9-M Corp., Inc. et al v. Sprint Communications Company, L.P. et al
Filing
38
ORDER AND JUDGMENT APPROVING CLASS-ACTION SETTLEMENT AND DIRECTING NOTICE OF FINAL APPROVAL. (Written Opinion.) Signed by Judge Donovan W. Frank on 11/12/2012. (rlb)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
9-M CORP., INC., DAISY S. CHRISTIE,
and JANICE IRENE FLOWERS, for
themselves and all others similarly situated,
Plaintiffs,
v.
Civil No. 11-3401 (DWF/JSM)
ORDER AND JUDGMENT
APPROVING CLASS-ACTION
SETTLEMENT AND DIRECTING
NOTICE OF FINAL APPROVAL
SPRINT COMMUNICATIONS
COMPANY L.P., QWEST
COMMUNICATIONS COMPANY, LLC,
and WILTEL COMMUNICATIONS, LLC,
Defendants.
WHEREAS, the parties to the above-captioned class action (the “Action”) entered
into a Minnesota Class Settlement Agreement (the “Settlement Agreement”), as of
February 7, 2012 (terms capitalized herein and not otherwise defined shall have the
meanings ascribed to them in the Settlement Agreement); and
WHEREAS, Defendants and the Plaintiffs in the Action moved under Federal
Rule of Civil Procedure 23(b) for an order certifying the class for settlement purposes,
and under Rule 23(e) for an order preliminarily approving the proposed settlement of the
Class Members’ claims in accordance with the Settlement Agreement and approving the
form and plan of notice as set forth in the Settlement Agreement;
WHEREAS, in its Order entered on May 15, 2012 (the “Preliminary Approval
Order”), the Court provisionally ordered that this Action may be settled as a class action
on behalf of the following class:
A class (the “Settlement Class”) defined as:
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.
WHEREAS, the Preliminary Approval Order also approved the forms of notice of
the Settlement to Class Members and directed that appropriate notice of the Settlement be
given to Class Members;
WHEREAS, in accordance with the Settlement Agreement and the Preliminary
Approval Order: (1) the Settlement Administrator caused to be mailed to Class Members
the Notice of Class Action, Proposed Settlement, and Settlement Hearing (“Notice”) on
July 31, 2012 and caused to be published the Summary Notice of Class Action, Proposed
Settlement, and Settlement Hearing (“Summary Notice”); (2) an Affidavit of Mailing and
Publication of the Notice and Publication of the Summary Notice was filed with the
Court prior to this hearing; and (3) the Affidavit of Mailing and Publication filed with
this Court demonstrates compliance with the Preliminary Approval Order with respect to
the Notice and the Summary Notice and, further, that the best notice practicable under the
circumstances was, in fact, given;
WHEREAS, on November 9, 2012, this Court held a hearing on whether the
Settlement Agreement is fair, reasonable, adequate and in the best interests of the Class
(the “Fairness Hearing”); and
2
WHEREAS, based upon the foregoing, having heard the statements of counsel for
the Parties and of such persons as chose to appear at the Fairness Hearing; having
considered all of the files, records, and proceedings in the Action, the benefits to the
Class under the Settlement Agreement, and the risks, complexity, expense, and probable
duration of further litigation; and being fully advised in the premises,
IT IS HEREBY ORDERED AND ADJUDGED THAT:
1.
The Court has subject-matter jurisdiction over the subject matter of the
Action, and personal jurisdiction over the Plaintiffs, Class Members, and the Defendants.
2.
The Class Representatives and their counsel fairly and adequately represent
the interests of the Class Members in connection with the Settlement Agreement.
3.
The Settlement Agreement is the product of good-faith, arm’s-length
negotiations by the Class Representatives and their counsel, and Settling Defendants and
their counsel, and the representatives of the Settlement Class and Settling Defendants
were represented by capable and experienced counsel.
4.
The form, content, and method of dissemination of the notice given to Class
Members, including both published notice and individual notice to all Class Members
who could be identified through reasonable effort, were adequate and reasonable and
constituted the best notice practicable under the circumstances.
5.
The Settlement Agreement is fair, reasonable, adequate, and in the best
interests of Class Members, and is approved in all respects, and the parties are directed to
perform and satisfy the terms and conditions of the Settlement Agreement.
3
6.
Class Members shall be permitted to make claims for the benefits described
in the Settlement Agreement, subject to the conditions and limitations stated herein.
7.
The certification of the Settlement Class, under Rules 23(b)(3) and 23(e),
solely for settlement purposes, is hereby confirmed.
