Barfield et al v. Sho-Me Power Electric Cooperative et al

Filing 541

ORDER entered by Judge Nanette Laughrey. After consideration of all documents in Plaintiffs' status report, 539 , and the documents and statements included with the Parties' subsequent Motion, Plaintiffs' and KAMO's Joint Motion for Preliminary Approval of the KAMO-KPN Class Settlement Agreement, 540 , is granted. A fairness hearing is scheduled for January 16, 2015, at 8:30 a.m. before the undersigned in Courtroom No. 4B, United States Courthouse, 80 Lafayette Street, Je fferson City, Missouri 65101. The hearing will be adjourned on January 16 and reconvened in the same Courtroom on January 23, 2015 at 8:30 a.m. so that the Court may consider any objections from KAMO Class Members filed before that date. (Cross, Ashley)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
CHASE BARFIELD, et al.,
Plaintiffs,
v.
SHO-ME POWER ELECTRIC
COOPERATIVE, et al.,
Defendants.

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Case No. 2:11-cv-4321-NKL

ORDER PRELIMINARILY APPROVING KAMO-KPN CLASS SETTLEMENT AGREEMENT
AND APPROVING FORM AND MANNER OF NOTICE
Counsel for Plaintiffs and Defendants KAMO Electric Cooperative, Inc. and KPowerNet, LLC (collectively “KAMO-KPN”) have moved under Federal Rule of Civil
Procedure 23(e) for an order (1) preliminarily approving a class settlement on the terms
and conditions set forth in the KAMO Class Settlement Agreement (the “Settlement
Agreement”) and (2) 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 attached 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.

If the Settlement Agreement is not finally approved by the Court or for any

reason does not become effective, 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.
3.

The terms and conditions set forth in the Settlement Agreement, including

the provision for substantial cash payments to be made by KAMO-KPN to KAMO Class
Members who become Qualified Claimants in return for the Easement Deed by Court
Order in Settlement of Landowner Action, and including the Fee Award to Class Counsel
proposed the Settlement Agreement, 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.
4.

A hearing (the “Fairness Hearing”) shall be held on January 16, 2015, at

8:30 a.m. before the undersigned in Courtroom No. 4B, United States Courthouse, 80
Lafayette Street, Jefferson City, Missouri 65101. The hearing will be adjourned on
January 16 and reconvened in the same Courtroom on January 23, 2015 at 8:30 a.m. so
that the Court may consider any objections from KAMO Class Members filed before that
date. The date of the Fairness Hearings will be included in the Settlement Notice and
Summary Notice. The purpose of the Fairness Hearings 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 Class Members against KAMO and bringing the litigation of
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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.
5.

The Court appoints Straup Solutions, LLC, of Dallas, Texas, to serve as

Claims Administrator.
6.

The Court has reviewed the Settlement Notice and the Summary Notice,

attached to the Parties’ joint Motion for Preliminary Approval of the KAMO Class
Settlement Agreement. The Court approves as to form the Settlement Notice and the
Summary Notice. The Court also approves the method of directing notice to KAMO
Class Members, as set forth in paragraphs 7 and 8 below.
7.

As soon as practical, the Claims Administrator shall prepare and cause

individual copies of the Settlement Notice to be sent by United States Mail, first class
postage prepaid, to members of the KAMO Class. The Claims Administrator also shall
mail copies of the Settlement Notice to any other potential KAMO Class Members who
request copies or who otherwise come to its attention.
8.

As soon as publication schedules practically permit, the Claims

Administrator shall cause the Summary Notice, the content of which shall be
substantially as set forth in Exhibit B to the Declaration of Shannon Wheatman, to be
published, as set forth in the plan of publication contained in the Wheatman Declaration,
which Plaintiffs filed on December 4, 2014.
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9.

The Court finds that the foregoing plan for notice to KAMO 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.
10.

Prior to the Fairness Hearing, counsel for KAMO-KPN and counsel for

Plaintiffs shall jointly file with the Court an affidavit from a representative of the Claims
Administrator confirming that the plan for disseminating the Settlement Notice and the
Summary Notice has been accomplished in accordance with the provisions of paragraphs
7 and 8 above.
11.

