Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 1 of 14 RICHARD STANFORTH, JR., and HELEN LUCERO, for themselves and all others similarly situated, Plaintiffs, UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO v. No. 1:09-CV-01146 RB/RHS FARMERS INSURANCE COMPANY OF ARIZONA, FARMERS GROUP INC., MID-CENTURY INSURANCE COMPANY, FARMERS INSURANCE EXCHANGE, TRUCK INSURANCE EXCHANGE, BRISTOL WEST INSURANCE COMPANY, 21ST CENTURY ADVANTAGE INSURANCE COMPANY, 21ST CENTURY ASSURANCE COMPANY, 21ST CENTURY CASUALTY COMPANY, 21ST CENTURY CENTENNIAL INSURANCE COMPANY, 21ST CENTURY INSURANCE COMPANY OF THE SOUTHWEST, 21ST CENTURY NATIONAL INSURANCE COMPANY, 21ST CENTURY NORTH AMERICA INSURANCE COMPANY, 21ST CENTURY PREMIER INSURANCE COMPANY, FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN, FOREMOST PROPERTY & CASUALTY INSURANCE COMPANY, FOREMOST SIGNATURE INSURANCE COMPANY, and MARYLAND CASUALTY COMPANY, WILLIAM B. TOBIN, DAVID ARAGON, and JOHN AND JANE DOES 1 THROUGH 250, Defendants. ORDER PRELIMINARILY APPROVING SETTLEMENT, APPROVING NOTICE TO SETTLEMENT CLASS MEMBERS, AND SETTING DATE FOR FINAL APPROVAL HEARING The parties to the Settlement Agreement entered into by and through their respective counsel on October 14, 2013 (the Agreement ) in the above-captioned action (the Lawsuit ) have moved for an order granting preliminary approval of the class settlement of the Lawsuit upon the terms and conditions in the Agreement (the Settlement ). The Court having read and 1
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 2 of 14 considered the Agreement and the accompanying documents submitted by Plaintiffs and Defendants (each as defined in the Agreement and as set out below), finds and ORDERS as follows: IT IS HEREBY ORDERED THAT: 1. The Agreement is hereby incorporated by reference in this Order and, in addition to the terms defined in this Order, all terms defined in the Agreement will have the same meanings in this Order. 2. The Parties include Plaintiffs Richard Stanforth and Helen Lucero individually and as representatives of the Settlement Class, and Defendants Farmers Insurance Company of Arizona, Mid-Century Insurance Company, Farmers Insurance Exchange, Truck Insurance Exchange, Bristol West Insurance Company, 21st Century Advantage Insurance Company, 21st Century Assurance Company, 21st Century Casualty Company, 21st Century Centennial Insurance Company, 21st Century Insurance Company of the Southwest, 21st Century National Insurance Company, 21st Century North America Insurance Company, 21st Century Premier Insurance Company, Foremost Insurance Company Grand Rapids, Michigan, Foremost Property & Casualty Insurance Company, Foremost Signature Insurance Company, and Maryland Casualty Company (collectively Farmers ), Farmers Group, Inc., William B. Tobin, David Aragon, and other affiliated Released Parties defined in the Agreement. 3. For purposes of determining whether the terms of the Agreement should be preliminarily approved, the following Settlement Class and Subclasses are conditionally certified, for purposes of this Settlement only: The Settlement Class means all Persons (and their heirs, executors, administrators successors and assigns) who, as of the date of Preliminary Approval of this Agreement, are, or were, an Insured under any Farmers Policy (or Farmers Policies) issued, renewed or effective in New Mexico on or after January 1, 1995, that did not or does/do not provide Equal Limits UM Coverage. This includes all such Farmers Policies as to which the named insured executed a written rejection of all UM Coverage, as well as all such Farmers Policies as to which the named insured selected less than Equal Limits UM 2
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 3 of 14 Coverage. Excluded from the Settlement Class are: (i) any Persons who make a timely election to be excluded in accordance with the provisions of this Agreement and the Class Notice; (ii) any present or former officers and/or directors of Farmers or Farmers Group, Inc.; (iii) the Referees appointed as part of this Agreement for the Neutral Evaluation on Appeal, if any, set forth below; (iv) Class Counsel and their spouses or relatives who currently reside in their household; (v) any Member of the New Mexico Judiciary and their spouses or relatives who currently reside in their household; and (vi) Defense Counsel, their spouses or relatives who currently Reside in their household. Each Member of the Settlement Class is a Member of either