Hartley et al v. Sig Sauer, Inc. et al

Filing 69

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT, CERTIFYING CLASS, AWARDING ATTORNEYS' FEES AND SERVICE AWARDS, AND FINAL JUDGMENT. Signed on 6/25/20 by District Judge Stephen R. Bough. (Diefenbach, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DAVID HARTLEY, and TIMOTHY
DELISLE, individually and on behalf of all
others similarly situated,
Plaintiffs,
v.
SIG SAUER, INC.,
Defendant.

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Case No. 4:18-cv-00267-SRB

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT,
CERTIFYING CLASS, AWARDING ATTORNEYS’ FEES AND SERVICE AWARDS,
AND FINAL JUDGMENT
On June 25, 2020, a fairness hearing was held before this Court to determine: (a) whether
the proposed Settlement should be granted final approval as fair, reasonable, and adequate; (b)
whether the proposed Class should be certified for settlement purposes; (c) whether Class
Counsel’s application for attorneys’ fees and expenses and service awards for the Plaintiffs should
be granted; and (d) whether a final judgment granting approval of the Settlement and dismissing
the Action with prejudice should be entered.
Having duly considered all papers filed and arguments presented, IT IS HEREBY
ORDERED and ADJUDGED as follows:
1.

Unless defined herein, all defined terms in this Final Approval Order and any

accompanying Judgment shall have the respective meanings set forth in the Settlement Agreement.
2.

This Court has jurisdiction over the subject matter of the Action and over all Parties

to the Action, including all Settlement Class Members.
3.

The Court preliminarily approved the Settlement Agreement and entered the

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Preliminary Approval Order on February 18, 2020.
Notice
4.

Notice was disseminated under the terms of the Preliminary Approval Order.

5.

The Court has determined that the Notice given to the Settlement Class, in

accordance with the Notice Plan in the Settlement Agreement and the Preliminary Approval Order,
fully and accurately informed members of the Settlement Class of all material elements of the
Settlement and constituted the best notice practicable under the circumstances, and fully satisfied
the requirements of due process, Federal Rule of Civil Procedure 23, and all applicable law. The
Court further finds that the Notice given to the Settlement Class was adequate and reasonable.
6.

The Settlement Class Members received notice of: (a) the pendency of the Action;

(b) the terms of the proposed Settlement, including the Release; (c) their rights under the proposed
Settlement, including how to receive the benefits offered by the Settlement; (d) their right to
exclude themselves from the Settlement Class and the proposed Settlement; (e) their right to object
to any aspect of the proposed Settlement; (f) their right to appear at the Final Approval Hearing;
(g) Class Counsel’s request for attorneys’ fees and expenses and an incentive award to the Class
Representatives; and (h) the binding effect of this Final Judgment and Order Approving Settlement
on all Persons who did not timely exclude themselves from the Settlement Class.
7.

The Court also finds that the appropriate state and federal officials were timely

notified of the Settlement Agreement under the Class Action Fairness Act of 2005 (CAFA), 28
U.S.C. § 1715, and that ninety (90) days have passed without comment or objection from any
governmental entity.
Approval Of The Settlement
8.

The Court grants final approval to the proposed Settlement.

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9.

Factors supporting the Court’s order granting final approval to this Settlement

include:
a.

The Settlement was the product of arm’s-length negotiations conducted in
good faith among experienced counsel, with no evidence of collusion. The
Settlement was reached after extensive negotiations including four
mediation sessions.

b.

If the case did not settle, continued litigation would be time consuming,
complicated and expensive. Settlement at this stage avoids the expenditure
of the Parties’ and the Court’s resources.

c.

The reaction of the Class has been favorable. Claims are being made and
will continue through the claims period over the next two years. Further
speaking to the reaction of the Class to the settlement, no Settlement Class
Members have opted out of the Settlement and none have objected to the
Settlement despite extensive notice.

d.

The Parties have described to the Court the discovery and other information
they have exchanged and the Court finds that each side possessed sufficient
information to assess both the strengths and weaknesses of Plaintiffs’ claims
and Defendant’s defenses thereto.

e.

