Dick et al v. Sprint Communications Company LP et al

Filing 41

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 1/29/2014; re 31 Joint MOTION for Final Approval of Class-Action Settlement MOTION for Attorney Fees and Expenses to Settlement Class Counsel and Incentive Award to Class Representatives filed by Mary Patricia Dick, Gary L. Ekers; appropriate orders shall issuecc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:12-CV-00443-TBR
MARY PATRICIA DICK and GARY L.
EKERS, for themselves and all others
similarly situated,

Plaintiffs,

v.
SPRINT COMMUNICATIONS COMPANY
L.P. and QWEST COMMUNICATIONS
COMPANY, LLC,

Defendants.

MEMORANDUM OPINION
This matter is before the Court on the Joint Motion for Final Approval of Class-Action
Settlement and Motion for Attorney Fees and Expenses to Settlement Class Counsel and
Incentive Awards to Class Representatives. (Docket No. 31.) The Court has reviewed the
motions and has considered all relevant objections filed with the Court. In addition, on June 18,
2013, the Court conducted a Fairness Hearing on the proposed settlement.
Pursuant to Fed. R. Civ. P. 23(e), and for the reasons set forth below, the Court finds that
Class Counsel provided notice of the settlement to all potential Class Members in a reasonable
manner; that the objections lack merit; and the Settlement Agreement is fair, reasonable, and
adequate; and that the plan of allocation is fair.
BACKGROUND
The named Plaintiffs in this matter, Mary Patricia Dick and Gary L. Ekers, assert that the
Defendant telecommunications companies buried fiber-optic cable and installed related
equipment within railroad rights of way upon land owned by themselves or other class members.
The Defendants are Sprint Communications Company LP (“Sprint”) and Qwest Communications

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Company, LLC (“Qwest”). According to Plaintiffs, Defendants neither sought their permission
nor paid them compensation for such use. (Docket No. 1 at 2.) Dick and Ekers filed this action
in their individual capacity and on behalf of all others similarly situated.
The parties entered into a Kentucky Class Settlement Agreement (“the Settlement
Agreement”) as of November 15, 2012.1 They then filed a joint motion, pursuant to Fed. R. Civ.
P. 23(b) and (e), to certify the settlement class, preliminarily approve the Kentucky settlement
agreement, and approve the manner of notice to the class. (Docket No. 21.)
The Settlement Agreement commits the Defendants to pay up to $1,457,000 in cash
compensation, $565,000 in attorneys’ fees and expenses, and approximately $337,000 toward an
allocated share of administrative costs. To receive compensation, Class Members must: (1)
submit a claim form and copy of a deed or certificate of title for their property; (2) execute a
release of claims form; and (3) execute a telecommunications system easement deed. The
compensation to be paid is determined for each Class Member’s property at the rate of $0.64 per
linear foot. Compensation is also allocated between Class Members who have owned the same
property at different times in proportion to the length of each Class Member’s period of
ownership.
The Settlement Agreement further provides that the Claims Administrator, Rust
Consulting, Inc., will determine an initial deposit amount that each Defendant must make into
the Settlement Account and that the Claims Administrator will thereafter direct each Defendant
to provide sufficient ongoing funding of the settlement account to pay out qualifying claims.
The difference between any amount contributed to the Settlement Account and the total paid out

1
 For
 purposes
 of
 the
 discussion
 contained
 in
 this
 Memorandum
 Opinion,
 when
 terms
 are
 used
 that
 are

expressly
 defined
 in
 the
 Settlement
 Agreement,
 they
 are
 intended
 to
 have
 the
 meanings
 ascribed
 to
 them
 in

the
 Settlement
 Agreement.

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on Class Members’ claims is to be refunded to that Defendant. The Settlement Agreement also
provides for an incentive award of $1,300 to each of the two named Class Representatives to
compensate them for their services.
In its order of December 21, 2012 (“the Preliminary Approval Order”), the Court
preliminarily approved the Settlement Agreement per the parties’ motion (Docket No. 21)
pursuant to Fed. R. Civ. P. 23(b) and (e). The Court certified this matter as a class action for
settlement purposes on behalf of the following class:
[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 government 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.
(Docket No. 28 at 2.)
The Court preliminarily approved the Kentucky Settlement Agreement, designated Mary
Patricia Dick and Gary L. Ekers as Class Representatives, and appointed various Class Counsel
and a Claims Administrator. Finally, the Court reviewed forms of notice submitted by the
parties, approved their form, and approved the parties’ plan for directing notice to the class
members. The Court found that the proposed plan provided the best notice practicable under the
circumstances and satisfied both Rule 23 and the requirements of due process. (Docket No. 28.)
On June 18, 2013, the Court held a hearing to determine whether the Settlement
Agreement was fair, reasonable, and adequate and in the best interests of the Class (“the Fairness

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Hearing”). Prior to the Court’s final fairness hearing in on June 18, 2013, Douglas J. Grothaus,
one of 6,537 Class Members who received Court Notice, objected to the proposed class action
settlement and the award of attorneys’ fees. (Docket No. 30.) Mr. Grothaus has also responded
to the Plaintiffs’ memorandum in support of their motions for approval. (Docket No. 36.)
The Court has now heard the statements of counsel for the Parties and of such persons as
chose to appear at the Fairness Hearing. The Court has also considered the files, records, and
proceedings in the Action, the benefits to the Class under the Settlement Agreement, the risks
complexity, expense, and probable duration of further litigation, and the objection of Mr.
Grothaus. This matter is now ripe for adjudication.
OBJECTIONS
Mr. Grothaus’s objections to the Settlement have been timely filed with the Court and fall
into eight general categories:
(1) Objection to the method of payment to current landowners. Mr. Grothaus primarily takes
issue with the fact that the settlement does not provide direct, automatic payments to
Class Members, instead requiring them to submit claim forms and other documentation in
order to receive compensation. (Docket No. 30 at 3-10.)
(2) Objection to the claims procedure, which requires final approval before the claims
process begins. Mr. Grothaus reasons that because the response rate for Class Members
cannot be determined until after the settlement is approved, the Court cannot adequately
assess the Settlement’s fairness. (Docket No. 30 at 7-8.)
(3) Objection to the Settlement’s required conveyance pursuant to Fed. R. Civ. P. 70. Mr.
Grothaus argues that Fed. R. Civ. P. 70 does not provide authority to direct Class

