Longa Revocable Trust et al v. Sprint Communications Company, L.P.
ORDER granting 12 Joint Motion to Certify Class, Preliminarily Approve Class-Action Settlement, and Approve Form and Manner of Notice. Fairness Hearing 9/10/13, 10 AM. All proceedings in this Action other than proceedings necessary to carry out the terms and provisios of the Settlement Agreement are stayed and suspended. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
James E. Longa Revocable Trust
Civil No. 11-cv-172-JD
Sprint Communications Company
ORDER CERTIFYING SETTLEMENT CLASS,
PRELIMINARILY APPROVING CLASS-ACTION SETTLEMENT,
AND APPROVING FORM AND MANNER OF NOTICE
Counsel for Plaintiffs and Defendant have moved under
Federal Rules of Civil Procedure 23(b) and (e) for an order: (1)
certifying a settlement class; (2) preliminarily approving a
class settlement on the terms and conditions set forth in the New
Hampshire Class Settlement Agreement (the “Settlement
Agreement”); and (3) approving forms and a program for class
Terms capitalized herein and not defined shall have the
meanings ascribed to them in the Settlement Agreement.
has reviewed and considered all papers filed in connection with
the motion, including the Settlement Agreement, and all exhibits
Based on the current record in this case,
IT IS HEREBY ORDERED THAT:
This Court has jurisdiction over the subject matter of
this Action and jurisdiction over the Parties.
For settlement purposes only, this action may be
maintained as a class action under Federal Rule of Civil
Procedure 23 on behalf of a class under the Settlement Agreement
(the “Settlement Class”), defined as follows:
a class comprising all Persons who own or who claim to
own, for any period of time during a Compensation
Period, any Covered Property, provided, that
“Settlement Class” or “Class” does not include: (1)
Right-of-way Providers and their predecessors,
successors, parents, subsidiaries, and affiliates, past
or present; (2) federal, state, and local governmental
entities; (3) Native American nations and tribes; or
(4) any Person who files a valid and timely exclusion
on or before the Opt-Out Deadline.
In light of the agreement to settle the Action and the
resulting elimination of individual issues that may otherwise
have precluded certification of a litigation class, the
prerequisites to class certification under Rule 23(a) are
satisfied, to wit:
The Settlement Class is so numerous that joinder
of all members is impracticable;
There are questions of law and fact common to
members of the Settlement Class, including the central question
of their right to compensation for Settling Defendants’
occupation of Rights of Way with Telecommunications Cable
The claims of the New Hampshire Class
Representatives, James E. Longa Revocable Trust and Norman Berry,
are typical of the claims of the Settlement Class members;
The New Hampshire Class Representatives,
represented by counsel experienced in complex litigation, will
fairly and adequately protect the interests of the Settlement
In light of the agreement to settle the Action and the
resulting elimination of individual issues that Defendant
contends preclude certification of a litigation class, the
questions of law and fact common to all members of the Settlement
Class predominate over questions affecting only individual
members of that Class, and certification of the Settlement Class
is superior to other available methods for the fair and efficient
resolution of this controversy, satisfying Rule 23(b)(3).
If the Settlement Agreement is not finally approved by
the Court or for any reason does not become effective, the
Settlement Class shall be decertified, all Parties’ rights to
litigate all class issues will be restored to the same extent as
if the Settlement Agreement had never been entered into, and no
Party shall assert that another Party is estopped to take any
position relating to class certification.
James E. Longa Revocable Trust and Norman Berry are
hereby designated as the Class Representatives for the Settlement
The following counsel are designated and authorized to
act as Settlement Class Counsel: Nels Ackerson and Kathleen C.
Kauffman, Ackerson Kauffman Fex P.C.; Henry J. Price, Price,
Waicukauski & Riles, LLC; Dan Millea and Eric E. Caugh, Zelle
Hofmann Voelbel & Mason LLP; Andrew W. Cohen, Koonz, McKenney,
Johnson, DePaolis & Lightfoot, LLP; Irwin B. Levin and Scott D.
