Preview
INDEX NO. 600508/2006
(FILED: NEW YORK COUNTY CLERK 0871872010)
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/18/2010
SUPREME COURT OF THE STATE OF NEW YORK.
NEW YORK COUNTY
WILLIAM HARVEY, on behalf of himself
and others similarly situated, Index Nos. 600663/04 and 600508/06
Plaintiffs,
-against-
METROPOLITAN LIFE INSURANCE
COMPANY,
Defendant.
nena enna nec ee eee cece econ eee ec ec ee ence centr en enn eee eno e
STIPULATION OF FACTS IN SUPPORT OF CONDITIONAL
CLASS CERTIFICATION FOR SETTLEMENT PURPOSES ONLY
Plaintiff William Harvey, in his individual and representative capacity, and defendant
Metropolitan Life Insurance Company, by and through their respective counsel, hereby stipulate
to the following facts for purposes of conditionally certifying this case as a class action for
settlement purposes only:
1 INTRODUCTION
A The parties have entered into a Stipulation and Agreement of Compromise and
Settlement (“Stipulation”), the terms and definitions of which are fully incorporated herein.
B The proposed settlement Class consists of all persons or entities who belong to
either the Reimbursement Sub-Class or the Notice Sub-Class, as defined in the Stipulation.
Specifically, the Reimbursement Sub-Class consists of all persons who, during the Class Period
and after the youngest insured child reached age 25, owned and paid premiums or incurred cost
of insurance charges for the Children’s Term Insurance Benefit Rider included with the Policy.
The Notice Sub-Class consists of all persons who, during the Class Period, (i) owned a Policy
MEI 1043021 6v.5
with a Rider and, as of the Settlement Date, the Policy and Rider were in force and have been for
at least seven (7) years and (ii) are not members of the Reimbursement Sub-Class.
Cc. A class may be conditionally certified for settlement purposes only, as long as the
class meets the prerequisites set forth in CPLR 901 and 902, See Klein y. Robert’s American
Gourmet Food, Inc., 28 A.D.3d 63, 70 (2d Dep’t 2006); Denney vy. Deutsche Bank Ag, 443 F.3d
253, 270 (2d Cir. 2006); CPLR 902 (“An order under this section may be conditional”). MetLife
retains all rights to assert that this Action may not be certified as a class action except for
settlement purposes.
Il. FACTS RELATING TO THE ISSUE OF NUMEROSITY
A Given the nature of the Reimbursement Sub-Class, the parties are unable to
ascertain the identity of a Class member unless and until the Class member identifies him or
herself. See Denney, 443 F.3d at 269. This is because, due to the terms of coverage under the
Rider, covered children may not necessarily be identified in a Policy’s application or in other
records of MetLife because there is no obligation for Policy owners to notify MetLife when a child
becomes a covered child after issue of the Policy and Rider, Therefore, neither MetLife nor
Plaintiff possesses conclusive information as to which Policy owners’ children (by birth, adoption
or marriage) have all exceeded age 25 and whether such Policy owners anticipate any future
covered children.
B Nevertheless, through extensive sampling of Policy owners undertaken by the
Parties with the assistance of their experts, the Parties have prepared estimates that include an
estimate that approximately 12% of a database of 201,000 individuals (or approximately 24,120
individuals) who owned Policies during the Class Period would fall within the definition of the
Reimbursement Sub-Class and the remainder would fall within the definition of the Notice Sub-
Class. Thus, Plaintiffs assert the Class is so numerous that joinder of all Class members is
2
ME] 10430216v.5
impracticable. For purposes of the conditional certification of a class for settlement purposes only,
MetLife does not contest this assertion.
TL. FACTS RELATING TO THE ISSUES OF COMMONALITY AND
PREDOMINANCE
A. Plaintiff's sole cause of action is the alleged violation of GBL § 349.
B To maintain a cause of action under GBL § 349, a plaintiff need not prove
individual reliance or state of mind.
Cc Plaintiff asserts that GBL § 349 applies to Class members residing both inside and
outside of New York State because the alleged deceptive conduct is not the sale of the Rider, but
rather the collection of premiums after the Class member’s youngest child reaches age 25. The
Appellate Division confirmed that Plaintiff's theory provided the basis for a proper claim under
GBL § 349. Harvey v. Metropolitan Life Insurance Company, 34 A.D.3d 364, 827 N.Y.S.2d 6 (1
Dep’t 2006) (Bunn Affirmation, Ex. D).
D The Company collects premiums and charges for Riders through processes that
are applicable to all of the Company’s Policy owners, regardless of the Policy owner’s state of
residence. In this respect, the case differs from a point-of-sale misrepresentation case, such as
G oshen v. Mutual Life Ins. Co., 98 N.Y.2d 314 (2002).