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Members to grant property rights in the manner contemplated by the Settlement
Agreement. (Docket No. 30 at 8-10.)
(4) Allegation that the Class Notice failed to use plain language and did not inform Class
Members that unless they submit the requisite documents, they will grant the Settling
Defendants a perpetual telecommunications easement in the railroad right of way.
(Docket No. 30 at 10-11.)
(5) Complaints as to the adequacy of compensation to be paid to Class Members. (Docket
No. 30 at 11-13.)
(6) Allegation that the Settlement Agreement unfairly reduces the Current Landowner’s
compensation benefit. (Docket No. 30 at 13.)
(7) Objection to the provision requiring Class Members to release their claims against parties
who did not contribute to the Settlement. (Docket No. 30 at 14.)
(8) Objection to the requested attorney fee award. (Docket No. 30 at 14.)
Noting that “[o]nce preliminary approval has been granted, a class action settlement is
presumptively reasonable, and an objective class member must overcome a heavy burden to
prove that the settlement is unreasonable,” Levell v. Monsanto Research Corp., 191 F.R.D. 543,
550 (S.D. Ohio 2000) (citing Williams v. Vukovich, 720 F.2d 909, 921 (6th Cir. 1983)), the Court
will address each of the objections in turn.
1. Objection to the method of payment to individual landowners.
As discussed above, the Settlement Agreement requires all class members to complete, sign,
and submit a claim form to the Claims Administrator. (Settlement § X.A.2; see Ex. 1, Tab G
(claim form).) Class members must also provide a deed or certificate of title that demonstrates
that they own land adjacent to a right of way and that includes the land’s legal description.

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(Settlement § II.B.1.) Class members who own property adjacent to covered rights of way and
submit a qualified claim will receive $0.64 per foot. (See Settlement Definition of “Kentucky
Benefits.”)
Mr. Grothaus alleges that because the Current Landowners of the properties in question can
be identified for purposes of Class Notice, a Claim Form should not be required in order to
receive benefits. (Docket No. 30 at 3.) Rather, he urges the Court to require direct notice to
each of the Current Landowners. (Docket No. 30 at 3.) Further, Mr. Grothaus contends that
automatic payments are warranted, as all Class Members who do not opt out will be burdened
with a compulsory easement. (Docket No. 30 at 4.) He alleges that requiring such paperwork
serves only to deter potential Class Members who would otherwise benefit from the common
recovery. (Docket No. 30 at 5.)
The Court declines to accept Mr. Grothaus’s argument. Courts often uphold claims forms
such as the one utilized here; it is certainly proper to require class members to submit
information demonstrating that they are entitled to the relief at issue. In class action settlements,
“[c]lass members must usually file claim forms providing details about their claims and other
information needed to administer the settlement.” Manual for Complex Litig. § 21.66 (4th ed.
2012). The claims process before the Court is not an unusual one.
2. Objection to the claims procedure.
Next, Mr. Grothaus objects to the settlement provision that requires the Court’s final
approval before the claims process begins. This, he reasons, prevents the Court from assessing
the fairness of the Settlement because the response rate of Class Members cannot be determined
until after the Settlement is finally approved. (Docket No. 30 at 7.)

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However, Mr. Grothaus points to no cases that require a court to consider the claims rate
before assessing whether a settlement is fair, reasonable, and adequate. Rather, the courts cited
by Mr. Grothaus considered all available information regarding the reaction of absent class
members. See In re Se. Milk Antitrust Litig., No. 2:08-MD-1000, 2012 WL 2236692 (E.D. Tenn.
June 15, 2012); In re Packaged Ice Antitrust Litig., No. 08-MDL-01952, 2011 WL 6209188
(E.D. Mich. Dec. 13, 2011); Wade v. Kroger Co., No. 3:01-CV-699-R, 2008 WL 4999171 (W.D.
Ky. Nov. 20, 2008). Here, of course, claims response data is unavailable. However, the Court
has gauged the response of class members by considering the small number of opt-outs and
objections. The Court concludes that this factor casts no doubt on the settlement’s adequacy.
3. Objection to the settlement’s required conveyance under Fed. R. Civ. P. 70.
In an effort to assure that any future claims against the Defendants are resolved, the
Settlement causes all Current Landowners on whose property the Defendants have installed
telecommunications facilities to convey an easement to the Defendants. The Settlement permits
Defendants to record the easements, providing notice to subsequent purchasers.

The Court’s

final approval order will also cause the Claims Administrator to convey an easement to the
Settling Defendants on behalf of Class Members who do not execute deeds or file a claim.
(Settlement § VIII.A.I.(i); see Ex. 1, Tab I (Claims Administrator easement deed).) The Court
will also enter an easement deed that the Settling Defendants or Class Counsel may record.
(Settlement § VIII.A.1.(k); see Ex. 1, Tab K (easement deed by court order).) These easements
grant the Settling Defendants a perpetual easement in the right-of-way property for the presence
of the telecommunications equipment at issue. (See Ex. 1, Tab H at 1-2.)
Mr. Grothaus argues that Fed. R. Civ. P. 70 does not authorize the granting of property rights
when doing so would be the effective equivalent of entering a judgment against every class

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member who does not opt out. Mr. Grothaus argues that these Orders would effectively enforce
the judgment against Class Members who choose not to convey the deed in easement to the
Settling Defendants, transforming the Class Members themselves into Defendants. (Docket No.
30 at 9.)
Rule 70 of the Federal Rules of Civil Procedure provides:
If a judgment requires a party to convey land, to deliver a deed or other document, or to
perform any other specific act and the party fails to comply within the time specified, the
court may order the act to be done – at the disobedient party’s expense – by another
person appointed by the court. When done, the act has the same effect as if done by the
party.
Fed. R. Civ. P. 70(a).
Mr. Grothaus contends that Rule 70 of the Federal Rules of Civil Procedure allows a writ of
attachment against the property of only noncompliant parties and is operative only after a
judgment is entered against such a party. (Docket No. 30 at 9.) The instant case, he argues, is
neither. Instead, the conveyance contemplated by the KSA is “essentially a condemnation of a
right of way against Class Members.” (Docket No. 30 at 9.)
The Court notes that this matter was addressed in its Order Certifying Settlement Class,
Preliminarily Approving Class-Action Settlement, and Approving Form and Manner of Notice.
Moreover, the 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. (Docket No. 28 at 6.) Rule 70 authorizes the appointment of a proxy for
any “party” that fails to perform a specific act mandated by the court, regardless of whether or

