Parko et al. v. Shell Oil Company et al.

Filing 277

FINAL APPROVAL OF SETTLEMENT AND JUDGMENT. The Court GRANTS 254 Plaintiffs' Motion for Final Approval of Class Settlement, 258 Class Counsel's Motion for Award of Attorneys' Fees and Expenses, and 268 Ford Plaintiffs' Counsel's Motion for Award of Expenses from the Common Fund. This matter is DISMISSED with prejudice. The case is CLOSED. Signed by Judge Nancy J. Rosenstengel on 2/23/2018. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEANA PARKO, on behalf of herself and )
all others similarly situated,
)
)
Plaintiffs,
)
)
vs.
)
)
SHELL OIL COMPANY, EQUILON
)
ENTERPRISES, LLC d/b/a SHELL OIL
)
PRODUCTS US, CONOCOPHILLIPS
)
COMPANY, WRB REFINING LP,
)
CONOCOPHILLIPS WRB PARTNER
)
LLC, and CENOVUS GPCO LLC,
)
)
Defendants.
)

Case No. 12-CV-336-NJR-RJD

FINAL APPROVAL ORDER AND JUDGMENT
ROSENSTENGEL, District Judge:
This matter is before the Court on Plaintiffs’ Motion for Final Approval of Class
Settlement (Doc. 254), Class Counsel’s Motion for Award of Attorneys’ Fees and
Expenses from the Common Fund (Doc. 258), and the Ford Plaintiffs’ Counsel’s Motion
for Award of Expenses from the Common Fund (Doc. 268). After reviewing and
considering the Motions and all supporting documents, Defendants’ Joint Response to
Plaintiffs’ Motion for Final Approval to Class Settlement (Doc. 265), the Declarations of
Jason M. Stinehart (Rust Consulting) (Docs. 267, 272), the Objections filed by certain
Class Members (Docs. 234, 236, 237, 238, 239, 241, 247, 251-2, 251-3), the Opt Outs filed by
certain Class Members (Docs. 231, 240, 242, 244, 245, 251-1), argument of counsel, and the
testimony of two Objectors at the Final Approval Hearing held on December 18, 2017,

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and being satisfied that the Settlement Class fulfills all requirements for the certification
of a settlement class, and that the Agreements meet all applicable criteria for final
approval, the Court finds and ORDERS as follows:
All terms not defined within this Order shall have the meanings set forth in the
Master Shell Settlement Agreement (“Shell Agreement”), the Master ConocoPhillips
Settlement Agreement (“ConocoPhillips Agreement”), and the Class Settlement
Administration Agreement (“Administration Agreement”) (collectively “Agreements”),
which previously received preliminary approval from this Court by Order dated August
2, 2017 (the “Preliminary Approval Order”) (Doc. 230).
Settlement Class. The Court has considered the Parties’ submissions with regard to
the certification of a Settlement Class and has analyzed the proposed Settlement Class
pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure, and has held
two hearings concerning the same. Based on its evaluation of the submissions presented
by the Parties and the matters presented at the hearings, the Court makes the following
findings:
a. Numerosity. The Settlement Class Area consists of 183 parcels of property,
and the Settlement Class members are all persons who have owned and/or
occupied those properties from 1986 to 2017. As of December 1, 2017, the
Claims Administrator had received nearly 500 claims from Members of the
Settlement Class. The Settlement Class, therefore, consists of hundreds of
individuals and satisfies the numerosity requirement of Rule 23(a) as
joinder of such a large group would be impractical. Gomez v. Illinois State

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Bd. Of Ed., 117 F.R.D. 394, 399 (N.D. Ill. 1987); Chavez v. Don Stoltzner Mason
Contractor, Inc., 272 F.R.D. 450, 454 (N.D. Ill. 2011).
b. Commonality. There are issues of law and fact that are common to all
members of the Settlement Class, which predominate over individual
issues for settlement purposes. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 349-50 (2011) (“[c]ommonality requires the plaintiff to demonstrate
that the class members have suffered the same injury”). The common
questions here include: whether benzene was released from the Wood
River Refinery and reached the soil and groundwater of properties in the
Settlement Class Area; whether the Class Members’ properties have
suffered a diminution in property value as a result of the alleged
contamination; and whether the Class Members have suffered a loss of use
and enjoyment of their properties.
c. Typicality. The claims of the proposed Settlement Class also satisfy the
element of typicality. Rule 23(a) does not require that the claims be
identical, just that they arise out of the same legal or remedial theory.
Class Representative Jeana Parko owns property within the Settlement
Class Area and her claims arise from the same events and are based on the
same legal theories. Her claims are therefore typical of the claims of the
Class Members. See Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).
d. Adequate Representation. The Class Representative’s claims are typical of the
claims of the Settlement Class. There is no evidence that the Class