Subclass A or Subclass B, as defined in the Settlement. The policy reformation provisions set forth in Paragraph 51 of the Agreement apply to all Members of the Settlement Class, whether in Subclass A or Subclass B. Subclass A means certain members of the Settlement Class, as defined in the Settlement, who are entitled to submit a Claim Form and potentially receive a Settlement Class Payment pursuant to the terms of the Agreement, including, in particular, the claim adjustment procedures set forth at Paragraphs 52-83 of the Agreement. Subclass A includes all of those Settlement Class Members who: (a) were Insureds under a Farmers Policy (or Farmers Policies) that did not provide Equal Limits UM Coverage, and that was/were issued, renewed or effective between January 1, 1995, and the Reformation Ending Date applicable to the insurer that issued the subject policy; and (b) were involved in an Accident on or after January 1, 1995 while that Farmers Policy (or Farmers Policies) was in force; and (c) contend that the Accident was caused, in whole or in part, by the fault of an Uninsured Driver or an Underinsured Driver; and (d) contend that he or she (the Subclass A Member) suffered Bodily Injury or Property Damage as a result of the Accident for which he or she would be legally entitled to recover from the Uninsured or Underinsured Driver; and (e) contend that he or she would have been entitled to receive money (or additional money) from Farmers for his or her damages caused by the Accident if, at that time, the applicable Farmers Policy (or Farmers Policies) had provided Equal Limits UM Coverage. Any Person who satisfies the conditions to be in Subclass A set forth above is included in Subclass A even if he or she has not previously submitted a claim to Farmers for UM Benefits with respect to the Accident so long as: (i) the Accident occurred on or after January 1, 1995, and (ii) the applicable Farmers Policy (or Farmers Policies) in force at the time of the Accident did not provide Equal Limits UM Coverage, unless such Person is excluded from Subclass A on one of the grounds set forth below. Excluded from Subclass A (but nevertheless part of the Settlement Class) are any Persons who would otherwise satisfy the conditions to be a Member of Subclass A, but who also satisfy any of the following additional conditions: (a) he or she previously prosecuted a claim for UM Benefits against Farmers, in litigation or arbitration that was resolved through a final judgment or arbitration award; (b) he or she executed a release in favor of Farmers that specifically released claims that UM Coverage under the Farmers Policy (or Farmers Policies) should be deemed Equal Limits UM Coverage and/or that the policyholder was not properly advised of the opportunity to purchase Equal Limits, stacked or aggregated UM coverage; (c) he or she has a pending claim for UM Benefits under a Farmers Policy that is reported to Farmers prior to the Preliminary Approval date of this Agreement, including all Persons who have a claim for UM Benefits under a Farmers Policy that is being litigated or arbitrated against Farmers and is unresolved by a 3
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 4 of 14 Judgment or Award that became final and unappealable prior to the Preliminary Approval date of this Agreement; or (d) he or she was in an Accident with an Uninsured or Underinsured Driver prior to the Preliminary Approval date of this Agreement, but has not yet submitted a claim for UM Benefits to Farmers as of the date of Preliminary Approval because such claim is not yet ripe due to lack of resolution of a claim with, or lawsuit against, the allegedly at fault Uninsured or Underinsured Driver or his or her liability insurer, or due to any other reasonable cause (such as on-going treatment of injuries) which would make the presentation of a claim for UM or UIM Benefits premature as of the date of the Preliminary Approval of this Settlement. Claims for UM Benefits with respect to such Accidents that have been or may subsequently be submitted to Farmers by those Persons excluded from Subclass A based on subsections (c) or (d) of the immediately preceding paragraph will, unless such person should affirmatively elect to join Subclass A, be adjusted, remediated, litigated and/or arbitrated outside of the Agreement pursuant to Reformed Policy Limits (if the applicable Farmers Policy or Farmers Policies are subject to reformation pursuant to Paragraph 51 of the Agreement). If