Keech et al v. Sanimax USA, LLC
Filing
106
ORDER granting 87 Motion for Final Approval of Class Settlement. (Written Opinion) Signed by Chief Judge John R. Tunheim on 6/3/2020. (HAZ)
CASE 0:18-cv-00683-JRT-HB Document 106 Filed 06/03/20 Page 1 of 15
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
PATRICIA KEECH and DAVID NEWFIELD,
on behalf of themselves and all others
similar situated,
Plaintiffs,
v.
SANIMAX USA, LLC ,
Civil No. 18-683 (JRT/HB)
ORDER GRANTING MOTION FOR
FINAL APPROVAL OF
CLASS SETTLEMENT
Defendant.
Laura L. Sheets, LIDDLE & DURBIN, P.C., 975 East Jefferson Avenue, Detroit,
Michigan 48207, and Jeffrey S. Storms, NEWMARK STORMS DWORAK LLC,
100 South Fifth Street, Suite 2100, Minneapolis, Minnesota 55402, for
plaintiffs.
Andrew W. Davis, STINSON LLP, 50 South Sixth Street, Suite 2600,
Minneapolis, Minnesota 55402, and Matthew J. Salzman, STINSON LLP,
1201 Walnut Street, Kansas City, Missouri 64106, for defendant.
Pursuant to the Order Granting Motion for Preliminary Class Certification (Feb. 3,
2020, Docket No. 85) (“Preliminarily Approval Order”) and on Plaintiffs’ Motion for Final
Approval of Class Action Settlement, Certification of Settlement Class, and Appointment
of Class Representatives and Class Counsel (May 11, 2020, Docket No. 87), this matter
came before the Court for the Settlement Fairness Hearing on May 18, 2020.
The Named Plaintiffs, on behalf of themselves and the Settlement Class Members,
seek final approval of the Settlement Agreement in its entirety, including an award of
CASE 0:18-cv-00683-JRT-HB Document 106 Filed 06/03/20 Page 2 of 15
attorneys’ fees and expenses to Class Counsel, incentive awards to each Named Plaintiff,
and the allocation of the remaining funds to the Settlement Class Members. Defendant
seeks only a determination that the aggregate consideration to the Settlement Class is a
fair, reasonable, and adequate resolution of this Litigation and all Released Claims.
Pursuant to the Preliminary Approval Order, notice of the proposed settlement
was given to potential Settlement Class Members, which was adequate and sufficient
notice of the terms of the proposed Settlement Agreement and of the Settlement Fairness
Hearing.
Among other things, the notice also advised potential Settlement Class
Members of the opportunity to object to the proposed Settlement Agreement or to opt
out of the Settlement Class. Notice of the proposed settlement was also properly given
to the appropriate local, state and, federal agencies pursuant to 28 U.S.C. § 1715. Of the
more than 10,000 prospective Settlement Class Members, seven opted out and three
objected. At the Settlement Fairness Hearing, all objections that were properly and timely
made by or on behalf of any Settlement Class Member were duly considered and were
overruled. At the conclusion of the Settlement Fairness Hearing, the Court requested that
Class Counsel submit additional information concerning its fee application and that
Defendant state whether it would agree to submit biannual reports with Class Counsel to
the Court, updating it on the progress of the improvement measures during the
Implementation Period.
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CASE 0:18-cv-00683-JRT-HB Document 106 Filed 06/03/20 Page 3 of 15
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Except as otherwise defined, all capitalized terms used in this Order shall
have the same meaning ascribed to them in the Settlement Agreement.
2.
The Court has jurisdiction over this Litigation and the Parties to the
Settlement Agreement, including the Settlement Class Members.
3.
In determining whether a class-action settlement should be approved as
being a fair, reasonable, and adequate resolution of the case, the Eighth Circuit has
instructed district courts to consider the following factors (the “Van Horn factors”):
(a) the merits of the plaintiffs’ case weighed against the terms of the
settlement;
(b) the defendant’s financial condition;
(c) the complexity and expense of further litigation; and
(d) the amount of opposition to the settlement.
See Marshall v. NFL, 787 F.3d 502, 508 (8th Cir. 2015) (listing factors). Consistent with
Eighth Circuit precedent, Rule 23 of the Federal Rules of Civil Procedure was recently
amended and now requires that:
the court may approve [a proposed class-action settlement] only after a
hearing and only on finding that it is fair, reasonable, and adequate after
considering whether:
(A) the class representatives and class counsel have adequately
represented the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
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(ii) the effectiveness of any proposed method of distributing
relief to the class, including the method of processing classmember claims;
(iii) the terms of any proposed award of attorney’s fees,
including timing of payment; and
(iv) any agreement required to be identified under Rule
23(e)(3); and
(D) the proposal treats class members equitably relative to each
other.