E, Accordingly, plaintiff asserts that common questions of law and fact predominate
over any questions affecting only individual Class members. See Morrissey v. Nextel Partners
Inc., 72 A.D.3d 209 (3 Dep’t 2010) (GBL 349 class met commonality requirement where allegedly
deceptive conduct was common to all class members and “the particular damages suffered by each
class member can be easily computed”). For purposes of the conditional certification of a class for
settlement purposes only, MetLife does not contest this assertion.
MEL 104302 16y.5
Iv. FACTS RELATING TO THE ISSUE OF TYPICALITY
A Plaintiff incurred charges for the Rider after his youngest child, Tara, reached age
25. Because Tara had reached age 25, she no longer was covered under the terms of the Rider.
Nevertheless, the accumulation fund in his Policy continued to be charged for the Rider even
though Plaintiff then had no covered children.
B Accordingly, Plaintiff asserts that his claims are typical of the claims of the Class
he secks to represent. For purposes of the conditional certification of a class for settlement
purposes only, MetLife does not contest this assertion.
v. FACTS RELATING TO THE ISSUE OF ADEQUATE REPRESENTATION
A Plaintiff brought this Action and has persevered through six years of litigation and
prolonged arms-length negotiations.
B Plaintiff and his counsel have borne the costs of this litigation and have
successfully defended Plaintiffs claims through motion practice in both the New York Supreme
Court and the Appellate Division.
Cc According to his Affirmation dated June 28, 2010, before commencing this
Action and throughout the pendency of the Action, Plaintiff's counsel conducted a thorough
examination and evaluation of the relevant law and facts to assess the merits of the claims and
potential claims and to determine how best to serve the interests of Plaintiff and the Class. In the
course of the examination, Plaintiff's counsel reviewed voluminous documents produced by the
Company, including several spreadsheets containing data pertaining to more than 40,000 policies
issued by MetLife, served and responded to written discovery requests, deposed one retired
Company officer and defended the Company’s deposition of Plaintiff, and conducted other
informal discovery of the Company. In addition, Plaintiffs counsel retained and consulted with
experts concerning the discovery conducted in this matter, the merits of Plaintiffs claims, the
4
MEI 10430216v.S
defenses raised by MetLife, and the potential settlement of this Action. MetLife does not contest
these assertions.
D Accordingly, Plaintiff asserts that he and his counsel have fairly and adequately
represented the Class in connection with this Action. For purposes of the conditional certification
of a class for settlement purposes only, MetLife does not contest this assertion.
VI. FACTS RELATING TO THE ISSUE OF SUPERIORITY
A. Based upon the discovery, investigation, and evaluation of the facts and law
relating to the matters alleged in the pleadings, Plaintiff has agreed to settle this Action pursuant to
the provisions of the Stipulation after considering, among other things: (i) the substantial benefits
available to Plaintiff and the Class under the terms of the Stipulation; (ii) the attendant risks and
uncertainty of litigation, as well as the difficulties and delays inherent in litigation; and (iii) the
desirability of consummating the Stipulation promptly to provide effective relief to Plaintiff and
the Class,
B Settlement would provide the Class members with an expedited means of
obtaining full recovery of any overpayments that have been made without causing them to incur
attorneys’ fees or experience any delay.
Cc Moreover, the claims of each Class member would be relatively small, an average
of about $100. This is far less that the costs and fees that would have to be incurred in the pursuit
of individual claims.
D Accordingly, Plaintiff asserts that (a) a class action is the superior means of
adjudicating this matter, (6) members of the Class would have little interest in individually
controlling separate actions, and (c) the pursuit of separate actions would be impracticable and
inefficient. Furthermore, because Plaintiff is a resident of the State of New York and MetLife has
its headquarters in New York, Plaintiff asserts that concentrating the litigation in this forum is
5
MEI 10430216v.5
desirable in that it can provide a forum for complete adjudication. Finally, given that the matter is
to be settled before trial, Plaintiff asserts that there are no extraordinary difficulties likely to be
encountered in the management of the proposed class action. See CPLR 902; see also Amchem
v. Windsor, 521 U.S. 591, 620 (1997) (“Confronted with arequest for settlement-only class
Prods,
certification, a district court need not.inquire whether the case, if tried,would present intractable
management problems . . . ‘for the proposal is that there be no trial.”); Bourlas v. Davis Law
Assocs., 237 F.RD. 345, 353 (E.D.N.Y. 2006). For purposes of the conditional cxtifiation ofa
class for settlement purposes only, MetLife does not contest these assertions.
STIPULATED AND AGREED: |
ROSE & ROSE, PC McCARTER & EN SH, LLP
en
By:
1a N. Rose O. Bunn
1875 ” $1, NW Suite 1150 245 Park Avenue, on Floor
‘Washington, DC 20006 New York, NY 10167
(202) 331-8555 (212) 609-6800.
