# Morneau v. Protective Life Insurance Company

> District Court, S.D. California · April 22, 2025

URL: https://www.frixlaw.com/law-library/cases/10850414

## Case

- **Court:** District Court, S.D. California
- **Decided:** April 22, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10850414

## How later opinions describe it (automated extraction)

- explaining that Rule 23(b)(2) does not require the Court “to examine 6 the viability or bases of class members’ claims for declaratory and injunctive relief, but 7 only to look at whether class members seek uniform relief from a practice applicable to all 8 of them.”
- finding a “question of law or fact common 12 to the class” on the basis that all putative class members challenged the constitutionality of 13 the same INS practice

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 KEIR MILAN, Individually, and on Case No.: 3:22-cv-01861-AHG
behalf of the Class; CRISTIN
12 ORDER GRANTING MOTION FOR
MORNEAU and KELLY STRANGE,
PRELIMINARY APPROVAL OF
13 Individually, and Jointly as Successors-in-
CLASS ACTION SETTLEMENT
Interest to Carolyn A. Morneau, and on
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behalf of the Estate of Carolyn A.
[ECF No. 70]
15 Morneau and the Class,
16 Plaintiff,
17 v.
18 PROTECTIVE LIFE INSURANCE
COMPANY, an Alabama corporation; and
19
WEST COAST LIFE INSURANCE
20 COMPANY, a Nebraska corporation,
21 Defendants.
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1 Before the Court is Plaintiffs’ Motion for Preliminary Approval of Class Action
2 Settlement. ECF No. 70. Defendants filed a Notice of Non-Opposition to the Motion on
3 December 18, 2024. ECF No. 71. For the reasons set forth below, the Court GRANTS the
4 unopposed Motion for Preliminary Approval of Class Action Settlement.
5 I. BACKGROUND
6 On July 5, 2022, Plaintiffs Cristin Morneau and Kelly Strange filed this action in
7 San Francisco Superior Court on behalf of themselves and a proposed class of similarly
8 situated individuals. ECF No. 1 at 12. Defendants removed this action to the U.S. District
9 Court for the Northern District of California on September 1, 2022. ECF No. 1. Following
10 removal, Defendants moved to transfer the action to this Court on October 18, 2022. ECF
11 No. 9. The Honorable Richard Seeborg granted the motion to transfer on
12 November 23, 2022. ECF No. 14. Upon transfer, this action was assigned to the Honorable
13 Thomas J. Whelan and the undersigned on November 28, 2022. ECF No. 16.
14 In the operative First Amended Complaint (“FAC”), Plaintiffs allege that
15 Defendants failed to comply with California Insurance Code Sections 10113.71 and
16 10113.72 (“The Statutes”). See ECF No. 64, FAC ¶¶ 1-15, 26-88. The Statutes, which went
17 into effect on January 1, 2013, generally require life insurance companies to provide: a 60-
18 day grace period before terminating a policy; notice of missed premium and of pending
19 termination before terminating a policy; and an annual opportunity for insureds to
20 designate additional addresses for receiving policy notices. Cal. Ins. Code §§ 10113.71,
21 10113.72. Plaintiffs Morneau and Strange alleged that Defendants unlawfully terminated
22 their mother’s life insurance policy in 2017 because she failed to make a premium payment,
23 even though Defendants never provided their mother with the notices required under The
24 Statutes. Id. ¶ 64. Plaintiffs asserted that because Defendants did not comply with The
25 Statutes, the policy termination was ineffective. Id. ¶¶ 65-66. Thus, when their mother died
26 in January 2022, Plaintiffs claimed their rights as beneficiaries to the proceeds of the
27 policy. Id. ¶¶ 68-69. Plaintiff Milan similarly alleged that Defendants unlawfully
28 terminated his life insurance policy in August 2022 when he purportedly missed a premium
1 payment, without complying with various provisions of The Statutes, including the
2 requirement to annually notify him of a right to designate, the requirement to provide a 60-
3 day grace period for nonpayment of premium, and the notice requirements. Id. ¶¶ 78-85.
4 Plaintiff Milan alleges that Defendants’ violations of The Statutes constitute a breach of
5 their ongoing duty of good faith and fair dealing and a material breach and repudiation of
6 Plaintiff Milan’s life insurance policy, thereby excusing any further performance by
7 Plaintiff Milan of tendering premiums. Id. ¶¶ 86-87. Defendants deny any liability to
8 Plaintiffs.
9 The undersigned held an early neutral evaluation conference on February 8, 2023,
10 but the case did not settle. ECF No. 23. The parties proceeded to litigate the case,
11 conducting discovery and filing cross-motions for partial summary judgment on
12 June 27, 2024. ECF Nos. 44, 45. The undersigned held a mandatory settlement conference
13 on August 28, 2024, but the case did not settle. ECF No 52.
14 The parties continued to engage in settlement discussions through private mediators.
15 They attended a mediation session before the Honorable Herbert B. Hoffman, a retired
16 judge and well-respected mediator in the San Diego legal community, in July 2023. ECF
17 No. 70-1, at 15. They retained Hunter Hughes, Esq., also a well-respected mediator,
18 particularly in the area of class actions, for a second mediation in September 2024. Id.
19 Although they did not reach a settlement at that mediation session, the parties ultimately
20 reached agreement by accepting a mediator’s proposal issued by Mr. Hughes. Id. at 16.
21 The parties notified the Court that they had reached a settlement agreement in
22 October 2024. ECF No. 54. Following their settlement, the parties consented to the
23 jurisdiction of the undersigned for the purposes of effectuating the settlement terms,
24 including the filing of an amended complaint to merge this action with a related action
25 pending in the U.S. District Court for the Eastern District of California, Allen v. Protective
26 Life Ins. Co., et al., No. 20-cv-00530. ECF Nos. 60, 63, 64. The Court will review the
27 settlement agreement to determine the propriety of certifying a settlement class and
28 whether the proposed settlement is fair and reasonable.
1 II. TERMS OF THE SETTLEMENT AGREEMENT
2 The parties have submitted their proposed Settlement and Release Agreement and
3 related notices to the Class (“Settlement Agreement”) for the Court’s review. ECF No. 70-
4 3. The Settlement Agreement provides relief to all persons who own an interest in a “Class
5 Policy,” or “an individual life insurance policy issued or delivered in California by
6 Protective that was not affirmatively canceled or terminated in writing by the Policy Owner
7 and that: (i) lapsed or terminated for nonpayment of premium on or after January 1, 2013,
8 without Protective first providing all the protections required by California Insurance Code
9 Sections 10113.71 and 10113.72; and (ii) has a Maturity Date that did not expire prior to
10 the Insured’s death, or if the Insured is still living, prior to the date of the Preliminary
11 Approval Order.” ECF No 70-3 § 2.17. The Settlement Agreement provides two different
12 forms of relief: injunctive relief and damages relief. The parties seek approval of a
13 settlement class under Fed. R. Civ. P. 23(b)(2) for the injunctive relief; and under Fed. R.
14 Civ. P. 23(b)(3) for the damages relief.
15 A. Injunctive Relief Class
16 The Settlement Agreement allows owners of a “Class Policy” who are part of
17 the “Alive Population” to seek reinstatement of the Class Policy. ECF No. 70-3 § 3.2. The
18 “Alive Population” is defined as “all living Policy Owners of any Class Policy … where
19 the Insured is alive as of the date the Court enters the Preliminary Approval Order.” Id.
20 § 2.3. Damages are not available to this group of policy owners for an obvious reason:
21 because the insured is still alive, there has been no event that would trigger payment under
22 the Class Policy. Therefore, the parties seek approval of a Rule 23(b)(2) class for injunctive
23 relief of restatement.