8.
The notice, as given, complied with the requirements of Rule 23, satisfied
the requirements of due process, and constituted due and sufficient notice of the matters
set forth therein.
9.
After this Order and Judgment has become Final, an order awarding
attorney fees to Settlement Class Counsel with respect to the Settlement Agreement
becomes Final, and all periods during which any Party to the Settlement Agreement may
exercise a right of withdrawal have expired (hereafter “the Effective Date”), the Settling
Defendants and all other Released Parties, including, without limitation, the Right-ofWay Providers listed in Exhibit L to the Settlement Agreement, a copy of which is
attached hereto and incorporated by reference herein, shall be released from any and all
Settlement Claims that any Class Member (and all successors in interest) had, has, or may
have in the future, against the Settling Defendants or any other Released Party. This
Release may be enforced by any Released Party.
10.
All Settlement Claims of any Class Member (and the successors in interest
of all members of the Settlement Class) are hereby dismissed. Upon the Effective Date,
such dismissal shall be with prejudice.
11.
Upon the Effective Date, all Class Members (and the successors in interest
of all members of the Settlement Class) shall be barred and permanently enjoined from
4
instituting, asserting, or prosecuting against a Settling Defendant or any other Released
Party, including, without limitation, the Right-of-Way Providers listed in Exhibit L to the
Settlement Agreement, any and all Settlement Claims they have, had, or may have in the
future, against a Settling Defendant or any other Released Party, except any claims for
enforcement of a Settlement Agreement.
12.
The various forms of the Claim for Landowner Benefits and Releases of
Claims (the “Claim Form”), and the Telecommunications Cable System Easement Deed,
set forth as Exhibits G(1) – (4), J and J(1), and H respectively, to the Settlement
Agreement, are approved. In order to receive Benefits under the Settlement Agreement,
all Class Members must comply with the requirements for making and documenting a
Claim that are set forth in that Settlement Agreement.
13.
All Class Members who are Current Landowners, regardless of whether
they file a Claim, are hereby ordered to execute and deliver, after the Effective Date, a
Telecommunications Cable System Easement Deed to the Claims Administrator in favor
of each Settling Defendant whose Telecommunications Cable System was installed on
Covered Property owned by the Class Member.
14.
In order to receive Benefits, each Current Landowner who submits a
Qualified Claim must execute a Telecommunications Cable System Easement Deed.
15.
Upon the Effective Date, the Claims Administrator shall be authorized
under Federal Rule of Civil Procedure 70 to execute and deliver to each Settling
Defendant a Claims Administrator Telecommunications Cable System Easement Deed,
substantially in the form of Exhibit I to the Settlement Agreement, on behalf of all Class
5
Members who are Current Landowners and who do not personally execute and deliver a
Telecommunications Cable System Easement Deed. Any Class Member who is a
Current Landowner and who does not file a Claim may rely upon the Claims
Administrator to execute and deliver to each Settling Defendant the Claims Administrator
Telecommunications Cable System Easement Deed.
16.
The Claims Administrator is hereby appointed as attorney in fact for each
Class Member who is a Current Landowner, with power and authority, upon the Effective
Date, to execute and deliver a Claims Administrator Telecommunications Cable System
Easement Deed, substantially in the form of Exhibit I to the Settlement Agreement, to the
applicable Settling Defendants and to authorize such Settling Defendants to record such
Claims Administrator Telecommunications Cable System Easement Deed as provided in
Section IV.C.2 of the Settlement Agreement.
17.
Upon the Effective Date, the Settling Defendants or Settlement Class
Counsel may, at their respective option and cost file, record and/or index the Easement
Deed by Court Order in Settlement of Landowner Action, entered contemporaneously
with this Order and Judgment, or notice thereof, and any executed Telecommunications
Cable System Easement Deed, on behalf of any Class Member, in the judgment or land
records of the county in which the real estate is located as provided in IV.C.2 of the
Settlement Agreement. The Court retains jurisdiction, as provided pursuant to Section
VIII.A.1.(n) of the Settlement Agreement, to enter supplemental orders and judgments to
effectuate the recordation of any and all rights conveyed to the Settling Defendants under
the Settlement Agreement.
6
18.
The expenses of administering the Settlement Agreement shall be paid from
the Administrative Account in the manner set forth in the Settlement Agreement.
19.
