA accounts. C. The Partial Settlement minimizes the risks inherent in continuing the litigation in this case, including the risk that there could eventually be no monetary recovery for Settlement Class members, without the Partial Settlement, while still allowing for continued litigation and possible recovery on the Three Remaining Claims. D. Given the complexity of the issues remaining and the risks to the Settlement Class and the further delay of this case that would be entailed in completing discovery, motion practice and trial, and the subsequent appeal of any judgment after trial, the settlement is fair, reasonable and in the best interests of the Class. E. The risk of maintaining class action status throughout a trial on the merits also favors the Partial Settlement because under the Partial Settlement, Defendants have agreed to not move for decertification of the Settlement Class throughout the Remaining Litigation. F. Considering the uncertainties of trial and appeal, the expected duration of litigation, and the fact that Plaintiffs will still have the opportunity to litigate and the potential for possible recovery of up to an additional $500

4

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 4 of 9

million through the Remaining Litigation of the Three Remaining Claims, the amount offered in Partial Settlement is highly favorable. G. Class Counsel and Defense Counsel have extensive experience in ERISA litigation and Class Counsel is therefore well equipped to negotiate a fair settlement for Named Plaintiffs and the Settlement Class. Class Counsel s opinion merits great weight both because of Class Counsel s familiarity with the Litigation and because of their extensive experience in similar actions. H. The Partial Settlement is the result of an extensive arm s length adversarial negotiation and mediation process. The parties engaged in mediation with John Utz and Eric Green, two nationally recognized and highly experienced mediators with substantial ERISA and complex class action knowledge. Both parties represented the interests of their clients vigorously and devoted a considerable amount of time, effort and resources to secure the terms of the Partial Settlement. I. Each of the named Plaintiffs in this case have attested to devoting substantial time and effort to the prosecution of this action and Class Counsel has attested that this time spent was helpful in securing the result in this Partial Settlement.

5

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 5 of 9

J.

As set forth in Plaintiffs Motion for Attorneys Fees and Costs, (Doc. 384), and supporting documentation, Class Counsel s requested attorneys fees and costs are fair, reasonable and appropriate in accordance with the standards set forth in this Circuit and Local Rule 54.2(c)(3).

7.

Neither the Partial Settlement nor this Partial Judgment are an admission by

any Defendant of any liability, damage or wrongdoing whatsoever, nor is the Partial Judgment a finding of the validity or invalidity of any claims in the Litigation, or any wrongdoing by any of the Defendants therein. Nothing in the Partial Settlement nor this Partial Judgment are an admission by the Settlement Class concerning the merits, or lack thereof, of any of the claims set forth in the Litigation Furthermore, neither the Agreement, this Partial Judgment, nor the fact of the Partial Settlement, shall be used or construed as an admission of any fault, liability or wrongdoing by any person. Neither the Agreement, the act of the Partial Settlement or the settlement proceedings and negotiations, nor this Partial Judgment, nor any related document shall be offered or received in evidence as an admission, concession, presumption or inference against any party in any proceeding other than such proceedings as may be necessary to consummate or enforce the Partial Settlement.
8.

The Court hereby dismisses all claims asserted in this Litigation in their

entirety, with prejudice as to the Defendants, except for the Three Remaining Claims and any proceedings for attorneys fees and costs in connection therewith, whether asserted by Named Plaintiffs on their own behalf or on behalf of the Settlement Class, without additional cost to any of the settling Parties other than as provided for in the Agreement. 9. The Court hereby awards Partial Settlement Benefits to the Settlement Class

members consistent with the terms of the Agreement.

6

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 6 of 9

10.