Attomeys for Plaintiff Attormeys for Defendant
William Harvey Motropotiten Life Insurance Company
MEI 104302 16v.5
mov ae snpesenee
Preview
INDEX NO. 600508/2006 (FILED: NEW YORK COUNTY CLERK 0871872010) NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 08/18/2010 SUPREME COURT OF THE STATE OF NEW YORK. NEW YORK COUNTY WILLIAM HARVEY, on behalf of himself and others similarly situated, Index Nos. 600663/04 and 600508/06 Plaintiffs, -against- METROPOLITAN LIFE INSURANCE COMPANY, Defendant. nena enna nec ee eee cece econ eee ec ec ee ence centr en enn eee eno e STIPULATION OF FACTS IN SUPPORT OF CONDITIONAL CLASS CERTIFICATION FOR SETTLEMENT PURPOSES ONLY Plaintiff William Harvey, in his individual and representative capacity, and defendant Metropolitan Life Insurance Company, by and through their respective counsel, hereby stipulate to the following facts for purposes of conditionally certifying this case as a class action for settlement purposes only: 1 INTRODUCTION A The parties have entered into a Stipulation and Agreement of Compromise and Settlement (“Stipulation”), the terms and definitions of which are fully incorporated herein. B The proposed settlement Class consists of all persons or entities who belong to either the Reimbursement Sub-Class or the Notice Sub-Class, as defined in the Stipulation. Specifically, the Reimbursement Sub-Class consists of all persons who, during the Class Period and after the youngest insured child reached age 25, owned and paid premiums or incurred cost of insurance charges for the Children’s Term Insurance Benefit Rider included with the Policy. The Notice Sub-Class consists of all persons who, during the Class Period, (i) owned a Policy MEI 1043021 6v.5 with a Rider and, as of the Settlement Date, the Policy and Rider were in force and have been for at least seven (7) years and (ii) are not members of the Reimbursement Sub-Class. Cc. A class may be conditionally certified for settlement purposes only, as long as the class meets the prerequisites set forth in CPLR 901 and 902, See Klein y. Robert’s American Gourmet Food, Inc., 28 A.D.3d 63, 70 (2d Dep’t 2006); Denney vy. Deutsche Bank Ag, 443 F.3d 253, 270 (2d Cir. 2006); CPLR 902 (“An order under this section may be conditional”). MetLife retains all rights to assert that this Action may not be certified as a class action except for settlement purposes. Il. FACTS RELATING TO THE ISSUE OF NUMEROSITY A Given the nature of the Reimbursement Sub-Class, the parties are unable to ascertain the identity of a Class member unless and until the Class member identifies him or herself. See Denney, 443 F.3d at 269. This is because, due to the terms of coverage under the Rider, covered children may not necessarily be identified in a Policy’s application or in other records of MetLife because there is no obligation for Policy owners to notify MetLife when a child becomes a covered child after issue of the Policy and Rider, Therefore, neither MetLife nor Plaintiff possesses conclusive information as to which Policy owners’ children (by birth, adoption or marriage) have all exceeded age 25 and whether such Policy owners anticipate any future covered children. B Nevertheless, through extensive sampling of Policy owners undertaken by the Parties with the assistance of their experts, the Parties have prepared estimates that include an estimate that approximately 12% of a database of 201,000 individuals (or approximately 24,120 individuals) who owned Policies during the Class Period would fall within the definition of the Reimbursement Sub-Class and the remainder would fall within the definition of the Notice Sub- Class. Thus, Plaintiffs assert the Class is so numerous that joinder of all Class members is 2 ME] 10430216v.5 impracticable. For purposes of the conditional certification of a class for settlement purposes only, MetLife does not contest this assertion. TL. FACTS RELATING TO THE ISSUES OF COMMONALITY AND PREDOMINANCE A. Plaintiff's sole cause of action is the alleged violation of GBL § 349. B To maintain a cause of action under GBL § 349, a plaintiff need not prove individual reliance or state of mind. Cc Plaintiff asserts that GBL § 349 applies to Class members residing both inside and outside of New York State because the alleged deceptive conduct is not the sale of the Rider, but rather the collection of premiums after the Class member’s youngest child reaches age 25. The Appellate Division confirmed that Plaintiff's theory provided the basis for a proper claim under GBL § 349. Harvey v. Metropolitan Life Insurance Company, 34 A.D.3d 364, 827 N.Y.S.2d 6 (1 Dep’t 2006) (Bunn Affirmation, Ex. D). D The Company collects premiums and charges for Riders through processes that are applicable to all of the Company’s Policy owners, regardless of the Policy owner’s state of residence. In this respect, the case differs from a point-of-sale misrepresentation case, such as G oshen v. Mutual Life Ins. Co., 98 N.Y.2d 314 (2002). E, Accordingly, plaintiff asserts that common questions of law and fact predominate over any questions affecting only individual Class members. See Morrissey v. Nextel Partners Inc., 72 A.D.3d 209 (3 Dep’t 2010) (GBL 349 class met commonality requirement where