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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MINDY MYERS,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant,
DISPOSITION THEREOF IF FILED
v.
CASE NO. 1D03-0541
STATE OF FLORIDA, R. BRENT
M A G G I O , E M E R A L D
HEALTHCARE, INC., EMERALD
COAST HEALTHCARE, INC.,
CRESTVIEW INVESTMENTS, INC.,
d/b/a CREST VIEW NURSING AND
CONVALESCENT HOME, FT.
WALTON BEACH INVEST MENTS,
INC., d/b/a FT. WALTON BEACH
AND REHABILITATION CENTER,
EMERALD LANDMARK, INC., d/b/a
L A N D M A R K H E A L T H &
REHABILITATION CENTER,
EMERALD-CEDAR HILLS, INC.,
d/b/a CEDAR HILLS NURSING
CENTER, EMERALD-GOLFCREST,
INC., d/b/a GOLFCREST NURSING
HOME, EMERALD-GOLFVIEW,
INC., d/b/a GOLFVIEW NURSING
HOME, and EMERALD-SOUTHERN
PINES, INC. d/b/a SOUTHERN
PINES NURSING CENTER,
Appellees.
_____________________________/
Opinion filed January 29, 2004.

An appeal from the Circuit Court for Leon County.
P. Kevin Davey, Judge.
David L. McGee and Terrie L. Didier of Beggs & Lane, Pensacola, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, for Appellee State of Florida.
John R. Hamilton and Christi R. Adams of Foley & Lardner, Orlando, for Appellees
R. Brent Maggio, et al.
ERVIN, J.
Appellant, Mindy Myers, appeals a final judgment approving a settlement
agreement brought under the Florida False Claims Act,1 which authorizes civil actions
by individuals and the state against persons who file false claims for payment or
approval with a state agency. Myers complains that the trial court's approval failed
to take into proper consideration the requirements that settlements be fair, adequate
and reasonable.2 We agree and reverse and remand with directions for the lower court
1Sections 68.081-68.09, Fla. Stat. (2002).
2Specifically, section 68.084(2)(b) provides, in part: "[N]othing in this act shall
be construed to limit the authority of the department or the qui tam plaintiff to
compromise a claim brought in a complaint filed under this act if the court determines,
after a hearing, that the proposed settlement is fair, adequate, and reasonable under all
the circumstances."
2

to reconsider the proposed settlement in accordance with the statutory criteria.
Myers filed a qui tam action3 for damages and civil penalties against appellees,
R. Brent Maggio and numerous nursing homes he owns and manages, alleging
fraudulent practices in violation of the False Claims Act. While the proceeding was
pending, appellee, the State of Florida, intervened pursuant to section 68.083(6)(a),
filing a complaint seeking damages and civil penalties arising from false claims and
reports submitted to the Medicaid program for nursing home services and for care to
persons in certain nursing homes.
After the trial court had granted summary judgment for Maggio on five out of
seven counts, the state and the defendants entered into a proposed settlement
agreement, and, over Myers' objection, the state thereafter moved for the court's
approval of it. At the hearing conducted on the motion, Myers presented evidence
showing that the proposed settlement failed to comply with the statutory criteria of
reasonableness, etc. The lower court, in approving the agreement, never determined
whether the stipulation was reasonable, because it concluded only that the settlement
had not been obtained through fraud. This was error.
3A qui tam (Latin for "who as well") action is filed under a statute that allows
a private person to sue for a penalty, part of which the government will receive. See
Black's Law Dictionary 1262 (7th ed. 1999).
3

Initially, we observe that our review standard is de novo, because this appeal
involves essentially an issue regarding the correct interpretation of a statute. Section
68.084(2)(b) is modeled after 31 U.S.C. � 3730(c)(2)(B), which also requires that a
proposed settlement agreement be "fair, adequate, and reasonable under all the
circumstances." We have uncovered no case law in Florida construing subsection
68.084(2)(b), nor have we found federal cases interpreting the parallel provision. We
have thus found it useful to consider federal case law wherein courts have construed
Federal Rule of Civil Procedure 23(e), which permits settlements of class actions with
court approval, as similarly requiring trial courts to determine whether a proposed
settlement agreement is fair, adequate and reasonable.4 See Officers for Justice v.
Civil Service Comm'n, 688 F.2d 615, 625 (9th Cir. 1982). In making such
determination, courts have assessed a multiplicity of factors in cases we find to be
highly persuasive in reaching our own construction of the Florida statute. Cf. Bennett
v. Behrings Corp., 737 F.2d 982, 986 (11th Cir. 1984) (approving six components for
determining whether a settlement is fair, adequate and reasonable, i.e., (1) the
likelihood of success at trial; (2) the range of possible recovery; (3) the point over or
4Rule 23(e) was amended to provide, after December 1, 2003: "The court may
approve a settlement, voluntary dismissal, or compromise that would bind class
members only after a hearing and on finding that the settlement, voluntary dismissal,
or compromise is fair, reasonable, and adequate."
4

below the range of possible recovery at which a settlement is fair, adequate, and
reasonable; (4) the complexity, expense and duration of the litigation; (5) the
substance and amount of opposition to the settlement; and (6) the stage of the
proceedings at which the settlement was achieved); Girsh v. Jepson, 521 F.2d 153,
157 (3d Cir. 1975) (recommending the following nine factors: (1) the complexity and
duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage
of the proceedings; (4) the risks of establishing liability; (5) the risks of establishing
damages; (6) the risks of maintaining a class action; (7) the ability of the defendants
to withstand a greater judgment; (8) the range of reasonableness of the settlement in
light of the best recovery; and (9) the range of reasonableness of the settlement in light
of all the attendant risks of litigation). See also Officers for Justice, 688 F.2d at 625
(suggesting eight factors).
Because the court below, in its order of approval, appears to have considered
only that the agreement was not tainted by fraud, it did not decide whether the criteria
demanded by section 68.084(2)(b) had been satisfied. In our judgment, the statute
clearly requires a more thorough review than that given the agreement by the trial
court. The final judgment of approval is therefore reversed, and the case is remanded
for the court to evaluate explicitly whether "the proposed settlement is fair, adequate,
5

and reasonable under all the circumstances." The court may, in its discretion, conduct
another hearing and consider additional evidence in making such determination.5
REVERSED and REMANDED.
BARFIELD and POLSTON, JJ., CONCUR.
5In reaching our decision, we have not overlooked appellees' argument that this
court lacks jurisdiction over the appeal because, after the settlement agreement was
proposed and before the entry of the judgment of approval, the state had filed a notice
of voluntary dismissal of the case with prejudice, and, as a consequence, the lower
court lacked jurisdiction to enter its order. The state previously raised the same
argument in its motion to dismiss the appeal, and another panel of the court rejected
the argument. We see no reason to disturb that ruling.
6

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