Gilchrist, Cohen & Malad, LLP; and Robert A. Stein, The Stein law
The terms and conditions set forth in the Settlement
Agreement, including the provision for substantial cash payments
to be made by Defendant to Class Members who become Qualified
Claimants in return for the Release of Claims and conveyance of
Telecommunications Cable System Easement Deeds, place the
Settlement Agreement within the range of fair and reasonable
settlements, making appropriate further consideration at a
hearing held pursuant to notice to the Settlement Class.
Court therefore preliminarily approves the Settlement Agreement
and directs the parties to perform and satisfy the terms and
conditions of the Settlement Agreement that are thereby
A hearing (the “Fairness Hearing”) shall be held on
September 10, 2013, at 10:00 a.m. before the undersigned in the
Warren B. Rudman U.S. Courthouse, 55 Pleasant Street, Room 110,
Concord, New Hampshire, 03301.
The date of the Fairness Hearing
will be included in the Notice and Summary Notice.
of the Fairness Hearing will be to (a) determine whether the
proposed Settlement Agreement is fair, reasonable, and adequate,
and should be finally approved; (b) determine whether an order
and judgment should be entered dismissing the claims of the
Settlement Class Members and bringing the litigation of those
claims to a conclusion; and (c) consider other Settlement-related
matters and appropriate attorneys’ fees.
The Court may adjourn,
continue, and reconvene the Fairness Hearing pursuant to oral
announcement without further notice to the Class Members, and the
Court may consider and grant final approval of the Settlement
Agreement, with or without minor modification, and without
further notice to Class Members.
The Court appoints Rust Consulting, Inc., of
Minneapolis, Minnesota, to serve as Claims Administrator.
The Court has reviewed the Notice of Class Action,
Proposed Settlement, and Settlement Hearing (the “Notice”), and
the Summary Notice, attached to the Settlement Agreement, as
Exhibits C and D, respectively.
The Court approves as to form
the Summary Notice and the Notice.
The Court also approves the
method of directing notice to Class Members, as set forth in
paragraphs 12 and 13 below.
As soon as practical following the receipt from Data
Mapping Solutions, L.L.C. of updated Class Member identification
information, the Claims Administrator shall prepare and cause
individual copies of the Notice to be sent by United States Mail,
first class postage prepaid, to members of the Settlement Class
who currently own real property that underlies, adjoins, or
includes a Right of Way on the Cable Side.
Administrator also shall mail copies of the Notice to any other
potential Class Members that request copies or that otherwise
come to its attention.
As soon as publication schedules practically permit,
but no sooner than five (5) days after the initial mailing of the
Notice, the Claims Administrator shall cause the Summary Notice,
the content of which shall be substantially as set forth in
Exhibit D to the Settlement Agreement, to be published, as set
forth in the plan of publication contained in the Declaration of
Katherine Kinsella, which the parties filed on September 25,
The Court finds that the foregoing plan for notice to
Class Members will provide the best notice practicable under the
circumstances, and is in compliance with the requirements of Rule
23 and applicable standards of due process.
Prior to the Fairness Hearing, counsel for Defendant
and Settlement Class Counsel shall jointly file with the Court an
affidavit from a representative of the Claims Administrator
confirming that the plan for disseminating the Notice and the
Summary Notice has been accomplished in accordance with the
provisions of paragraphs 12 and 13 above.
Members of the Settlement Class who wish to exclude
themselves from the Class must request exclusion within fortyfive (45) days of the date of the initial mailing of Notice, and
in accordance with the instructions set forth in the Notice.
Class Members who do not submit timely and valid requests for
exclusion will be bound by the terms of the Settlement Agreement
in the event it is approved by the Court and becomes effective,
and by any orders and judgments subsequently entered in the
Action, whether favorable or unfavorable, regardless of whether
they submit a Claim Form to the Claims Administrator.
Members who submit timely and valid requests for exclusion will
not be bound by the terms of the Settlement Agreement or by any
orders or judgments subsequently entered in the Action, and they
may not submit a Claim Form to the Claims Administrator.