If the case had not settled, Plaintiffs faced considerable risks in maintaining
certification of a litigation class and establishing damages. The Settlement
guarantees a result for the class and eliminates the risks that the Settlement
Class Members may not recover at all.

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f.

The benefits offered by the Settlement make it fair, reasonable, and
adequate, factoring in the strengths and weaknesses of the case. The Court
notes that under the proposed Settlement, many class members will receive
the full purchase price of the products that were damaged beyond repair.

10.

The Court held a hearing on June 25, 2020, at which time the Parties and Settlement

Class Members were afforded the opportunity to be heard in support of or in opposition to the
Settlement.
11.

The terms and provisions of the Agreement have been entered into in good faith

and are hereby fully and finally approved as fair, reasonable, and adequate as to, and in the best
interests of, each of the Parties and the Settlement Class Members.
12.

Accordingly, the Court hereby directs that the Settlement shall be implemented in

accordance with the terms of the Agreement.
13.

The terms of the Agreement, and of this Final Judgment and Order Approving

Settlement, shall be forever binding on, and shall have res judicata and preclusive effect for the
released claims in, all pending and future lawsuits maintained by Plaintiffs and all other Settlement
Class Members who did not timely exclude themselves from the Settlement Class, as well as their
heirs, executors, and administrators, successors, and assigns.
14.

Defendants are ordered to implement the terms and conditions of the Agreement,

and to continue to honor the terms of the Settlement for all of those who submit a timely, valid
Claim pursuant to the Agreement, and fulfill all other terms in accordance with the Settlement.
The time period for Class members to make a claim shall end twenty-four (24) months after this
order becomes final and the time for any appeals has expired.
15.

Any class member who disputes the resolution of their claim pursuant to this

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Settlement Agreement may inform either Sig Sauer or counsel for any party who will put them in
contact with Tom Bender of Horn Aylward & Band LLC. Mr. Bender has agreed to act as an
independent third party to investigate the correct administration of the terms of this settlement and
any class member who disputes the resolution of their claim may contact him directly either
through email ([e-mail]) or by contacting his firm at 816-421-0700. Mr. Bender’s
review is limited to the administration of the terms of this settlement as to a class member’s
particular claim. Sig Sauer may also request the involvement of Tom Bender as an independent
third party in the event it disputes the legitimacy of a claim submitted or the reasonableness of a
demand made in connection with the claims process.
Class Certification
16.

The Court finds, for purposes of effectuating this Settlement only, that the

prerequisites for a class action under Federal Rule of Civil Procedure 23(a) and (b)(3) have been
satisfied in that:
a.

The number of Class Members is so numerous that joinder of all members
thereof is impracticable.

b.

There are questions of law and fact common to the Class, including the
meaning and importance of the alleged misrepresentations at issue to a
reasonable consumer; whether the Pistols functioned as promised; and
whether the Pistols were defective.

c.

The claims of the Court-appointed Class Representatives are similarly
situated to absent Class members, and their claims are typical of the claims
of the Class they represent because they have alleged that they purchased

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the allegedly defective Pistols based upon the alleged misrepresentations at
issue.
d.

The Class Representatives have fairly and adequately represented the
interests of the Class and have no interests in conflict with the Class.

e.

The questions of law and fact common to the members of the Class
predominate over any questions affecting only individual members of the
Class.

f.

A class action is superior to other available methods for the fair and efficient
adjudication of the controversy.

g.

The Class is ascertainable because the membership can be determined with
reference to objective criteria, i.e., whether a Class member bought the
Pistols at issue.

17.

The Court grants final certification for purposes of settlement to the proposed

Settlement Classes, defined as:
Category I Settlement Class: All current owners of a P320 Original Design Pistol whose
pistols have not previously experienced a Cartridge Failure Event.
Category II Settlement Class: All individuals who previously returned their P320 Pistol to
SIG Sauer after experiencing a Cartridge Failure Event and were told that their pistol could
not be repaired.
Category III Settlement Class: All individuals who previously returned their P320 Pistol to
SIG Sauer after experiencing a Cartridge Failure Event and were charged any amount,
including shipping costs, for the repair and return of the pistol.
Excluded from the Settlement Classes are: (a) persons who are neither citizens nor residents

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of the United States or its territories; (b) any Judge or Magistrate Judge presiding over the
action and members of their families; (c) governmental and law enforcement agency
purchasers; (d) Sig Sauer, Inc. and any of its employees, parents, subsidiaries and affiliates.
18.