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not that party is a defendant. This conclusion accords with that of courts in other fiber optic
right-of-way class action lawsuits, in which defendants have obtained easements from
landowners who choose not to opt out. See, e.g., Uhl v. Thoroughbred Tech. & Telecomm., Inc.,
309 F.3d 978 (7th Cir. 2002); Barkema v. Williams Pipeline Co., 666 N.W.2d 612 (Iowa 2003).
Accordingly, the Court rejects Mr. Grothaus’s objection.
4. Allegation that the Class Notice was inadequate.
Fourth, Mr. Grothaus argues that the class notice fails to inform the class members that
unless they opt out, they will give the Defendants a perpetual telecommunications easement in
the railroad right of way. (Docket No. 30 at 10.) Furthermore, Mr. Grothaus contends that the
Class Notice fails to use plain language, arguing that its “eight pages of single space type” is
designed to “overwhelm and confuse the average Class Member,” effectively dissuading them
from reading it. (Docket No. 30 at 10.)
The Court affirms its conclusion that the form, content, and method of publicizing notice to
the class members, including both published notice and individual notices to identified class
members, were adequate and reasonable, constituting the best notice practicable under the
circumstances. Accordingly, the notice satisfied the requirements of Rule 23(c)(2)(B).
Because a class action under Rule 23 has res judicata effect on all members of the class, due
process demands that notice of a proposed settlement be given to the class. This notice must be
“reasonably calculated, under all of the circumstances, to apprise interested parties of the
pendency of the settlement proposed and to afford them an opportunity to present their
objections.” UAW v. General Motors Corp., 2006 WL 891151 at *33 (E.D.Mich., Mar. 31,
2006, No. 05-CV-73991-DT) (citing In re Prudential Ins. Co. of Am. Sales Practices Litig., 177

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F.R.D. 216, 231 (D.N.J. 1997)). Moreover, the notice must reasonably convey the required
information and allow a reasonable time for interested parties to make their appearance. Finally,
the notice must fairly apprise the prospective class members of the proposed settlement’s terms,
as well as the options available to them.
The class notice program at issue included four parts: (1) long-form notice through direct
mailings to known class members, (2) broad, summary notice through paid media in national
consumer magazines and newspaper supplements, (3) notice through a national earned-media
campaign, and (4) electronic notice through a dedicated website. (Docket No. 21-52 at 3.) A
call center was also established to answer class members’ questions. Class members were
identified using Data Mapping Solutions, which identified current and former owners of the
affected properties using tax rolls and real estate records. Summary notice was published in
several national publications and in two national newspaper inserts in twenty-six local Kentucky
publications. Kinsella Media estimates that approximately 58% of all Kentucky class members
received the long-form notice via direct mail and that approximately 87% of all Kentucky
homeowners were reached by the four-part notice program. (Docket No. 21-52 at 6.)
Moreover, the Court finds that the notice at issue adequately disclosed all material
elements of the settlement, including the easement.

The direct notice form advises that

recipients’ legal rights will be affected whether or not they take action and explains that the
settlement will provide the Defendants with “certain telecommunications easement rights of
way.” (Ex. 4: Mailed Notice at 1.) These principles are reiterated throughout the direct notice
form. (See, e.g., Question 5, Ex. 4 at 3 (“[U]nder the Settlement, Class Members give the
Defendants an Easement in the railroad right of way. An easement permits a person to use

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property for a stated purpose.

The Easement given through the Settlement will be for

Telecommunications Facilities and is described more fully in Question 17.”).)
Finally, the Court finds that the notice used simple, readily understandable language to
describe the options available to Class Members. Furthermore, this information was presented in
a well-organized fashion, including a table of contents and addressing in question-and-answer
format a total of thirty-one typical queries. (See Ex. 4: Mailed Notice at 2 (listing the categories
of the table of contents, including “The Claims Process,” “Excluding Yourself from the
Settlement,” “Objecting to the Settlement,” and “If You Do Nothing.”)
In sum, the notice in the case at bar is adequate under Fed. R. Civ. P. 23 and the standards
of due process. It was directed in a reasonable manner to all prospective class members who
would be bound by the Settlement Agreement. Moreover, it fairly apprised the prospective class
members of the terms of the proposed Settlement Agreement and their options with respect to
their decision whether to join the class.
5. Complaints as to the adequacy of compensation.
Mr. Grothaus maintains that the Settlement provides Class Members with inadequate
compensation. Mr. Grothaus contests the reasonableness of the Settlement’s benefit of $0.64 per
linear foot, referencing a 2002 report by the National Oceanic and Atmospheric Administration
indicating that the fair market value of a telecommunications easement was approximately $7.58
to $18.94 per linear foot. (Docket No. 30 at 13.) Furthermore, benefits to the Kentucky class are
lower than those obtained in comparable settlements. See, e.g., Uhl, 2001 WL 987840 (settling a
fifteen-state class at base compensation level of $1.14 per foot, plus non-cash compensation).

