Ramsey et al v. Sprint Communications Company, L.P. et al
MEMORANDUM AND ORDER - The plaintiffs' Motion for Final Approval of Class-Action Settlement and for Award of Attorneys' Fees and Expenses to Settlement Class Counsel and Incentive Compensation to Class Representatives (filing 36 ) is gra nted. The settlement agreement is approved in all respects, and the parties are directed to perform and satisfy the terms and conditions of the settlement agreement. Class members shall be permitted to make claims for the benefits described i n the settlement agreement, subject to the conditions and limitations stated in this memorandum and order. The certification of the settlement class, under Rules 23(b)(3) and 23(e), solely for settlement purposes, is confirmed. Incentive awards t o the class representatives are ordered in the following amounts: John Ramsey: $1,300; David C. Ostblom, $1,300; Devon Lewis, $3,200; and Gross-Wilkinson Ranch, Co.: $1,600. 22. The Court approves a fee-and-expense award of 6;1,107,000 to settlement class counsel. The Court reserves its exclusive, general, and continuing jurisdiction over the parties to the settlement agreement, including defendants and all class members, as needed or appropriate in order to adminis ter supervise, implement, interpret, or enforce the settlement agreement in accordance with its terms, including the investment, conservation, protection of settlement funds prior to distribution, and distribution of settlement funds. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (GJG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN RAMSEY, et al.,
MEMORANDUM AND ORDER
COMPANY, L.P., et al.,
This matter is before the Court on the plaintiffs' Motion for Final
Approval of Class-Action Settlement and for Award of Attorneys' Fees and
Expenses to Settlement Class Counsel and Incentive Compensation to Class
Representatives (filing 36). Having heard the statements of counsel at a
fairness hearing, and reviewed and considered the entire record, the Court
will grant the motion in its entirety.
This action was filed on November 23, 2011, and the settlement
agreement at issue was executed by the parties on January 13, 2012. See
filings 1 and 20-1. The parties filed a joint motion, pursuant to Fed. R. Civ. P.
23(b) and (e), to certify the settlement class, preliminarily approve the
settlement agreement, and approve the form and manner of notice to the
class. Filing 18. In an order entered March 15, 2012, the Court granted that
motion, finding, among other things, that this action could be maintained as
a class action; that the prerequisites to class certification under Rule 23(a)
had been satisfied; and that certification of the settlement class was superior
to other available methods for the fair and efficient resolution of this
controversy, satisfying Rule 23(b)(3). Filing 33. The Court designated class
representatives, appointed settlement class counsel and a claims
administrator, and scheduled a fairness hearing. Filing 33. And the Court
reviewed the forms of notice submitted by the parties, approved them as to
form, and approved their plan for directing notice to the class members,
finding that their plan provided the best notice practicable under the
circumstances and was in compliance with Rule 23 and the requirements of
due process. Filing 33.
Notice was mailed to identified class members on July 31, 2012, giving
the class members until September 14, 2012, to request exclusion from the
class or object to the settlement. Filings 35 and 38-1. Notices were also
published in accordance with the Court's order. Filing 38-1. No objections to
the settlement agreement were received by the claims administrator or the
Court. See filing 38-1. On October 23, the present motion to approve the
settlement agreement and award attorney fees and incentive compensation
was filed, along with a brief and index of evidence in support. Filings 36, 37,
and 38. The scheduled fairness hearing was held on November 20, at which
no class members or other objectors appeared. The Court requested
additional evidence supporting the proposed award of attorney fees, and that
evidence was submitted on November 28. Filing 42.
For purposes of the discussion below, when terms are used that are
expressly defined in the settlement agreement, they are intended to have the
same meaning as in the settlement agreement.
The claims, issues, or defenses of a certified class may be settled,
voluntarily dismissed, or compromised only with the Court's approval. Rule
23(e). Under Rule 23(e) the district court acts as a fiduciary who must serve
as a guardian of the rights of absent class members. In re Wireless Tel. Fed.
Cost Recovery Fees Litig., 396 F.3d 922, 932 (8th Cir. 2005); In re
BankAmerica Corp. Secs. Litig., 350 F.3d 747, 751 (8th Cir. 2003); Grunin v.
Int'l House of Pancakes, 513 F.2d 114, 123 (8th Cir. 1975). If the proposed
settlement would bind the class members, the Court may approve it only
after a hearing and upon finding that it is fair, reasonable, and adequate.
Rule 23(e)(2). But a class action settlement is a private contract negotiated
between the parties. In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396
F.3d at 934. Rule 23(e) requires the court to intrude on that private
consensual agreement merely to ensure that the agreement is not the product
of fraud or collusion and that, taken as a whole, it is fair, adequate, and
reasonable to all concerned. In re Wireless Tel. Fed. Cost Recovery Fees Litig.,
396 F.3d at 934.
In this case, the Court finds that the appointed class representatives
and their counsel fairly and adequately represented the interests of the class
members in connection with the settlement agreement, and that the class
representatives and the settling defendants were represented by able and
experienced counsel. See filings 38-10 and 38-11. The settlement agreement
was the product of good-faith, arm's-length negotiations by the class
representatives, settling defendants, and their respective counsel. See filings
19 and 38-10.