24 The Injunctive Relief Class Members will receive a short-form class notice that
25 notifies them of their right to seek reinstatement and directs them to a settlement website
26 to obtain the form. ECF No. 70-3 at 44. The Settlement Agreement sets forth Processes
27 and Guidelines for Reinstatement Relief in Exhibit C. Id. at 61-66. Class Members seeking
28 reinstatement must provide information about the insured, confirm their ownership of the
1 policy, and arrange to pay a Discounted Reinstatement Amount. ECF No. 70-3 at 80-96.
2 The Discounted Reinstatement Amount is 90% of the premium that would have been due
3 to keep the policy in place during the lapse period, plus an advance payment of three
4 months of premium at the amount effective as of the Reinstatement Date. ECF No. 70-3
5 § 2.27. Reinstatement does not require underwriting approval, and there is no contestability
6 period for a reinstated policy. Id. at 64. The Settlement Administrator is responsible for
7 reviewing all reinstatement requests and taking “reasonable and customary steps” to
8 resolve any deficiencies in the reinstatement requests with Class Members. ECF No. 70-3
9 § 8.3.
10 B. Damages Relief Class
11 The Damages Relief Class includes owners of a “Class Policy” where the insured
12 is deceased as of the date of preliminary approval of the settlement. Id. § 2.23. Damages
13 Class Members will also receive a short-form class notice that directs them to the
14 settlement website to submit a claim form. Id. at 44. Exhibit D of the Settlement Agreement
15 sets forth the Processes and Guidelines for Damages Relief. Id. at 67-78. The claim form
16 requires submission of documentation to confirm the death of the insured and the
17 claimant’s eligibility. Id. at 97-116.
18 Defendants will create a “Settlement Fund” of $80,000,000 that will be used to pay
19 attorney fees and costs related to litigation and administration of the settlement. Id. §§ 2.63,
20 18.2. The settlement payout for each Damages Relief Class Member from the Settlement
21 Fund will be determined based on a formula that considers their percentage of ownership
22 in the Class Policy, the face amount of the Class Policy, and the number of claims
23 submitted. Id. at 76 (showing exemplar calculation). The Settlement Fund will not revert
24 in any way to the Defendants, and the Settlement Agreement includes procedures for
25 handling unclaimed payments. ECF No. 70-1 at 18-19; ECF No. 70-3 §§ 18.2.5-18.2.6.
26 Because the Damages Relief Class will be certified under Rule 23(b)(3), class members
27 will have the opportunity to request exclusion from the settlement. Id. § 11.
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1 C. Provisions Applicable to All Class Members
2 All Class Members are considered “Releasing Parties” under the Settlement
3 Agreement. The scope of the Release is set forth in sections 12 and 13 of the Settlement
4 Agreement and includes a release of all known and unknown claims “related to Class
5 Policies (i) alleged in the operative Complaint, or (ii) which could have been alleged in the
6 operative Complaint based on the same alleged facts, transactions, or occurrences;” and a
7 waiver of California Civil Code § 1542. Id. §§ 12, 13.
8 All Class Members may submit written objections to the Settlement Agreement. Id.
9 § 10. The short-form and long-form class notices provide directions on how to submit
10 objections. Id. at 44, 49, 57-58.
11 The Settlement Agreement provides for a Special Master, specifically Thomas
12 Sharkey, Esq., to “adjudicate any disputes regarding entitlement to relief pursuant to the
13 Agreement, including, but not limited to, any disputes regarding the Discounted
14 Reinstatement Amount, and Settlement Administrator’s determinations regarding (i)
15 whether a Claimant qualifies as an Authorized Claimant; (ii) the amount and Authorized
16 Claimant is entitled to receive from the Class Benefit Fund; (iii) whether a Requestor
17 qualifies as an Authorized Requestor; and (iv) whether a Policy Owner affirmatively
18 canceled or terminated a policy in writing.” Id. § 2.65.
19 The Settlement Administrator will make and deduct payments from the Settlement
20 Fund for: (1) attorney fees in an amount up to $20,000,000 and litigation costs in an amount
21 up to $240,000, to be determined by the Court; (2) Incentive Awards of $10,000 for each
22 Class Representative, subject to Court approval; (3) settlement administration expenses;
23 and (4) Special Master expenses. Id. § 3.3. The Settlement Administrator will also create a
24 reserve fund to pay any future administration fees and expenses for the Administrator and
25 the Special Master. Id. § 18.2.1. Any amounts remaining in the reserve fund once all claims
26 have been resolved will escheat to the appropriate state and will not revert to the
27 Defendants. Id. §§ 18.2.5-18.2.6.
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1 III. LEGAL STANDARD
2 Under Rule 23 of the Federal Rules of Civil Procedure, parties may not settle claims
3 on a class-wide basis without court approval. Fed. R. Civ. P. 23(e). Rule 23(e) sets forth
4 the procedures that courts must apply to a proposed settlement of class claims. These
5 procedures include: (1) notice to the class; (2) if the settlement proposal would bind class
6 members, approval by the Court only after a hearing and only on finding that it is fair,
7 reasonable, and adequate based on specific considerations; (3) identification of any
8 agreement made by the parties in connection with the settlement proposal; (4) if the class
9 action was previously certified under 23(b)(3), a new opportunity for class members to
10 request exclusion; and (5) the opportunity for class members to object to the proposed
11 settlement.
12 Where, as here, the parties reach a settlement agreement prior to class certification,
13 “courts must peruse the proposed compromise to ratify both the propriety of the
14 certification and the fairness of the settlement.” Staton v. Boeing Co., 327 F.3d 938, 952
15 (9th Cir. 2003). In evaluating the propriety of certification for purposes of class-wide
16 settlement, the Court must first assess whether a class exists. Id. Second, the Court must
17 “carefully consider whether the proposed settlement is fundamentally fair, adequate, and
18 reasonable, recognizing that it is the settlement taken as a whole, rather than the individual
19 component parts, that must be examined for overall fairness[.]” Id. (internal quotations and
20 citation omitted).
21 As set forth in Rule 23(e), the Court’s assessment of whether the proposed settlement
22 is fair, adequate, and reasonable requires the Court to consider whether: (A) the class
23 representatives and class counsel have adequately represented the class; (B) the proposal
24 was negotiated at arm’s length; (C) the relief provided for the class is adequate, taking into
25 account (i) the costs, risks, and delay of trial and appeal, (ii) the effectiveness of any
26 proposed method of distributing relief to the class, (iii) the terms of any proposed award of
27 attorney fees, and (iv) the terms of the settlement agreement; and (D) the proposed
28 settlement treats class members equitably relative to each other. Fed. R. Civ. P.
1 23(e)(2)(A)-(D). See also In re Tableware Antitrust Litig., 484 F. Supp. 2d 1078, 1079
2 (N.D. Cal. 2007) (“As noted in the Manual for Complex Litigation[,] ‘if the proposed
3 settlement appears to be the product of serious, informed, non-collusive negotiations, has
4 no obvious deficiencies, does not improperly grant preferential treatment to class
5 representatives or segments of the class, and falls within the range of possible approval,
6 then the court should direct that the notice be given to the class members of a formal
7 fairness hearing.’”) (citation omitted). Importantly, for the Court to reach a determination
8 that preliminary approval is appropriate, “the settlement need only be potentially fair, as
9 the Court will make a final determination of its adequacy at the hearing on Final Approval,
10 after such time as any party has had a chance to object and/or opt out.” Acosta v. Trans
11 Union, LLC, 243 F.R.D. 377, 386 (C.D. Cal. 2007).
12 If the Court preliminarily certifies the class and finds the proposed settlement fair,
13 adequate, and reasonable, it then appoints a class representative or representatives and class
14 counsel.