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Representative’s interests conflict in any way with the other members of
the Settlement Class. See Westefer v. Snyder, Civil Nos. 00-162-GPM,
00-708-GPM, 2006 WL 2639972 (S.D. Ill. Sept. 12, 2006). The interests of the
Class Representative and the Settlement Class Members are aligned, as
they are all seeking to recover damages for alleged contamination from the
Wood River Refinery. Further, Class Counsel are qualified and
experienced in class action litigation, and have demonstrated capability in
representing the Class Representative and the Settlement Class.
e. Superiority. Given that this is a settlement class, questions of superiority
regarding a class trial are no longer germane. Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 620 (1997) (“Confronted with a request for a
settlement-only class certification, a district court need not inquire whether
the case, if tried, would present intractable management problems … for
the proposal is that there be no trial.”). In this action, a class action
settlement is superior to other available methods for the fair and efficient
adjudication of the controversy. It would be inefficient for each Class
Member to separately prove his or her claims against Defendants in this
complex environmental contamination case. See Leib v. Rex Energy
Operating Corp., No. 06-cv-802-JPG-CJP, 2008 WL 5377792, at *11 (S.D. Ill.
Dec. 19, 2008) (“Each individual’s property damage … claim [] [is] not
likely to warrant the time and expense of hiring the necessary expert
witnesses for an individual case and pursuing it to judgment”). Moreover,

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because Class Members are receiving compensation in the face of a central
legal defense that could very well bar the claims of Class Members,
resolving this case on a class basis is clearly the superior means of
addressing these claims.
Based on the foregoing, this Court FINDS that the requirements of Federal Rule
of Civil Procedure 23(a) and 23(b)(3) have been satisfied. Accordingly, it is hereby
ORDERED that this action is certified as a class action for settlement purposes only on
behalf of the following class of claimants:
All persons who own or owned or occupy or occupied real property in the
Village of Roxana, Illinois, within the Settlement Class Area, during the
Settlement Time Period, regardless of whether or not they file a Claim
Form in accordance with the procedures set forth in the Agreements, the
Claim Form and the Class Notice, who do not timely and effectively opt
out following the procedures set forth in the Agreements. The Shell
Released Parties, the ConocoPhillips Released Parties, the Village of
Roxana, Plaintiffs’ Counsel, and the Court are specifically excluded from
the Settlement Class.
Moreover, the Settlement Class Area is defined as follows:
Those privately-owned real property parcels located in the portion of
Roxana, Illinois referred to by the IEPA as the “Study Area,” which is
defined, for purposes of the Agreements, to be the area enclosed by
commencing at the southwest corner of South Central Avenue and Rand
Avenue (the “Beginning Point”), extending north along the east side of
South Central Avenue to the south side of the alley between First Street
and East Tydeman Avenue, then extending east along the south side of the
alley to South Chaffer Avenue, then extending south to a point due east of
the Beginning Point, then extending west to the Beginning Point.
The following causes of action and requests for damages are specifically included
in this Settlement Class: negligence, trespass, nuisance, unjust enrichment, medical
monitoring, diminution in property value, loss of use and enjoyment, remediation or
clean-up costs, and any other related damages. Further, certification of this Settlement
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Class is expressly conditioned on the terms of the settlement reached by the Parties as set
forth fully in the Agreements.
For purposes of this action only, the Court makes the following findings:
a. Plaintiffs have proposed two classes in this action. The first proposed class
would have included the properties in the Village of Roxana that lie within
the Illinois EPA’s Study Area, which is above or adjacent to a benzene
plume and/or a mixed phase hydrocarbon plume (Doc. 49). The second
proposed class was defined by the area subject to a Village of Roxana
Ordinance prohibiting potable water wells (Doc. 154). This class would
have included the properties within the Illinois EPA’s Study Area and
most of the rest of the Village of Roxana. The parties have reached a
settlement in this case that defines the class differently from the two earlier
proposed classes.
b. While the parties’ experts disagree on the exact size of the benzene plume
and mixed phase hydrocarbon plume, they all agree the plumes are
contained within the Illinois EPA’s Study Area. For purposes of settlement
only, the Court finds the Settlement Class adequately and fairly
encompasses those properties situated above and adjacent to the
groundwater contamination that is the subject of this action and that may
have experienced a decrease in value as a result of the groundwater
contamination. The Court further finds that insufficient evidence has been
produced to conclude that the properties outside the Illinois EPA’s Study

