United States District Court, D. Minnesota
Lesa Benacquisto, Daniel Benacquisto, Richard Thoresen, Elizabeth Thoresen, Arnold Mork, Isabella Mork, Ronald Melchert and Susan Melchert, on behalf of themselves and all others similarly situated, Plaintiffs,
American Express Financial Corporation, American Express Financial Advisors, American Centurion Life Assurance Company, American Enterprise Life Insurance Company, American Partners Life Insurance Company, IDS Life Insurance Company and IDS Life Insurance Company of New York, Defendants.
S. Doty, Judge
matter is before the court upon the motions to enforce
class-action settlement and judgment and for sanctions by
defendant Ameriprise Financial Services, Inc. Based on a review
of the file, record, and proceedings herein, and for the
following reasons, the motion is granted in part.
15, 2001, the court issued a final order and judgment in this
case, the Benacquisto Action, approving the class action
settlement and dismissing the complaint. See Chen
Aff. Ex. 1. As part of the final judgment the court
permanently enjoined, among other things,
[a]ll class Members ... from ... filing, commencing,
prosecuting, maintaining, intervening in, participating in
... any other lawsuit, arbitration, or administrative,
regulatory or other proceeding or order ... based on or
relating to the Claims and Causes of Action, or the facts and
circumstances relating thereto, in the Action and/or Release
Conduct as to that Policy or Annuity.
Id. ¶ 14. Additionally, under the terms of the
settlement, the class members agreed to release all past and
present claims “that are based upon, related to, or
connected with, directly or indirectly, in whole or in part
to the Benacquisto Action or the “released
conduct.” Id. ¶ 13(A)(1). The released
conduct includes representations, omissions, and
communications related to or connected with the sale,
administration, servicing, or performance of issued policies
or annuities. Id. ¶ 13(B)(2).
Fotheringham is a class member who is bound by the terms of
the final judgment and settlement. See ECF No. 567
at 3-4. On June 24, 2015, Fotheringham filed a complaint in
New York state court against defendants RiverSource Life
Insurance Company and Ameriprise Financial Services, Inc.
See Chen Aff. Ex. 2. He alleged that, when he bought
a life insurance policy in 1997, defendants falsely stated
that his monthly premium was $1, 200. Id. ¶ 49.
On November 10, 2015, the court enjoined Fotheringham from
pursuing the state court action because it found that his
claims arose from, or were at least related to, the same
misrepresentations in 1997 that were covered by the
settlement. See ECF No. 567 at 5-6. Pursuant to the
court's enforcement order, the New York state court
dismissed the complaint, Chen Aff. Ex. 5, and the Appellate
Division of the New York State Supreme Court affirmed.
See Fotheringham v. Riversource Life Ins. Co. of
N.Y., 148 A.D.3d 1519 (N.Y.App.Div. 2017).
December 20, 2017, Fotheringham filed a Statement of Claim
before the Financial Industry Regulatory Authority (FINRA)
alleging that Ameriprise violated various FINRA rules by (1)
recommending unsuitable investment and insurance products;
(2) failing to advise him of the increasing costs of the 1997
life insurance policy; and (3) failing to establish an
adequate supervisory system. See Chen Ex.
now moves to enforce the settlement agreement, arguing that
it precludes the FINRA claims.
Motion to Enforce Settlement
Estate argues that the settlement agreement does not preclude
its claims in the FINRA arbitration because those claims are
factually distinct from the claims covered by the settlement.
In support, the Estate points to the settlement agreement,
[n]othing in this Release shall be deemed to alter ... (ii) a
Class Member's right to assert any claim that
independently arises from acts, facts or circumstances that
occur for the first time after the last day of the Class
Period; ... or (v) a Class Member's right to assert any
claim peculiar to the Class Member that falls outside the
general categories of claims or conduct described in the
complaints in the Actions or the Release in this settlement
and is ...