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However, the Court must weigh “the plaintiff’s likely success on the merits against the
amount and form of relief offered in the settlement” in determining the adequacy of benefits
under a class settlement. Vassalle v. Midland Funding LLC, 708 F.3d 747, 754 (6th Cir. 2013).
The report relied upon by Mr. Grothaus does not address the fact that Kentucky law affords
Class Members with no easement rights in the rights of way to sell, rendering the Plaintiffs’
likelihood of success on the merits attenuated, at best. See Kentucky & West Virginia Power Co.
v. Crawford, 16 S.W.2d 1041, 1042 (Ky. Ct. App. 1929) (“[I]n this jurisdiction we are
committed to the rule that telephone and telegraph liens are not additional burdens upon the fee
in the right of way of a public highway, upon the theory that the easement acquired by the public
includes every reasonable means for the transmission of intelligence, the conveyance of persons,
and the transportation of commodities which the advance of civilization may render suitable for a
highway.”); see also Cumberland Tel. & Tel. v. Avritt, 85 S.W. 204, 205 (Ky. Ct. App. 1905)
(holding that a telephone line is within the scope of a private turnpike easement because “a
telephone line along a country road is no more an additional servitude than a telephone line along
a railroad right-of-way.”). Moreover, Kentucky’s per-foot compensation falls within the range
of settlements approved by other courts, which range from $0.21 per foot to $2.28 per foot.
(Docket No. 21-1 at 28-29.)
Having weighed the likelihood of Plaintiffs’ success in the absence of the settlement, the
Court finds the agreed-upon figure to be appropriate.
6. Allegation that the Settlement Agreement unfairly reduces the Current Landowner’s
compensation benefit.
The Settlement Agreement provides that a qualified claimant who has owned the property
adjoining the rights of way throughout the entire compensation period will receive the entire

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amount of benefits attributable to the right of way. (Settlement § II.C.2.) If prior owners are
also entitled to benefits, such benefits will be allocated pro rata based on the prior and current
owners’ respective periods of ownership. (Settlement § II.C.2.)
Mr. Grothaus notes that benefits are allocated between Class Members who have owned
the same parcel at different times during the Compensation Period in proportion to the length of
their period of ownership. He argues that consequently, the settlement unfairly reduces the
compensation benefit to the current landowner.
The Court disagrees.

Mr. Grothaus’s argument that “[s]ince the prior landowner

probably did not receive mailed notice, there is a very low likelihood of any claim being made by
prior landowners” is unsupported. Compilation of the Database Identification Information began
in 2003, allowing many prior owners to receive direct, mailed notice of the Settlement.
Moreover, because a Current Landowner who did not own Covered Property when the
Telecommunications Facilities were installed would lack standing to sue for that installation, the
arrangement before the Court is arguably favorable to Current Landowners. See Kentucky West
Virginia Gas Co. v. Matny, 279 S.W.2d 805, 806-07 (Ky. Ct. App. 1955). Therefore, this
objection is inapposite.
7. Objection to the required release of claims against railroad companies.
Class members who do not opt out will release each Settling Defendant that owns
telecommunications facilities in a railroad right of way adjacent to the class member’s property.
(Settlement § IV.B.1; see Ex. 1, Tabs J (current landowner release) and J(1) (prior landowner
release).)

Released parties include the Settling Defendants, any person using the

telecommunications facility of a Settling Defendant, and the railroad companies. (Settlement

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Definitions (defining “Released Parties”); see Ex. 1, Tab L (list of released Kentucky right of
way providers).)
Although Mr. Grothaus’s objects to such a release, his concerns do not preclude approval
of the settlement. Courts frequently approve Rule 23(b)(3) class actions settlements that include
releases of parents and other non-parties. Here, the parties’ objective was to achieve finality to
this action. Defendants assert that they would consider settlement only if it foreclosed the
possibility of indemnification claims and other forms of re-litigation. (Docket No. 32 at 22.)
Such an arrangement is not atypical and does not render the Settlement Agreement unreasonable
or unfair.
8. Objection to the requested attorney fee award.
In administering a certified class action, Fed. R. Civ. P. 23(h) authorizes the Court to
“award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the
parties’ agreement.” Upon granting such a motion, the Court must find the facts and state its
legal conclusions. Fed. R. Civ. P. 23(h)(3). The Rule further provides that a claim for an award
must be made by motion under Rule 54(d)(2) and that notice must be directed to class members
in a reasonable manner. Fed. R. Civ. P. 23(h)(1). Rule 54(d)(2) requires those claiming
attorneys fees to timely file a motion specifying the grounds entitling the movant to the award
and stating the amount sought.
Having provided the requisite notice and timely filed an appropriate motion, Plaintiffs
seek attorneys’ fees and expenses of $565,000.00. The Settling Defendants do not object to this
sum. (See Settlement Agreement § III.E.1.) Mr. Grothaus notes that Class Counsel have not
demonstrated that these fees were earned as a result of their efforts in the Kentucky settlement.

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The Court finds that the record before it adequately supports the requested award and will further
discuss the issue below.
SETTLEMENT AGREEMENT
Having addressed the specific objections raised, the Court must now analyze the propriety
and fairness of the Settlement Agreement. The claims, issues, or defenses of a certified class
may be settled, voluntarily dismissed, or compromised only with the Court’s approval. Fed. R.
Civ. P. 23(e). Rule 23(e) requires the district court to act as a fiduciary, safeguarding the rights
of absent class members. See, e.g., Kinder v. Northwestern Bank, 2013 WL 1914519 at *3
(W.D. Mich., Apr. 15, 2013, No. 1:10-cv-405). Fed. R. Civ. P. 23 authorizes the Court to
approve a settlement that would bind the class members only after a hearing and a determination
that the settlement is fair, reasonable, and adequate. Fed. R. Civ. P. 23(e)(2).

However, the

“restricted, tightly focused role” that Rule 23(e) prescribes does not consign a district court with
broad powers to intrude upon the private, consensual bargain negotiated by the parties. See
Kinder, 2013 WL 1914519 at *3 (citing Ehrheart v. Verizon Wireless, 609 F.3d 590, 594 (3d Cir.
2010)).
The Sixth Circuit points to seven factors that should guide the Court’s inquiry as to whether a
class action settlement is fair, reasonable, and adequate: (1) the risk of fraud or collusion; (2) the
complexity, expense, and likely duration of the litigation; (3) the amount of discovery engaged in
by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and
class representatives; (6) the reaction of absent class members; and (7) the public interest. See
Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir. 1992); Williams v. Vukovich,
720 F.2d 909, 922-23 (6th Cir. 1983).

