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

Filing 929

ORDER and JUDGMENT entered by Judge Nanette K. Laughrey approving class settlement agreement and directing notice of final approval. Signed November 15, 2018 by Judge Nanette K. Laughrey. Signed on 11/15/18 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)

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

)
)
)
)
)
)
)
)
)
)

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

ORDER AND JUDGMENT APPROVING SHO-ME CLASS SETTLEMENT AGREEMENT
AND DIRECTING NOTICE OF FINAL APPROVAL
WHEREAS, the Sho-Me Class Representatives, through Class Counsel, and Defendant
Sho-Me Power Electric Cooperative and Sho-Me Technologies, LLC (collectively “Sho-Me”)
entered into a Class Settlement Agreement (the “Agreement”), as of July 12, 2018 (terms
capitalized herein and not otherwise defined shall have the meanings ascribed to them in the
Agreement); and
WHEREAS, on July 25, 2013, the United States District Court for the Western District of
Missouri certified the Class under Rule 23(b)(3) of the Federal Rules of Civil Procedure and
appointed Class Counsel to represent the Class;
WHEREAS, Plaintiffs and Sho-Me filed cross-motions for summary judgment based on
an appendix which summarized and catalogued easements into categories based on the language
contained in the easements;
WHEREAS, on January 7, 2014, the Court granted Plaintiffs’ Consent Motion to Amend
Plaintiffs’ First Amended Class Action Complaint by Interlineation;
WHEREAS, on March 31, 2014, the Court, inter alia: (1) granted Plaintiffs’ Motion for
Summary Judgment on the Issue of Defendants’ Liability as to claims involving Category 1A-1C

easements; (2) denied Plaintiffs’ Motion for Summary Judgment on the Issue of Defendants’
Liability as to claims involving Category 1D-1E, 2A-2B, and 3 easements; (3) granted Sho-Me’s
Motion for Summary Judgment on the Issue of Liability as to claims involving Category 1D, 2A2B, and 3 easements; (4) denied Sho-Me’s Motion for Summary Judgment on the Issue of
Liability as to claims involving Category 1A-1C and 1E easements; (5) granted in part and
denied in part Sho-Me’s Motion for Summary Judgment Against the KAMO Class Members;
and (6) denied summary judgment as to any party on claims based on Category 1E easements;
WHEREAS, notice of the litigation was provided to the class pursuant to the plan
approved by the Court’s order dated May 14, 2014;
WHEREAS, Persons fitting the definition of the class were given until September 8,
2014, to exclude themselves (opt out) from the Action under Rule 23(c)(2)(B) of the Federal
Rules of Civil Procedure;
WHEREAS, the following Persons with potential claims against Sho-Me timely
requested exclusion from the Action on or before September 8, 2014:
The Halbert Dallas Ray & Illen Trust
Russell Kargel
Douglas S. Platten
Keith & Marilyn Tharp
Jack & Wynne Harris
John W. & Jean E. Greer
Harold Rex Allen, Jr.
Denise Green Roberts Trust
WHEREAS, the Sho-Me Class Representatives on behalf of the Class as defined in the
Agreement elected on August 1, 2014, to proceed against Sho-Me on their unjust enrichment
claim, and on February 6, 2015, a jury awarded the Class $79,014,140 in actual damages;
WHEREAS, the Court ruled in favor of Sho-Me on Category 1E easements during the
February 2015 trial;
2

WHEREAS, Sho-Me appealed the judgment entering the jury verdict and, on appeal, the
United States Court of Appeals for the Eighth Circuit reversed the grant of summary judgment
on the Class’s unjust enrichment claim by the United States District Court for the Western
District of Missouri, but affirmed the grant of summary judgment on the Class’s trespass claim
and remanded the matter to allow the Sho-Me Class Representatives to pursue damages on the
Class’s trespass claim if they elected to do so;
WHEREAS, on remand, at a second trial held in August 2017, a jury awarded the Class
damages for trespass in the amount of $129,211,337 and punitive damages in the amount of
$1,300,000;
WHEREAS, on September 29, 2017, the Court vacated the judgment entering the jury
verdict and ordered a new trial;
WHEREAS, Sho-Me stipulated for the purposes of the two trials that Sho-Me has
installed fiber-optic cable or optical ground wire on approximately 796 miles of Eligible Right of
Way, and that some of the capacity on the fiber-optic cable or optical ground wire was used for
Commercial Communications Purposes;
WHEREAS, Sho-Me vigorously contested, but respectfully acknowledges, the Court’s
ruling that new easements should have been obtained from landowners;
WHEREAS, Sho-Me has disputed and continues to dispute Plaintiffs’ method of
calculating compensation to the Class as the result of its use of fiber-optic cable or optical
ground wire on Eligible Parcels for Commercial Communications Purposes;
WHEREAS, over the last approximately nine (9) years, members of Class Counsel have
conducted thorough discovery efforts, examination, and investigation of facts and law relating to
the matters set forth in the First Amended Class Action Complaint;
3

