Claxton v. Kum & Go, L.C.
Filing
51
ORDER granting 44 motion. The Court hereby conditionally certifies the settlement only class, preliminarily approves the proposed settlement, approves the parties' notice and notice plan, and schedules a fairness hearing for 12/18/2015 at 10:00 a.m. Signed on 6/11/2015 by District Judge M. Douglas Harpool. (Hance, Breanna)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
COLTON CLAXTON, individually and
on behalf of all others similarly situated,
Plaintiff,
v.
KUM & GO, L.C. d/b/a KUM & GO,
Defendant.
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Case No. 6:14-cv-03385-MDH
ORDER
Before the Court is Plaintiff’s “Unopposed Motion for Approval of Class Action
Settlement and Award of Attorneys’ Fees, Costs and Expenses, Incentive Award, and
Suggestions in Support.” (Doc. 44). Plaintiff informs the Court that, through mediation and
other negotiation, the parties have reached a settlement agreement. The Settlement Agreement is
filed as an exhibit to Plaintiff’s motion. Plaintiff now moves the Court to conditionally certify a
settlement only class, to appoint class counsel, to preliminarily approve the parties’ settlement, to
approve the proposed notice plan, and to set a fairness hearing.
The Court deferred ruling on Plaintiff’s unopposed motion until such time as Plaintiff
provided additional briefing on the issue of class certification under Federal Rule of Civil
Procedure 23, as required by Amchem Products, Inc. v. Windsor, 521 U.S. 591, 619-22 (1997).
Plaintiff provided such briefing and the Court held a hearing on Plaintiff’s motion. Following
the hearing, the parties filed a joint report addressing several concerns expressed by the Court.
The matter is now ripe for review. Upon full and careful consideration, the Court hereby
GRANTS Plaintiff’s unopposed motion (Doc. 44).
BACKGROUND
On July 23, 2014 an investigator from the Missouri Division of Weights and Measures
responded to a complaint of regular unleaded and number two diesel fuel cross-contamination at
Kum & Go store number 473 (ID# 1889) located at 620 North National, Springfield Missouri
65802.
The investigator interviewed employees from Kum & Go and Broyles Petroleum
Equipment, and his investigation turned up the following information. On July 17, 2014 at
approximately 1:49 p.m., Kum & Go received a product delivery from Solar Transport including
approximately 4,001 gallons of regular unleaded fuel and 4,004 gallons of undyed ultra low
sulfur number two diesel fuel. At some point thereafter, Kum & Go began receiving complaints
of cross contaminated fuel. Kum & Go contacted Broyles Petroleum Equipment and Solar
Transport to pump out the tanks and flush out the product lines. During the process of removing
the product from the diesel tank, the product level in the unleaded tank also began dropping. It
was determined that an old 2” “siphon bar manifold” piping system existed between the regular
unleaded and number two diesel fuel tanks. The siphon appears to have been “activated” when
the regular unleaded tank was filled nearly to capacity, which allowed the unleaded product to
migrate to the diesel tank creating a siphon effect; as the unleaded product level in the tank
lowered, the siphon reversed and allowed the number two diesel and unleaded mixture to then
migrate to the regular unleaded tank.
Discovery shows that suspected “cross-drops” occurred on one occasion in May of 2014
and on another occasion in July of 2014. During the incident in May, three consumers came
forward with drivability issues/damages. During the July incident, there were approximately 326
purchases1 of regular unleaded fuel between the time of the fuel drop and the shutdown of the
1
In each case, Defendant received payment for the motor fuel that was marketed as purely unleaded. Plaintiff states
this represented to the consumers that the unleaded fuel met Missouri’s minimum motor fuel requirements.
2
tank, and 35 consumers came forward with drivability issues/damages. Following the July
incident, Defendant’s agents performed substantial remediation efforts including jack hammering
up the tank apparatus to remove the siphon bar manifold. After the siphon bar manifold was
removed, the cross contamination problem did not recur. Defendant provided an initial claims
process that it advertised through local media outlets to provide reimbursement for consumers
who suffered certain losses from the contaminated fuel.