any such Person submits a claim for UM Benefits to Farmers after Preliminary Approval, but before Final Approval, of this Settlement, or submits a Claim Form pursuant to Paragraph 52 of the Agreement, then Farmers shall, as provided in the Agreement, advise such Person of the terms of the Settlement and that he or she may elect to join Subclass A by executing and submitting a written notice thereof to the Class Administrator. Subclass B means all Persons who satisfy the definition of Settlement Class Member, but who do not satisfy the conditions to be a member of Subclass A. Subclass B will be certified only pursuant to Fed. R. Civ. P. 23(b)(2). Nevertheless, pursuant to Fed. R. Civ. P. 23(d), Subclass B Members will be permitted to exclude themselves from (i.e., opt-out of) the Settlement Class, including but not limited to any claims they may have under the New Mexico Unfair Practices Act, NMSA 1978, 57-12-10(B). 4. The Court expressly reserves the right to determine, should the occasion arise, whether the Lawsuit may be certified as a class action for purposes other than settlement, and Defendants retain all rights to assert that the Lawsuit may not be certified as a class action except for purposes of settlement only. This Preliminary Order is not intended to be a final order on certification of the class for settlement purposes. 5. The Court finds that (i) the Settlement resulted from extensive arm s-length negotiations; (ii) the Settlement was concluded after counsel for all Parties had conducted adequate investigation; and (iii) the Settlement terms are sufficiently fair, reasonable, adequate and in the best interests of the Settlement Class so as to warrant sending notice and claim forms to the Settlement Class preliminarily certified for settlement purposes in accordance with 4
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 5 of 14 Paragraphs 84 through 90 of the Agreement and thereafter holding a hearing regarding, inter alia, (a) final approval of the Settlement and certification of a Settlement Class for settlement purposes only, (b) whether the Notice Procedures comply with the Federal Rules and due process; and (c) whether Class Counsel s request for attorneys fees should be approved (the Final Approval Hearing ). Accordingly, the Court grants preliminary approval of the Settlement and finds that it is sufficiently fair and reasonable to warrant sending notice to Persons who may be members of the Settlement Class preliminarily certified for settlement purposes in accordance with the Class Notice procedures set forth in the Agreement. 6. Solely for the purposes of the Settlement, the Court preliminarily finds that the prerequisites for a class action under Fed. R. Civ. P. 23(a) and (b)(2) and (b)(3) have been satisfied in that: (i) the Class Members are so numerous that joinder of all Class Members is impracticable; (ii) there are questions of law and fact common to the Settlement Class; (iii) the claims of the Plaintiff are typical of the claims of the Class Members; (iv) the Plaintiffs will fairly and adequately represent the interests of the Settlement Class; (v) the questions of law and fact common to the Class Members predominate over any questions affecting only individual Class Members; (vi) certifying the Settlement Class is superior to other available methods for the fair and efficient adjudication of the controversy; and (vii) Farmers has acted or failed to act on grounds that apply generally to the Class, such that an injunction is appropriate respecting the Class as a whole. 7. Plaintiffs are preliminarily found qualified to act as representatives of the Settlement Class and preliminarily appointed as Settlement Class Representatives; and the following Plaintiffs Counsel are preliminarily appointed as Counsel for the Settlement Class ( Class Counsel ), based on the Court s determination that the requirements of Fed. R. Civ. P. 23(g) are satisfied by this appointment: 5