15 IV. CONDITIONAL CLASS CERTIFICATION UNDER RULE 23
16 The first step in the Court’s analysis is to evaluate the propriety of class certification
17 for purposes of class-wide settlement. Plaintiffs seek provisional certification of the
18 Settlement Class under Rule 23(b)(2) as to members of the Injunctive Relief Class, which
19 includes persons who are living Policy Owners of any Class Policy where the Insured is
20 alive as of the date the Court enters the Preliminary Approval Order. ECF No. 70-3 ¶¶ 2.3,
21 2.36. Plaintiffs seek provisional certification of the Settlement Class under Rule 23(b)(3)
22 as to members of the Damages Class, which includes persons associated with any Class
23 Policy where the Insured is deceased as of the date the Preliminary Approval Order is
24 entered. Id. ¶¶ 2.22, 2.23. The Settlement Agreement further defines the Class Period as
25 the period from January 1, 2013, through the date the Court enters the Preliminary
26 Approval Order. Id. ¶ 2.16.
27 To obtain class certification, Plaintiffs must provide facts in support of the four
28 requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of
1 representation. Fed. R. Civ. P. 23(a). As the party seeking class certification, Plaintiffs bear
2 the burden of demonstrating that their proposed class meets each of these four requirements
3 in addition to at least one of the requirements of Rule 23(b). Zinser v. Accufix Rsch. Inst.,
4 Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Rule 23(b) is satisfied if: (1) prosecuting separate
5 actions by individual class members would create a risk of either inconsistent adjudications
6 with respect to individual class members, or a risk of adjudications with respect to
7 individual class members that, as a practical matter, would be dispositive of the interests
8 of other non-party class members or would substantially impair or impede their ability to
9 protect their interests; (2) the party opposing the class has acted or refused to act on grounds
10 that apply generally to the class, so that final injunctive or declaratory relief is appropriate
11 for the class as a whole; or (3) questions of law or fact common to class members
12 predominate over any questions affecting only individual members, and a class action is
13 superior to other available methods of adjudication. Fed. R. Civ. P. 23(b)(1)-(3). See also
14 Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009).
15 The Court will first address whether the Settlement Class as a whole (both the
16 Injunctive Relief Class and the Damages Class) satisfy the Rule 23(a) requirements.
17 A. Rule 23(a) Requirements
18 1. Numerosity
19 To determine whether the numerosity requirement is met, the Court should look to
20 the size of the proposed class. Many courts have held that numerosity is presumed to be
21 met if a proposed class has forty or more members. See, e.g., Consol. Rail Corp. v. Town
22 of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (“[N]umerosity is presumed at a level of 40
23 members”); Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988) (“As a
24 general rule, classes of 20 are too small, classes of 20–40 may or may not be big enough
25 depending on the circumstances of each case, and classes of 40 or more are numerous
26 enough.”) (citation omitted). That said, the numerosity requirement “requires examination
27 of the specific facts of each case and imposes no absolute limitations.” Gen. Tel. Co. of the
28 Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). “Although the absolute number of class
1 members is not the sole determining factor, where a class is large in numbers, joinder will
2 usually be impracticable.” Jordan v. Los Angeles Cnty., 669 F.2d 1311, 1319 (1982),
3 vacated on other grounds, 459 U.S. 810 (1982). Accord A. B. v. Hawaii State Dep’t of
4 Educ., 30 F.4th 828, 835 (9th Cir. 2022). The term “impracticable” does not mean
5 “impossible,” and only refers to “the difficulty or inconvenience of joining all members of
6 the class.” Harris v. Palm Springs Alpine Ests., Inc., 329 F.2d 909, 914 (9th Cir. 1964)
7 (quoting Advertising Specialty Nat’l Ass’n v. FTC, 238 F.2d 108, 119 (1st Cir. 1956)).
8 Here, the proposed settlement class includes approximately 115,000 insurance
9 policies. ECF No. 70-2, Tomasevic Decl. ¶ 45. Plaintiffs also maintain that the size of the
10 settlement class is ascertainable because its members may be identified by reference to
11 Defendants’ records, and Defendants have shared the relevant information from their
12 records to facilitate the settlement process. Id. The Court agrees that the estimated size of
13 the proposed settlement class would make joinder impracticable in this case. Therefore, the
14 proposed settlement class meets the numerosity requirement.
15 2. Commonality
16 The commonality requirement of Rule 23(a)(2) requires that questions of law or fact
17 be common to the class. “Commonality is construed permissively and is ‘less rigorous than
18 the companion requirements of Rule 23(b)(3).’” Fine v. Kansas City Life Ins. Co., No.
19 2:22-cv-2071, 2023 WL 7393027, at *3 (C.D. Cal. Nov. 6, 2023) (quoting Hanlon v.
20 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998), overruled on other grounds by Wal-
21 Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)). There is no requirement that all questions
22 of law and fact be common to satisfy the rule; the existence of shared legal issues with
23 divergent factual predicates is sufficient, as is a common core of salient facts coupled with
24 disparate legal remedies within the class. Hanlon, 150 F.3d at 1019.
25 Here, the parties agree that for purposes of the settlement, the claims of the putative
26 class members share common issues. ECF No. 70-1 at 30. Defendants had a common
27 policy with respect to The Statutes, making the key factual question as to liability a
28 common question. The fundamental legal questions presented by Plaintiffs’ claims are also
1 common across the Class Policies, including whether Defendants complied with The
2 Statutes; and, if not, whether Defendants’ termination of any policies that lapsed since The
3 Statutes took effect is valid legally. The Ninth Circuit has held that the commonality
4 requirement is satisfied when a lawsuit challenges a system-wide practice or policy that
5 affects all of the putative class members, even where there are factual differences among
6 the individual litigants. See Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001),
7 abrogated on other grounds by Johnson v. California, 543 U.S. 499 (2005) (finding the
8 commonality requirement met where all members of a putative class of disabled prisoner
9 plaintiffs challenged the same parole-related policies and practices implemented by the
10 Board of Prison Terms under the ADA, despite having different disabilities); LaDuke v.
11 Nelson, 762 F.2d 1318, 1332 (9th Cir. 1985) (finding a “question of law or fact common
12 to the class” on the basis that all putative class members challenged the constitutionality of
13 the same INS practice). Further, courts in this Circuit have found that class certification of
14 nearly identical claims is appropriate. Farley v. Lincoln Benefit Life Co., 2023 WL
15 3007413, at *4 (E.D. Cal. Apr. 18, 2023); Bentley v. United of Omaha Life Ins. Co., 2018
16 WL 3357458, at *8 (C.D. Cal. May 1, 2018); Lee v. Great Am. Life Ins. Co., 745 F. Supp.
17 3d 1006, 1021-25 (C.D. Cal. Aug. 20, 2024) (certifying an injunctive relief class of still-
18 living policyholders identical to the one proposed in this case, but denying without
19 prejudice the motion to certify a damages class of beneficiaries identical to the one
20 proposed in this case because the named plaintiffs purporting to represent that class—a
21 married couple who were one another’s beneficiaries but both still living—were not
22 adequate class representatives). Therefore, the Court agrees that the commonality
23 requirement is met.
24 3. Typicality
25 The purpose of the typicality requirement is “to assure that the interest of the named
26 representative aligns with the interests of the class.” Hanon v. Dataproducts Corp., 976
27 F.2d 497, 508 (9th Cir. 1992). Although the commonality and typicality requirements often
28 merge into one another, there is some distinction between the two. As opposed to
1 commonality, which requires common questions of law or fact to be shared among the
2 claims of the putative class members, typicality is satisfied where the claims of the class
3 representatives are typical of those of the class, and “when each class member’s claim
4 arises from the same course of events, and each class member makes similar legal
5 arguments to prove the defendant’s liability.” Armstrong v. Davis, 275 F.3d 849, 868 (9th
6 Cir. 2001) (quoting Marisol v. Giuliani, 126 F.3d 372, 376 (2nd Cir. 1997)). In other words,
7 the claims of the putative class representatives and the claims of the putative class must
8 arise from the same events or course of conduct and must be based on the same legal theory.