allegedly deceptive conduct was common to all class members and “the particular damages suffered by each class member can be easily computed”). For purposes of the conditional certification of a class for settlement purposes only, MetLife does not contest this assertion. MEL 104302 16y.5 Iv. FACTS RELATING TO THE ISSUE OF TYPICALITY A Plaintiff incurred charges for the Rider after his youngest child, Tara, reached age 25. Because Tara had reached age 25, she no longer was covered under the terms of the Rider. Nevertheless, the accumulation fund in his Policy continued to be charged for the Rider even though Plaintiff then had no covered children. B Accordingly, Plaintiff asserts that his claims are typical of the claims of the Class he secks to represent. For purposes of the conditional certification of a class for settlement purposes only, MetLife does not contest this assertion. v. FACTS RELATING TO THE ISSUE OF ADEQUATE REPRESENTATION A Plaintiff brought this Action and has persevered through six years of litigation and prolonged arms-length negotiations. B Plaintiff and his counsel have borne the costs of this litigation and have successfully defended Plaintiffs claims through motion practice in both the New York Supreme Court and the Appellate Division. Cc According to his Affirmation dated June 28, 2010, before commencing this Action and throughout the pendency of the Action, Plaintiff's counsel conducted a thorough examination and evaluation of the relevant law and facts to assess the merits of the claims and potential claims and to determine how best to serve the interests of Plaintiff and the Class. In the course of the examination, Plaintiff's counsel reviewed voluminous documents produced by the Company, including several spreadsheets containing data pertaining to more than 40,000 policies issued by MetLife, served and responded to written discovery requests, deposed one retired Company officer and defended the Company’s deposition of Plaintiff, and conducted other informal discovery of the Company. In addition, Plaintiffs counsel retained and consulted with experts concerning the discovery conducted in this matter, the merits of Plaintiffs claims, the 4 MEI 10430216v.S defenses raised by MetLife, and the potential settlement of this Action. MetLife does not contest these assertions. D Accordingly, Plaintiff asserts that he and his counsel have fairly and adequately represented the Class in connection with this Action. For purposes of the conditional certification of a class for settlement purposes only, MetLife does not contest this assertion. VI. FACTS RELATING TO THE ISSUE OF SUPERIORITY A. Based upon the discovery, investigation, and evaluation of the facts and law relating to the matters alleged in the pleadings, Plaintiff has agreed to settle this Action pursuant to the provisions of the Stipulation after considering, among other things: (i) the substantial benefits available to Plaintiff and the Class under the terms of the Stipulation; (ii) the attendant risks and uncertainty of litigation, as well as the difficulties and delays inherent in litigation; and (iii) the desirability of consummating the Stipulation promptly to provide effective relief to Plaintiff and the Class, B Settlement would provide the Class members with an expedited means of obtaining full recovery of any overpayments that have been made without causing them to incur attorneys’ fees or experience any delay. Cc Moreover, the claims of each Class member would be relatively small, an average of about $100. This is far less that the costs and fees that would have to be incurred in the pursuit of individual claims. D Accordingly, Plaintiff asserts that (a) a class action is the superior means of adjudicating this matter, (6) members of the Class would have little interest in individually controlling separate actions, and (c) the pursuit of separate actions would be impracticable and inefficient. Furthermore, because Plaintiff is a resident of the State of New York and MetLife has its headquarters in New York, Plaintiff asserts that concentrating the litigation in this forum is 5 MEI 10430216v.5 desirable in that it can provide a forum for complete adjudication. Finally, given that the matter is to be settled before trial, Plaintiff asserts that there are no extraordinary difficulties likely to be encountered in the management of the proposed class action. See CPLR 902; see also Amchem v. Windsor, 521 U.S. 591, 620 (1997) (“Confronted with arequest for settlement-only class Prods, certification, a district court need not.inquire whether the case, if tried,would present intractable management problems . . . ‘for the proposal is that there be no trial.”); Bourlas v. Davis Law Assocs., 237 F.RD. 345, 353 (E.D.N.Y. 2006). For purposes of the conditional cxtifiation ofa class for settlement purposes only, MetLife does not contest these assertions. STIPULATED AND AGREED: | ROSE & ROSE, PC McCARTER & EN SH, LLP en By: 1a N. Rose O. Bunn 1875 ” $1, NW Suite 1150 245 Park Avenue, on Floor ‘Washington, DC 20006 New York, NY 10167 (202) 331-8555 (212) 609-6800. Attomeys for Plaintiff Attormeys for Defendant William Harvey Motropotiten Life Insurance Company MEI 104302 16v.5 mov ae snpesenee