Coghlan et al v. Sprint Communications Company L.P. et al
Filing
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ORDER granting 25 Motion to Certify Class; Certifying Settlement Class, Preliminarily Approving Class-Action Settlement and Approving Form and Manner of Notice. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES COGHLAN, et al.,
Plaintiffs,
v.
SPRINT COMMUNICATIONS COMPANY L.P,
et al.,
Defendants.
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)
)
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) Civil Action No. 2:11-cv-11563
)
) Hon. Robert H. Cleland
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)
)
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ORDER CERTIFYING SETTLEMENT CLASS,
PRELIMINARILY APPROVING CLASS-ACTION SETTLEMENT,
AND APPROVING FORM AND MANNER OF NOTICE
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 Michigan 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:
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-of-Way Providers and
their predecessors, successors, parents, subsidiaries, and affiliates, past or
present; (2) federal, state, and local governmental entities; (3) Native American
nations and tribes; or (4) any Person who files a valid and timely exclusion on or
before the Opt-Out Deadline.
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
b.
There are questions of law and fact common to members of the Settlement
impracticable;
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 Michigan Class Representatives, James Coghlan and
Renee Coghlan and Sparks Cedarlee Farm are typical of the claims of the Settlement Class
members.
d.
The Michigan 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
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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.
6.
James Coghlan and Renee Coghlan and Sparks Cedarlee Farm 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
Andrew W. Cohen
KOONZ, MCKENNEY, JOHNSON,
DEPAOLIS & LIGHTFOOT, L.L.P.
2001 Pennsylvania Avenue, N.W.
Suite 450
Washington, DC 20006
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
Alyssa J. Endelman
DENENBERG TUFFLEY, PLLC
28411 Northwestern Highway, Suite 600
Southfield, MI 48034
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8.
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 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 November 5, 2012, at 2:30
p.m. before the undersigned in Courtroom No. 712, Theodore Levin U.S. Courthouse, 231 W.
Lafayette Blvd., Detroit, Michigan 48226. 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.
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11.
The Court has reviewed the Notice of Class Action, Proposed Settlement, and
Settlement Hearing, Exhibit C to the Settlement Agreement, which the parties submitted on April
17, 2012 with revisions that the Court requested (the “Notice”), and the Summary Notice,
attached to the Settlement Agreement as Exhibit D. The Court approves as to form the Summary
Notice and the Notice.
The Court also approves the method of directing notice to Class
Members, as set forth in paragraphs 12 and 13 below.
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 March 16, 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
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Administrator confirming that the plan for disseminating the Notice and the Summary Notice has
been accomplished in accordance with the provisions of paragraphs 12 and 13 above.
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.
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’
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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:
United States District Court
for the Eastern District of Michigan
Clerk’s Office
Theodore Levin U.S. Courthouse
231 W. Lafayette Blvd., Room 564
Detroit, MI 48226
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:
Emmett Logan
STINSON MORRISON HECKER, LLP
1201 Walnut, No. 2900
Kansas City, MO 64106-2150
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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.
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 the Michigan 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.
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22.
The court retains jurisdiction over this action, the Parties, and all matters relating
to the Settlement Agreement.
Date: 4/27/2012
s/Robert H. Cleland
Honorable Robert H. Cleland
United States District Judge
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