Commencing for plan years beginning after December 31, 2007, the

Company will cease charging Ordinary Administrative Fees to the Secured Benefit Plan s trust and thereafter no such fees will be deducted or paid from SBA Participants Secured Benefit Accounts. No adjustment will be made for fees charged to the Secured Benefit Plan trust attributable to plan years commencing prior to January 1, 2008. Moreover, no adjustment for the claim previously granted in the administrative proceeding to account for the imposition of fees will be made to the calculation of any Participant s SBA Offset under the Retirement Plan. 11. Upon entry of this Partial Judgment, the Named Plaintiffs, and each of the

Settlement Class members, on behalf of themselves, their successors, assigns, and any other person claiming (now and in the future) through or on behalf of them, and regardless of whether any such Named Plaintiff or Settlement Class member files a Claim Form or obtains by any means any distribution from the Partial Settlement, shall be deemed to have, and by operation of the Partial Judgment shall have, fully, finally and forever released, relinquished and discharged all Released Claims against all Released Parties and shall have covenanted not to sue all such Released Parties with respect to all such Released Claims, and shall be permanently barred and enjoined from instituting, commencing, or prosecuting any such Released Claim against any Released Parties. 12. Upon entry of this Partial Judgment, the total value of relief for which the

Released Parties may be held liable to the Settlement Class members on the Three Remaining Claims is limited to the Cap Amount, including attorneys fees and costs, as provided by the Agreement. 13. The releases set forth in the Agreement are rendered and declared fully

effective and enforceable as of the date of entry of this Partial Judgment. Upon entry of Partial Judgment, each member of the Settlement Class shall be deemed to have fully and
7

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 7 of 9

forever released the Released Parties with respect to any and all of the Released Claims. 14. Upon entry of this Partial Judgment, the Settlement Class members are

barred from commencing any separate actions with respect to the Three Remaining Claims or the Released Claims as provided under the Agreement. 15. This Partial Judgment is a final judgment in the Litigation as to all claims

among the Settling Defendants, on the one hand, and the Named Plaintiffs and all Settlement Class members, on the other, except for the Three Remaining Claims and any proceedings for attorneys fees and costs in connection with the Three Remaining Claims. This Court finds, for purposes of Fed. R. Civ. P. 54(b), that there is no just reason for delay and expressly directs entry of judgment as set forth herein. 16. The Court hereby awards Class Counsel attorneys fees and costs pursuant to

the Initial Fee Application in the amount of $8,750,000.00, as consistent with the terms of the Agreement. Such fees and costs shall be paid within thirty (30) days of Final Approval. The Court finds that payment of attorney s fees and costs by the Retirement Plan is a proper expense of the Retirement Plan and the trust thereunder related to maintaining the Retirement Plan and trust s continuing compliance with ERISA and, therefore, is a reasonable expense of administering the Retirement Plan and is neither a settlor expense nor a distribution of benefits to Retirement Plan participants and their beneficiaries. 17. The Court hereby approves the Special Incentive Awards as provided in the

Agreement and orders the Retirement Plan to send by overnight mail to Class Counsel a check for each Named Plaintiff for the full amount of each Named Plaintiff s Special Incentive Award within thirty (30) days after Final Approval. The Court finds that payment of Special Incentive Awards by the Retirement Plan is a proper expense of the Retirement Plan and the trust thereunder related to maintaining the Retirement Plan and trust s

8

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 8 of 9

continuing compliance with ERISA and, therefore, is a reasonable expense of administering the Retirement Plan and is neither a settlor expense nor a distribution of benefits to Retirement Plan participants and their beneficiaries. 18. The Court finds that during the course of this Litigation, the Parties and their

respective counsel at all times complied with the requirements of Federal Rule of Civil Procedure 11. 19. The Court hereby finds that any Settlement Class member who did not file a

Claim Form as specified in the Agreement, Class Notice, Preliminary Approval Order, or Claim Form itself, and who does not recover any benefits in connection with the Partial Settlement, is still bound by the Partial Judgment and any future Judgments in this Litigation. 20. Without affecting the finality of this Partial Judgment in any way, this Court

retains continuing jurisdiction over: (a) effectuating and supervising the Partial Settlement; (b) interpretation or implementation of the Partial Settlement; (c) all other proceedings related to the implementation and enforcement of the terms of the Agreement, and (d) all proceedings in connection with the Remaining Claims. 21. In the event Final Approval does not occur, this Partial Judgment shall be

rendered null and void, and shall be vacated nunc pro tunc. 22. Without further order of the Court, the Parties may agree to reasonable

extensions of time to carry out any of the provisions of the Agreement. IT IS SO ORDERED

9

Case 2:04-cv-00424-ROS

Document 386-2

Filed 01/24/2008

Page 9 of 9