THIS NOTICE IS FOR ALL PERSONS WHO PURCHASED ONE OF THE FOLLOWING DEFERRED ANNUITIES ISSUED BY NATIONAL WESTERN LIFE INSURANCE COMPANY IN WHICH THE ANNUITANT WAS AGE 65 OR OLDER ON THE DATE OF ISSUE: CONFIDENCE FLEX 45, CONFIDENCE FLEX 85, BENEFIT ASSURANCE, AND FUTURE ASSURANCE
A federal district court authorized this Notice. This is not junk mail, an advertisement or a solicitation from a lawyer
PLEASE READ THIS ENTIRE NOTICE CAREFULLY – YOUR RIGHTS MAY BE AFFECTED BY A LAWSUIT PENDING IN THIS COURT
This legal notice has been sent to you by order of the United States District Court for the Southern District of California. This Notice is sent to: (1) inform you that this action is pending before the Honorable Janis L. Sammartino, Federal Judge of the United States District Court for the Southern District of California; (2) inform you that the Court has determined that this action may proceed as a class action; (3) describe what the lawsuit is about; (4) explain how it may affect your legal rights; and (5) explain what steps you can take to either stay in the action or exclude yourself. Please read this entire notice carefully to decide what to do
What Is This Notice and Why Is It Important?
The District Court has certified this lawsuit as a class action. A class action is a lawsuit in which one or more individuals sue an individual(s), company and/or other entity on behalf of all other people who are allegedly in a similar position. Collectively, these people are referred to as a “Class” or “Class Members.” In a class action, the court resolves certain issues, legal claims and/or defenses for all Class Members, except for those who ask to be excluded
from the Class, in one lawsuit. (See page 4 for more information about excluding yourself from the Class.)
The District Court has not made any decision as to the merits of any claims or defenses of either side in the action. The sole purpose of this Notice is to inform you of the fact that this lawsuit is pending as a class action, so that you may make an informed decision about your rights as a potential Class Member.
What Is This Lawsuit About?
The representative plaintiffs brought this lawsuit against National Western Life Insurance Company (referred to as “National Western”), on behalf of themselves and all other persons age 65 and older who bought National Western deferred annuities. Plaintiffs allege that National Western conspired with a network of insurance sales agents to induce persons 65 and older to purchase annuities by means of alleged misleading statements contained in the Company’s written sales materials. Plaintiffs contend that National Western offers illusory bonuses on its deferred annuities and misrepresented that its deferred annuities have no sales charges. Plaintiffs seek monetary relief arising out of National Western’s allegedly improper conduct in connection with the marketing and sale of its annuities to senior citizens in the form of restitution, compensatory, punitive and other exemplary damages, as well as interest, legal fees and costs. The litigation also seeks injunctive relief that would require National Western to change certain of its business practices.
National Western denies the allegations in this action and denies liability to any of the plaintiffs or the Class members. National Western has asserted various legal defenses to this lawsuit. Among other things, National Western contends that the written materials used to market and sell its annuities are not misleading, and that it has completely fulfilled its various obligations to owners of the annuities as promised in the policies. More specifically, National Western contends that the bonuses in its annuities were a genuine economic benefit and were fully credited to the value of the annuity at the time of premium payment, and that its annuities did not contain any hidden or undisclosed sales charges because the full amount of the premium and bonus were credited to the value of the annuity as of the date of issuance.
On July 12, 2010, the District Court certified claims in this consolidated lawsuit for class action treatment to be prosecuted by plaintiffs George J. Miller and Marie N. Sweeney on behalf of all individuals who purchased a National Western Confidence Flex 45, Confidence Flex 85, Benefit Assurance, or Future Assurance deferred annuity in which the annuitant was 65 or older on the date of issuance of the annuity. For California residents, the purchase must have occurred on or after April 7, 2001, and on or before July 12, 2010; for non-California residents, the purchase must have occurred on or after December 22, 2001, and on or before July 12, 2010. The legal claims certified for class treatment include: (1) alleged violations of the federal Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §1961 et seq.) (“RICO”); (2) alleged violations of the California Elder Abuse statute (Cal. Welf. & Inst. Code §15610 et seq.); (3) alleged unlawful, unfair, and fraudulent business practices under California Unfair Competition Law (Cal. Bus. & Prof. Code §17200 et seq.); and (4) alleged false and misleading advertising under California False Advertising Law (Cal. Bus. & Prof. Code §17500 et seq.). The last three claims are only certified as to California residents. The District Court has not certified any other claims for class treatment.
