Preliminary Approval of Settlement and for Certification of a Settlement Class
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Case 3:16-cv-00467-SMY Document 240 Filed 09/22/20 Page 1 of 4 Page ID #5714 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS Sheilar Smith, Kasandra Anton, Bonnie Bailey, Peggy Wise, and June Schwierjohn, on behalf of themselves, individually, and on behalf of all others similarly situated, and on behalf of the OSF Plans, Plaintiffs, v. No. 3:16-cv-00467-SMY-RJD OSF HealthCare System; The Sisters of the Third Order of St. Francis Employees Pension Plan Administrative Committee; and Retirement Committee for the Retirement Plan for Employees of Saint Anthony’s Health Center, Defendants. PLAINTIFFS’ UNOPPOSED MOTION SEEKING PRELIMINARY APPROVAL OF SETTLEMENT AND FOR CERTIFICATION OF A SETTLEMENT CLASS Plaintiffs respectfully submit the following Unopposed Motion for Preliminary Approval of Class Action Settlement, Certification of the Settlement Class, Appointment of Plaintiffs’ Counsel as Class Counsel, and Approval of the Proposed Notice of Settlement and Class Action Settlement Procedure (“Motion”), and a Memorandum in Support. For the reasons set forth below, in the accompanying declaration and the exhibits attached hereto, and in all pleadings and documents on file in this action, Plaintiffs respectfully request that the Court enter an Order: (1) granting preliminary approval of the $25,000,000.00 Settlement and $1,750,000.00 Fee Award memorialized in the Settlement Agreement; (2) conditionally certifying the Settlement Class defined in the Settlement Agreement pursuant to Federal Rule of Civil Procedure 23(e); 1 Case 3:16-cv-00467-SMY Document 240 Filed 09/22/20 Page 2 of 4 Page ID #5715 (3) appointing Keller Rohrback L.L.P. and Cohen Milstein Sellers & Toll PLLC as Class Counsel; (4) appointing Sheilar Smith, Kasandra Anton, Bonnie Bailey, Peggy Wise, and June Schwierjohn as Class Representatives for the Settlement Class; and (5) approving the form and manner of distributing the proposed Notice and Claim Form. Defendants do not oppose Plaintiffs’ Motion for Preliminary Approval of Class Action Settlement Agreement or the findings and rulings set forth in the Proposed Order. The Parties respectfully request that the Court set a final fairness hearing on or after one- hundred (100) days from the entry of the Preliminary Approval Order1. DATED this 21st day of September 2020. KELLER ROHRBACK L.L.P. /s/ Laura R. Gerber Lynn Lincoln Sarko Laura R. Gerber KELLER ROHRBACK L.L.P. 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 Tel.: (206) 623-1900 / Fax: (206) 623-3384 [email protected] [email protected] Ron Kilgard KELLER ROHRBACK L.L.P. 3101 North Central Ave., Suite 1400 Phoenix, AZ 85012 Tel.: (602) 248-0088 / Fax: (602) 248-2822 [email protected] 1 Pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1715(d), the date of the Fairness Hearing must be at least ninety (90) days after notices are served on the appropriate State and Federal officials. 2 Case 3:16-cv-00467-SMY Document 240 Filed 09/22/20 Page 3 of 4 Page ID #5716 Karen L. Handorf Michelle C. Yau Julie S. Selesnick COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Ave., NW, Suite 500 West Washington, DC 20005 Tel.: (202) 408-4600 / Fax: (202) 408-4699 [email protected] [email protected] [email protected] Class Counsel Donna Siegel Moffa Joseph H. Meltzer KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Tel: (610) 667-7706 [email protected] [email protected] Mark P. Kindall IZARD KINDALL & RAABE LLP 29 South Main Street West Hartford, CT 06107 Tel: (860) 493-6292 [email protected] Matthew H. Armstrong, ARDC #6226591 ARMSTRONG LAW FIRM LLC 8816 Manchester Road, No. 109 St. Louis, MO 63144 Tel: (314) 258-0212 [email protected] Attorneys for Plaintiffs 3 Case 3:16-cv-00467-SMY Document 240 Filed 09/22/20 Page 4 of 4 Page ID #5717 CERTIFICATE OF SERVICE I hereby certify that on September 22, 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which in turn sent notice to all counsel of record. /s/ Laura R. Gerber Laura R. Gerber 4 Case 3:16-cv-00467-SMY Document 240-1 Filed 09/22/20 Page 1 of 7 Page ID #5718 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS Sheilar Smith, Kasandra Anton, Bonnie Bailey, Peggy Wise, and June Schwierjohn, on behalf of themselves, individually, and on behalf of all others similarly situated, and on behalf of the OSF Plans, Plaintiffs, v. No. 3:16-cv-00467-SMY-RJD OSF HealthCare System; The Sisters of the Third Order of St. Francis Employees Pension Plan Administrative Committee; and Retirement Committee for the Retirement Plan for Employees of Saint Anthony’s Health Center, Defendants. DECLARATION OF LAURA R. GERBER IN SUPPORT OF PLAINTIFFS’ UNOPPOSED MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT I, Laura