9 In re United Energy Corp. Solar Power Modules Tax Shelter Invs. Sec. Litig., 122 F.R.D.
10 251, 256 (C.D. Cal. 1988). Class certification is inappropriate “where a putative class
11 representative is subject to unique defenses which threaten to become the focus of the
12 litigation.” Hanon, 976 F.2d at 508 (quoting Gary Plastic Packaging Corp. v. Merrill
13 Lynch, 903 F.2d 176, 180 (2d. Cir. 1990)). “The crux of both [the commonality and
14 typicality] requirements is to ensure that maintenance of a class action is economical and
15 that the named plaintiff’s claim and the class claims are so interrelated that the interests of
16 the class members will be fairly and adequately protected in their absence.” Armstrong,
17 275 F.3d at 868 (quoting Marisol, 126 F.3d at 376) (internal quotations and alteration
18 omitted).
19 Here, named Plaintiffs Cristin Morneau and Keir Milan assert that they were subject
20 to the same policy regarding Defendants’ compliance with The Statutes. See FAC ¶¶ 46-
21 65; 78-85. For the Damages Class and the Injunctive Relief Class, respectively, Plaintiff
22 Morneau’s claims on the one hand and Plaintiff Milan’s claims on the other hand arise
23 from the same underlying facts and rest on the same legal theories as the claims of absent
24 class members. Moreover, nothing in the operative complaint suggests that any claims of
25 the named Plaintiffs would be subject to unique defenses that would not apply to the claims
26 of similarly situated absent class members. Therefore, the Court agrees that the typicality
27 requirement is met.
28
1 4. Adequate Representation
2 Rule 23(a)(4) requires that class representatives “fairly and adequately protect the
3 interests of the class.” To determine whether this requirement is satisfied, the Court must
4 resolve two questions: “(1): do the named plaintiffs and their counsel have any conflicts of
5 interest with other class members and (2) will the named plaintiffs and their counsel
6 prosecute the action vigorously on behalf of the class?” Anders v. Cal. State Univ., Fresno,
7 No. 23-15265, 2024 WL 177332, at *1 (9th Cir. Jan. 17, 2024) (quoting Hanlon, 150 F.3d
8 at 1020). This inquiry is also relevant to the Court’s inquiry into whether a proposed class
9 settlement is fair under Rule 23(e). Kim v. Allison, 87 F.4th 994, 1000 (9th Cir. 2023); see
10 also Fed. R. Civ. P. 23(e)(2)(A). With respect to the first question, “[o]nly conflicts that
11 are fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from
12 meeting the Rule 23(a)(4) adequacy requirement.” In re Online DVD-Rental Antitrust
13 Litig., 779 F.3d 934, 942 (9th Cir. 2015) (quoting 1 William B. Rubenstein et al., Newberg
14 on Class Actions § 3.58 (5th ed. 2011)). A conflict is fundamental when it goes to the
15 specific issues in controversy. Id. As to the second question, “the relevant inquiry is
16 whether the plaintiffs maintain a sufficient interest in, and nexus with, the class so as to
17 ensure vigorous representation.” Id. (quoting Roper v. Consurve, Inc., 578 F.2d 1106, 1112
18 (5th Cir. 1978)).
19 In support of the Motion for Preliminary Approval, Plaintiffs assert that “Class
20 Representatives Cristin Morneau and Keir Milan have been instrumental in starting and
21 shepherding this case over the years” through active participation in “discovery,
22 depositions, [and] settlement discussions.” ECF No. 70-1 at 23. Their allegations are the
23 same as those of the absent class members. See FAC ¶ 89 (defining the class as “[a]ll
24 owners and beneficiaries (where the insured has died) of individual life insurance policies
25 issued or delivered in California by Defendants . . . which, on or after January 1, 2013,
26 lapsed or terminated for nonpayment of premium” without Defendants first complying with
27 The Statutes). There is no evidence of any conflict of interest between the named Plaintiffs
28 and the class members. ECF No. 70-2 ¶ 51. Although the named Plaintiffs will receive
1 service awards under the proposed Settlement Agreement, service payments to class
2 representatives “are fairly typical in class action cases” and “do not, by themselves, create
3 an impermissible conflict between class members and their representatives.” In re Online
4 DVD-Rental Antitrust Litig., 779 F.3d at 942. Moreover, as in the DVD-Rental case, the
5 proposed Settlement Agreement “provide[s] no guarantee that the class representatives
6 would receive incentive payments, leaving that decision to later discretion of the district
7 court.” See id.
8 With respect to the second question regarding whether the named Plaintiffs and their
9 counsel will prosecute the action vigorously on behalf of the class, Plaintiffs’ counsel
10 confirms that they have contributed to the class recovery by putting their names on the
11 case, helping to investigate the claims, participating in discovery, and assisting with
12 settlement efforts. ECF No. 70-2 ¶ 51. The record reflects that the parties have engaged in
13 settlement negotiations numerous times, including both court-facilitated and private
14 mediation. See ECF Nos. 23, 52, 70-2 ¶¶ 40-43. These numerous attempts at settlement
15 over several years show that Plaintiffs and their counsel did not prioritize obtaining a quick
16 settlement for themselves over the interests of the class as a whole.
17 Further, Plaintiffs have explained their rationale for settling the case rather than
18 pursuing further litigation. As discussed in the Motion for Preliminary Approval, even
19 though the California Supreme Court held in 2021 that The Statutes apply to all life
20 insurance policies that were in-force as of January 1, 2013, McHugh v. Protective Life Ins.
21 Co., 12 Cal. 5th 213, 220 (2021), the legal significance of Defendants’ assumption to the
22 contrary remains the subject of vigorous disagreement between the parties. ECF No. 70-1
23 at 10-12. Plaintiffs’ position is that failure to comply with The Statutes “automatically
24 renders any purported termination ineffective and leaves coverage in-force and payable
25 upon death of an insured.” Id. at 11. Defendants, in contrast, argue that to reinstate an
26 affected policy, the policy owner must prove “causation by a preponderance of the
27 evidence,” and that issues such as “whether the policy owner intentionally missed their
28 premiums or otherwise would have allowed the policy to lapse despite getting all the
1 notices and grace periods contemplated by” The Statutes are relevant to the causation
2 analysis. Id. at 11-12. After the parties reached a settlement in this case, the Ninth Circuit
3 sided with Defendants on this issue, finding that a plaintiff bringing a breach of contract
4 claim against an insurance company on the basis of noncompliance with The Statutes “must
5 not only allege a violation of the Statutes, but must also show that the violation caused
6 them harm” by “demonstrat[ing] that they did not knowingly or intentionally let the policy
7 lapse such that the Insurer’s compliance with the Statutes would have caused the plaintiff
8 to pay their premiums and retain the policy.” Small v. Allianz Life Ins. Co. of N. Am., 122
9 F.4th 1182, 1193 (9th Cir. 2024). Accord Moriarty v. Am. Gen. Life Ins., 2025 WL 687960,
10 at *1 (9th Cir. Mar. 4, 2025). Notably, however, since the California Supreme Court has
11 not yet decided the issue, the Ninth Circuit was tasked with “predict[ing] how the highest
12 state court would decide the issue” in the Small decision. 122 F.4th at 1196 (quoting In re
13 Kirkland, 915 F.2d 1236, 1239 (9th Cir. 1990)). For that reason, whether the causation
14 theory will remain the rule of law in California is subject to a possible future ruling by the
15 California Supreme Court that runs contrary to the Ninth Circuit’s conclusion.
16 The Ninth Circuit’s recent resolution of the causation question coupled with the
17 absence of controlling California Supreme Court authority on that issue counsel in favor
18 of finding that settlement of this action is in both sides’ best interest. Defendants will not
19 have to confront a possible 23(c)(4) issue class certification, and Plaintiffs will not be
20 forced to show causation for each class member. Nor will the parties have to contend with
21 the uncertainty of a changing legal landscape on the causation issue should the California