Plaintiff Colton Claxton was one of the individuals who allegedly purchased
contaminated fuel. He sued Kum & Go in the Circuit Court of Green County, Missouri on
behalf of himself and all other similarly situated, alleging a variety of causes of action including:
(1) violation of the MMPA, (2) breach of implied warranty of merchantability, (3) negligence,
(4) strict products liability, (5) breach of the warranty of fitness for a particular purpose, and (6)
breach of contract. Plaintiff alleges the unleaded fuel that he purchased from Kum & Go store
number 473 on or around July 18, 2014 caused his truck to experience problems that required an
engine replacement as well as catalytic converter and oxygen sensor replacement. The case was
removed to federal court and, after filing various motions and conducting some discovery, the
parties reached a proposed settlement.
The parties’ Settlement Agreement proposes a settlement-only class. The settlement
class is defined as:
All individuals and entities that purchased, from May 1, 2014 through July 31,
2014 (the “Class Period”), fuel from Defendant’s Kum & Go store number 473
that, because it contained a mixture of different fuel types, did not meet
specifications for sale as advertised (“affected fuel”). Excluded from the
proposed class are: (1) all individuals and entities who made claims for damages
caused by affected fuel and were compensated on or before February 27, 2015 as
a result of the Kum & Go Original Claim Procedure that pre-dates this settlement;
(2) Defendant and its officers, directors, and employees, as well as employees of
any of Defendant’s subsidiaries, affiliates, successors or assignees, and the
immediate family members of any of these persons; (3) counsel and members of
3
the immediate families of counsel for Plaintiff; and (4) any trial judge who may
preside over this case and members of the judge’s immediate family.2
Under the terms of the proposed Settlement Agreement, Colton Claxton is to be appointed
settlement class representative, Craig Heidemann and Nathan Duncan are to be appointed
settlement class counsel, and Creative Risk Solutions is to be approved as the claims
administrator. The proposed Settlement Agreement provides that, in consideration for a full,
complete, and final settlement of the litigation, including dismissal of the litigation with
prejudice and release of the claims included therein, Defendant agrees to pay: (1) Plaintiff
$14,145 for his actual damages and an incentive award, (2) each settlement class member in an
amount equal to his/her actual damages supported by documentary evidence (i.e. cost of fuel,
cost of repairs, cost of vehicle rental), (3) attorney fees in the amount of $45,119, (4) court costs
not to exceed $2,000, and (5) mediator fees.
ANALYSIS
I. Conditional Certification of Settlement Only Class
When confronted with a request for settlement-only class certification, the reviewing
court should give Rule 23’s class certification requirements “undiluted, even heightened,
attention[.]” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997). Although settlement
is a relevant factor to consider, “[s]ettlement . . . does not inevitably signal that class-action
certification should be granted more readily than it would be were the case to be litigated.” Id. at
620 n. 16. In fact, due to special problems encountered with settlement only classes, “proposed
settlement classes sometimes warrant more, not less, caution on the question of certification.”
Id. (citing the discussion in Georgine v. Amchem Products, Inc., 83 F.3d 610, 626-35 (3d Cir.
1996)). With this standard in mind, the Court turns to Rule 23(a) and (b).
2
This is the most recent class definition proposed by the parties. See Doc. 50.
4
A. Rule 23(a) Requirements
Rule 23(a) requires a party seeking to maintain a class action to affirmatively
demonstrate numerosity, commonality, typicality, and adequacy of representation. Fed. R. Civ.
P. 23(a). The moving party must do more than plead these requirements; he must be prepared to
present evidentiary proof to show these requirements are, in fact, satisfied. See Comcast Corp. v.
Behrend, 133 S. Ct. 1426, 1432 (2013). “[C]ertification is proper only if ‘the trial court is
satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied[.]’”