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Area have been impacted by groundwater contamination or experienced a
decrease in property value as a result of groundwater contamination, and
therefore they are not included in the certified class. 1
Settlement Class Representative. For purposes of the Class Settlement, the Court
finalizes its designation of Jeana Parko as the Settlement Class Representative and finds
that she is an adequate class representative.
Settlement Class Counsel. The Court hereby finalizes its designation and approval
of the law firm of Simmons Hanly Conroy to represent the Members of the Settlement
Class as Class Counsel, and finds that they have fairly and adequately represented the
interests of the Settlement Class.
Final Approval of Settlements. The Agreements the Parties have entered into
establish the calculation of settlement payments to be made to Members of the
Settlement Class, allows Members of the Settlement Class to opt out, and is subject to
Defendants’ right to withdraw from the settlement if there are, in Defendants’ sole
discretion, an unacceptable number of opt-outs. In accordance with the terms of the
Agreements, the Shell Defendants will contribute up to a maximum of $4,480,000.00 to
the Total Class Settlement Fund and the ConocoPhillips Defendants will contribute
$350,000.00 to the Total Class Settlement Fund. The Total Class Settlement Fund will be
used to: (a) make settlement payments to Qualifying Claimants (i.e., Members of the
Settlement Class who have submitted a valid claim form and supporting documentation

1

The Court notes that any individuals or properties that would have been included in one of the prior
proposed classes, but that are excluded from the class that has now been certified, are not bound by these
findings of fact. Smith v. Bayer, 564 U.S. 299, 315 (2011) (holding that being a member of a proposed or
rejected class cannot bind nonparties, only a class action approved under Rule 23 may do so).

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to the Claims Administrator); (b) pay Class Counsel attorneys’ fees of twenty-five
percent (25%) of the Total Class Settlement Fund; (c) pay the expenses of Class Counsel
approved by the Court; (d) pay the expenses of the Ford Plaintiffs’ Counsel approved by
the Court; (e) pay the fees of the Court-appointed Neutral Arbitrator, if any; and (f) pay
other necessary expenses, if any, as approved by the Court.
Settlement payments to Qualifying Claimants are being allocated and calculated
based on a number of factors as set forth in the Agreements, such as: the period and
length of occupancy on the property; the period and length of ownership of the
property; the type of property (residential, commercial, other); if residential, the assessed
value of the property; whether the property is located within the 1Q2012 Groundwater
Contour as defined in the Agreements; and whether the ownership or occupancy of the
Member of the Settlement Class ended before March 2007.
The Court finds that the Agreements are the result of extensive arm’s length
negotiations between counsel for the Parties. Class Counsel and counsel for the
Defendants are experienced in complex litigation, including class action litigation.
The Court has considered the current posture of this litigation and the risks and
benefits to the Parties involved in both settlement of these claims and continuation of the
litigation. In particular, the Court notes the potential substantial defenses that could, if
proven, defeat any recovery by the claimants in this litigation.
Accordingly, the Court hereby GRANTS final approval of the Class Settlement,
as set forth in the Agreements.