There are no class members who made timely and valid requests for exclusion.

19.

Pursuant to Federal Rule of Civil Procedure 23(c)(3), all such Persons who satisfy

the Class definition above are Settlement Class Members bound by this Judgment and the Release
set forth in the Class Settlement Agreement.
20.

The Court reaffirms the appointment of Plaintiffs David Hartley, Timothy DeLisle

and David Porter as Class Representatives, and finds that they have adequately represented the
Settlement Class for purposes of entering into and implementing the Agreement.
21.

The Court reaffirms the appointment of Bonner C. Walsh of Walsh PLLC, Tim E.

Dollar of Dollar Burns & Becker, L.C., and Matthew D. Schelkopf of Sauder Schelkopf LLC as
counsel for the Settlement Class (“Class Counsel”).
22.

The Court finds that these lawyers are competent and capable of exercising their

responsibilities as Class Counsel, and finds that Class Counsel has adequately represented the
Settlement Class for purposes of entering into and implementing the Agreement.
Attorneys’ Fees
23.

The Court has considered the submissions by the Parties and all other relevant

factors, including the result achieved and the efforts of Class Counsel in prosecuting the claims on
behalf of the Class.
24.

The Court notes that the Settlement Agreement and the notice to the Class provides

that counsel may seek up to an amount not to exceed $850,000.00 as attorneys’ fees, costs and
separately pay $7,000 as service awards to the Plaintiffs, and that this amount was negotiated with

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Defendants only after the Parties reached agreement on the other substantive terms of the
settlement.
25.

Class Counsel moved for an award of $850,000.00 of fees, costs, and service

awards on May 21, 2020.
26.

After carefully considering Class Counsel’s application, the Court awards Class

Counsel the full amount of $850,000.00 as requested.
27.

Factors supporting the Court’s order granting Plaintiffs’ Motion for Attorneys’

Fees, Costs, and Service Awards include:
a.

The time and labor expended by Class Counsel on behalf of the Class;

b.

The complexity and risks of the litigation;

c.

The results achieved in this settlement including both monetary and
injunctive relief;

d.

The quality of the representation;

e.

The contingent nature of the fee;

f.

The reasonableness of the request fee under both the percentage method and
the lodestar cross check; and

g.
28.

The value of the litigation to the public.

The Court has reviewed and considered each firm’s declaration in support of the

Motion for fees and finds:
a.

The amount of hours expended by Class Counsel was reasonable in light of
the litigation.

b.

The hourly rate requested for each counsel was reasonable and the Court
approves these rates.

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29.

Defendants shall pay the awards to Class Counsel in accordance with and at the

times prescribed by the Settlement Agreement.
Expenses
30.

Plaintiff’s counsel stated that Class Counsel expended $40,172.05 during the

pendency of this litigation. The Court finds the expenses incurred by Class Counsel were advanced
with no guarantee of recovery and were reasonably required to prosecute the case.
31.

The Court grants Class Counsel’s request for reimbursement of expenses. This

reimbursement is included in the fee award.
Service Awards
32.

The Court finds the Plaintiffs served as adequate Class representatives and

performed work on behalf of the absent Class members.
33.

The Court grants Plaintiffs’ request for service awards in the amount of $2,800.00

to Plaintiff David Hartley, $2,800 to Plaintiff Timothy DeLisle, and $1,400 to Plaintiff David
Porter. This amount shall also be paid in addition to the total fee award finally approved by the
Court.
Final Judgment
34.

Finding that no reason exists for delay in ordering final judgment the clerk is hereby

directed to enter this Final Judgment forthwith.
35.