WHEREAS, with the assistance of both private and Court-appointed mediators, the
Parties have engaged in extensive, arm’s-length negotiations regarding the settlement of the
Communications Claims;
WHEREAS, Sho-Me and the Class in the Action moved under Rule 23(e) for an order
preliminarily approving the proposed settlement of the Class Members’ claims in accordance with
the Agreement and approving the form and plan of notice as set forth in the Parties’ joint Motion
for Preliminary Approval of the Sho-Me Class Settlement Agreement [DOC. #916];
WHEREAS, in its Order entered on July 30, 2018 (the “Preliminary Approval Order”), the
Court provisionally ordered that this Action may be settled as a class action [DOC. #918];
WHEREAS, the Preliminary Approval Order also approved the forms of notice of the
Settlement Agreement to Class Members and directed that appropriate notice of the Agreement be
given to Class Members;
WHEREAS, in accordance with the Agreement and the Preliminary Approval Order: (1)
the Claims Administrator caused to be mailed to Class Members the Settlement Notice on August
24, 2018 and Kinsella Media caused to be published the Summary Notice; (2) Affidavits of Mailing
and Publication of the Settlement Notice and Publication of the Summary Notice were filed with
the Court prior to this hearing; and (3) the Affidavits of Mailing and Publication filed with this
Court demonstrates compliance with the Preliminary Approval Order with respect to the
Settlement Notice and the Summary Notice and, further, that the best notice practicable under the
circumstances was, in fact, given;
WHEREAS, the following additional Person with potential claims against Sho-Me timely
requested exclusion from the Action on or before October 9, 2018: Glen Williams;

4

WHEREAS, on November 15, 2018, at 1:00 p.m., this Court held a hearing on whether the
Agreement is fair, reasonable, adequate and in the best interests of the Class (the “Fairness
Hearing”); and
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 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 Sho-Me Class Representatives, Class Members, and Sho-Me.
2.

The Sho-Me Class Representatives and their counsel fairly and adequately

represent the interests of the Class Members in connection with the Agreement.
3.

The Agreement is the product of good-faith, arm’s-length negotiations by the Sho-

Me Class Representatives and Class Counsel, and Sho-Me and their counsel, and the Sho-Me Class
Representatives and Sho-Me were each 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 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.
5

6.

The Agreement is fair, reasonable, adequate, and in the best interests of Class

Members, and is approved in all respects, and the parties to the Agreement are directed to perform
and satisfy the terms and conditions of the Agreement.
7.

Class Members shall be permitted to make claims for the Benefits described in the

Agreement, subject to the conditions and limitations stated herein.
8.

After this Order and Judgment has become Final and an order awarding attorneys’

fees and expenses to Class Counsel with respect to the Agreement becomes Final (hereafter “the
Effective Date”), Sho-Me and all other Released Parties shall be released from any and all
Communications Claims that any Class Member (and all successors in interest) had, has, or may
have in the future, against Sho-Me or any other Released Party. This Release may be enforced by
any Released Party.
9.

All Communications Claims of any Class Member (and the successors in interest

of all Class Members) against Sho-Me are hereby dismissed. Upon the Effective Date, such
dismissal shall be with prejudice.
10.

Upon the Effective Date, all Class Members (and the successors in interest of all

Class Members) shall be barred and permanently enjoined from instituting, asserting, or
prosecuting against Sho-Me or any other Released Party any and all Communications Claims they
have, had, or may have in the future, against Sho-Me or any other Released Party, except any
claims for enforcement of the Agreement.
11.