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 6 of 14 Geoffrey R. Romero, Esq. LAW OFFICES OF GEOFFREY R. ROMERO 4801 All Saints Road, NW Albuquerque, NM 87120 David A. Freedman, Esq. Joseph Goldberg, Esq. Vincent J. Ward, Esq. FREEDMAN BOYD HOLLANDER GOLDBERG URIAS & WARD PA 20 First Plaza Center NW #700 Albuquerque, NM 87102 Ray M. Vargas II, Esq. THE VARGAS LAW FIRM LLC 807 Silver Avenue, SW Albuquerque, NM 87102 David P. Garcia, Esq. THE LAW FIRM OF DAVID P. GARCIA 303 Paseo de Peralta Santa Fe, NM 87501 Matthew L. Garcia, Esq. GARCIA IVES NOWARA LLC 201 Third Street NW, Suite 480 Albuquerque, NM 87102 Erin B. O Connell, Esq. O CONNELL LAW LLC 4801 All Saints Rd, NW Albuquerque, NM 87120 8. If final approval of the Settlement is not obtained or the events set forth in Paragraphs 15, 21, 23, and 102 of the Agreement are not satisfied, this preliminary certification order, including the above description of the Settlement Class, shall be vacated ab initio. Preliminary certification of the Settlement Class, appointment of Class Counsel and of the Class Representatives, and all actions associated therewith, are binding only with respect to the Settlement and are undertaken on the condition that the certification and designations may be vacated, at the discretion of the Defendants, if the Agreement is terminated or is disapproved in 6
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 7 of 14 whole or in material part by the Court, any appellate court and/or any other court of review, or if the Agreement is terminated pursuant to paragraphs 92 through 95 or 97 in the Agreement, in which event: (i) the Agreement and any obligations of Defendants thereunder shall be null and void, except as otherwise expressly provided in the Agreement; (ii) the Court shall vacate the preliminary certification of the Settlement Class; (iii) Defendants and the Released Parties shall retain the right to object to the maintenance of the Lawsuit and/or any other case on any grounds; and (iv) the Lawsuit shall proceed as if the Agreement had never been entered and the Settlement Class had never been certified, without prejudice or relevance to the Court s consideration on the merits of any arguments for or against a properly submitted motion for class certification. 9. The Settlement and its preliminary approval is not to be deemed an admission of liability or fault by Defendants or by any of the Released Parties, or a finding of the validity of any claims asserted in the Lawsuit, or of any wrongdoing or of any violation of law by Defendants or any of the Released Parties, or an admission by Defendants or Released Parties as to the certifiability of a litigation class in the Lawsuit, or any other case. Neither the preliminary certification of this Settlement Class, nor the Agreement, nor the fact that it was entered into, nor any of its terms, provisions or exhibits, nor any of the negotiations or proceedings connected with it, nor any filings or arguments made to the Court in support of preliminary approval of the Settlement, may be offered, received or construed, in any pending or future civil, criminal or administrative action, as: (i) an admission of or evidence of liability or fault by Defendants or any of the Released Parties or a finding of the validity of any claims asserted in the Lawsuit or of any wrongdoing or of any violation of New Mexico law by any of the Released Parties or; (ii) an admission of or evidence of the appropriateness of certification of a litigation class; or (iii) as evidence for any purpose in this or any other proceeding, including as to the certification of any class, except that such materials may be offered or received in proceedings to enforce the Agreement or if Defendants, at their sole discretion, stipulate to the admission of such evidence. 7
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 8 of 14 Notwithstanding the foregoing, any of the Defendants or Released Parties may file the Agreement, or any judgment or order of the Court related to it, in any other action that may be brought against them, to support any defenses based on res judicata, collateral estoppel, release, or any other theory of claim preclusion or issue preclusion. 10. Rust Consulting, Inc. is preliminarily appointed as third-party class administrator ( Class Administrator ). The Court will determine whether the Class Administrator should be appointed at the Final Approval Hearing. 11. Farmers and the Class Administrator shall cause the Class Notice and Claim Form submitted to the Court as Exhibits A and B to the Agreement to be distributed in accordance with the procedures set forth in Paragraphs 84 through 90 of the Agreement by March 10, 2014. As set forth in the Agreement, Farmers shall bear the costs associated with providing Class Notice, whether or not the Agreement obtains Final Approval or is otherwise terminated. 