22 Supreme Court rule differently.
23 Based on these considerations, the Court finds that Plaintiffs have met their burden
24 to establish that all four requirements of Rule 23(a) are satisfied as to both the Injunctive
25 Relief Class and the Damages Class.
26 B. Rule 23(b)(2) Requirements for the Injunctive Relief Class
27 Plaintiffs assert that the proposed Injunctive Relief Class satisfies the requirements
28 of Rule 23(b)(2). Certification is appropriate under this subsection of Rule 23 upon a
1 showing that the Defendants “acted or refused to act on ground that apply generally to the
2 class, so that final injunctive relief or corresponding declaratory relief is appropriate
3 respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). See also Rodriguez v. Hayes, 591
4 F.3d 1105, 1125 (9th Cir. 2010), abrogated on other grounds by Jennings v. Rodriguez,
5 583 U.S. 281 (2018) (explaining that Rule 23(b)(2) does not require the Court “to examine
6 the viability or bases of class members’ claims for declaratory and injunctive relief, but
7 only to look at whether class members seek uniform relief from a practice applicable to all
8 of them.”). “The key to the (b)(2) class is the indivisible nature of the injunctive or
9 declaratory remedy warranted—the notion that the conduct is such that it can be enjoined
10 or declared unlawful only as to all of the class members or as to none of them.” Wal-Mart
11 Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (internal quotations and citation omitted).
12 Therefore, 23(b)(2) class certification is not appropriate if “each individual class member
13 would be entitled to a different injunction or declaratory judgment against the defendant.”
14 Id. (emphasis in original). Nonetheless, “[t]he fact that some class members may have
15 suffered no injury or different injuries from the challenged practice does not prevent the
16 class from meeting the requirements of Rule 23(b)(2).” Rodriguez, 591 F.3d at 1125.
17 As discussed above, it is not disputed that Defendants acted in the same way toward
18 all persons in the Injunctive Relief Class with respect to providing the grace periods and
19 notice required by The Statutes. Courts have found certification appropriate in similar
20 cases. E.g., Golikov v. Walmart Inc., No. 2:24-CV-08211-RGK-MAR, 2025 WL 648342,
21 at *6–7 (C.D. Cal. Feb. 27, 2025); Grant v. Cap. Mgmt. Servs., L.P., No. 10-CV-2471-
22 WQH-BGS, 2013 WL 6499698, at *4 (S.D. Cal. Dec. 11, 2013); In re Lifelock, Inc. Mktg.
23 & Sales Pracs. Litig., No. MDL 08-1977-MHM, 2010 WL 3715138, at *3 (D. Ariz. Aug.
24 31, 2010). Plaintiffs have demonstrated that the requirements of Rule 23(b)(2) are satisfied
25 with respect to the Injunctive Relief Class.
26 C. Rule 23(b)(3) Requirements for the Damages Class
27 Plaintiffs seek certification of the Damages Class under Rule 23(b)(3), which
28 requires Plaintiffs to establish that common questions of law and fact predominate, and a
1 class action would be superior to other methods for resolving the claims or the proposed
2 class. The Rule 23(b)(3) predominance inquiry “tests whether proposed classes are
3 sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v.
4 Windsor, 521 U.S. 591, 623 (1997). The matters pertinent to the Court’s analysis of
5 whether the predominance requirement of Rule 23(b)(3) is satisfied include: (A) the class
6 members’ interests in individually controlling the prosecution or defense of separate
7 actions; (B) the extent and nature of any litigation concerning the controversy already
8 begun by or against class members; (C) the desirability or undesirability of concentrating
9 the litigation of the claims in this particular forum; and (D) the likely difficulties in
10 managing a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D).
11 As noted in the Court’s discussion of the commonality requirement, the legal and
12 factual issues underlying this action are common to all members of the proposed settlement
13 class. The predominance criterion, however, “is far more demanding” than the
14 commonality requirement. Amchem, 521 U.S. at 624. The Court must also consider
15 whether there are any factual or legal questions that differ among class members that might
16 undermine class cohesion, and “caution” is warranted “when individual stakes are high and
17 disparities among class members great.” Id. at 624-25.
18 Here, the record does not give rise to any concern that there are disparities among
19 the putative members of the settlement class to such an extent that common questions of
20 law and fact among class members no longer predominate over questions affecting only
21 individual members. All members of the Damages Class were owners of an insurance
22 policy that lapsed or terminated after The Statutes became effective, but were not provided
23 the notice required under The Statutes. EF No. 70-1 at 34. There is no variation in the
24 remedy available to the Damages Class Members. Id. The settlement takes into account
25 any variation in the face amount of the policies at issue by providing that Damages Class
26 Members will be entitled to a pro rata share of the settlement amount based on the face
27 amount of their policy. ECF No. 70-3, § 18.2.2.
28 Given that the putative settlement class has more than 115,000 members, a class
1 action is a superior method of adjudication to thousands of individual lawsuits. See
2 Tomasevic Decl. ¶ 45. Plaintiffs also point out that class treatment is superior because
3 without class notice, many Class Members may not realize they have a claim because of
4 the nature of the alleged statutory violation, which is failure to provide notice. ECF No. 70-
5 1 at 34. The class notice will give Class Members the opportunity to accept a negotiated
6 resolution of them without further action on their part, or the alternative to opt out to pursue
7 their claims independently. Id.
8 For these reasons, the Court finds that questions of law or fact common to class
9 members predominate over any questions affecting only individual members, and a class
10 action is superior to other available methods for fairly and efficient adjudicating the
11 controversy. Accordingly, Rule 23(b)(3) is met.
12 D. Preliminary Fairness Determination Under Rule 23(e)
13 Next, the Court must make a preliminary determination regarding whether the
14 proposed settlement is “fair, reasonable, and adequate” pursuant to Fed. R. Civ. P. 23(e)(2).
15 Preliminary approval of the settlement is appropriate if the settlement (1) appears to be the
16 product of serious, informed, non-collusive negotiations; (2) has no obvious deficiencies;
17 (3) does not improperly grant preferential treatment to class representatives or segments of
18 the class; and (4) falls within the range of possible approval. In re Tableware Antitrust
19 Litig., 484 F. Supp. 2d at 1079; Sciortino v. PepsiCo, Inc., Case No. 14-cv-00478, 2016
20 WL 3519179, at *4 (N.D. Cal. June 28, 2016).
21 In assessing the Settlement Agreement, “[i]t is the settlement taken as a whole, rather
22 than the individual component parts, that must be examined for overall fairness.” Hanlon,
23 150 F.3d at 1026. The Court must balance the following factors in making this assessment:
24 [T]he strength of the plaintiffs’ case; the risk, expense, complexity, and likely
duration of further litigation; the risk of maintaining class action status
25
throughout the trial; the amount offered in settlement; the extent of discovery
26 completed and the stage of the proceedings; the experience and views of
counsel; the presence of a governmental participant; and the reaction of the
27
class members to the proposed settlement.
28 Id.
1 “At the preliminary approval stage, a full fairness analysis is unnecessary. Closer
2 scrutiny is reserved for the final approval hearing.” Hawkins v. Kroger Co., Case No. 15-
3 cv-2320, 2021 WL 2780647, at *3 (S.D. Cal. July 2, 2021) (internal quotations and
4 citations omitted). See also Alberto v. GMRI, Inc., 252 F.R.D. 652, 665 (E.D. Cal. 2008)
5 (“Given that some of these factors cannot be fully assessed until the court conducts its
6 fairness hearing, a full fairness analysis is unnecessary at this stage[.] The court, therefore,
7 will simply conduct a cursory review of the terms of the parties’ settlement for the purpose
8 of resolving any glaring deficiencies before ordering the parties to send the proposal to
9 class members.”) (internal quotations and citation omitted).