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Notice to the Settlement Class. In the Preliminary Approval Order, the Court
approved the form and substance of the updated Class Notice, the Publication Notice,
and the Claim Form, and approved the terms on which notice to the Class Members was
to be provided. Based on the evidence presented at the Final Fairness Hearing and
otherwise to this Court, the Court finds that notice has been given to the Settlement
Class in full accordance with the Preliminary Approval Order. Further, the notice plan
adopted pursuant to the Agreements was the best notice practicable, satisfied due
process requirements, and provided Members of the Settlement Class with fair and
adequate notice of the Final Fairness Hearing and adequate information concerning the
hearing, the Agreements, the right to be excluded from the Settlement Class, the right to
object to the Settlement, and the right of Class Counsel to apply for an award of
attorneys’ fees and expenses. The notice provided contact information for the Claims
Administrator and Class Counsel in case any class member needed further information.
The Claims Administrator and Class Counsel in fact provided further information to all
Members of the Settlement Class who sought such information. The Claims
Administrator, Rust Consulting, timely mailed the Class Notice in accordance with this
Court’s Preliminary Approval Order. The Publication Notice appeared in the required
three media outlets, the Edwardsville Intelligencer, the Alton Telegraph, and the Belleville
News-Democrat, three times in a three week period as required in the Preliminary
Approval Order. Finally, the Claims Administrator established a toll-free telephone
number to provide information to Members of the Settlement Class of the details of the

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Class Settlement including details related to membership, claim recovery and exclusion,
and a website providing copies of the Class Notice, Claims Form and Opt-Out Notice.
Claims Administration Process. The claims administration process began with the
mailing and publication of the Class Notice on August 30, 2017. The Court finds that the
Claims Administrator adequately performed its duties during the claims administration
process, that the Parties cooperated in the claims administration process, and that the
process was performed fairly and in accordance with the terms of the Agreements and
the Preliminary Approval Order.
Claims Received. The Court further finds that, as of December 1, 2017, the Claims
Administrator received a total of 1,197 claim forms. Of those, the Claims Administrator
found that 696 were filed by non-class members because they were submitted online
from addresses outside of the Roxana, Illinois area (states like New York and California),
and no supporting documentation was provided. See Affidavit of Jason Stinehart of Rust
Consulting (Doc. 272) at ¶ 22(a). Further, none of these purported claimants responded
to the deficiency letters sent by the Claims Administrator. Of the claims that were
deemed to have been filed by class members, as of December 1, 2017, the Claims
Administrator had processed 301 as valid, 14 remained pending, and 184 as invalid for
several reasons. The Claims Administrator and the Parties continue working with the
Class Members to finalize the claims administration process.
Invalid Claims. As of December 1, 2017, the Claims Administrator found that
invalid claims fell into the following categories: (a) Non-class members (696):
web-submitted claims from addresses outside of Roxana, Illinois, without supporting

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documentation who did not respond to deficiency letters; (b) Duplicates (66): multiple
submissions by a single class member; (c) Incomplete response to cure (29): insufficient
or missing information or documentation; (d) No response to cure (52): no response to
deficiency letters; (e) Property not in the Settlement Class Area (36): the property being
claimed is outside the boundaries of the Court-approved Settlement Class Area; and
(f) Dates outside the Settlement Class period (1): the dates claimed fall outside the
Court-approved Settlement Class Period. Pursuant to the Agreements, the Claims
Administrator has sent or will send denial letters to the class members (categories
(b)-(f)). The class members who submitted invalid claims shall have the opportunity to
appeal the denial within 15 days of the denial letter. The appeal will be considered in
accordance with the terms set forth in the Administration Agreement.
Opt Outs. The Court finds that Members of the Settlement Class were given notice
and opportunity to opt out and not participate in the settlement. The Court received
opt-out forms from only six individuals: Cassandra Ford, Rosemary Rhea, Terri
Williams, Tyler Ford, Trisha Ford, and Roland Ford (Docs. 231, 240, 242, 244, 245, 251-1).
Of these, four (Terri Williams, Tyler Ford, Trisha Ford, and Roland Ford) did not
identify properties located within the Settlement Class Area; these four individuals are
therefore not Members of the Settlement Class. In addition, Tyler Ford’s opt out was
filed after the October 16, 2017 deadline set in the Preliminary Approval Order. The
purported opt-outs of Terri Williams, Tyler Ford, Trisha Ford, and Roland Ford are
therefore invalid. Accordingly, the Court finds that only two Members of the Settlement
Class effectively opted out of the Settlement Class: Cassandra Ford and Rosemary Rhea.