12. The Court has reviewed the Class Notice and Claim Form, which it preliminarily approves in form and substance. The Court preliminarily finds that the form and method of notice set forth in Paragraphs 84 through 90 of the Agreement (the Notice Procedures ): (i) are reasonable and the best practicable notice under the circumstances; (ii) are reasonably calculated to apprise Settlement Class Members of the pendency of the Lawsuit, of their rights to object to or opt-out of the Settlement, and of the Final Approval Hearing; (iii) constitute due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv) meet the requirements of the Federal Rules of Civil Procedure, the requirements of due process under the New Mexico and United States Constitutions, and the requirements of any other applicable rules or laws. In addition, the Court finds that the claim submission procedures and Claim Form are fair, reasonable and adequate. Those procedures allow sufficient time and are simple and straightforward so that any Class Member who chooses to submit a Claim Form has ample opportunity to do so. The Claim Form and claim submission procedures assist the Class 8
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 9 of 14 Members in making informed decisions as whether to submit a Claim Form. This preliminary finding, which is made for purposes of approving the Notice Procedures only, does not prejudice the rights of any Settlement Class Member to object to the Notice Procedures at the Settlement Fairness Approval Hearing. 13. The Court approves the procedures set forth in the Agreement regarding not sending a separate Class Notice to any attorney(s) who may currently represent, or who may previously have represented, absent Settlement Class Members with regard to a Claim. 14. The Final Approval Hearing shall be held before the undersigned, in the Guadalupe Courtroom, Suite 440, of this Courthouse, at 8:45 a.m., on June 6, 2014. At that hearing, the Court shall consider and/or determine, among other things: (i) whether the Settlement should be finally approved as fair, reasonable, and adequate; (ii) whether to finally certify a Settlement Class for settlement purposes only; (iii) whether the Notice Procedures comply with the Federal Rules and due process; (iv) the amount of attorneys fees and costs to be awarded to Class Counsel and the amount of any service awards to be paid to Class Representatives; (v) whether Settlement Class Members should be bound by the Releases set forth in the Agreement; (vi) whether the Final Judgment approving the Settlement and dismissing all claims asserted in this Lawsuit on the merits, with prejudice and without leave to amend, should be entered; and (vii) other actions, if any, to be enjoined or dismissed. The Final Approval Hearing may be postponed, adjourned or rescheduled by order of the Court without further notice to the Members of the Settlement Class, other than that which may be posted at the Court and on the Court s website. The Court reserves the right to approve the Settlement at or after the Final Approval Hearing with such modifications as may be consented to by the Parties and without further notice to the Class Members. 15. Any potential Settlement Class Member (whether a member of Subclass A or Subclass B) who wishes to exclude himself, herself, or itself from the Settlement Class must 9
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 10 of 14 submit to the Class Administrator a written request for exclusion postmarked not later than May 16, 2014. As provided in Paragraphs 103 to 104 of the Agreement, requests for exclusion must be signed and include the Settlement Class Member s name, address, and telephone number, and expressly state the desire to be excluded. 16. The Class Administrator shall promptly log each request for exclusion that it receives and provide copies of the log and all such requests for exclusion to Defense Counsel and Class Counsel as requested. Within seven days after the deadline for Settlement Class Members to request exclusion, Class Counsel and Defense Counsel shall exchange a complete list of all timely and valid requests for exclusion received by the Class Administrator as of that date. Any Settlement Class Member who does not timely and validly request to be excluded from the Settlement Class before the deadline waives the right to do so in the future. 