The various Claim Forms and the Easement Deed by Court Order in Settlement of

Landowner Action, set forth as Exhibits E(1) – (2) and F, respectively, to the Agreement, are
approved. In order to receive Benefits under the Agreement, all Class Members must comply with
the requirements for making and documenting a Claim that are set forth in that Agreement.
6

12.

Pursuant to its authority under Federal Rule of Civil Procedure 70, on this date the

Court has executed the Easement Deed by Court Order in the Settlement of Landowner Action.
Upon the Effective Date, Sho-Me may, at its option and cost, submit for recording of public record
in any Missouri county Recorder’s Office for each county in Missouri where Eligible Parcels are
located an Easement Deed by Court Order in Settlement of Landowner Action entered
contemporaneously with this Order and Judgment, which shall comply with state and local
recording laws and form, as provided in Section V.B of the Agreement. If a county requires an
executed easement for a specific parcel, the Claims Administrator is hereby authorized to execute
an Easement Deed by Court Order in Settlement of Landowner Action, as needed, to satisfy the
county requirement. The Court retains jurisdiction, as provided pursuant to Section VII.C of the
Agreement, and may enter supplemental orders and judgments to change, modify, alter, or clarify
any Easement Deed by Court Order in Settlement of Landowner Action to effectuate the
recordation of the Easement Deed by Court Order in Settlement of Landowner Action and to
ensure it and any supplemental orders and judgments comply with state and local recording laws
for each county where such supplemental orders are to be recorded.
13.

The expenses of administering the Agreement shall be paid from the Settlement

Fund and the Notice Fund in the manner set forth in the Agreement.
14.

The Claims Administrator shall operate under the continuing supervision and

jurisdiction of the Court and shall have the immunities and attributes of a judicial officer with
respect to its administrative functions.
15.

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
7

indexing of the Easement Deed by Court Order Deed in Settlement of Landowner Action, or notice
thereof, except claims to enforce the Agreement and/or this Order.
16.

It is hereby declared, adjudged, and decreed that, upon the Effective Date, the

Agreement provides the exclusive remedy for any and all Communications Claims of Class
Members (and any successors in interest) against Sho-Me and any and all other Released Parties.
17.

Upon the Effective Date, all claims against the Sho-Me Class Representatives, or

their counsel or any of them, arising out of, relating to, or in connection with the Action shall be
released by Sho-Me and their counsel, and they shall be permanently enjoined and barred from
instituting, asserting, or prosecuting any and all claims arising out of, relating to, or in connection
with the Action that Sho-Me or their counsel or any of them had, have, or may in the future have
against the Sho-Me Class Representatives or their counsel, except claims to enforce the Agreement
and/or this Order.
18.

Upon the Effective Date, all Class Members (and all successors in interest), whether

or not they file a Claim for Benefits, shall be permanently enjoined and barred from instituting,
asserting or prosecuting, either directly or as a class representative, any Communications Claims.
19.

The form of the Notice of Final Approval of Settlement, set forth as Exhibit D to

the Agreement, is approved.

Upon this Order and Judgment becoming Final, the Claims

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.
20.

Any claims by Sho-Me against any insurers or other third parties for contribution,

indemnification, or insurance benefits, are not barred, released, or otherwise affected by the
Agreement or this Order and Judgment.
8

21.

Incentive awards to the Sho-Me Class Representatives in the following amount are

reasonable and are approved: Michael D. and Gina Biffle: $15,000 (jointly); and Dwight K.
Robertson: $15,000.
22.

The Claims Administrator shall deposit any Fee and Expense award approved by

the Court, into the account of Class Counsel’s choosing no later than ten (10) days after the date
on which the Order and Judgment becomes Final.
23.

The Court hereby reserves its exclusive, general, and continuing jurisdiction over

the Parties to the Agreement, including Sho-Me and all Class Members, as needed or appropriate
in order to administer, supervise, implement, interpret, or enforce the Agreement in accordance
with its terms, including the investment, conservation, protection of settlement funds prior to
distribution, and distribution of settlement funds.
24.

If this Order and Judgment is not a final judgment as to all claims presented against

Sho-Me 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.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: November 15, 2018
Jefferson City, Missouri

9