Barr, et al v. Qwest Comm Intl Inc, et al

Filing 144

ORDER Certifying Settlement Class, Preliminarily Approving Class-Action Settlement, and Approving Form and Manner of Notice by Chief Judge Wiley Y. Daniel on 04/20/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 01-cv-00748-WYD-KLM
ROBERT C. BARR and BARBARA S. BARR,
LAMMCO PROPERTIES, LTD., a Colorado corporation,
KENNETH J. SCHWEIZER and ARLENE J. SCHWEIZER,
VINCENT J. POTESTIO and CAROL A. POTESTIO, and
ORIN LOOS, for themselves and on behalf of all others similarly situated,
Plaintiffs,
v.
QWEST COMMUNICATIONS COMPANY, LLC, a Delaware limited liability company,
SPRINT COMMUNICATIONS COMPANY L.P., a Delaware limited partnership,
LEVEL 3 COMMUNICATIONS, LLC, a Delaware limited liability company, and
WILTEL COMMUNICATIONS, LLC, a Delaware limited liability company,
Defendants.

ORDER CERTIFYING SETTLEMENT CLASS,
PRELIMINARILY APPROVING CLASS-ACTION SETTLEMENT,
AND APPROVING FORM AND MANNER OF NOTICE
THIS MATTER comes before the Court on the Joint Motion for Certification of
Settlement Class, Preliminary Approval of Class-Action Settlement, and Approval of
Form and Manner of Notice (ECF No. 138). Counsel for Plaintiffs and Defendants 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 Colorado Class Settlement Agreement (the “Settlement
Agreement”); and (3) approving forms and a program for class notice. Terms
capitalized herein and not defined shall have the meanings ascribed to them in the

Settlement Agreement. The Court has reviewed and considered all papers filed in
connection with the motion, including the Settlement Agreement, and all exhibits
annexed thereto, and has heard the presentations of counsel appearing with respect
thereto. On the basis thereof, and on all of the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT the Joint Motion for Certification of Settlement
Class, Preliminary Approval of Class-Action Settlement, and Approval of Form and
Manner of Notice (ECF No. 138) is GRANTED as follows:
1.

This Court has jurisdiction over the subject matter of this Action and

jurisdiction over the Parties.
2.

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-ofWay 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.
3.

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:
a.

The Settlement Class is so numerous that joinder of all members is

impracticable;

-2-

b.

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
Systems;
c.

The claims of the Colorado Class Representatives, Lammco

Properties, Ltd., Vincent J. and Carol J. Potestio, Kenneth J. and Arlene J. Schweizer,
Robert C. and Barbara S. Barr, and Orin Loos are typical of the claims of the Settlement
Class members.
d.

The Colorado Class Representatives, represented by counsel

experienced in complex litigation, will fairly and adequately protect the interests of the
Settlement Class.
4.

In light of the agreement to settle the Action and the resulting elimination

of individual issues that Defendants contend 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).
5.

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.

-3-

6.

Lammco Properties, Ltd., Vincent J. and Carol J. Potestio, Kenneth J. and

Arlene J. Schweizer, Robert C. and Barbara S. Barr, and Orin Loos are hereby
designated as the Class Representatives for the Settlement Class.
7.

The following counsel are designated and authorized to act as Settlement

Class Counsel:

Nels Ackerson
ACKERSON KAUFFMAN FEX, P.C.
1701 K Street, NW, Suite 1050
Washington, DC 20006

Henry J. Price
PRICE, WAICUKAUSKI & RILEY, LLC
301 Massachusetts Avenue
Indianapolis, IN 46204

Kathleen C. Kauffman
ACKERSON KAUFFMAN FEX, P.C.
1701 K Street, NW, Suite 1050
Washington, DC 20006

Dan Millea
ZELLE HOFMANN, VOELBEL & MASON LLP
500 Washington Avenue South, Suite
4000
Minneapolis, MN 55415

Irwin B. Levin
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204
Scott D. Gilchrist
COHEN & MALAD, LLP
One Indiana Square, Suite 1400
Indianapolis, IN 46204

8.

Andrew W. Cohen
KOONZ, MCKENNEY, JOHNSON,
DEPAOLIS & LIGHTFOOT, L.L.P.
2001 Pennsylvania Avenue, N.W. , Suite
450
Washington, DC 20006
Charles W. Lilley
CHARLES LILLEY & ASSOCIATES PC
730 17th Street, Suite 670
Denver, CO 80202

The terms and conditions set forth in the Settlement Agreement, including

the provision for substantial cash payments to be made by Defendants 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

-4-

appropriate further consideration at a hearing held pursuant to notice to the Settlement
Class. The 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 triggered.
9.

A hearing (the “Fairness Hearing”) shall be held on December 19,

2012 at 9:00 a.m. before the undersigned in Courtroom A1002, Alfred A. Arraj
United States Courthouse, Room A105, 901 19th Street, Denver, Colorado 80294-3589.
The date of the Fairness Hearing will be included in the Notice and Summary Notice.
The purpose 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.
10.

The Court appoints Rust Consulting, Inc., of Minneapolis, Minnesota, to

serve as Claims Administrator.
11.

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

-5-

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.
12.

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. The
Claims Administrator also shall mail copies of the Notice to any other potential Class
Members that request copies or that otherwise come to its attention.
13.

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 April 13,
2012.
14.

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.
15.

Prior to the Fairness Hearing, counsel for Defendants 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

-6-

Summary Notice has been accomplished in accordance with the provisions of
paragraphs 12 and 13 above.
16.

Members of the Settlement Class who wish to exclude themselves from

the Class must request exclusion within forty-five (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. Class 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.
17.

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 Agreement. 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.

-7-

18.

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 Notice. 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 forty-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:
Alfred A. Arraj United States Courthouse
Room A105
901 19th Street
Denver, Colorado 80294-3589
and served on the following representative of Settlement Class Counsel:
Fiber Optic Class Counsel
P.O. Box 441711
Indianapolis, IN 46244
and on the following representative of the Settling Defendants:

-8-

Emmett Logan
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 manner specified above
will be deemed to have waived any such objection.
19.

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.
20.

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 Classes for settlement purposes will be vacated,
and the steps and actions 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.

-9-

21.

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 Colorado 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.
22.

The court retains jurisdiction over this action, the Parties, and all matters

relating to the Settlement Agreement.
Dated: April 20, 2012.
BY THE COURT:

s\ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

-10-