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For the following reasons, the Court further finds that the settlement agreement is fair,
reasonable and adequate and is in the best interest of class members.
A. The risk of fraud or collusion
“Courts presume the absence of fraud or collusion in class action settlements unless there is
evidence to the contrary.” Leonhardt v. ArvinMeritor, Inc., 581 F.Supp.2d 818, 838 (E.D. Mich.
2008); see also In re Telectronics Pacing Sys., 137 F.Supp.2d 985, 1016 (S.D. Ohio 2001) (citing
Herbert Newberg & Alba Conte, Newberg on Class Actions § 11.51 (3d ed. 1992)) (“Courts
respect the integrity of counsel and presume the absence of fraud or collusion in negotiating the
settlement, unless evidence to the contrary is offered.”).
The parties to this case have engaged in extensive motion practice, including the filing of
multiple briefs on motion for class certification and in response to Mr. Grothaus’s objections.
Throughout the litigation, no allegation of fraud or collusion has been made against the parties.
Therefore, the Court finds that the appointed Class Representatives and their counsel
fairly and adequately represented the interests of the Class Members as related to the Settlement
Agreement. Moreover, both the Class Members and the Settling Defendants benefited from their
representation by experienced, competent counsel.

The Court finds that the settlement

agreement resulted from good-faith, arms’-length negotiations by the Class Representatives,
Settling Defendants, and the counsel of each. The Court is satisfied that the exchange of data
throughout the litigation allowed all parties to become familiar with the strengths and
weaknesses of their respective positions. Accordingly, the evidence before Court indicates no
risk of collusion among counsel.
B. The complexity, expense, and likely duration of further litigation

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The Court must also consider the risks, expense, and delay the plaintiffs would confront if
they pursued their claims and trial and through appeal. These factors are weighed against the
recovery provided by the settlement. In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 523
(E.D. Mich. 2003); Telectronics, 137 F.Supp.2d at 1013. The Court finds that this factor weighs
in favor of finding the settlement fair and reasonable.
As discussed above, a number of the issues being litigated in this action are not clearly in
the Class Members’ favor under Kentucky law. A resolution of such matters would have
presented a significant risk to the class, who would be subject to the continued fees and costs
associated with ongoing litigation. Moreover, even were the class to succeed at trial, appeals
would likely delay meaningful relief. By contrast, the Settlement provides recovery with neither
exposure to the risks or delays of litigation. Therefore, the Court finds that this factor weighs in
favor of settlement.
C. The amount of discovery engaged in by the parties
The parties have engaged in extensive discovery, litigation, and appeals in a number of
lawsuits for years before entering into the ultimate settlement negotiation in the case at bar.
Indeed, the litigation that is the focus of the Settlement Agreement originated in the 1990s. In
connection with the litigation, the parties engaged in significant discovery and investigation of
this matter, including exchange of documents, depositions, and review and analysis of the
proceedings, evidence, and rulings in related class actions. In total, in right-of-way litigation in
state and federal courts, Plaintiffs’ counsel reviewed nearly 900,000 pages of documents and
participated in over three dozen depositions. (See Docket No. 21-1 at 27-28.)

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Class Counsel has considerable experience in this area of the law, as well as in settling class
actions of this sort.

“Giving substantial weight to the recommendations of experienced

attorneys, who have engaged in arms-length settlement negotiations, is appropriate . . . .” In re
Countrywide Fin. Corp. Customer Data Sec. Breach Litig., 2010 WL 3341200 at *4 (W.D. Ky.
Aug. 23, 2010, No. 3:08-MD- 01998) (citing In re Auto. Refinishing Paint Antitrust Litig., 617 F.
Supp. 2d. 336, 341 (E.D. Pa. 2007)). Here, Counsel brought both expertise and knowledge of
their clients’ cases to extensive, arms-length negotiations. Such negotiations allowed all parties
to fully explore the factual and legal grounding of their positions in multiple mediation sessions.
Such an exchange of information facilitated a candid perspective on the merits and risks of the
parties’ respective cases and allowed them to agree upon an appropriate settlement value.
Accordingly, the thorough discovery exchanged by the parties points toward approval of the
Settlement Agreement.
D. Likelihood of success on the merits viewed in light of the form of relief offered in
settlement
The Court must also weigh the likelihood of success on the merits in considering whether the
settlement is fair, reasonable, and adequate. “The likelihood of success . . . provides a gauge
from which the benefits of the settlement must be measured.” In re Gen. Tire & Rubber Co. Sec.
Litig., 726 F.2d 1075, 1086 (6th Cir. 1984). As the Sixth Circuit has noted:
The fairness of each settlement turns in large part on the bona fides
of the parties’ legal dispute. Although this inquiry understandably
does not require us to ‘decide the merits of the case or resolve
unsettled legal questions,’ we cannot ‘judge the fairness of a
proposed compromise’ without ‘weighing the plaintiff’s likelihood
of success on the merits against the amount and form of the relief
offered in the settlement.’

18

Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen. Motors Corp.,
467 F.3d 615, 631 (6th Cir. 2007) (citations omitted).
As noted above, Class Members confront serious legal challenges that may prevent
recovery were this case to proceed. Their most substantial obstacles include the fact that under
Kentucky law, the owners of the fee underlying railroad right-of-way easements are not entitled
to compensation when such right of ways are used for telecommunications purposes.
Cumberland Tel. & Tel. Co. v. Avritt, 85 S.W. 204 (Ky. 1905) (holding that a telephone line
upon a public highway does not give the landowner a cause of action). Moreover, Kentucky law
permits telecommunications companies to contract with railroad companies for the right to
construct lines within railroad right of ways. Ky. Rev. Stat. 278.540(3). The statute is silent,
however, as to compensation to adjoining landowners. See id.
Additionally, it is unclear that Plaintiffs could demonstrate that, even if a
telecommunications use is outside the scope of a railroad easement and that their claims were not
time-barred, they suffered a diminution of their property’s value. Kentucky law measures the
damages for injury to real property based on the difference between the fair market value
immediately before and immediately after the injury at issue. See Texaco, Inc. v. Melton, 463
S.W.2d 301, 308-09 (Ky. 1970). Therefore, Plaintiffs would bear the risk of their property being
found to have sustained no diminution in value.
Finally, Kentucky law requires a claim for trespass caused by a permanent structure to be
brought within five years of the structure’s completion and commencement of operations.
Kentucky West Virginia Gas Co. v. Matny, 279 S.W.2d 805, 806-07 (Ky. 1955) (“[W]here
damages are caused by a permanent structure properly constructed, and not negligently operated,

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a recovery must be had for the permanent nuisance once and for all, and the action must be
brought within five years from the date such structure was completed and this operation
commenced or from the date of the first injury, or from the date it became apparent there would
be injuries resulting from the structure or its operation.”).