This Court finds that it has the authority under
Federal Rule of Civil Procedure 70 and as provided in the
Settlement Agreement to direct all Class Members who own a
current interest in a Qualifying Parcel and who have not
requested exclusion from a Settlement Class, regardless of
whether they file a Claim Form for Landowner Benefits, to grant a
Claims Administrator Telecommunications Cable System Easement
Deed to the Settling Defendants, as provided in the Settlement
Class Members shall be advised in the Notice and
Summary Notice of the Court’s delegation of authority to convey a
Claims Administrator Telecommunications Cable System Easement
Deed, unless they exclude themselves from the Settlement Class.
Class Members who do not request exclusion may submit
written comments on or objections to the Settlement Agreement or
other Settlement-related matters (including attorneys’ fees)
within forty-five (45) days of the date of the initial mailing of
Any Class Member who has not requested exclusion may
also attend the Fairness Hearing, in person or through counsel,
and if the Class Member has submitted written objections, may
pursue those objections.
No Class Member, however, shall be
entitled to contest the foregoing matter in writing and/or at the
Fairness Hearing unless the Class Member has served and filed by
first-class mail, postage prepaid and postmarked within forty8
five (45) days of the date of the initial mailing of Notice,
copies of the statement of objection, together with any
supporting brief and all other papers the Class Member wishes the
Court to consider (which must include the name and number of this
case), and a notice of appearance from any counsel for the Class
Member who intends to appear at the Fairness Hearing, provided,
however, that counsel is not necessary as the Class Member may
appear and personally object.
Any such objection, brief, notice
of appearance, or other related document must be filed with the
Court at the following address:
United States District Court
for the District of New Hampshire
55 Pleasant Street, Room 110
Concord, New Hampshire, 03301
and served on the following representative of Settlement Class
Fiber Optic Class Counsel
P.O. Box 441711
Indianapolis, IN 46244
and on the following representative of the Settling Defendants:
STINSON MORRISON HECKER, LLP
1201 Walnut, No. 2900
Kansas City, MO 64106-2150
Each statement of objection must identify (a) the name and
address of the Class Member, (b) the name and address of the
Class Member’s counsel, if any, and, (c) in order to confirm
Settlement Class membership, the legal description of the Class
Member’s Qualifying Parcel.
Unless otherwise directed by the
Court, any Class Member who does not submit a statement of
objection in the matter specified above will be deemed to have
waived any such objection.
During the Court’s consideration of the Settlement
Agreement and pending further order of the Court, all proceedings
in this Action, other than proceedings necessary to carry out the
terms and provisions of the Settlement Agreement, or as otherwise
directed by the Court, are hereby stayed and suspended.
If the proposed Settlement Agreement is not approved
by the Court or for any reason does not become effective, the
Settlement Agreement will be regarded as nullified, certification
of the Settlement Class for settlement purposes will be vacated,
and the steps and action taken in connection with the proposed
Settlements (including this Order (except as to this paragraph)
and any judgment entered herein) shall become void and have no
further force or effect.
In such event, the parties and their
counsel shall take such steps as may be appropriate to restore
the pre-settlement status of the litigation.
Neither the Settlement Agreement nor the provisions
contained therein, nor any negotiations, statements, or
proceedings in connection therewith shall be construed, or deemed
to be evidence of, an admission or concession on the part of any
of the New Hampshire Class Representatives, Settlement Class
Counsel, the Settling Defendants, any Class Member, or any other
person, of any liability or wrongdoing by any of them, or of any
lack of merit in their claims or defenses, or of any position on
whether any claims may or may not be certified as part of a class
action for litigation purposes.
The Court retains jurisdiction over this action, the
Parties, and all matters relating to the Settlement Agreement.
For the foregoing reasons, the parties’ joint motion for
certification of settlement class, preliminary approval of classaction settlement, and approval of form and manner of notice
(document no. 12) is granted.
Joseph A. DiClerico, Jr.
United States District Judge
October 25, 2012
Jennifer M. Geelan, Esquire
Daniel P. Luker, Esquire
Daniel J. Millea, Esquire
Robert A. Stein, Esquire