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
1. Numerosity
Numerosity requires the plaintiff to show “the class is so numerous that joinder of all
members is impracticable[.]” Fed. R. Civ. P. 23(a)(1). In assessing numerosity, courts consider
the number of class members as well as “the nature of the action, the size of the individual
claims, the inconvenience of trying individual suits, and any other factor relevant to the
practicability of joining all the putative class members.” Hammer v. JP's Sw. Foods, L.L.C., 267
F.R.D. 284, 287 (W.D. Mo. 2010) (citing Paxton v. Union Nat'l Bank, 688 F.2d 552, 559 (8th
Cir. 1982)). Here, during the July incident alone, there were 326 purchases of regular unleaded
fuel between the time of the fuel drop and the shutdown of the tank. Discovery revealed up to
several hundred affected class members over the three month time period at issue in this
litigation. Considering the number of class members, the size of each individual claim, and the
inconvenience of trying these suits individually, the Court finds numerosity is satisfied.
2. Commonality
Commonality requires a plaintiff to show “there are questions of law or fact common to
the class[.]” Fed. R. Civ. P. 23(a)(2). “What matters to class certification ... is not the raising of
common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to
5
generate common answers apt to drive the resolution of the litigation.”
Wal-Mart Stores, Inc. v.
Dukes, 131 S. Ct. 2541, 2551 (2011). Class members’ claims should depend on at least one
“common contention” the truth or falsity of which “will resolve an issue that is central to the
validity of each one of the claims in one stroke.” See id. A single common question is sufficient
to satisfy Rule 23(a)(2). Id. at 2556. Here, there are multiple questions of law or fact common
to the class – i.e. whether Defendant misrepresented the gasoline sold; whether the
marketing/labeling of the gasoline was false, misleading, deceptive, or unfair; whether Defendant
knew or should have known of the contamination prior to relevant time period; whether the sale
of contaminated fuel constituted a breach of an express or implied warranty; etc. The Court
finds commonality satisfied in this case.
3. Typicality
Typicality requires the plaintiff to show “the claims or defenses of the representative
parties are typical of the claims or defenses of the class[.]” Fed. R. Civ. P. 23(a)(3). The class
representatives “need not share identical interests with every class member, but only ‘common
objectives and legal and factual positions.’” In re Uponor, Inc., F1807 Plumbing Fittings
Products Liab. Litig., 716 F.3d 1057, 1064 (8th Cir. 2013). The typicality requirement is “fairly
easily met” and it is considered satisfied where “the claims or defenses of the representatives and
the members of the class stem from a single event or are based on the same legal or remedial
theory.” Lane v. Lombardi, No. 2:12-CV-4219-NKL, 2012 WL 5462932, at *3 (W.D. Mo. Nov.
8, 2012) (quoting Paxton v. Union Nat. Bank, 688 F.2d 552, 561-62 (8th Cir. 1982)). Here, Mr.
Claxton seeks to represent a class of “individuals and entities that purchased . . . fuel from
Defendant’s Kum & Go store number 473 that, because it contained a mixture of different fuel
types, did not meet specifications for sale as advertised[.]” Mr. Claxton purchased contaminated
fuel from store number 473 during the relevant time period, his car was damaged, and he seeks
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to recover the actual cost of his fuel and repairs, consequential damages, punitive damages,
attorney fees, and costs. The Court finds Mr. Claxton’s claims and defenses are typical of the
claims and defenses of the class.
4. Adequacy of Representation
The final certification requirement under Rule 23(a) is adequacy of representation, which
requires a plaintiff to show “the representative parties will fairly and adequately protect the
interests of the class.” Fed. R. Civ. P. 23(a)(4). Adequacy of representation is a twofold
requirement – “(a) the plaintiff's attorney must be qualified, experienced, and generally able to
conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those
of the class.” Lane v. Lombardi, No. 2:12-CV-4219-NKL, 2012 WL 5462932, at *3 (W.D. Mo.