This Action (and any and all claims asserted herein at any time) is dismissed in its

entirety, on the merits, with prejudice and without leave to amend, with each Party to bear
his/her/its own costs and attorneys’ fees (except as otherwise expressly provided herein), and all
Settlement Class Members who did not timely and properly execute and submit a Request for
Exclusion are deemed to have completely released and forever discharged the Released Persons,

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and each of them, from and for any and all liabilities, claims, cross-claims causes of action, rights,
actions, suits, debts, liens, contracts, agreements, damages, costs, attorneys’ fees, losses, expenses,
obligations, or demands, of any kind whatsoever, whether known or unknown, existing or
potential, suspected or unsuspected, whether raised by claim, counterclaim, setoff, or otherwise,
including and known or unknown claims, which they have or may claim now or in the future to
have based on or relating to the claims, facts, or circumstances in this Action and/or the Released
Claims except claims relating to the enforcement of the Settlement of the Action and personal
injury claims as excluded by the Settlement. The Released Claims are hereby compromised,
settled, released, discharged and dismissed as against the Released Persons on the merits and with
prejudice by virtue of the proceedings herein and this Order and Final Judgment.
36.

The Settlement Class Members shall be enjoined from prosecuting any claim they

have released in the Settlement Agreement and as set forth in the preceding paragraphs in any
proceeding against any of the Released Persons or based on any actions taken by any of the
Released Persons that are authorized or required by the Settlement Agreement or by the Final
Judgment. It is further agreed that the Settlement may be pleaded as a complete defense to any
proceeding subject to the releases set forth in the Settlement Agreement and this Final Judgment.
37.

This Final Judgment shall not be: (1) construed as an admission or concession by

Defendants of the truth of any of the allegations in the Action, or of any liability, fault or
wrongdoing of any kind; or (2) construed as an admission or concession by the Settlement Class
as to any lack of merit of the claims or the Action.
38.

The Settlement Agreement shall not constitute, and will not under any

circumstances be deemed to constitute, an admission of wrongdoing or liability by any Party, such
wrongdoing and liability being expressly denied and no final adjudication having been made. The

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Parties have entered into the Settlement Agreement solely as a compromise of all claims for the
purpose of concluding the disputes between them, and the Settlement Agreement may not be used
by any third party against any Party. Pursuant to Federal Rule of Evidence 408, the entering into
and carrying out of the Settlement Agreement, and any negotiations or proceedings related to it,
shall not be construed as, or deemed evidence of, an admission or concession by any of the Parties
or a waiver of any applicable statute of limitations, and shall not be offered or received into
evidence in any action or proceeding against any Party in any court, administrative agency or other
tribunal for any purpose whatsoever.
39.

Notwithstanding the foregoing, nothing in this Final Judgment shall be interpreted

to prohibit the use of this Final Judgment in a proceeding to consummate or enforce the Settlement
Agreement or Final Judgment, or to defend against the assertion of Released Claims in any other
proceeding, or as otherwise required by law.
40.

At any time after entry of this Final Judgment, the Settlement Agreement may, with

approval of the Court, be modified by written agreement of Defendants’ Counsel and Class
Counsel in their discretion without giving any additional notice to the Settlement Class, provided
that such modifications do not limit the rights of the Settlement Class Members under the
Settlement Agreement.
41.

Pursuant to the All Writs Act, 28 U.S.C. § 1651, this Court shall retain the authority

to issue any order necessary to protect its jurisdiction from any action, whether in state or federal
court.
42.

This Final Judgment shall constitute a judgment for purposes of Rule 58 of the

Federal Rules of Civil Procedure.
43.

The Court expressly retains continuing and exclusive jurisdiction over all matters

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relating to the adjudication of claims and the provision of benefits as provided by the Preliminary
Approval Order and by this Order and Final Judgment, as well as all other matters relating to the
administration and consummation of the Settlement and to interpret, implement, administer and
enforce the Settlement Agreement, in accordance with its terms, and to implement and complete
the claims administration process, in accordance with the Settlement Agreement, for the benefit of
the Settlement Class. The Court does this for the purpose of satisfying the requirements of
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994), concerning the obligation of a
Court entering a settlement agreement to speak clearly when it wishes to retain jurisdiction.
IT IS SO ORDERED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated: June 25, 2020

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