Pursuant to the litigation notice plan that was implemented in accordance

with this Court’s May 14, 2014 Order approving Plaintiffs’ Motion for Approval of
Proposed Plan of Notice and of Proposed Forms of Notice, Class Members had until
September 8, 2014 to exclude themselves from the litigation (“opt out”). Under the
Parties’ Settlement Notice and Summary Notice program, KAMO Class Members will
not be given an additional opportunity to exclude themselves from the Settlement
Agreement. KAMO Class Members who did 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. KAMO Class Members
who did 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. The
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Settlement Agreement does not apply to claims that Class Members may have against
Sho-Me Power Electric Cooperative or Sho-Me Technologies, LLC that are based on the
installation and use of fiber-optic cable on Sho-Me Power’s electric-transmission lines
(“Sho-Me Claims”). Class Members may not submit a claim form to the Claims
Administrator for Sho-Me Claims under this Settlement Agreement, and the terms of the
Settlement Agreement and any orders or judgments subsequently entered in the Action
that approve, change, modify, alter, clarify or enforce the Settlement Agreement will not
be binding on Class Members as to any Sho-Me Claims.
12.

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 KAMO Class
Members who own a current interest in a Qualifying Parcel and who have not requested
exclusion from the litigation, regardless of whether they file a Claim Form for Benefits,
to grant an Easement Deed by Court Order in Settlement of Landowner Action to
KAMO, as provided in the Settlement Agreement. KAMO Class Members shall be
advised in the Settlement Notice and Summary Notice of the Court’s authority to enter an
Easement by Court Order in Settlement of Landowner Action.
13. Under the proposed Settlement Notice and Summary Notice program, KAMO
Class Members will be given the opportunity to submit objections to the Settlement
Agreement. KAMO Class Members who did not request exclusion may submit written
comments on or objections to the Settlement Agreement or other Settlement-related
matters (including attorneys’ fees). KAMO Class Members who receive the Settlement
Notice because they are included in the database maintained by the Claims Administrator
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prior to the initial mailing of the Settlement Notice may file objections or requests to
appear at the January 16, 2015 Final Fairness Hearin so that they are received by the
Court by January 12, 2015. KAMO Class Members whose first notice of the Settlement is
the published Summary Notice may file objections or requests to appear at either
scheduled Final Fairness Hearing so long as the objection or request to appear is received
by the Court by January 22, 2015 or the KAMO Class Member is present at the January
23, 2015 hearing when it convenes. Any KAMO Class Member who did not request
exclusion may also attend the Fairness Hearing, in person or through counsel, and if the
KAMO Class Member has submitted written objections, may pursue those objections. No
KAMO Class Member, however, shall be entitled to contest the foregoing matter in
writing and/or at the Fairness Hearing unless the KAMO Class Member has, by the dates
set forth above, served copies of the statement of objection, together with any supporting
brief and all other papers the KAMO 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 KAMO Class Member who intends to appear at the Fairness Hearing,
provided, however, that counsel is not necessary as the KAMO 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 Courthouse
80 Lafayette Street
Jefferson City, Missouri 65101
and served on the following representative of Class Counsel:
KAMO Fiber-Optic Litigation
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P.O. Box 0000
Dallas, TX 75222
and on the following representative of KAMO:
Jean Paul Bradshaw
LATHROP & GAGE LLP
2345 Grand Avenue, Suite 2200
Kansas City, MO 64108-2618
Each statement of objection must identify (a) the name and address of the KAMO Class
Member, (b) the name and address of the KAMO Class Member’s counsel, if any, and,
(c) in order to confirm KAMO Class Member status, the legal description of the KAMO
Class Member’s Eligible Parcel. Unless otherwise directed by the Court, any KAMO
Class Member who does not submit a statement of objection in the manner specified
above will be deemed to have waived any such objection.
14.

Prior to the Fairness Hearing, the Parties shall confer and work together in

good faith to use KAMO’s GIS data and easements to agree on a final list showing which
parcels are Eligible Parcels and for which Tier of Benefits each Eligible Parcel qualifies.
Any disputes arising out of this process shall be brought before and decided by a
Magistrate Judge whose determination will be final.
15.

During the Court’s consideration of the Settlement Agreement and pending

further order of the Court, all proceedings in this Action that are related to KAMO, 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.
16.

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
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nullified and the steps and actions taken in connection with the proposed Settlement
Agreement (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.
17.

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 KAMO Class
Representatives, Class Counsel, KAMO, any KAMO 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.
18.

The Court retains jurisdiction over this action, the Parties, and all matters

relating to the Settlement Agreement.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: December 5, 2014
Jefferson City, Missouri

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