Given that Sprint’s

Telecommunications Facilities were installed in Kentucky in 1986 and Qwest’s in 1997, the
Plaintiffs would confront a statute of limitations that could bar their claim were this settlement
denied.
In sum, Plaintiffs’ success at trial is by no means guaranteed. The nature of the Settlement
Agreement, including the monetary compensation, provides a reasonable tradeoff in exchange
for the elimination of the legal risk associated with several of Plaintiffs’ asserted claims.
Accordingly, this factor weighs in favor of final approval of the Settlement.
E. The opinions of experienced counsel and class representatives
The Court defers to the judgment of the experienced counsel associated with the case, who
have assessed the relative risks and benefits of litigation. See, e.g., UAW v. Ford Motor Co.,
2008 WL 4104329 at *26 (E.D. Mich. Aug. 29, 2008) (“The endorsement of the parties’ counsel
is entitled to significant weight, and supports the fairness of the class settlement.”).
As discussed above, Class Counsel claim extensive experience in complex litigation
involving similar cases before federal and state courts across a number of jurisdictions.

This

expertise, the meticulous discovery explained above, and the time and effort devoted to this
settlement indicate that Class Counsel’s opinion is entitled to great deference. Moreover, the
Settlement is apparently endorsed by the Representative Plaintiffs, neither of whom have

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objected to this Settlement Agreement or moved to withdraw from the litigation. This factor
points toward approval of the Settlement.
F. Reaction of absent Class Members
The Court’s analysis of a proposed settlement should consider the reaction of the settlement
class. “A certain number of . . . objections are to be expected in a class action . . . . If only a
small number of objections are received, that fact can be viewed as indicative of the adequacy of
the settlement.” In re Cardizem CD Antitrust Litigation, 218 F.R.D. 508, 527 (E.D. Mich. 2003).
As noted above, the Settlement Agreement requires the Court’s final approval before the
claims process begins. Therefore, the Court is unable to determine the response rate of Class
Members at this point. However, the majority of potential Class Members have submitted no
objection to the Settlement Agreement’s terms.

Furthermore, the fact of Mr. Grothaus’s

objection does not justify abandonment of the parties’ agreement. See Leonhardt, 581 F.Supp.2d
at 840 (“[A] court should not withhold approval of a settlement merely because some class
members object.”). As discussed above, the Court finds that Mr. Grothaus’s objections do not
warrant rejection of the Settlement Agreement.
G. The public interest
Finally, the Court finds that the settlement serves the public interest. “[T]here is a strong
public interest in encouraging settlement of complex litigation and class action suits because they
are ‘notoriously difficult and unpredictable’ and settlement conserves judicial resources.” In re
Cardizem, 218 F.R.D. at 530 (quoting Granada Inv., Inc. v. DWG Corp., 962 F.2d 1203, 1205
(6th Cir. 1992)); accord Ehrheart v. Verizon Wireless, No. 08-4323, 2010 WL 2365867, at *3
(3d Cir. June 15, 2010) (“Settlement agreements are to be encouraged because they promote the

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amicable resolution of disputes and lighten the increasing load of litigation faced by the federal
courts.”). The Court finds no principled basis for not adhering to that policy in the instant case.
Furthermore, the public interest weighs in favor of providing finality.

Under the

Settlement Agreement, all Current Landowners quitclaim to Defendants a Telecommunications
Cable System Easement Deed (“Easement”) in the Rights of Way at issue. Upon its approval,
later claims based on the same allegations will be barred, and future owners will be bound by the
settlement’s terms. This assurance of finality provides the primary motivation for Defendants to
settle. (See Docket No. 32 at 11-13.) The Court therefore finds that the public interest points
toward approval of the Settlement.
In conclusion, the Court’s analysis of these seven factors establishes that the settlement
should be approved as fair, reasonable, and adequate.
Attorneys’ Fees, Costs, Expenses, and Incentive Awards
Having determined that final approval of the Settlement Agreement is warranted, the
Court now considers the issue of attorneys’ fees, costs, expenses, and incentive awards. In a
certified class action, the Court may award reasonable attorneys fees and non-taxable costs that
are authorized by the parties’ agreement. Fed. R. Civ. P. 23(h). The Settlement Agreement
permits Settlement Class Counsel to move for attorney fees and expenses in an amount not to
exceed $565,000.00.2 They have moved for that amount pursuant to Fed. R. Civ. P. 54(d)(2),
with no objection from Settling Defendants.

2

See Settlement Agreement at I (“‘Maximum Attorneys Fee Award’ means $565,000.00.”) and II.E (“Settlement
Class Counsel may seek from the Court a cash award of fees and expenses from the Settling Defendants, in an
amount not to exceed the Maximum Attorneys’ Fee Award, to which the Settling Defendants will not object.”)