The District Court’s order certifying the Class does not guarantee that Class Members will receive any money or benefits; that is a disputed issue and will be decided later in the lawsuit.
Please note that the District Court’s order certifying the Class may later be changed after the parties exchange evidence and the District Court rules on various legal matters. The District Court may decertify the Class at any time before the lawsuit is over. If the District Court’s order certifying the Class is not revoked later or decertified by the District Court, all orders of the District Court, whether good or bad for plaintiffs, will be binding on any Class Member who does not opt out or exclude themselves. (See page 4 for further discussion.) This includes any judgments entered by the District Court, whether or not favorable to the Class, which will be binding on all Class Members who do not exclude themselves.
How Do I Know If I Am a Class Member?
Under the District Court’s order, you are a Class Member in a nationwide class seeking relief under the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”) if you purchased one of the following National Western deferred annuities between December 22, 2001 and July 12, 2010: Confidence Flex 45, Confidence Flex 85, Benefit Assurance, or Future Assurance and where the annuitant was 65 or older on the date of issuance of the annuity.
You are a Class Member in a California state-wide class seeking relief under the California Elder Abuse statute (Cal. Welf. & Inst. Code §15610 et seq.), California Unfair Competition Law (Cal. Bus. & Prof. Code §17200 et seq.), and California False Advertising Law (Cal. Bus. & Prof. Code §17500 et seq.), if you are a California resident who purchased one of the following National Western deferred annuities between April 7, 2001 and July 12, 2010: Confidence Flex 45, Confidence Flex 85, Benefit Assurance, or Future Assurance and where the annuitant was 65 or older on the date of issuance of the annuity.
Excluded from the class are the plaintiffs and class members in Clark, et al. v. National Western Life Insurance Company, et al., Case No. BC321681 (Superior Court for the State of California for the County of Los Angeles). Also excluded from the class is any director, officer, employee or agent of National Western, as well as the immediate family members of such persons.
If you are a Class Member, you must decide to either stay in this lawsuit or exclude yourself, as described below. If you are a legal representative for a deceased’s estate or an individual who is no longer in charge of his or
her own financial matters, and you believe they fall within this definition, read this Notice carefully to decide what steps to take on their behalf.
If I am a Class Member, What Are My Options?
If you are a Class Member, you have a right to stay in the case as a Class Member or be excluded from the lawsuit. You have to decide this very soon
. You have the following options at this stage of the litigation:
Option 1. Do Nothing. Stay in the Lawsuit.
You have the right to stay in the lawsuit as a Class Member and await the outcome of the case. You do not need to do anything if you wish to remain in this lawsuit. It will cost you nothing. If you decide to stay in the lawsuit as a Class Member, you will be bound by all orders, judgments and decisions of the District Court. At the end of the case, you may receive money damages, refunds or other benefits as may be awarded as a result of a trial or settlement reached between plaintiffs and National Western or you may receive nothing.
If you stay in the case, the plaintiffs will pursue the claims and remedies on your behalf. There is no guarantee that plaintiffs will be successful with their claims and/or win the lawsuit at trial or before. Any trial court decision may also be appealed, and there is no guarantee as to the result on appeal. If the Class is awarded money or benefits, you will be notified about how to apply for your share.
The District Court has appointed plaintiffs Marie N. Sweeney and George J. Miller to be Class Representatives and provide evidence on behalf of you and other Class Members. The evidence to be presented by the named plaintiffs may vary from evidence you possess. The District Court has also appointed the following lawyers and law firms as Co-Lead Class Counsel for those Class Members who stay in the lawsuit:
|Theodore J. Pintar
||Stephen R. Basser
|Robbins Geller Rudman & Dowd LLP
||Barrack, Rodos & Bacine
|655 West Broadway, Suite 1900
||600 West Broadway, Suite 900
|San Diego, California 92101
||San Diego, California 92101
|Phone: (619) 231-1058
||Phone: (619) 230-0800
|Toll Free Number: 1 (800) 449-4900
||Fax: (619) 230-1874
|Fax: (619) 231-7423
These lawyers are experienced in handling class actions. More information is available about Co-Lead Class Counsel on their websites listed above. If you do not request exclusion, you may, if you wish, enter an appearance through an attorney of your own choosing (at your own expense) or on your own behalf.