Nov. 8, 2012) (quoting U.S. Fid. & Guar. Co. v. Lord, 585 F.2d 860, 873 (8th Cir. 1978)). Here,
it is apparent that Mr. Claxton’s interests coincide with those of the other class members – i.e. an
interest in determining whether Defendant acted in an unlawful manner by selling unleaded
gasoline containing certain amounts of diesel fuel at store 473 during the relevant time period, an
interest in receiving reimbursement for the allegedly adulterated gasoline and compensation for
his injuries suffered therefrom, and an interest in deterring Defendant from such conduct in the
future. Nothing demonstrates that Mr. Claxton or his attorneys will have a conflict-of-interest
with other class members or that they will have difficulty prosecuting the action in a proper
manner. The Court finds proposed class counsel – Craig Heidemann and Nathan Duncan of
Douglas, Haun & Heidemann – are qualified, experienced, and generally able to conduct this
litigation. They have vigorously and diligently prosecuted this action thus far and state they will
continue to do so until final disposition.
Accordingly, the adequacy of representation
requirement is met.
7
B. Rule 23(b) Requirements
In addition to the requirements under Rule 23(a), a party seeking to certify a class must
also satisfy, through evidentiary proof, at least one provision of Rule 23(b). Fed. R. Civ. P.
23(b); Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013). Here, Plaintiff seeks to certify
the class under Rule 23(b)(3).3 That provision allows certification for a class seeking damages
so long as the judgment binds all class members except those who affirmatively opt-out of the
class. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614-15 (1997). Certification under
Rule 23(b)(3) requires a Plaintiff to show: (1) “questions of law or fact common to class
members predominate over any questions affecting only individual members”; and (2) “a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3).
1. Predominance
“The predominance inquiry requires an analysis of whether a prima facie showing of
liability can be proved by common evidence or whether this showing varies from member to
member.” Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773, 778-80 (8th Cir. 2013). The
predominance analysis under 23(b)(3) is considered “rigorous” and “even more demanding than
[the analysis under] Rule 23(a).” Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013); In re
Zurn Pex Plumbing Products Liab. Litig., 644 F.3d 604, 618 (8th Cir. 2011). In the present case,
common questions of law and fact predominate. For example, all class members would present
the same factual evidence at trial concerning Defendant’s underground tank system, Defendant’s
acquisition of that tank system, the existence of mixed fuel, Defendant’s remediation efforts, and
3
Plaintiff’s brief also cites Rule 23(b)(1)(A); however, Plaintiff’s counsel clarified at the hearing that he intends to
proceed under 23(b)(3) if possible and under 23(b)(1)(A) only if certification under 23(b)(3) is denied.
8
the contents of the signs/billboards on the premises of store number 473.4 Such common facts
and evidence are necessary to make a prima facie showing on class members’ MMPA and
negligence claims. While the extent of damages for each individual class member involves
individual questions (i.e. cost of gasoline purchased, cost of repairs), those questions do not
overwhelm questions common to the class, especially in light of the proposed terms of settlement
that easily account for such individual questions. See Leyva v. Medline Indus. Inc., 716 F.3d
510, 514 (9th Cir. 2013) (“Thus, the presence of individualized damages cannot, by itself, defeat
class certification under Rule 23(b)(3).”); Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 180
(4th Cir. 2010); Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir. 2007). Therefore,
predominance is satisfied.
2. Superiority
In determining whether a class action is a superior method of adjudication, courts
consider the four factors stated in Rule 23(b)(3) – “(1) the class members’ interest in individual
control of case prosecution or defense; (2) the extent and nature of any litigation a class member
may have already begun; (3) the desirability, or lack thereof, of concentrating the litigation of the
claims in this forum; and (4) the potential difficulties in managing the class action. Hopkins v.
Kansas Teachers Cmty. Credit Union, 265 F.R.D. 483, 489 (W.D. Mo. 2010). When confronted
with a settlement only class, however, “a district court need not inquire whether the case, if tried,
would present intractable management problems.” Amchem Products, Inc. v. Windsor, 521 U.S.
591, 620 (1997).