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In addressing the issue of attorneys’ fees in a class action case, the Court must first
determine if the lodestar or percentage approach is more appropriate. See, e.g., In re Cardinal
Health Cardinal Health Inc. v. Sec. Litig., 528 F.Supp.2d 752, 760 (S.D. Ohio 2007). The Court
also considers six factors, collectively referred to as the Ramey factors: “’(1) the value of the
benefit rendered to the plaintiff class; (2) the value of the services on an hourly basis; (3)
whether the services were undertaken on a contingent fee basis; (4) society’s stake in rewarding
attorneys who produce such benefits in order to maintain an incentive to others; (5) the
complexity of the litigation; and (6) the professional skill and standing of counsel involved on
both sides.’” Moulton v. United States Steel Corp., 581 F.3d 344, 352 (6th Cir. 2009) (quoting
Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996)); see also Ramey v. Cincinnati
Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974), cert. denied, 422 U.S. 1048 (1975). An
award of attorneys’ fees must be “‘reasonable under the circumstances.’” Id. (quoting Rawlings
v. Prudential-Bache Properties, Inc., 9 F.3d 513, 516 (6th Cir. 1993)).
Moreover, “[a]s with attorneys fees, an award of costs and expenses, is also a matter left to
the discretion of the trial court.” In Rio Hair, 1996 WL 780512 at *19. “[C]lass counsel is
entitled to reimbursement of all reasonable out-of-pocket litigation expenses and costs in the
prosecution of claims and in obtaining settlement, including expenses incurred in connection
with document productions, consulting with experts and consultants, travel, and other litigationrelated expenses.” In re Cardizem, 218 F.R.D. at 535.
A. The Lodestar Approach Versus the Percentage Approach
“When awarding attorney’s fees in a class action, a court must make sure that counsel is
fairly compensated for the amount of work done as well as for the results achieved.” Rawlings v.
9 F.3d at 516 (citing Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard

23

Sanitary Corp., 487 F.2d 161, 166-68 (3d Cir. 1973)).

Courts employ two approaches in

analyzing a request for attorneys’ fees and determining the reasonableness of the fee. Under the
“lodestar” method, the hours reasonably expended by an attorney are multiplied by a reasonable
hourly rate of compensation. Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999). The Court may
then adjust the lodestar figure based on the particulars of the case at hand. Id. at 471-72.
Alternatively, under the “percentage of the fund” approach, the Court determines a percentage of
the settlement to award the class counsel, applying several case-specific factors. Rawlings, 9
F.3d at 516. The Sixth Circuit has concluded that the use of either method is appropriate in
common fund cases, depending on the unique circumstances of each case. Id. at 517. Often, the
district court utilizes both methods, using each as a cross-check against the other. See, e.g., In re
Sulzer Hip Prosthesis & Knee Prosthesis Liab. Litig., 268 F.Supp.2d 907, 923 (N.D. Ohio 2003).
Counsel argue that the agreed-upon request of $565,000.00 is reasonable as a matter of law
and ask the Court to apply the percentage of the fund method. (Docket No. 31-1 at 20.) They
argue that
[B]ased on the miles of rights of way covered by the Settlement, if
each class member were to claim the available cash benefits,
approximately $1,457,000 would be paid to qualifying class
members. When estimated administrative costs of $337,000 — to
be borne by the Settling Defendants — and the agreed-to
attorneys’ fees and expenses of $565,000 —also to be paid
separately by the Settling Defendants — are factored in, the gross
value of the Settlement is approximately $2,359,000. The
$565,000 fee-and-expense award therefore represents 24 percent of
the fund as a whole.
(Docket No. 31-1 at 20-21.)
Because attorneys’ fees are distributed separately from the funds dedicated to the class,
this case does not present a typical “common fund” situation. However, the attorneys’ fees

24

sought here are consistent with typical payout amounts for class action settlements. See, e.g.,
Fournier v. PFS Invs., Inc., 997 F.Supp. 828, 832 (E.D. Mich. 1998) (“The ‘benchmark’
percentage for this standard has been 25% [of the common fund], with the ordinary range for
attorney’s fees between 20 – 30%.”). Moreover, the award of attorneys’ fees in this case does
not diminish the settlement class recovery, which provides a greater benefit to the class.
Therefore, the Court accepts Counsel’s estimate for purposes of establishing the settlement’s
value and agrees that the attorneys’ fees requested represent a reasonable fraction thereof.
In the instant case, counsel acknowledge the difficulties of calculating a lodestar figure
given the overlapping nature of similar cases across the nation and spanning over a decade.
(Docket No. 31-1 at 22-23.)

Attempting to segregate Counsel’s fees and expenses into a

“Kentucky-only” category would thus prove impossible. However, class counsel suggest that a
lodestar crosscheck based on the time and expense incurred in resolution of all of the state-bystate settlements of this litigation supports Counsel’s request. The Court examines the crosscheck
method in more detail under the second factor infra.
B. The Six Ramey factors
The Court must also find that the $565,000.00 figure is reasonable by analyzing the six
factors listed above. In the Sixth Circuit, district courts generally consider the most important
factors to be the value of the benefit rendered and the value of the services on an hourly basis. In
re Sulzer, 268 F.Supp.2d at 923 (citing Bowling, 922 F.Supp. at 1280).
1. The Value of the Benefit Rendered to the Plaintiff Class
The first Ramey factor requires the Court to assess the benefit of the settlement to the
class. Courts in this circuit regard this element as the most important of the Ramey factors. See
Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 640 F.Supp. 697, 700 (S.D. Ohio 1986)

25

(finding that the value of the benefit rendered is listed as the first factor because it is the most
important one); Bowling, 922 F.Supp. at 1280 (“Most important among these factors are the
value of the benefit rendered to the plaintiff class and the value of Counsel’s services on an
hourly basis.”).
Because this case does not present a common fund settlement in the traditional sense,
the Court will consider the total value of the benefits rendered to the class, some of which are not
easily quantified. As discussed above, the likelihood of success on the merits is unclear. In light
of the Court’s analysis as to the merits of the case and the risks associated with continued
litigation, the Court finds the value of this Settlement is substantial. Moreover, attorneys’ fees,
costs, expenses, and incentive awards do not diminish class recovery, providing additional value
to the class. Therefore, the Court finds that this factor supports the $565,000.00 in attorneys’
fees.
2. The Value of the Services on an Hourly Basis
Courts adopting the percentage approach generally conduct a lodestar crosscheck to ensure
that counsel does not receive a windfall. This crosscheck requires the Court to calculate the
applicable lodestar multiplier and ensure that the award remains roughly aligned with the amount
of work the attorneys contributed. The crosscheck does not supersede the court’s inquiry into the
attorneys’ skill and efficiency, but serves as another method of ensuring that the fees awarded
accurately reflect the work of counsel. In re Cardinal Health Inc. Sec. Litig., 528 F.Supp.2d 752,
764 (S.D. Ohio 2007) (citing Ramey, 508 F.2d at 1196)).
“To determine the ‘lodestar’ figure, the Court multiplies the proven number of hours
reasonably expended on the litigation by a reasonable hourly rate.” Lonardo v. Travelers Indem.