With respect to notice, the Court reaffirms its earlier finding that the
form, content, and method of disseminating notice to the class members,
including the published notice and individual notices to identified class
members, were adequate and reasonable and constituted the best notice
practicable under the circumstances, satisfying Rule 23(c)(2)(B). By virtue of
the fact that an action maintained as a class suit under Rule 23 has res
judicata effect on all members of the class, due process requires that notice of
a proposed settlement be given to the class. Grunin, 513 F.2d at 120. The
notice given must be reasonably calculated, under all of the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections. Id. In addition, the notice must
reasonably convey the required information and it must afford a reasonable
time for those interested to make their appearance. Id. The contents must
fairly apprise the prospective members of the class of the terms of the
proposed settlement and of the options that are open to them in connection
with the proceedings. Id. at 122.
The notice given in this case met those requirements; it informed the
class members of the action and their options, accurately characterized all
the pertinent terms of the settlement agreement (including attorney fees and
expenses), and afforded the class members a reasonable opportunity to object.
As established in the Court's preliminary order approving notice, notices
were sent directly to property owners who could be identified, and notices by
publication were also provided identifying a website where further
information could be obtained. The record establishes that the direct notices
were sent and the publications were performed. In short, the notice satisfied
the requirements of Rule 23 and due process.
The Court also finds that the settlement agreement is fair, reasonable,
adequate, and in the best interests of class members. In assessing whether a
settlement is fair, reasonable, and adequate, the most important factor is the
strength of the case for plaintiffs on the merits, balanced against the amount
offered in settlement. See, Prof'l Firefighters Ass'n of Omaha, Local 385 v.
Zalewski, 678 F.3d 640, 648 (8th Cir. 2012); In re Wireless Tel. Fed. Cost
Recovery Fees Litig., 396 F.3d at 933; Petrovic v. Amoco Oil Co., 200 F.3d
1140, 1150 (8th Cir. 1999); Grunin, 513 F.2d at 124. In addition, the Court
considers such factors as the defendants' overall financial condition and
ability to pay; the complexity, length, and expense of further litigation; and
the amount of opposition to the settlement. Grunin, 513 F.2d at 124; see also,
Zalewski, 678 F.3d at 648; In re Wireless Tel. Fed. Cost Recovery Fees Litig.,
396 F.3d at 932; Petrovic, 200 F.3d at 1150.
If the plaintiff class faced a strong unlikelihood of success, or an initial
defeat followed by another round at the appellate level, virtually any benefit
inuring to the class would be better than the prospect of an ultimately
unsuccessful litigation. DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1177 (8th
Cir. 1995). But this Court has neither the duty nor the right to reach any
ultimate conclusions on the issues of fact and law which underlie the merits
of the dispute. Grunin, 513 F.2d at 123. In examining a proposed settlement
for approval or disapproval, the Court does not try the case; the very purpose
of a compromise is to avoid the delay and expense of a trial. Id. at 124.; see
also DeBoer, 64 F.3d at 1178. The views of the parties to the settlement must
also be considered; the fact that only a handful of members object to the
settlement weighs in its favor. DeBoer, 64 F.3d at 1178.
In this case, the Court notes that it is not unfamiliar with the
underlying controversy and its merits. See Whipps Land & Cattle Co., Inc. v.
Level 3 Comm'ns, LLC, 658 N.W.2d 258, 264 (Neb. 2003). Without opining
directly on the merits of the plaintiffs' claims, the Court observes that when
weighing the settlement amount against the strength of the case for the
plaintiffs on the merits, the plaintiffs faced at least the risk of recovering
nothing. The Court also observes that the property interests at issue here are
for the most part not possessory interests, because they are physically
coextensive with railroad rights-of-way. The plaintiffs were not in a very good
position to actually enjoy any use of the property, and whatever reversionary
interests they might retain rest on contingencies that are, at best,
speculative. Simply put, cash compensation for an easement over property
that was already mostly under railroad tracks isn't a bad deal.
The remaining factors relevant to the fairness of the settlement are
either neutral or weigh in favor of the settlement. There is no evidence in the
record calling into question the defendants' overall financial condition and
ability to pay. Compare, e.g., Zalewski, 678 F.3d at 648. The complexity,
length, and expense of further litigation weigh in favor of settlement; this
litigation is over a decade old and, should this settlement be rejected, there is
no telling what it would take to get it to trial, or how the issues presented at
that trial would be litigated. And the amount of opposition to the settlement
weighs in favor of it; while a handful of plaintiffs have opted out of the
settlement class, no one has actually objected to the settlement.