Here, there is little incentive to individually control the prosecution because the range of
damages varies from the cost of fuel to the cost of engine overhaul, and the settlement provides
4
Individual questions may include whether a particular person purchased fuel, whether that person used the fuel for
“personal, family, or household purposes,” and whether that particular fuel actually contained a mixture of different
fuel types. These issues, however, are largely cured by the class definition.
9
full reimbursement for each of these persons. Moreover, persons who had an incentive to
manage their own prosecution likely would have filed claims prior to this point through the
claims process or through the courts; no person in the proposed class, other than Mr. Claxton,
has done so. Furthermore, it is desirable to concentrate litigation in this forum because the gas
station at issue is in this district, the sales at issue took place in this district, and the settlement
class members most likely reside in this district. A class action in this instance will avoid
potential duplicative litigation and will save the parties time and legal costs to adjudicate
common legal and factual issues. Therefore, a class action here is superior to other available
methods for fairly and efficiently adjudicating the controversy.
II. Preliminary Approval of Class Settlement
A district court may approve a class action settlement “only after a hearing and on
finding that it is fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). To make that
determination, a district court must consider the following four factors: “(1) the merits of the
plaintiff’s case weighed against the terms of the settlement, (2) the defendant’s financial
condition, (3) the complexity and expense of further litigation, and (4) the amount of opposition
to the settlement.” Marshall v. Nat'l Football League, No. 13-3581, 2015 WL 2402355, at *4
(8th Cir. May 21, 2015). “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.” Id. (quoting Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir. 1988)).
Here, the proposed settlement is fair, reasonable, and adequate. The settlement provides
payment for 100% of the actual damages suffered by class members in addition to attorney fees,5
5
The Court preliminarily finds the amount to be paid for attorney fees reasonable. The payment represents fees
incurred to date in filing and prosecuting this action and in consummating the settlement. As detailed in Plaintiff’s
motion, counsel will receive a sum of $45,119, which correlates to $311.66 per hour or 91% of the Missouri average
hourly wage. The ultimate hourly wage will be less than $311.66 when factoring in the time spent on this case since
settlement and the time Plaintiff’s attorney will spend on this case moving forward.
10
mediator fees, and $2,000 in taxable court costs. The only relief requested by Plaintiff and not
provided for in the proposed Settlement Agreement is punitive damages. Under the MMPA,
“[o]nly outrageous conduct stemming from an ‘evil motive or reckless indifference’ can give rise
to an award of punitive damages.” Mo. Rev. Stat. § 407.025.1; Chong v. Parker, 361 F.3d 455,
458 (8th Cir. 2004). A plaintiff must show the defendant’s culpable mental state by clear and
convincing evidence. Werremeyer v. K.C. Auto Salvage Co., 134 S.W.3d 633, 635 (Mo. 2004).
Here, Plaintiff’s counsel reported that discovery so far has revealed insufficient evidence to show
Defendant posted the allegedly deceptive or misleading advertisements with evil motive or
reckless disregard for its consumers. Moreover, the facts do not suggest a culpable mental state
greater than negligence in failing to investigate or correct the intermixing tanks, seeing as
Defendant purchased the tanks from a prior vendor and some diesel fuel is acceptable in
unleaded fuel. It is reasonable that the class would want to settle and receive immediate relief
rather than wait and face a motion for summary judgment regarding punitive damages or
uncertainty at trial on the issue of punitive damages.
In addition to the lack of evidence related to punitive damages, the Court notes Defendant
denies liability on all counts, asserts multiple defenses,6 and denies that class certification is
proper. In light of the settlement terms providing near complete payout to class members, the
deference to the attorneys in assessing their clients’ claims/defenses,7 the presumptive validity of
class settlement agreements negotiated at arm’s length, and the fact that “[t]he proposed
6
Some of these defenses include: “Plaintiff attempts to hold Defendant liable for the sale of products complying
with applicable weights and measures laws and regulations”; “The negligence, fault, or carelessness of other persons
or entities for whose conduct Defendant is neither responsible nor liable, was the sole, intervening, or superseding
cause of Plaintiff’s alleged damages”; “Defendant acted reasonably and in good faith to comply with the law.”
Def.’s Answer 5-6.