10 Upon initial review, the Court finds preliminary approval of the Settlement
11 Agreement is appropriate. First, the Settlement Agreement appears to be the product of
12 serious, informed, non-collusive negotiations. As discussed, the parties reached the
13 agreement following two separate settlement conferences before the undersigned and two
14 private mediations with highly regarded neutrals, the Hon. Herbert Hoffman and Hunter
15 Hughes. ECF Nos. 52, 56; ECF No. 70-1 at 15. The parties ultimately settled by accepting
16 a mediator’s proposal made by Mr. Hughes. Id. at 15-16. Prior to settling, the parties
17 engaged in substantial investigative efforts, discovery, and motion practice. Id. at 14.
18 Plaintiffs served four sets of written discovery. ECF No. 70-2 ¶ 36. Defendants produced
19 more than 23,000 pages of documents and data regarding more than 114,000 policies. Id.
20 Defendants also served a substantial amount of discovery on Plaintiffs, and the parties had
21 to seek court assistance over discovery disputes. Id. ¶ 37. The parties also engaged in third
22 party discovery and depositions. Id. ¶ 38. The use of a mediator on four separate occasions
23 to negotiate settlement and the extensive discovery support a conclusion that Plaintiffs
24 were appropriately informed in negotiating a settlement, and that the settlement was not
25 the result of collusion or bad faith by the parties or counsel. See Bellinghausen v. Tractor
26 Supply Co., 303 F.R.D. 611, 619-20 (N.D. Cal. 2014).
27 Second, the Court finds the Settlement Agreement has no obvious deficiencies and
28 falls within the range of possible approval. With respect to the factors concerning the
1 strength of Plaintiffs’ case and the risk of continued litigation, as detailed in the Court’s
2 discussion of the adequacy requirement, Plaintiffs have provided a thorough accounting of
3 the risks inherent in continued litigation and the potential weaknesses of their case. ECF
4 No. 70-1 at 25-26. Those risks of continued litigation are especially apparent where, as
5 here, the parties settled the case only a few months before the Ninth Circuit sided with
6 Defendants’ position that causation must be shown to establish liability in cases such as
7 the one at hand. Small, 122 F.4th at 1193. The specific relief afforded to Class Members is
8 significant and weighs heavily in favor of approval. The face value of the policies that may
9 be reinstated by the Injunctive Relief Class is more than $43 billion. ECF No. 70-2 ¶ 46.
10 Policy holders in the Injunctive Relief Class will have the unusual benefit of hindsight in
11 deciding whether to reinstate their policies retroactively. They will also receive a 10%
12 discount on the premiums that will be owed if they opt for reinstatement. Id. The Damages
13 Class provides for a gross settlement amount of $80 million for policies with an aggregate
14 face amount of $467 million. Id. ¶ 47. If the policy owners had reinstated those policies,
15 however they would owe approximately $200 million for premiums. The $80 million
16 settlement amount should be measured against the $267 million net face value of those
17 policies. The gross settlement amount is therefore approximately 30% of the net face value.
18 The settlement value to both the Injunctive Relief Class and the Damages Class represents
19 a fair, reasonable, and adequate recovery for Plaintiffs and the absent class members.
20 Turning to the experience and views of counsel, Plaintiffs’ counsel have significant
21 class action experience. Nicholas & Tomasevic, LLP has more than 18 years’ experience
22 handling class actions, including trials and settlements. Id. ¶¶ 2-17. Mr. Jack Winters of
23 Winters & Associates has been involved in more than three dozen consumer class actions
24 over the last 38 years, representing both plaintiffs and defendants. ECF No. 70-4 ¶¶ 3-5.
25 His practice focuses on insurance-related cases. Id. ¶ 6. In 2023, Mr. Winters became Of
26 Counsel to Singleton Schreiber, LLP, and continuing working on the matter with the
27 assistance of other attorneys at that firm who have extensive litigation experience. Id.
28 ¶¶ 19-22. “Because the parties’ counsel are the ones most familiar with the facts of the
1 litigation, courts give ‘great weight’ to their recommendations. Therefore, plaintiffs’
2 counsel’s recommendations ‘should be given a presumption of reasonableness.’” Shannon
3 v. Sherwood Mgmt. Co., No. 19-CV-01101-BAS-JLB, 2020 WL 2394932, at *10 (S.D.
4 Cal. May 12, 2020) (citations omitted). The Court finds it appropriate to afford a
5 presumption of reasonableness to counsel’s views that the proposed Gross Settlement
6 Amount represents a fair and reasonable result for the class members.
7 Plaintiffs request an attorney fee award of 25% of the monetary relief portion of the
8 settlement, or $20,000,000. They also request reimbursement of litigation costs up to
9 $240,000. This is consistent with the Ninth Circuit’s benchmark attorney fee award of 25%
10 of the common fund in class action cases. See, e.g., Hanlon, 150 F.3d at 1029; Paul,
11 Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989). Plaintiffs’ counsel
12 provided detailed arguments in support of the requested fee award, including a discussion
13 of the risks they took in bringing the case, the extensive time, effort, and expense dedicated
14 to the case, the skill and determination shown by class counsel, the results achieved, and
15 the other cases class counsel turned down to devote to this matter. ECF No. 70-1 at 28-29;
16 Tomasevic Decl. ¶¶ 52-57; ECF No. 70-4, Winters Decl. ¶¶ 12-30. Additionally, there is
17 no “clear sailing” provision on attorney fees in the Settlement Agreement, and no reversion
18 of unawarded funds to Defendants, which might reflect collusion or a fee-driven
19 settlement. See In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 947-48 (9th Cir.
20 2011).
21 Plaintiffs have also provided an explanation for why they believe the requested
22 service awards to the named Plaintiffs are fair. Plaintiffs “have lent their names to the case,
23 thus subjecting themselves to public attention;” and they “helped draft the pleadings,
24 searched for and produced documents, participated in discovery, assisted settlement
25 efforts, and were actively engaged with counsel throughout the case.” ECF No. 70-2 ¶ 51.
26 Plaintiffs request approval of Angeion Group, LLC, to be the Settlement
27 Administrator and execute notice to the class, as discussed further below. The Court finds
28 based on the Declaration of Steven Weisbrot, ECF No. 70-5, that Angeion Group is well
1 qualified to administer the notice tasks and should be appointed Settlement Administrator.
2 Plaintiffs also request approval of ‘Thomas Sharkey, Esq., or such other qualified
3 individual who has been selected jointly by the Parties and approved by the Court to
4 adjudicate any disputes regarding entitled to relief” under the Settlement Agreement. ECF
5 No. 70-3 § 2.65. Mr. Sharkey has an excellent reputation in the San Diego legal community
6 for his skills as a lawyer and mediator, particularly in the area of insurance law. The Court
7 finds that Mr. Sharkey should be appointed as a Special Master for the purposes set forth
8 in the Settlement Agreement. If the need arises to appoint a replacement for Mr. Sharkey,
9 the Court will select one if the parties cannot reach agreement.
10 The Court is not yet in a position to gauge the reactions of class members to the
11 proposed settlement, and there is no governmental participant in the case. Accordingly,
12 based on the factors that are currently applicable to the Court’s review, the Court
13 preliminarily finds the proposed settlement fair, reasonable, and adequate under Rule
14 23(e)(2).