Fed. R. Civ. P. 23(e)(2). “The single most important factor in determining whether a
settlement is fair, reasonable, and adequate is a balancing of the strength of the plaintiff's
case against the terms of the settlement.” Marshall, 787 F.3d at 508 (quoting Van Horn
v. Trickey, 840 F.2d 604, 607 (8th Cir. 1988))).
4.
Having considered the negotiation of, the terms of, and all of the materials
submitted concerning the proposed Settlement Agreement; having considered the
Named Plaintiffs’ likelihood of success both of maintaining this action as a class action
and of prevailing on the claims in their First Amended Complaint at trial, including the
possibility that Defendant could prevail on one or more of the defenses pleaded in its
Answer; having considered the range of the Named Plaintiffs’ possible recovery (and that
of the putative Settlement Class) and the complexity, expense, and duration of the
Litigation; and having considered the substance and amount of opposition to the
proposed settlement, it is hereby determined that:
(a) the Named Plaintiffs and Class Counsel have adequately represented the
proposed settlement class;
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(b) the proposed settlement and the terms of the Settlement Agreement
were negotiated at arm’s length, over a sustained period of time, with the
assistance of a neutral mediator;
(c) the outcome of the Litigation is in doubt;
(d) it is possible the proposed Settlement Class could receive more if the
Litigation were to go to trial, but it is also possible that the proposed Settlement
Class could receive less (including the possibility of receiving nothing) and/or that
Defendant could defeat certification;
(e) the value of immediate recovery outweighs the possibility of future relief
which would likely occur, if at all, only after further protracted litigation and
appeals;
(f) the parties have in good faith determined the Settlement Agreement is
in their respective best interests, including both the Named Plaintiffs and Class
Counsel determining that it is in the best interest of the Settlement Class Members;
(g) the aggregate consideration for the Settlement Class—including both
the Settlement Fund, which Defendant shall fund, and the improvement measures
that
Defendant
will
implement
over
the
Implementation
Period—is
commensurate with the claims asserted and that will be released as part of the
settlement, and
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(h) the terms of the Settlement Agreement treat the Settlement Class
Members equitably relative to each other and fall well within the range of
settlement terms that would be considered a fair, reasonable, and adequate
resolution of the Litigation.
Therefore, pursuant to Rule 23(e), the terms of the Settlement Agreement dated
August 6, 2019 are hereby finally approved as fair, reasonable, and adequate as to, and
in the best interest of, the Settlement Class and each of the Settlement Class Members,
in light of the factual, legal, practical, and procedural considerations raised by this
Litigation. 1
5.
Solely for the purpose of settlement in accordance with the
Settlement Agreement, this Court hereby finally certifies the following Settlement Class:
All current or former owners or occupiers of residential property located
within a two mile radius of Defendant’s facility at 505 Hardman Avenue,
South Saint Paul, Minnesota, and all owners or occupiers of residential
property outside of that radius who submitted a residential data sheet
to Class Counsel on or before July 15, 2019 concerning odors or
emissions from South Saint Paul.
By providing the aggregate fair, reasonable, and adequate consideration to the
Settlement Class as a whole, Defendant will have fulfilled its obligations under the
Settlement Agreement. Class Counsel and Named Plaintiffs, however, have further
responsibilities including the allocation and distribution of the Settlement Fund to Class
Counsel, Named Plaintiffs, and the individual Settlement Class Members. As part of the
Court’s determination in finally approving the Settlement Agreement, the Court also has
considered the distribution of the Settlement Fund, Class Counsel’s attorneys’ fees and
expenses, Named Plaintiffs’ incentive awards, and the treatment of the Settlement Class
Members relative to each other.
1
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Excluded from the Settlement Class are all potential Settlement Class Members
who opted out of this Settlement, each of whom timely complied with the requirements
set forth in the Class Notice to exclude themselves from, and opt out of, the Settlement
Class and the Settlement Agreement. Specifically, those who are excluded from the
Settlement Class are: Loretta Brandner and Bruce Cedarholm (521 Second Avenue South,
South Saint Paul, Minnesota 55075); Richard and Katherine Buenger (4640 Wild Canyon
Drive, Woodbury, Minnesota 55129); the City of South Saint Paul (125 Third Avenue
North, South Saint Paul, Minnesota 55075); Kari Moen and Morris Klinger (225 Third
Avenue South, Apartment D1, South Saint Paul, Minnesota 55075); Larry and Julie Knott
(549 Seventeenth Avenue North, South Saint Paul, Minnesota 55075); Adam and Kimberly
Smith (1046 Dwane Street, South Saint Paul, Minnesota 55075); and Red Rock Square
(150 Red Rock Crossing, Newport, Minnesota 55055).
6.
The Court appoints Named Plaintiffs Patricia Keech and David
Newfield as representatives of the Settlement Class. Pursuant to Rule 23(g), the Court
appoints Steven D. Liddle, Esq., Laura L. Sheets, Esq., and Jeffrey S. Storms, Esq. as Class
Counsel.