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The Court finds that this low number of opt-outs is further evidence that the Settlement
is fair, reasonable, and adequate.
Objectors. The Court received objections filed by fourteen individuals: Patricia
Bourbon, Robert Bourbon, Alberta Burden, Virginia Clark, Patricia Ford, Amy Freidel,
Connie Kravanek, Marty Neibel, Tammy Neibel, Michael Schultz, Trixie Willeford,
Walter Willeford, and Cynthia and Loftin Woodiel (Docs. 234, 236, 237, 238, 239, 241,
247, 251-2, 251-3). Two of the objectors, Patricia Ford and Virginia Clark, testified during
the Final Approval Hearing. The objectors mainly argued that: (a) the settlement amount
is too low, (b) the release is overly broad and releases personal injury claims, and (c) the
additional requirements imposed on the class members (i.e., disclosures, building
requirements) were too onerous and unfair. Class Counsel and counsel for the Shell
Defendants responded to the testimony of the Objectors and cross-examined them
during the Hearing. The Court considered the objections filed and presented during the
Hearing, as well as the responses of Class Counsel and counsel for the Shell Defendants.
The Court notes that it has no authority to order the Defendants to pay a greater
settlement amount. Accordingly, and for the reasons stated on the record at the Final
Approval hearing, the Court OVERRULES the objections and holds that the Settlement
is fair, reasonable, and adequate.
Class Counsel Fees and Expenses and Ford Counsel Expenses. The Court grants Class
Counsel’s motion for attorneys’ fees and awards Class Counsel reasonable attorneys’
fees in the amount of Twenty-Five Percent (25%) of the Total Class Settlement Fund, or
$1,207,500.00. The Court also grants Class Counsel’s request for reimbursement of costs

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and expenses incurred to date, which presently total $35,584.49 (Docs. 258 and 259). In
addition, the Court grants the Ford Plaintiffs’ Counsel’s request for reimbursement of
costs and expenses in the amount of $68,399.29 (Doc. 268). The Court finds that those
costs and expenses are fair and reasonable and were incurred for the benefit of all
Members of the Settlement Class.
Judgment and Release. The Court hereby enters judgment fully and finally
terminating with prejudice all claims of all class members (subject to the exclusions
listed below), whether or not they objected to the Class Settlement, including without
limitation the Class Claims, on the merits, made in this class action against the Shell
Defendants, the ConocoPhillips Defendants, and the Released Parties as defined in the
Agreements, and finds that the Class Representative and each Member of the Settlement
Class (including their past, present or future agents, legal representatives, trustees,
parents, estate, heirs, executors, and administrators), regardless of whether such class
members have claimed or obtained benefits under the terms of the Agreement, have
released and forever discharged the Released Parties, as defined in the Agreements,
from any and all claims, demands, actions, complaints, and causes of action connected in
any way to the subject of this class action, including but not limited to claims for
property damage, loss of use and enjoyment of property, and medical monitoring,
whether known or unknown, which the Plaintiffs ever had, now have, or may have in
the future, regardless of whether such claims were actually asserted, which directly or
indirectly arise from:

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f. As to the Shell Defendants: (i) Shell’s operations; (ii) the past, present, and
future environmental condition of the Wood River Refinery, the IEPA
Study Area and surrounding areas, and/or Plaintiffs’ properties;
(iii) Shell’s past, present, and future remediation and site closure activities
at these areas conducted in order to satisfy requirements of Shell’s RCRA
permit and/or to satisfy the regulations and requirements of the IEPA;
(iv) activities related to, associated with, or in any way connected to this
class action and the facts and circumstances alleged therein; or (v) any
event, cause or matter which in whole or in part, is or could have been, the
subject of this class action.
g. As to the ConocoPhillips Defendants: (i) the Claims as defined in the
ConocoPhillips Settlement Agreement; (ii) the past and present
environmental condition of the Wood River Refinery, the IEPA Study Area
and

surrounding

areas,

and/or

Plaintiffs’

properties;

(iii)

the

ConocoPhillips Defendants’ past, present, and future remediation and site
closure activities at these areas conducted in order to satisfy requirements
of Shell’s RCRA permit and/or to satisfy the regulations and requirements
of the IEPA; (iv) activities, as of the Effective Date, related to, associated
with, or in any way connected to this class action and the facts and
circumstances alleged therein; or (v) any event, cause or matter, as of the
Effective date, which in whole or in part, is or could have been, the subject
of this class action.