15 E. Class Notice
16 Rules 23(c)(2)(B) and (e)(1) generally require that a Rule 23(b)(3) settlement class
17 should receive notice in a reasonable manner, and that the notice be “the best notice that is
18 practicable under the circumstances, including individual notice to all members who can
19 be identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B); see also Amchem, 521
20 U.S. at 617. Regular mail, electronic mail, and other appropriate means should all be
21 considered. See Fed. R. Civ. P. 23(c)(2)(B). The Rule further states that the notice must
22 clearly and concisely state in plain, easily understood language:
23 (i) the nature of the action;
(ii) the definition of the class certified;
24
(iii) the class claims, issues, or defenses;
25 (iv) that a class member may enter an appearance through an attorney if the
member so desires;
26
(v) that the court will exclude from the class any member who requests
27 exclusion;
(vi) the time and manner for requesting exclusion; and
28
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
1 Fed. R. Civ. P. 23(c)(2)(B)(i)-(vii).
2 Upon review of the proposed Class Notice (Exhibits A and B to the Settlement
3 Agreement), and the additional documents explaining the guidelines for relief to the
4 Damages Class (Exhibit C) and the guidelines for relief to the Injunctive Relief Class
5 (Exhibit D), the Court finds the notice complies with all requirements of Rule 23. The
6 notices provide all of the information required by Rule 23(c)(2)(B) in plain, easily
7 understood language, and fairly apprise class members of the terms of the settlement, the
8 options open to dissenting class members, and the methods by which reinstatement will
9 proceed or their damages will be calculated.1
10 As for the manner of notice, the Settlement Agreement provides that Defendants will
11 deliver the Class list to the Settlement Administrator within 30 days after the Court grants
12 preliminary approval of the settlement. ECF No. 70-3 § 7.1. The Settlement Administrator
13 will mail the within 60 days thereafter. Id. § 7.2. Before mailing the Class Notice, the
14 Administrator shall update the class member addresses using the National Change of
15 Address database. Id. § 7.2.2. If any Class Notice is returned as undeliverable, the
16 Settlement Administrator will take reasonable steps to attempt delivery. Id. § 7.2.2. In
17 addition to notice by mail, the Settlement Administrator will engage in an advertising
18 campaign via internet and social media and print publications. ECF No. 70-5 ¶¶ 23-34.
19 The Settlement Administrator will create and maintain a settlement website with
20 information about the case, including “information regarding the nature of Action, a
21 summary of the substance of the Settlement, a copy of [the Settlement] Agreement, the
22 Class definition, the procedure and time period to request exclusion from and/or object to
23 the Settlement, and the date set for the Final Approval Hearing.” Id. § 7.3. The settlement
24 website will also include the Claim Form and Request for Reinstatement Form. Id. The
25 Settlement Administrator will also provide telephone support for Class Members. Id. § 7.4.
26
27
1 The Court notes two typographical errors in the long form notice that need to be corrected:
28 1) on page 5, “Relieve” should read “Relief; and 2) on page 12, the heading for Question
1 The Settlement Administrator will be responsible for reviewing all Claim Forms
2 submitted by the Damages Class and Reinstatement Request Forms submitted by the
3 Injunctive Relief Class and determining whether they are timely and complete. ECF
4 No. 70-3 § 8.3. The Settlement Administrator will take steps to resolve any incomplete or
5 deficient claims. Id. § 8.3. The Settlement Administrator will maintain thorough records
6 and report to the parties on the status of claims and requests for reinstatement. Id. §§ 7.5,
7 8.5.
8 The Court finds the parties’ proposed notice and means of delivery of the notice to
9 the class members constitutes “the best notice that is practicable under the circumstances,
10 including individual notice to all members who can be identified through reasonable
11 effort.” Fed. R. Civ. P. 23(c)(2)(B). Therefore, the Court approves the Class Notice and the
12 notice plan set forth in the Settlement Agreement and the Weisbrot Declaration, ECF
13 No. 70-5.
14 F. CONCLUSION AND ORDER
15 1. The Court GRANTS preliminary approval of the Settlement and the
16 Settlement Class based upon the terms set forth in the Settlement Agreement filed as an
17 Exhibit to the Motion for Preliminary Approval. All terms herein shall have the same
18 meaning as defined in the Settlement Agreement. This action is provisionally certified
19 pursuant to Rule 23 of the Federal Rules of Civil Procedure as a class action for purposes
20 of settlement only with respect to the proposed Settlement Class. The Court has determined
21 only that there is sufficient evidence to support a preliminary finding that the proposed
22 settlement is fair, adequate, and reasonable. The Court will make a definitive determination
23 at the hearing on the motion for final approval of class action settlement (the “Final
24 Approval Hearing”) as to whether the Settlement Agreement is fair, adequate and
25 reasonable.
26 2. For purposes of this Settlement Agreement and this Preliminary Approval
27 Order only, the Court hereby certifies a class of Class Members as described in the
28 Settlement Agreement, specifically: “all owners and beneficiaries (where the Insured has
1 died as of the date of the Preliminary Approval Order) of Class Policies,” where “Class
2 Policy”, or the plural thereof refers to:
3 an individual life insurance policy issued or delivered in California by
4 Protective that was not affirmatively canceled or terminated in writing by the
Policy Owner and that: (i) lapsed or terminated for nonpayment of premium
5 on or after January 1, 2013 without Protective first providing all the
6 protections required by California Insurance Code Sections 10113.71 and
10113.72; and (ii) has a Maturity Date that did not expire prior to the Insured’s
7 death, or if the Insured is still living, prior to the date of the Preliminary
8 Approval Order.
9 3. Class Members generally fall into one of two categories, depending on
10 whether the insured(s) under the relevant policy is still alive (the “Injunctive Relief Class”),
11 or whether the insured(s) has died, thus potentially entitling the policy beneficiaries to
12 death benefits (the “Damages Class”). The former are entitled to Injunctive Relief only
13 under the terms of the Settlement, and they and their claims are hereby certified on a non-
14 opt-out basis under Rule 23(b)(2) of the Federal Rules of Civil Procedure. The Damages
15 Class and claims, however, which includes potential damages relief under the Settlement,
16 are hereby certified with opt-out rights, pursuant to Federal Rule of Civil Procedure
17 23(b)(3).
18 4. For purposes of the Settlement Agreement and this Preliminary Approval
19 Order, the “Settlement Class” means all members of: a) the Injunctive Relief Class, and
20 b) the Damages Class. The “Injunctive Relief Class” means all living Policy Owners of
21 any Class Policy (or if the Policy Owner of a Class Policy is deceased, that Policy Owner’s
22 successor in interest) where the Insured is alive as of the date the Court enters this
23 Preliminary Approval Order. The “Damages Class” means all persons associated with any
24 Class Policy where the Insured is deceased as of the date this Order is entered who do not
25 submit a timely and valid Request for Exclusion to the Settlement Administrator pursuant
26 to the terms of the Settlement Agreement.
27 5. For purposes of the Settlement Agreement and this Preliminary Approval
28 Order—including the Class definition—“Protective” refers to Defendant Protective Life
1 Insurance Company, a Tennessee Corporation (“PLICO”), and the following companies
2 but only to the extent PLICO was financially responsible for the payment of benefits on
3 policies issued by these companies as of the Final Lapse Date of each Class Policy (e.g.,
4 as a co-insurer, re-insurer, or successor insurer): West Coast Life Insurance Company;
5 Protective Life and Annuity Company; Athene Annuity & Life Assurance Company;
6 Reliance Standard Life Insurance Company; Standard Insurance Company; Voya Life
7 Insurance Company; Aetna Life Insurance Company; Anthem Life Insurance Company;
8 American General Life Insurance Company; Jefferson National Life Insurance Company;
9 John Hancock Life Insurance Company; MONY Life Insurance Company; MONY Life
10 Insurance Company of America; MONY Life Insurance Company of Boston; Great-West
11 Life & Annuity Insurance Company; Commonwealth Annuity and Life Insurance
12 Company; Everence Association Inc.; Equitable Financial Life Insurance Company of
13 America; First Variable Life Insurance Company; Humana Dental Insurance Company;
14 Nationwide Life Insurance Company; Optum Insurance of Ohio, Inc.; Sunset Life
15 Insurance Company of America; Unum Life Insurance Company of America; Lincoln
16 National Life Insurance Company; and Zurich American Life Insurance Company.
17 6. The Court approves, as to form and content, the Class Notice in substantially
18 the form attached as Exhibits A and B to the Settlement Agreement. The Court finds that
19 the methods selected for communicating the preliminary approval of the Settlement
20 Agreement to Class Members is the best notice practicable under the circumstances,
21 constitutes due and sufficient notice to all persons entitled to notice, and therefore satisfies
22 due process.