7.
Pursuant to Rule 23(e)(1) and all applicable law, notice was properly
given to the potential Settlement Class Members in accordance with the terms of the
Settlement Agreement and the Preliminary Approval Order. The Class Notice, which the
Court approved in the Preliminary Approval Order, was written in plain English, clear,
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concise and readily understandable. The Class Notice was sent by Class Counsel by mail
to each reasonably identifiable residential address within the Class Area, and five
municipalities. The Class Notice and other relevant information and documents (e.g., the
First Amended Class Action Complaint, the Court’s ruling on Defendant’s motion to strike
class allegations, the Preliminary Approval Order, and the Settlement Agreement with all
of its exhibits) were posted on the Liddle & Dubin, P.C. website, the address of which was
identified in the Class Notice. The Class Notice provided a mailing address, an e-mail
address, a website, and a toll-free telephone number for the potential Settlement Class
Members to contact Class Counsel if they needed or wanted additional information. The
Court finds that the notification provided for and given to the Settlement Class:
(a) constitutes the best notice practicable under the circumstances;
(b) was reasonably calculated to apprise potential Settlement Class
Members of the existence of and their rights related to the Litigation and the terms
and conditions of the proposed Settlement Agreement;
(c) constitutes due, adequate, and sufficient notice to all persons entitled to
notice; and
(d) is in full compliance with all applicable requirements of Minnesota and
Federal law, the Rules of the Court, any other applicable law and due process
requirements.
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As soon as this Order becomes Final, Class Counsel shall discontinue the link on its website
and ensure that all information posted on it is no longer accessible.
8.
Pursuant to 28 U.S.C. § 1715, notice was properly given to the appropriate
federal, state, and local agencies, including the United States Attorney General; the
United States Environmental Protection Agency; the Attorney General of the State of
Minnesota; the Minnesota Pollution Control Agency; and the City of South Saint Paul.
Each such notice was sent more than ninety (90) days ago, thereby complying with the
statutory notice period.
9.
Pursuant to Rule 23(e), having ruled that due and adequate notice
was provided to the potential Settlement Class Members and that they were afforded an
opportunity to participate in the proceedings and object to the Settlement Agreement or
to exclude themselves from the settlement by opting out of the Settlement Class, it is
hereby determined that each Settlement Class Member (whether or not the Settlement
Class Member objected, submitted a Claim Form, or otherwise participated in the
Litigation, the settlement, or the approval process) shall be bound by the terms and
provisions of the Settlement Agreement and this Order, including the releases and
covenants not to sue set forth in the Settlement Agreement, which are hereby
incorporated by reference and become part of this Order. As Defendant was not in
control of or participated in the effectuation of Notice or the maintenance, allocation, or
distribution of the Settlement Fund, Defendant shall not have any liability for those
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aspects of the Settlement, nor shall they affect the validity or binding nature of this Order
or the Settlement Agreement, including, without limitation, the release afforded to the
Released Parties.
10.
Pursuant to the terms of the Settlement Agreement, Defendant shall
fund the Settlement Fund, which shall be held by Class Counsel in trust in a Qualified
Settlement Fund (“QSF”) account under the Internal Revenue Code. Specifically, within
two (2) business days of this Order becoming Final, Class Counsel shall provide wiring or
other payment instructions to Defendant. Within five (5) business days of the later of the
Order becoming Final or Defendant’s receipt of the wiring or other payment instructions
from Class Counsel, Defendant shall deposit Seven Hundred Fifty Thousand Dollars
($750,000) by check or wire or electronic transfer to Liddle & Dubin, P.C., in a QSF trust
account established by Class Counsel. The deposit by Defendant of that amount, in
combination with the improvement measures, shall fully satisfy each and every obligation
of Defendant to the Named Plaintiffs, Class Counsel, the Settlement Class, and each
Settlement Class Member concerning this Litigation, the Settlement Agreement, and the
Released Claims. Defendant shall implement the improvement measures as set forth in
the Settlement Agreement, which implementation shall be completed within four years
of the date this Order becomes Final. As set forth in the Settlement Agreement,
Defendant will report at least annually to Class Counsel on the status of the improvement
measures, and Defendant in its discretion may designate certain information in those
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CASE 0:18-cv-00683-JRT-HB Document 106 Filed 06/03/20 Page 11 of 15
reports as confidential attorneys’ eyes only. In addition, during the Implementation
Period, Class Counsel and Defendant shall submit biannual in-camera reports to the
Court. 2
11.
All claims against Defendant are hereby dismissed on the merits and
with prejudice. All Released Claims 3 are hereby released, extinguished, and forever
Defendant has agreed to the requested modification of the Settlement Agreement to
provide for the biannual reports on the condition that they be submitted in-camera and
not become part of the public record.