R. Gerber, declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 1. I am a Partner with the law firm of Keller Rohrback L.L.P. (“Keller Rohrback”) and a member in good standing of the bar of the state of Washington and admitted to practice in numerous federal courts, including the U.S. District Court for the Southern District of Illinois. I represent Plaintiffs1 and the proposed Settlement Class in the above-captioned action. I have personal knowledge of the facts set forth below and, if called as witness, I could and would testify 1 Capitalized terms not otherwise defined in this Declaration shall have the same meaning ascribed to them in the Class Action Settlement Agreement, attached as Exhibit 1 to this Declaration. Case 3:16-cv-00467-SMY Document 240-1 Filed 09/22/20 Page 2 of 7 Page ID #5719 competently thereto. 2. I am a member of Keller Rohrback’s Employee Benefits and Retirement Security Practice Group and one of the attorneys responsible for directing the above-captioned case at the Firm. 3. Attached hereto as Exhibit 1 is a true and correct copy of the Class Action Settlement Agreement for the case. 4. Attached hereto as Exhibit 2 is a draft [Proposed] Order Preliminarily Approving the Settlement, Certifying the Class, Approving Notice to the Class, and Scheduling Final Approval Hearing (“Preliminary Approval Order”). 5. Attached hereto as Exhibit 3 is a draft Notice of Proposed Settlement of Class Action, Final Approval Hearing, and Motion for Attorneys’ Fees and Reimbursement of Litigation Expenses and Incentive Awards to Named Plaintiffs (“Draft Notice of Proposed Settlement”). 6. Attached hereto as Exhibit 4 is the draft [Proposed] Order and Final Judgment. 7. Attached hereto as Exhibit 5 is a true and correct copy of the firm resumes of Cohen Milstein Sellers & Toll, PLLC (“Cohen Milstein”) and Keller Rohrback (collectively, “Class Counsel”). 8. Keller Rohrback and Cohen Milstein discovered and developed this area of the law and dedicated several years to developing the legal theory challenging whether non-church entities could properly maintain their pension plans as “church plans” exempt from ERISA. Both firms devoted many hours to researching the definition of a “church plan” found in both ERISA and the Internal Revenue Code, 29 U.S.C. § 1002(33) and 26 U.S.C. § 414(e), including the statutory text, its interaction with other provisions in the United States Code, the legislative history of the statute, and agency and court interpretations of the statute. Ultimately, Class Counsel began challenging 2 Case 3:16-cv-00467-SMY Document 240-1 Filed 09/22/20 Page 3 of 7 Page ID #5720 the contention by a number of religiously affiliated hospitals that their pension plans were exempt from ERISA. This is one of the cases that arose from that investigation. 9. Prior to filing the claims on behalf of the Plaintiffs in this case, Class Counsel extensively investigated all publicly available information regarding the Defendant OSF Healthcare System, and the other defendants. This included review and analysis of publicly available financial statements, information given to the participants of the OSF Plans, and interviews of several OSF Plan participants. 10. On April 27, 2016, Plaintiff Sheilar Smith, represented by Class Counsel, and Armstrong Law Firm LLC, Local Counsel, filed this case in this district. Class Action Compl., ECF No. 1. The case was amended shortly thereafter to add Plaintiff Kasandra Anton. First Am. Class Action Compl., ECF No. 7. Soon thereafter, another case, with other plaintiffs, represented by other counsel, Kessler Topaz Meltzer & Check, LLP (“Kessler Topaz”) and Izard Kindall & Raabe LLP (“Izard Kindall”), filed a similar case in the Central District of Illinois. Complaint, Bailey v. OSF HealthCare Sys., No. 16-1137 (C.D. Ill. May 3, 2016), ECF No. 1. Eventually, the Bailey plaintiffs voluntarily dismissed their case were added as plaintiffs to the Smith case. See Bailey v. OSF HealthCare Sys., No. 1:16-cv-01137-SLD-TSH, 2017 WL 4319113 (C.D. Ill. Sept. 28, 2017). See also Fourth Am. Class Action Compl., ECF No. 138. 11. This case was litigated over four years until settling. Discovery commenced in the fall of 2016 but was stayed shortly after the Supreme Court’s decision in Advocate Health Care Network v. Stapleton, 137 S. Ct. 546 (2016). The issue presented to the Supreme Court in Advocate was whether, as Plaintiffs alleged here, and as the lower courts had held, a church plan must be established by a church in order to qualify as an ERISA-exempt church plan. The Supreme Court issued its decision on June 5, 2017, holding that pension plans need not be established by churches 3 Case 3:16-cv-00467-SMY Document 240-1 Filed 09/22/20 Page 4 of 7 Page ID #5721 in order to qualify as ERISA-exempt church plans, so long as other conditions necessary for church plan status are satisfied.