7
See Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1148-49 (8th Cir. 1999) (“Although a trial court must consider the
terms of a class action settlement to the extent necessary to protect the interests of the class, ‘[j]udges should not
substitute their own judgment as to optimal settlement terms for the judgment of the litigants and their counsel.’”)
11
settlement is a product of extensive negotiation conducted over a period of several months and
requiring the services of a mediator experienced in this sort of litigation[,]” the first factor favors
approval of the proposed settlement because the merits vis-à-vis the settlement terms appear fair
and reasonable.
Another factor weighing in favor of preliminary approval is the “complexity and expense
of future litigation.” Future litigation in this proposed class action is likely to involve a dispute
concerning class certification, a second phase of discovery, expert analyses related to the
allegedly contaminated fuel, administrative delays in collecting information and deposing class
members, extensive dispositive motions, a lengthy trial, and appellate review. “The complexity
and expense of class action litigation is well-recognized” and “various procedural and
substantive defenses. . . , the expense of proving class members’ claims, the certainty that
resolution under [a] settlement will foreclose any subsequent appeals, and the fear that, unsettled,
the ‘ultimate resolution of the action . . . could well extend into the distant future,’ all weigh in
favor of the settlement’s approval.” In re Zurn Pex Plumbing Products Liab. Litig., No. 08MDL-1958 ADM/AJB, 2013 WL 716088, at *7 (D. Minn. Feb. 27, 2013). Based on the
foregoing and the likely complexity and expense of future litigation, the proposed settlement
appears “fair, reasonable, and adequate.”
The Court has little information on the remaining two factors. Plaintiff reports that
“Defendant has resources to satisfy claims made against it.” Nonetheless, the Court finds that
particular factor is outweighed by the other factors discussed above as well as the un-likelihood
that settlement class members will object to the proposed settlement given they will be receiving
near complete payout with no risk.
Therefore, the Court finds the proposed Settlement
Agreement is preliminarily fair, reasonable, and accurate.
12
III. Approval of Notice Plan
For Rule 23(b)(3) classes, “the court must direct to class members the best notice that is
practicable under the circumstances, including individual notice to all members who can be
identified through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). The notice must inform class
members of the nature of the action, the definition of the class, the class claims and issues, the
class member’s right to enter an appearance through an attorney, the class member’s right to
request exclusion from the class, and the binding effect of a class judgment. Id. Notification of
a class action settlement must be directed “in a reasonable manner to all class members who
would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1).8
“Valid notice of a settlement
agreement ‘may consist of a very general description’ of settlement terms.” In re Uponor, Inc.,
F1807 Plumbing Fittings Products Liab. Litig., 716 F.3d 1057, 1065 (8th Cir. 2013).
Here, the Court finds the proposed notice and notice plan comply with Rule 23(c)(2)(B)
and (e)(1). The parties report they have no records of the individuals or entities that purchased
fuel from the relevant store during the relevant time period.9 The proposed notice plan provides
two separate methods of notification – (1) posted notices at point-of-sale locations inside and
outside of store number 473, and (2) published notices in the Springfield (Mo.) News-Leader to
run twice within a seven-day period. Such notices are sufficient where, as here, there are no
readily available records of class members’ individual addresses. See, e.g., In re Zurn Pex
Plumbing Products Liab. Litig., No. 08-MDL-1958 ADM/AJB, 2013 WL 716088, at *8 (D.
8
CAFA settlements must also be filed with the appropriate state and federal official. 28 U.S.C. § 1715. Defendant
filed a certificate of service indicating compliance with this request. Doc. 46.
9
Defendant reports that it does not and cannot retain credit card records for such purchases. The only purchasers
identifiable by Defendant are those purchasers who previously filed claims in the Kum & Go claims process, who
are not included in the proposed settlement class. The Court asked about potential alternative methods to discover
the identity of the fuel purchasers and Plaintiff stated the only other way to potentially identify class members is to
watch video camera footage, record ascertainable license plate numbers, determine who those license plates belong
to, and then send actual notice. The Court finds that such lengths would require more than “reasonable effort.”
13
Minn. Feb. 27, 2013). The Court finds the proposed notice plan is the “best notice practicable”
given the circumstances. Moreover, the proposed notice itself provides all necessary information
concerning the settlement class and the proposed settlement terms. Therefore, the proposed
notice plan and proposed notice are approved.
IV. Fairness Hearing
The Court will conduct a Fairness Hearing prior to final approval of the proposed class
settlement in order to provide the settlement class members the opportunity to object to the
proposed settlement terms. Fed. R. Civ. P. 23(e)(2) & (5).
DECISION
Based on the foregoing analysis, Plaintiff’s unopposed motion (Doc. 44) is GRANTED.
It is HEREBY ORDERED that:
1. Having determined that the proposed settlement class meets the requirements of Rule
23(a) and (b), the Court hereby grants conditional class certification of a Rule 23(b)(3)
settlement class, defined as follows:
All individuals and entities that purchased, from May 1, 2014 through July
31, 2014 (the “Class Period”), fuel from Defendant’s Kum & Go store
number 473 that, because it contained a mixture of different fuel types, did
not meet specifications for sale as advertised (“affected fuel”). Excluded
from the proposed class are: (1) all individuals and entities who made
claims for damages caused by affected fuel and were compensated on or
before February 27, 2015 as a result of the Kum & Go Original Claim
Procedure that pre-dates this settlement; (2) Defendant and its officers,
directors, and employees, as well as employees of any of Defendant’s
subsidiaries, affiliates, successors or assignees, and the immediate family
members of any of these persons; (3) counsel and members of the
immediate families of counsel for Plaintiff; and (4) any trial judge who
may preside over this case and members of the judge’s immediate family.
Colton Claxton is approved as class representative for the settlement class. Pursuant to
Rule 23(g), Attorneys Craig R. Heidemann and Nathan A. Duncan from the law firm of
Douglas, Haun & Heidemann, P.C., 111 West Broadway, P.O. Box 117, Bolivar,
14
Missouri 65613, are appointed as class counsel for the settlement class. Creative Risk
Solutions is approved as Claims Administrator.
2. Having determined that the proposed Settlement Agreement appears “fair, reasonable,
and adequate” under Rule 23(e)(2), the Court hereby grants preliminary approval of the
proposed Settlement Agreement.
3. Having determined that the proposed notice plan10 and notice comply with the
requirements of Rule 23(c)(2)(B) and (e)(1), the Court hereby approves the same,
provided that the parties amend the notice to comply with the changes made in the
parties’ post-hearing report, to describe the location of store number 473, and to comply
with the following deadlines:
a. The approved notices shall be posted/published on or before June 30, 2015.
b. Settlement class members shall submit claims for reimbursement on or before
September 30, 2015.
c. The Claims Administrator shall inform all claimants of their individual approved
payouts on or before October 30, 2015.
d. Settlement class members must opt-out of the settlement class on or before
November 18, 2015. A settlement class member who objects to his/her individual
approved payout or who objects to the settlement terms generally must file a
written objection with the Court and parties on or before November 18, 2015.
e. The Fairness Hearing will take place on December 18, 2015.
4. The Court will conduct a Fairness Hearing concerning the proposed Settlement
Agreement on December 18, 2015 at 10:00 a.m. at the United States District Court for the
10
Although not addressed by the parties, the Court orders that the point-of-sale notices at store number 473 shall
remain in place for at least thirty (30) days.
15
Western District of Missouri, United States Courthouse, 222 North John Q. Hammons
Parkway, Springfield, Missouri 65806 in Courtroom 1. Objections or other responses by
class members to the proposed Settlement Agreement shall be mailed to the Clerk of the
Court and to counsel and postmarked no later than November 18, 2015, as specified in
the notice to class members.
IT IS SO ORDERED:
Date: June 11, 2015
/s/ Douglas Harpool_____________
DOUGLAS HARPOOL
UNITED STATES DISTRICT JUDGE
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