17. Any Settlement Class Member (whether a member of Subclass A or Subclass B) who does not submit a timely, written request for exclusion will be bound by all proceedings, orders and judgments in the Lawsuit, including the terms of the Settlement, if approved. All members of the Settlement Class who do not timely request exclusion in the manner set forth in the Class Notice and the Agreement shall be bound by any Final Judgment entered pursuant to the Agreement, and shall be barred and enjoined, now and in the future, from asserting any of the Released Claims, as defined in the Agreement, against any Released Parties, as defined in the Agreement. Upon entry of a Final Judgment approving the Settlement, all members of the Settlement Class shall be conclusively deemed to have fully and finally released all of the Released Parties from any and all Released Claims. 18. Settlement Class Members who do not file a timely request for exclusion, may file a Notice of Intent to Object to the Settlement, or to Intervene in the Lawsuit to contest the Settlement, in accordance with Paragraphs 106 to 107 of the Agreement. Any such notice of 10
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 11 of 14 intent to object and/or intervene must be: (a) filed with the Clerk of the Court no later than May 16, 2014, and (b) sent by first-class mail such that they will be received by that date by: Geoffrey R. Romero, Esq. LAW OFFICES OF GEOFFREY R. ROMERO 4801 All Saints Road, NW Albuquerque, NM 87120, as Class Counsel; and Steven J. Hulsman, Esq. LEWIS ROCA ROTHGERBER, LLP 40 North Central Avenue, Suite 1900 Phoenix, AZ 85004-4429, as Defense Counsel. 19. As further provided in Paragraphs 106 to 107 of the Agreement, any Notice of Intent to Object or Intervene must contain: (a) a heading which refers to the Lawsuit; (b) the name, address, telephone number and signature of the Settlement Class Member filing the objection or intervention request; (c) a statement whether the objector or intervenor intends to appear at the Final Approval Hearing, either in person or through counsel, and, if through counsel, identifying counsel by name, address and phone number; (d) a detailed statement of the specific legal and factual bases for intervention and/or each and every objection, and, if through counsel, a legal memorandum in support of the objection or intervention; and (e) a list of any witnesses, along with the expected testimony of each such witness, and photocopies of exhibits which the objector intends to introduce at the Final Approval Hearing. Any Settlement Class Member who fails to object or seek to intervene in accordance with this Order will be deemed to have waived the right to object or intervene and shall be barred from raising their objections to the Settlement or Final Judgment in this or any other proceeding, including in an appeal. 20. Plaintiffs Motion for Final Approval of Class Action Settlement, for attorneys fees, costs and expenses, and on behalf of the Class Representative(s) for a service award, as set forth in the Settlement Agreement shall be filed on or before May 23, 2014. 21. Class Counsel and/or Defense Counsel may file and serve a written response to any Notice of Intent to Object or to Intervene not later than May 23, 2014. Objections to the 11
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 12 of 14 Settlement shall be heard, and any papers or briefs submitted in support of said objections shall be considered by the Court (unless the Court in its discretion shall otherwise direct), only if they comply with the objection procedures set forth herein. 22. Pursuant to the stipulation of Class Counsel, the Court preliminarily orders that they, and their firms, shall not represent, encourage, solicit or substantively assist, in any way whatsoever, any person in requesting exclusion from the Settlement Class. Similarly, Class Counsel, as well as all other counsel of record for the Named Plaintiffs, and their respective firms, shall not represent, encourage, solicit or substantively assist, in any way whatsoever, any person who requests exclusion from the Settlement Class, in any subsequent litigation that person may enter into with any Released Parties regarding the Released Claims or any related claims, pending final determination of whether the Settlement should be approved. This prohibition will not apply if the Settlement does not become Final and Effective. 23. The Court further preliminarily finds that neither Defendants, the Released Parties, Defense Counsel nor Class Counsel, shall be responsible in any way for any attorneys lien(s) or medical lien(s) submitted for any of the Settlement Class Members, nor shall any such liens be created by any of the efforts of the Parties to effectuate any of the terms of the Settlement Agreement. 