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Provided, however, that claims for sudden and unexpected property damage
arising in the future and solely from and during the course of Defendants’ future
remediation activities are excluded from the release and therefore are not released by
Members of the Settlement Class; and provided that any damages recoverable for
sudden and unexpected events above shall be limited to the costs to repair or remediate
any actual property damage. Damages may not include attorneys’ fees or punitive
damages or diminution in value. Damages must be material and substantial and will be
limited to those incurred in the future as a result of sudden or unexpected events, and
not attributable to the environmental conditions that are the subject of this Action.
Provided further, however, that claims for personal injury and wrongful death
claims are excluded from the release and expressly reserved by Plaintiffs. In the Shell
Settlement Agreement and the ConocoPhillips Settlement Agreement, Plaintiffs
represented that, to the best of their knowledge, they have not developed, and do not
now have, any sickness or injury caused by, or resulting from, exposure to
contamination or other substances which the Shell Defendants allegedly caused or for
which the Defendants are legally responsible.
Provided further, however, that this Judgment and Release does not bar the
claims of class members who timely and effectively excluded themselves by complying
with the opt-out procedures detailed in the Class Notice and Claim Form and pursuant
to the terms of the Agreements (see Par. 10 above).
All Members of the Settlement Class who have not timely and properly excluded
themselves by complying with the opt-out procedures detailed in the Class Notice and

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Claim Form in accordance with the terms of the Agreements are permanently barred
and enjoined from filing, commencing, prosecuting, maintaining, intervening in or
participating in (as a class member or otherwise) any other lawsuit or arbitration (unless
compelled to testify pursuant to a subpoena) in any jurisdiction based on the Claims and
causes of action in this class action or the Release and Dismissal set forth in the
Agreements.
Plaintiffs and their authorized representatives and/or retained consultants may
not object to, interfere with, or in any way attempt to adversely influence the Shell
Defendants’ ongoing investigation, remediation and site closure activities. The Court
finds that Plaintiffs have waived and have released any rights to (i) challenge any
proposal by the Shell Defendants to IEPA, or (ii) make requests of, or challenge any
decision of, IEPA in evaluating and approving the Shell Defendants’ investigation,
remediation, and site closure activities.
The Claims of all class members as set forth above and as defined in the Shell
Settlement Agreement and the ConocoPhillips Settlement Agreement are dismissed with
prejudice pursuant to the terms of the Agreements.
Neither this Final Judgment, the Agreements, the fact of settlement, the
settlement proceedings, the settlement negotiations, nor any related document shall be
construed as, or be deemed to be evidence of, an admission or concession on the part of
the representative Plaintiff, Class Counsel, any Member of the Settlement Class,
Defendants, or any other person. Further, neither the Settlement, Agreements, nor any
communications shall be offered or received in evidence in any action or proceeding, or

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be used in any way as an admission or concession of liability or wrongdoing of any
nature, nor shall they be used as evidence or concession or admission that any person
has or has not suffered any damage.
The Agreements, and all of their terms and conditions that pertain to the Class
Action, including the Administration Agreement and the Settlement Allocation Plan, are
approved as fair, just, reasonable, and adequate.
Having conducted the analysis required by Federal Rule of Civil Procedure 23,
the Court finds and concludes for the purposes of settlement only that the requirements
of Rule 23 have been satisfied, and the settlement is fair, reasonable, and adequate.
All proceedings in Parko, et al. v. Shell Oil Co., et al., No. 3:12-cv-00336-NJR-PMF
(S.D. Ill.) are dismissed with prejudice, other than such proceedings as may be necessary
to carry out the terms and conditions of the Agreements.
The Parties are instructed to advise the Court when the allocation of the Total
Class Settlement Fund has been completed and all settlement awards have been paid to
Qualifying Claimants.
The Court retains jurisdiction over this Settlement to the extent necessary to
implement, effectuate, and administer this Settlement and this Final Order and Final
Judgment.
IT IS SO ORDERED.
DATED: February 23, 2018
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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