23 7. The Parties are hereby directed to comply with the data exchanges and notice
24 and administration plan as described in the Settlement Agreement.
25
26
27
28
1 8. The Court sets the following deadlines:
2 Deadline Event
3 On or before Defendants shall provide the Settlement Administrator with the names
4 May 22, 2025 and last known addresses of all known or suspected Settlement Class
5 Members associated with each Class Policy.
6 On or before The Settlement Administrator will send Class Notice to all Settlement
7 July 21, 2025 Class Members in the manner set forth in the Settlement Agreement
8 and execute the advertising campaign described in the Weisbrot
9 Declaration.
10 On or before Class Counsel shall file a Motion for Approval of Attorney Fees,
11 August 11, 2025 Costs, and Service Payments for the named plaintiffs. The Motion and
12 all supporting documents shall be posted to the settlement website so
13 that Class Members have the opportunity to review it before the
14 deadline to object to or opt out of the settlement.
15 September 19, Last day for any Settlement Class Member to submit a Claim Form or
16 2025 Reinstatement Request Form
17 September 19, Last day for any Damages Class Member to submit a Request for
18 2025 Exclusion to the Settlement Administrator via email, First Class Mail,
19 or the Settlement Website (pursuant to the Settlement Agreement and
20 its Exhibits). The Request for Exclusion must be signed by the
21 Damages Class Member and include the following: (i) the Class
22 Member’s name, address, email address (if any), and telephone
23 number; (ii) a clear statement that the Class Member wishes to be
24 excluded from the Damages Class; (iii) a certified copy of the
25 Insured’s death certificate; (iv) due proof of that Class Member’s
26 status as a beneficiary of a Class Policy as of the Final Lapse Date;
27 and (v) if represented by legal counsel, the name, address, email
28 address, and telephone number of that legal counsel. The Request for
1 Exclusion must be electronically submitted to the Settlement
2 Administrator or post-marked (if submitted via mail) on or before the
3 Opt-Out Deadline.
4 September 19, Last day for any Settlement Class Member to submit an objection to
5 2025 the Settlement. Only Settlement Class Members may object to the
6 Settlement Agreement, including contesting the fairness of the
7 Settlement Agreement, and/or amounts requested to be paid from the
8 Settlement Fund, including attorney fees, litigation costs,
9 administration costs, and amounts reserved for costs of the Special
10 Master. Any Settlement Class Member who wishes to object to any
11 term of the Settlement Agreement shall provide the Settlement
12 Administrator with a letter or other document clearly identifying who
13 the objecting Class Member is (along with their contact information),
14 clearly stating the Class Member’s intent to object to the Agreement
15 and rationales for the objection(s), and stating whether the Class
16 Member intends to appear at the Fairness Hearing for purposes of
17 objecting. All written objections must be either postmarked and
18 mailed via First-Class mail or electronically submitted to the
19 Settlement Administrator.
20 On or before Class Counsel shall file with the Court all written objections that were
21 October 6, 2025 timely submitted to the Settlement Administrator. If any untimely
22 written objections are submitted after the deadline, Class Counsel
23 shall file a list of such untimely objection notices with the Court that
24 shall include the name of the submitting Class Member and the date
25 the untimely objection was postmarked or otherwise submitted to the
26 Settlement Administrator.
27 On or before The Settlement Administrator will provide a signed declaration
28 October 6, 2025 suitable to Class Counsel and Defendants’ counsel for filing in Court
1 attesting to its due diligence and compliance with all of its obligations
2 under the Settlement Agreement.
3 On or before Class Counsel shall file a Motion for Final Approval of the Settlement.
4 October 10, The Motion and all supporting documents shall be posted to the
5 2025 settlement website. Class counsel must give notice to any objecting
6 party of any continuance of the hearing of the motion for final
7 approval.
8
9 9. Injunctive Relief Class Members are bound by the Settlement Agreement and
10 may not opt out, although they may object to the Settlement according to the terms of this
11 Order and the Settlement Agreement.
12 10. Every Damages Class Member who does not submit a timely and valid
13 Request for Exclusion is deemed to be entitled to all benefits and bound by all terms and
14 conditions of the Settlement, including the Releases under Paragraphs 12–14 of the
15 Settlement Agreement, regardless of whether the Participating Class Member actually
16 receives the Class Notice or objects to the Settlement.
17 11. Every Damages Class Member who submits a valid and timely Request for
18 Exclusion is not considered to be a Settlement Class Member and will not receive any
19 payments under the Settlement Agreement or have the right to object to the Settlement
20 Agreement.
21 12. The Court appoints, for settlement purposes only, Craig Nicholas and Alex
22 Tomasevic of Nicholas & Tomasevic, LLP; Jack B. Winters and Sarah Ball of Winters &
23 Associates; and Michelle Myers of Singleton Schreiber, LLP as Class Counsel for all Class
24 Members. The Court preliminarily approves Class Counsel’s request for attorney fees and
25 litigation costs, subject to final review and approval by the Court.
26 13. The Court appoints, for settlement purposes only, Cristin Morneau and Keir
27 Milan as the Class Representatives. The Court preliminarily approves the requested service
28 payments of $10,000 to each Class Representative, subject to final review and approval by
1 the Court.
2 14. The Court appoints Angeion Group, LLC as the Settlement Administrator to
3 conduct all Class notice and administration activities contemplated by the Settlement
4 Agreement. The Court preliminarily approves the estimated Settlement Administration
5 Expenses for Angeion’s work, subject to final review and approval by the Court.
6 15. The Court appoints neutral Thomas Sharkey, Esq., of Judicate West, as
7 contemplated by the Settlement, to adjudicate any disputes regarding entitlement to relief
8 pursuant to the Settlement Agreement, including, but not limited to, any disputes regarding
9 the Discounted Reinstatement Amount, and Settlement Administrator’s determinations
10 regarding (i) whether a Claimant qualifies as an Authorized Claimant; (ii) the amount an
11 Authorized Claimant is entitled to receive from the Class Benefit Fund; (iii) whether a
12 Requestor qualifies as an Authorized Requestor; and (iv) whether a Policy Owner
13 affirmatively canceled or terminated a policy in writing.
14 16. A Final Approval Hearing shall be held on October 24, 2025 at 2:00 p.m. in
15 Courtroom 2C of the United States District Court, Southern District of California, located
16 at the Edward J. Schwartz United States Courthouse, 221 West Broadway, San Diego, CA
17 92101 to consider the fairness, adequacy and reasonableness of the proposed Settlement
18 preliminarily approved by this Order, including without limitation, ruling on any objections
19 to the Settlement; Class Counsel’s petitions for (i) an award of attorney fees and costs; (ii)
20 approval of service payments to Class Representatives; (iii) approval for payment of the
21 Settlement Administration Expenses incurred to date; and (iv) approval for payment of the
22 Special Master’s expenses incurred to date, all of which, if approved, shall be paid from
23 the Settlement Fund. Any person planning to attend the hearing should confirm upon
24 arrival at the courthouse that the courtroom where the hearing will take place has not
25 changed. That information is available on the first floor of the courthouse and on the
26 Court’s website.
27 17. If for any reason the Court does not execute and file a Final Approval Order
28 and Judgment, or if the Effective Date, as defined in the Settlement Agreement, does not
1 || occur for any reason, the proposed Settlement Agreement that is the subject of this order,
2 || and all evidence and proceedings had in connection therewith, shall be without prejudice
3 || to the status quo ante rights of the Parties to the litigation, as more specifically set forth in
4 || the Settlement Agreement.
5 18. The Court expressly reserves the right to adjourn or continue the Final
6 || Approval Hearing from time to time without further notice to members of the Class.
7 IT IS SO ORDERED.
8 || Dated: April 22, 2025
9 _AeWioenH. Kolar 1.
Honorable Allison H. Goddard
10 United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10850414. Public record. Not legal advice.