Upon the Effective Date, the Released Parties shall be released by all Class
Members from any and all claims, damages, costs, expenses, and other liabilities of every
kind and nature whatsoever as a result of or in any way in connection with the filing,
recordation, or indexing of the Easement Deed by Court Order Deed in Settlement of
Landowner Action, or notice thereof, or any Telecommunications Cable System
Easement Deed, except claims to enforce the Settlement Agreement and/or this Order.
20.
It is hereby declared, adjudged, and decreed that, upon the Effective Date,
the Settlement Agreement provides the exclusive remedy for any and all Settlement
Claims of Settlement Class Members (and any successors in interest) against the Settling
Defendants and any and all other Released Parties.
21.
Upon the Effective Date, all claims against the Class Representatives, or
their counsel or any of them, arising out of, relating to, or in connection with the Action
shall be released by the Settling Defendants and their counsel, and they shall be
permanently enjoined and barred from instituting, asserting, or prosecuting any and all
claims that the Settling Defendants or their counsel or any of them had, have, or may in
the future have against the Class Representatives or their counsel, except claims to
enforce the Settlement Agreement and/or this Order.
22.
Upon the Effective Date, all Class Members (and all successors in interest),
whether or not they file a Claim for Landowner Benefits, shall be permanently enjoined
7
and barred from instituting, asserting or prosecuting, either directly or as a class
representative, any Settlement Claims.
23.
The form of the Notice of Final Approval of Settlement, set forth as Exhibit
F to the Settlement Agreement, is approved. Upon this Order and Judgment becoming
Final, the Settlement Administrator shall within thirty (30) days thereafter cause the
Notice of Final Approval Package to be sent by United States mail, first class postage
prepaid, to all Class Members who have been identified, who requested copies, or who
otherwise came to the Claims Administrator’s attention.
24.
Any claims by the Settling Defendants against any Right of Way Providers,
insurers or other third parties for contribution, indemnification, or insurance benefits, are
not barred, released, or otherwise affected by the Settlement Agreement or this Order and
Judgment.
25.
Incentive awards to the Class Representatives in the following amount are
reasonable and are approved: 9-M Corp., Inc.: $3,200; Daisy S. Christie: $1,300; and
Janice Irene Flowers: $1,300.
26.
Defendants shall deposit any attorney fee award approved by the Court,
which shall not exceed the Maximum Attorneys’ Fee Award, into the interest-bearing
escrow account established with U.S. Bank in New York, New York, no later than ten
(10) days after the date on which the Order and Judgment becomes Final.
27.
The Court hereby reserves its exclusive, general, and continuing
jurisdiction over the parties to the Settlement Agreement, including Defendants and all
Class Members, as needed or appropriate in order to administer, supervise, implement,
8
interpret, or enforce the Settlement Agreement in accordance with its terms, including the
investment, conservation, protection of settlement funds prior to distribution, and
distribution of settlement funds.
28.
In the event that any Settling Defendant withdraws from the Settlement
Agreement, the portions of this Order and Judgment that are issued to implement that
Agreement shall have no further force and effect as to that Settling Defendant, any Class
Member who has a claim against that Settling Defendant, and any Person who would
have been released or otherwise affected by that Settling Defendant’s Designation of
Right of Way. Withdrawal from a Settlement Agreement shall not affect the provisions
of this Order and Judgment that relate to Settling Defendants who do not withdraw.
29.
If this Order and Judgment is not a final judgment as to all claims presented
in the Action, the Court hereby determines, pursuant to Federal Rule of Civil Procedure
54(b), that there is no just reason to delay the appeal of all claims as to which final
judgment is entered.
Dated: November 12, 2012
s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge
9
EXHIBIT L
Released Right-of-Way Providers
Union Pacific Corporation, Union Pacific Railroad Company, Southern Pacific
Rail Corporation (together “Union Pacific”); BNSF Railway Company, Burlington
Northern and Santa Fe Railway Company, The Atchison, Topeka and Santa Fe Railway
Company, Burlington Northern Railroad Company (together “BNSF”); Canadian Pacific
Railway Limited; Soo Line Railroad Company; Chicago Pacific Corporation; Chicago,
Milwaukee, St. Paul & Pacific Railroad; Buffalo Ridge Regional Rail Association;
Minnesota Department of Transportation; and any of the predecessors-in-interest,
predecessors-in-title, successors-in-interest, successors-in-title, members, partners,
affiliates, lessees, subsidiaries, parents, assigns, related entities, agencies or officials of
and any railroads or terminal railroads wholly owned or partially owned by each of the
Right-of-Way Providers named above.
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?