2
3
As set forth in the Settlement Agreement, which is incorporated into this Order:
each Named Plaintiff and Settlement Class Member, on behalf
of themselves and their heirs, executors, administrators,
beneficiaries, predecessors, successors, assigns and each of
them, and any of their former and present employees,
directors, officers, accountants, agents, attorneys,
representatives, affiliates, and subsidiaries shall and hereby
does forever and fully release and discharge each of the
Released Parties of and from any manner of civil or
administrative actions, causes of actions, suits, obligations,
claims, debts, demands, agreements, promises, liabilities,
controversies, costs, expenses, and attorneys’ fees
whatsoever, whether in law or in equity and whether based
on any federal law, state law, common law or foreign law right
of action or otherwise, foreseen or unforeseen, matured or
unmatured, known or unknown, accrued or not accrued
which the Settlement Class Members or any of them, ever
had, now have, or can have, or shall or may hereafter have,
either individually or as a member of a group or class, against
the Released Parties, for, based on, by reason of, or arising
from the conduct alleged in Plaintiffs’ First Amended
Complaint and Jury Demand filed in Case No. 18-cv-00683JRT-HB or any emissions of pollutants, contaminants, and/or
(footnote continued on next page)
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discharged. The Named Plaintiffs and all Settlement Class Members, are barred and
permanently enjoined from instituting, maintaining, prosecuting, or continuing to
maintain or prosecute any of the Released Claims against the Released Parties.
12.
This Court hereby retains jurisdiction over all matters relating to the
interpretation, effectuation, and enforcement of the Settlement Agreement. The Court
retains further jurisdiction to enforce this Order and the distribution of the Settlement
Fund. The reservation of jurisdiction by this Court in this matter does not affect in any
way the finality of this Order.
13.
This Order, the Settlement, and all documents, negotiations,
statements, or proceedings relating to it
(a) are not and shall not be construed to be an admission or concession by
Defendant or any Released Party of any liability or wrongdoing whatsoever;
(b) are not and shall not be construed to be an admission or concession by
Defendant or any Released Party of the validity of any claims asserted against
them, including but not limited to whether this or any other similar case could be
properly certified as a class certification under the applicable law; and
odors from the Facility through the end of the
Implementation Period (collectively, the “Released Claims”).
Settlement Agreement, Section 7(a).
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(c) shall not be offered as evidence or otherwise proffered as any such
admission or concession in this or any other proceeding.
None of this information may be offered or received as evidence or argument against
Defendant of any wrongdoing or to limit its ability to take any position it would otherwise
be able to take in this or any other proceeding absent the settlement or the Litigation.
14.
This Order, the settlement, and all papers relating thereto are not
and shall not be construed to be an admission or concession by Plaintiffs with regard to
the merits of their claims whatsoever, and shall not be offered as evidence as to the
merits in this or any other proceeding.
15.
There is no just reason for delay in the entry of this Order as a final
judgment. Furthermore, there is reason to enter and certify it as a final judgment,
including without limitation that doing so will expedite any appeal, which, in turn, will
shorten the time it will take for this Order either
(a) to become Final and non-appealable thereby expediting the distribution
of the Settlement Fund to the Settlement Class Members; or
(b) to be overturned on appeal thereby facilitating a modified settlement or
the reconvening of the Litigation.
The Court expressly directs the Clerk of the Court to enter this Order as a final judgment
pursuant to Rule 54(b).
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16.
In the event that this Order fails to become final and nonappealable
for any reason, including without limitation that it is reversed on appeal and/or the
Settlement Agreement is terminated, then this Order, the Preliminary Approval Order,
and all related orders from this Court shall be automatically rendered null and void and
shall be deemed vacated. In such event, the parties and the putative class members shall
be returned to the same litigation position that they were in prior to seeking preliminary
approval of the Settlement Agreement and they shall be free to raise all claims, defenses,
and arguments as they would have been able to had they never negotiated or sought
approval of the Settlement Agreement. Class Counsel shall also immediately terminate
the website.
17.
Incentive awards to class representatives Patricia Keech and David
Newfield are approved in the amount of $1500 each for their efforts in representing the
Class.
18.
Attorneys’ fees in the amount of $217,807.17 are awarded to Liddle
& Dubin, P.C. for their work as Class Counsel.
19.
Liddle & Dubin, P.C. is also entitled to recovery of its costs in the
amount of $27,741.04, which are supported by individual invoices.
20.
Attorneys’ fees in the amount of $54,451.79 are awarded to
Newmark Storms Dworak LLC for their work as Class Counsel.
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DATED: June 3, 2020
in Minneapolis, Minnesota at 11:00AM
_______s/John R. Tunheim______
JOHN R. TUNHEIM
Chief Judge
United States District Court
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