In the event that plaintiffs are successful through trial or settlement, Co-Lead Class Counsel will seek attorneys’ fees and out-of-pocket costs, subject to District Court approval. If the District Court grants Co-Lead Class Counsel’s request, the attorneys’ fees and costs will either come from money obtained for the Class and/or will be paid separately by National Western. You will not be responsible for any fees, costs or expenses of Class Counsel relating to the prosecution of this lawsuit.
Please keep in mind that if you do nothing now and stay in the lawsuit
, you will give up your rights to sue National Western separately in another lawsuit about legal claims that are part of this lawsuit (described above), and your rights to recover in other lawsuits involving National Western may be impacted. This is true even if your annuity purchase involved unique circumstances or you have suffered unique problems like emotional distress or pain and suffering. You also may forego your right to pursue claims based on other legal theories instead of the theories being pursued in this case. If you stay in the case, you will be legally bound by all of the Orders that the District Court issues in this case, whether favorable or unfavorable to you and/or the Class, including final judgment
Option 2. Exclude Yourself from the Lawsuit.
Alternatively, you have the right to not be part of this lawsuit by excluding yourself or “opting out” of the Class. If you wish to exclude yourself, you must exclude yourself on or before March 28, 2011, as described below. If you exclude yourself from the Class, you give up your right to receive any money or other benefits awarded in this case, and you will not be bound by any judgments or other orders of the District Court whether favorable or unfavorable to you and/or the Class. However, you will keep your right to sue National Western separately in another lawsuit and bring the same legal claims as are part of this lawsuit.
If you wish to pursue this right, you will need to exclude yourself and hire and pay your own lawyer. You will also need to bring evidence to prove your own claims. If you choose this option, you should talk to a lawyer soon because your claims may be subject to a statute of limitations which sets a deadline for filing the lawsuit within a certain period of time after purchasing a deferred annuity contract with National Western.
Regardless of whether you stay in the lawsuit or exclude yourself from the Class, your existing rights under your deferred annuity contract with National Western will not be affected.
How Do I Exclude Myself from the Class?
To exclude yourself from this lawsuit, you must make a request to be excluded in writing and mail it to:
In re National Western Life Insurance Deferred Annuities Litigation
All requests for exclusion must be postmarked on or before March 28, 2011.
c/o Gilardi & Co. LLC
P.O. Box 8090
San Rafael CA 94912-8090
Your request for exclusion must
contain the information required by the enclosed form.
The Administrator will file your request for exclusion with the District Court. If you are signing on behalf of a Class Member as a legal representative (such as an estate or incompetent person), please include your full name and the basis for your authority. A form and return envelope for requesting exclusion are enclosed.
IF YOU DO NOT EXCLUDE YOURSELF BY THE DEADLINE ABOVE, YOU WILL REMAIN PART OF THE CLASS AND BE BOUND BY THE ORDERS OF THE COURT IN THIS LAWSUIT, INCLUDING FINAL JUDGMENT, WHETHER OR NOT IT IS FAVORABLE TO PLAINTIFFS AND YOU.
How Do I Find Out More About This Lawsuit?
You may also get more information on this website by:
1. Submit a form requesting additional information by clicking on Contact Us above.
2. View a copy of the Consolidated Complaint; and
3. View a copy of the District Court's Class Certification Order by clicking on Case Documents Above.
If you have any questions about the lawsuit or any matter raised in this notice, you may also call toll-free at 1-888-292-4877.
Complete copies of the documents filed in this lawsuit may be examined and copied at any time during regular office hours at the Clerk of the Court, United States District Court for the Southern District of California, located at 880 Front Street, Suite 4290, San Diego, California. This consolidated class action lawsuit is called In re National Western Life Insurance Deferred Annuities Litigation, Case No. 05-CV-1018-JLS(WVG) (S.D. Cal).
PLEASE DO NOT TELEPHONE OR CONTACT THE COURT OR THE CLERK OF THE COURT REGARDING THIS NOTICE.
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O R D E R
IT IS SO ORDERED.
DATED: February 10, 2011 THE HONORABLE JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE