Ramsey et al v. Sprint Communications Company, L.P. et al

Filing 33

ORDER CERTIFYING SETTLEMENT CLASS, PRELIMINARY APPROVING CLASS-ACTION SETTLEMENT AND APPROVING FORM AND MANNER OF NOTICE - The Court adopts the Findings and Recommendation of the Magistrate Judge, filing 31 , and enters the following order granting 18 Motion to Certify Class. John Ramsey, David C. Ostblom, Devon Lewis, and Gross-Wilkinson Ranch, Co., are designated as the Class Representatives for the Settlement Class. Attorneys Daniel J. Millea, Stephen D. Mossman, Irwin B. Levin, Scott Gilchrist, V. Gene Summerlin, Jr., and Natalie K. Winegar are appointed as Settlement Class Counsel. 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. A hearing (the "Fairness Hearing") shall be held on November 20, 2012, at 10 a.m. before the undersigned in Courtroom No. 1, Robert V. Denney Federal Building, 100 Centennial Mall North, Lin coln, NE 68508-3803. The date of the Fairness Hearing will be included in the Court Notice and Summary Notice. The Court appoints Rust Consulting, Inc., of Minneapolis, Minnesota, to serve as Claims Administrator. The Court has reviewed the Court N otice and Summary Notice, attached to the Settlement Agreement, as Exhibits C and D, respectively. (Filing 20 -1 at 51-67) The Court approves as to form the Summary Notice and the Court Notice. The Court also approves the method of directing notice to Class Members, as set forth in paragraphs 12 and 13 below. During the Court's consideration of the Settlement Agreement and pending further order of the Court, all proceedings in this Action, 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. If the proposed Settlement Agreement is not approved by the Court or for any reason does not become effective, the Settl ement Agreement will be regarded as nullified, certification of the Settlement Classes for settlement purposes will be vacated, and the steps and actions taken in connection with the proposed Settlements (including this Order, except as to this pa ragraph, 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. The Court retains jurisdiction over this action, the Parties, and all matters relating to the Settlement Agreement. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN RAMSEY, et al.,
4:11-CV-3211
Plaintiffs,
vs.
SPRINT COMMUNICATIONS
COMPANY, L.P., et al,,

ORDER CERTIFYING
SETTLEMENT CLASS,
PRELIMINARILY APPROVING
CLASS-ACTION SETTLEMENT,
AND APPROVING FORM AND
MANNER OF NOTICE

Defendants.
This matter is before the Court on the Parties’ joint motion (filing 18)
under Fed. R. Civ. P. 23(b) and (e) for an order certifying a settlement class,
preliminarily approving a class settlement on the terms and conditions set
forth in the Nebraska Class Settlement Agreement (the “Settlement
Agreement”), and approving forms and a program for class notice. The
Parties’ motion and evidence were considered by United States Magistrate
Judge Cheryl R. Zwart, whose Findings and Recommendation (filing 31)
recommend that the Court grant the motion and adopt the Parties’ proposed
order. No objection to the Magistrate Judge’s Findings and Recommendation
has been filed. In addition, the Court has reviewed and considered the
documents filed in connection with the motion. The Court adopts the
Findings and Recommendation of the Magistrate Judge and enters the
following order.
IT IS ORDERED:
1.

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

2.

For settlement purposes only, this action may be
maintained as a class action under Fed. R. Civ. P. 23 on
behalf of a class under the Settlement Agreement (the
“Settlement Class”), defined as a class comprising all
Persons who own or who claim to own, for any period of
time during a Compensation Period, any Covered Property,
provided, that “Settlement Class” or “Class” does not
include:

(a)

(b)

federal, state, and local governmental entities;

(c)

Native American nations and tribes; or

(d)
3.

Right-of-Way Providers and their predecessors,
successors, parents, subsidiaries, and affiliates, past
or present;

any Person who files a valid and timely exclusion on
or before the Opt-Out Deadline.

In light of the agreement to settle the Action and the
resulting elimination of individual issues that may
otherwise have precluded certification of a litigation class,
the prerequisites to class certification under Rule 23(a) are
satisfied:
a.
b.

There are questions of law and fact common to
members of the Settlement Class, including the
central question of their right to compensation for
Settling Defendants’ occupation of Rights of Way
with Telecommunications Cable Systems;

c.

The claims of the Nebraska Class Representatives,
John Ramsey, David C. Ostblom, Devon Lewis, and
Gross-Wilkinson Ranch, Co., are typical of the claims
of the Settlement Class members;

d.

4.

The Settlement Class is so numerous that joinder of
all members is impracticable;

The Nebraska Class Representatives, represented by
counsel experienced in complex litigation, will fairly
and adequately protect the interests of the
Settlement Class.

In light of the agreement to settle the Action and the
resulting elimination of individual issues that Defendants
contend preclude certification of a litigation class, the
questions of law and fact common to all members of the
Settlement Class predominate over questions affecting only
individual members of that Class, and certification of the

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Settlement Class is superior to other available methods for
the fair and efficient resolution of this controversy,
satisfying Rule 23(b)(3).
5.

If the Settlement Agreement is not finally approved by the
Court or for any reason does not become effective, the
Settlement Class shall be decertified, 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, and no Party shall assert that another Party is
estopped to take any position relating to class certification.

6.

John Ramsey, David C. Ostblom, Devon Lewis, and GrossWilkinson Ranch, Co., are designated as the Class
Representatives for the Settlement Class.

7.

Daniel J. Millea, Stephen D. Mossman, Irwin B. Levin,
Scott Gilchrist, V. Gene Summerlin, Jr., and Natalie K.
Winegar are appointed as Settlement Class Counsel.

8.

The terms and conditions set forth in the Settlement
Agreement, including the provision for substantial cash
payments to be made by Defendants to Class Members who
become Qualified Claimants in return for the Release of
Claims and conveyance of Telecommunications Cable
System Easement Deeds, 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.

9.

A hearing (the “Fairness Hearing”) shall be held on
November 20, 2012, at 10 a.m. before the undersigned in
Courtroom No. 1, Robert V. Denney Federal Building, 100
Centennial Mall North, Lincoln, NE 68508-3803. The date
of the Fairness Hearing will be included in the Court
Notice and Summary Notice. The purpose of the Fairness
Hearing will be to

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(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 Settlement Class
Members and bringing the litigation of 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.

10.

The Court appoints Rust Consulting, Inc., of Minneapolis,
Minnesota, to serve as Claims Administrator.

11.

The Court has reviewed the Court Notice and Summary
Notice, attached to the Settlement Agreement, as Exhibits
C and D, respectively. (Filing 20-1 at 51-67) The Court
approves as to form the Summary Notice and the Court
Notice. The Court also approves the method of directing
notice to Class Members, as set forth in paragraphs 12 and
13 below.

12.

As soon as practical following the receipt from Data
Mapping Solutions, L.L.C., of updated Class Member
identification information, the Claims Administrator shall
prepare and cause individual copies of the Court Notice to
be sent by United States Mail, first class postage prepaid,
to members of the Settlement Class who currently own real
property that underlies, adjoins, or includes a Right of Way
on the Cable Side. The Claims Administrator also shall
mail copies of the Court Notice to any other potential Class
Members who request copies or who otherwise come to its
attention.

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13.

As soon as publication schedules practically permit, but no
sooner than five (5) days after the initial mailing of the
Court Notice, the Claims Administrator shall cause the
Summary Notice, the content of which shall be
substantially as set forth in Exhibit D to the Settlement
Agreement (filing 20-1 at 65-67), to be published, as
described in the publication plan set forth in the
Declaration of Katherine Kinsella (filing 22).

14.

The Court finds that the foregoing plan for notice to 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.

15.

Before the Fairness Hearing, counsel for Defendants and
Settlement Class Counsel shall jointly file with the Court
an affidavit from a representative of the Claims
Administrator confirming that the plan for disseminating
the Court Notice and the Summary Notice has been
accomplished in accordance with the provisions of
paragraphs 12 and 13 above.

16.

Members of the Settlement Class who wish to exclude
themselves from the Class must request exclusion within
forty-five (45) days of the date of the initial mailing of
Court Notice, and in accordance with the instructions set
forth in the Court Notice. Class Members who do 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. Class Members who 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.

17.

This Court finds that it has the authority under Fed. R.
Civ. P. 70 and as provided in the Settlement Agreement to
direct all Class Members who own a current interest in a
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Qualifying Parcel and who have not requested exclusion
from a Settlement Class, regardless of whether they file a
Claim Form for Landowner Benefits, to grant a Claims
Administrator
Telecommunications
Cable
System
Easement Deed to the Settling Defendants, as provided in
the Settlement Agreement. Class Members shall be advised
in the Court Notice and Summary Notice of the Court’s
authority
to
convey
a
Claims
Administrator
Telecommunications Cable System Easement Deed, unless
they exclude themselves from the Settlement Classes.
18.

Class Members who do not request exclusion may submit
written comments on or objections to the Settlement
Agreement or other Settlement-related matters (including
attorneys’ fees) within forty-five (45) days of the date of the
initial mailing of the Court Notice. Any Class Member who
has not requested exclusion may also attend the Fairness
Hearing, in person or through counsel, and if the Class
Member has submitted written objections, may pursue
those objections. No Class Member, however, shall be
entitled to contest the foregoing matter in writing and/or at
the Fairness Hearing unless the Class Member has served
and filed by first-class mail, postage prepaid and
postmarked within forty-five (45) days of the date of the
initial mailing of the Court Notice, copies of the statement
of objection, together with any supporting brief and all
other papers the 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
Class Member who intends to appear at the Fairness
Hearing, provided, however, that counsel is not necessary
as the 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 District Court for the District of Nebraska
100 Centennial Mall North
593 Federal Building
Lincoln, NE 68508-3803

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and served on the following representative of Settlement
Class Counsel:
Fiber-Optic Class Counsel
P.O. Box 441711
Indianapolis, IN 46244
and on the following representative of the Settling
Defendants:
Emmett Logan
Stinson Morrison Hecker, LLP
1201 Walnut, No. 2900
Kansas City, MO 64106-2150
Each statement of objection must identify:
(a) the name and address of the Class Member,
(b) the name and address of the Class
Member’s counsel, if any, and,
(c) in order to confirm Settlement Class
membership, the legal description of the Class
Member’s Qualifying Parcel.
Unless otherwise directed by the Court, any Class Member
who does not submit a statement of objection in the manner
specified above will be deemed to have waived any such
objection.
19.

During the Court’s consideration of the Settlement
Agreement and pending further order of the Court, all
proceedings in this Action, 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.

20.

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 nullified,
certification of the Settlement Classes for settlement
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purposes will be vacated, and the steps and action taken in
connection with the proposed Settlements (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 presettlement status of the litigation.
21.

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 any of the Nebraska Class Representatives,
Settlement Class Counsel, the Settling Defendants, any
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, or of any position on whether any
claims may or may not be certified as part of a class action
for litigation purposes.

22.

Terms capitalized herein and not defined shall have the
meanings ascribed to them in the Settlement Agreement.

23.

The Court retains jurisdiction over this action, the Parties,
and all matters relating to the Settlement Agreement.

Dated this 15th day of March, 2012.
BY THE COURT:

John M. Gerrard
United States District Judge

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