24. Upon entry of this Order, all proceedings in the Lawsuit (including any requirement for Defendants to answer or otherwise respond to the Amended Complaint) shall be stayed until further order of the Court, except such proceedings as may be necessary either to implement the Settlement or to comply with or effectuate the terms of this Agreement or Federal Rule of Civil Procedure 23. 25. Pending final determination of whether the Settlement should be approved, Plaintiffs and all Settlement Class Members are preliminarily enjoined from bringing any new action, including a new alleged class action, or attempting to amend an existing action, against 12
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 13 of 14 any of the Released Parties, to assert any claims that would be released pursuant to the Settlement, and Plaintiffs and all Settlement Class Members are also enjoined from proceeding with any pending action which asserts against any of the Released Parties any claims, including putative class claims, arising out of or related to the claims and allegations asserted in the Lawsuit or that would otherwise fall within the scope of the Agreement and be released pursuant to the Settlement. This includes, but is not limited to, any claims, class claims, or putative class actions, in any court, that assert any claim or seek any recovery of damages or other relief arising out of or related to the marketing, disclosure, sale, issuance or administration of Farmers Policies during the Class Period that had or have less than Equal Limits UM/UIM Coverage (including the handling of any claims for benefits thereunder), or which claims are otherwise encompassed within the Released Claims, including but not limited to the putative class claims asserted in the action entitled Fulgenzi v. Michael Smith, et. al., initiated in the First Judicial District Court of the County of Santa Fe and currently pending before this Court pursuant to Case No. 1:12-CV- 01261-RB-RHS ( the Fulgenzi suit ). The Court has reviewed the complaint filed in the Fulgenzi suit (Dkt. #1-1 through 1-3), and preliminarily finds that it arises out of and is related to the same alleged set of facts as the Lawsuit and that the Settlement and the Released Claims and Released Parties as defined in the Agreement encompass the parties and putative class claims asserted in the Fulgenzi suit. Fulgenzi counsel objected to these preliminary findings at a hearing on November 1, 2013. Fulgenzi counsel will file a brief in support of its objections by November 22, 2013. Plaintiffs and Defendants herein will file response briefs by December 13, 2013. The Court will issue its decision by January 10, 2014. 26. If final approval of the Settlement is not obtained or the events set forth in Paragraphs 15, 21, and 102 of the Agreement are not satisfied, this preliminary certification order, any final certification of a Settlement Class, and Final Judgment approving the Settlement shall be vacated ab initio. Among others, if the conditions set forth in Paragraphs 92 through 95 13
Case 1:09-cv-01146-RB-RHS Document 139 Filed 11/01/13 Page 14 of 14 of the Agreement regarding the Fulgenzi suit are not satisfied, or the provisions of paragraph 97 are triggered, then Farmers may (at its option) terminate the Agreement as to all Parties, withdraw its consent to the entry of this Order and/or any Final Judgment hereon, and void or have vacated any order or Final Judgment rendered hereon. If Farmers exercises its option to void the Settlement on this basis, then Plaintiffs and Class Counsel shall stipulate to vacate any order or judgment that does not satisfy the conditions of Paragraphs 92 and 93(i)-(iv) of the Agreement and, in that circumstance, the Settlement and any obligations Defendants may have under the Settlement (including, but not limited to, any obligation to pay attorneys fees), and any order or judgment hereon (including, but not limited to, any preliminary or final certification of a Settlement Class) will be null and void and of no force and effect. 27. Upon motion of any party, the Court may, for good cause, extend any of the deadlines set forth in this Order without further notice to the Settlement Class. 28. If any deadline in this order falls on a non-business day, then the deadline is extended until the next business day. IT IS SO ORDERED. Dated: November 1, 2013 The Honorable Robert C. Brack United States District Judge 14