26

Co., No. 1:06-CV-962, 2010 WL 1416698 at *18 (N.D. Ohio Mar. 31, 2010) (citations omitted).
This figure may be adjusted according to a multiplier, which is to be decided on a case-by-case
basis. See id.
As discussed supra, assessing the number of hours expended exclusively on the Kentucky
Settlement proves difficult in light of the geographic and temporal scope of this litigation, Given
the litigation’s nationwide character, Counsel cannot present billing records relating only to work
on the Kentucky case.
Although this encumbers a lodestar analysis, Counsel have summarized their fees and costs
nationally in all of the state-by-state settlements of this right-of-way litigation. They indicate
that attorneys’ fees and expenses total over $60,000,000.00 as of March 31, 2011 and have since
increased. (Docket No. 31-1 at 23.) The Settling Defendants have agreed to pay a total of
$41,500,000.00 in fees and expenses in settlement nationwide.

(Docket No. 31-1 at 23.)

Accordingly, Class Counsel argue that the incurred fees and expenses are subject to a negative
multiplier of approximately 0.70 on a nationwide basis and with a pro rata Kentucky allocation.
However, the Court is unable to calculate a lodestar based on the information before it, even
on a national scale. “To arrive at a reasonable hourly rate, courts use as a guideline the
prevailing market rate, defined as the rate that lawyers of comparable skill and experience can
reasonably expect to command within the venue of the court of record.” B & G Min., Inc. v.
Director, Office of Workers’ Compensation Programs, 522 F.3d 657, 663 (citing Gonter v. Hunt
Valve Co., Inc., 510 F.3d 610, 618 (6th Cir. 2007)).

In the absence of records explaining

counsel’s standard hourly rates and how their time was utilized in this endeavor, the Court is

27

unable to determine a “reasonable hourly rate.” In turn, the absence of such a rate leaves the
Court unable to perform a lodestar crosscheck.
The Court emphasizes that a lodestar analysis is unnecessary if the fee does not appear to be
excessive as a percentage of the recovery.

“It is within the district court’s discretion to

determine the appropriate method for calculating attorneys’ fees in light of the unique
characteristics of class actions in general, and of the unique circumstances of the actual cases
before them.” Bowling, 102 F.3d at 779. As discussed above, the request for fees and expenses
is not excessive. Moreover, although the record does not allow for a full lodestar analysis, it
nonetheless demonstrates that counsel have invested much time and effort into this litigation on a
national scale.
3. Whether the Services Were Undertaken on a Contingent Fee Basis
“[C]ontingency fee arrangements indicate that there is a certain degree of risk in obtaining a
recovery.” In re Telectronics, 137 F.Supp.2d at 1043. Class counsel spent considerable time on
this case at the risk of receiving no compensation.

Therefore, this factor supports the

reasonableness of the requested attorneys’ fees.
4. Society’s Stake in Rewarding Attorneys Who Produce Such Benefits in Order to
Maintain an Incentive to Others
“Encouraging qualified counsel to bring inherently difficult and risky but beneficial class
actions . . . benefits society.” In re Cardizem, 218 F.R.D. at 534. Individual plaintiffs in this
case would perhaps receive only a small recovery, with some financially unable to pursue such
an action on their own. Many class members might have received nothing had this settlement
not been reached. “Thus, attorneys who take on class action matters enabling litigants to pool
their claims provide a huge service to the judicial process” and should be rewarded for such

28

efforts. In re Rio Hair Naturalizer, No1996 WL 780512 at *17. The Court finds that this factor
supports the award of attorneys’ fees.
5. The Complexity of the Litigation
As discussed supra, this case presents novel challenges under Kentucky law and involves a
class of substantial size. Accordingly, this factor supports the reasonableness of class counsel’s
requested fees.
6. The Professional Skill and Standing of Counsel Involved on Both Sides
Counsel for both sides are skilled attorneys who brought extensive experience and
knowledge to their motion practice, the fairness hearing, and the bargaining table. “The ability of
Co-Lead Counsel to negotiate a favorable settlement in the face of formidable legal opposition
further evidences the reasonableness of the fee award requested.” In re Delphi Corp. Securities,
Derivative & “ERISA” Litig., 248 F.R.D. 483, 504 (E.D. Mich. 2008).
C.

Incentive Awards
The Settling Defendants have agreed to pay $1,300.00 in incentive compensation each to

Mary Patricia Dick and Gary L. Ekers, the Class Representatives. (Settlement Agreement §
II.D.)

“The Sixth Circuit has held that incentive awards to class representatives may be

appropriate in some cases, but has not defined the circumstances justifying incentive awards.”
Lonardo, 2010 WL 1416698 at *16 (citing Hadix v. Johnson, 322 F.3d 895, 898 (6th Cir. 2003)).
District courts in the Sixth Circuit have considered the following factors in determining whether
to approve incentive awards for class representatives:
(1) the action taken by the Class Representatives to protect the
interests of Class Members and others and whether these actions
resulted in a substantial benefit to Class members; (2) whether the

29

Class Representatives assumed substantial direct and indirect
financial risk; and (3) the amount of time and effort spent by the
class Representatives in pursuing the litigation.
Enterprise Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 250 (S.D. Ohio
1991).
The Court notes that no objections were made to the request for incentive rewards. In
addition, the incentive rewards do not diminish class recovery and are relatively small awards.
Moreover, the Settling Defendants have agreed to pay these awards.

The efforts of the

Representative Plaintiffs have resulted in the Class Settlement now before the Court. Therefore,
the Court finds that these awards are fair, reasonable, and properly based in the benefits to the
class members generated by the litigation. The Court will award the requested incentives.
CONCLUSION
For the foregoing reasons, and pursuant to Federal Rule of Civil Procedure 23, the Court
finds that the Settlement Agreement entered into by the parties is fair, reasonable, and adequate.
The Court will grant Representative Plaintiffs’ Motion for Final Approval and direct the payment
of fees, expenses, costs, and awards by separate order consistent, and entered concurrently, with
this Memorandum Opinion.

January 29, 2014

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