Based on the foregoing, the Court finds that the settlement agreement
is fair, reasonable, and adequate within the meaning of Rule 23(e)(2), and
will approve it.
ATTORNEY FEES AND EXPENSES
In a certified class action, the Court may award reasonable attorney
fees and non-taxable costs that are authorized by the parties' agreement.
Rule 23(h). Settlement class counsel has moved for an award of fees and
expenses pursuant to Fed. R. Civ. P. 54(d)(2). The following are the findings
of fact and conclusions of law required of the Court by Rule 23(h)(3) and Fed.
R. Civ. P. 52(a).
The Court bears the responsibility of scrutinizing attorney fee requests,
and the burden rests with counsel to establish a factual basis to support the
award. Johnston v. Comerica Mortg. Corp., 83 F.3d 241, 246 (8th Cir. 1996).
Courts utilize two main approaches to analyzing a request for attorney fees.
Id. at 244. Under the "lodestar" methodology, the hours expended by an
attorney are multiplied by a reasonable hourly rate of compensation so as to
produce a fee amount which can be adjusted, up or down, to reflect the
individualized characteristics of a given action. Id. Another method, the
"percentage of the benefit" approach, permits an award of fees that is equal to
some fraction of the common fund that the attorneys were successful in
gathering during the course of the litigation. Id. at 244-45. The percentage-ofthe-benefit method is recommended in common-fund cases. Id. It is well
established that the Court may use the percentage-of-the-benefit method to
evaluate attorney fees in a common-fund settlement, and it is within the
Court's discretion to choose which method to apply. See, In re U.S. Bancorp.
Litig., 291 F.3d 1035, 1038 (8th Cir. 2002); Petrovic, 200 F.3d at 1157;
Johnston, 83 F.3d at 245. In addition, even when using the percentage-of-thebenefit method, use of a lodestar approach is sometimes warranted to doublecheck the result of the percentage-of-the-benefit method, particularly where
there is some indication that the award is overly generous. See Petrovic, 200
F.3d at 1157. But a lodestar analysis is not necessary if the fee does not seem
excessive as a percentage of the recovery. See id.
The settlement agreement permits settlement class counsel to move for
attorney fees and expenses in an amount not to exceed $1,107,000. Filing 201 at 4, 14. They have moved for that amount, arguing that
[u]nder the percentage-of-the-fund approach, the agreed-to
attorney's-fee request is reasonable as a matter of law. Here,
Settlement Class Counsel now estimate that, based on the miles
of rights of way covered by the Settlement, if each class member
were to claim the available cash benefits, approximately
$2,412,677 would be paid to qualifying class members, assuming
that no land-grant class members seek the higher non-land grant
benefits. (To the extent those class members do seek and receive
the higher amounts, the amount available to the class will
increase.) When estimated administrative costs of $682,000—to
be borne by the Settling Defendants—and the agreed-to
attorneys' fees and expenses of $1,107,000—also to be paid
separately by the Settling Defendants—are factored in, the gross
value of the Settlement is approximately $4,201,677. The
$1,107,000 fee-and-expense award therefore now represents 26
percent of the fund as a whole.
Filing 37 at 6-7.
The record does not contain the information that would be necessary to
duplicate settlement class counsel's estimate of the available settlement
funds to the last penny. But an exhibit to the settlement agreement itself
describes the settlement corridors in some detail, see filing 20-1 at 38-41, and
the Court's own calculations based on that information are generally
consistent with settlement class counsel's representation of the available
settlement funds.1 The Court accepts counsel's estimate for purposes of
establishing the value of the common fund, and agrees that the attorney fees
requested here are a reasonable fraction of the common fund. Compare, e.g.,
In re U.S. Bancorp. Litig., 291 F.3d 1035; Petrovic, 200 F.3d 1140. The Court
is aware that the separate negotiation of attorney fees, and the settling
defendants' agreement not to contest fees up to a point, may present an
opportunity for abuse. See Johnston, 83 F.3d at 246 n.11. But the Court finds
no basis to suspect any abuse or collusion here. The length and complexity of
this litigation, and its associated risks, also weigh in favor of the fee award.
Class counsel also suggest that the Court perform a lodestar crosscheck. But the Court is not able to do so based upon the evidence submitted.
The standards to be considered in calculating attorney fees under a "lodestar"
approach are (1) the number of hours spent in various legal activities by the
individual attorneys, (2) the reasonable hourly rate for the individual
attorneys, (3) the contingent nature of success, and (4) the quality of the
attorneys' work. Jorstad v. IDS Realty Trust, 643 F.2d 1305, 1312-13 (8th
Cir. 1981); see also Grunin, 513 F.2d at 127. The starting point is multiplying
attorneys' hours and typical hourly rates; only after such a calculation do
other, less objective factors come into the equation. Grunin, 513 F.2d at 127.
In this case, because of the nationwide character of this litigation,
counsel have been unable to present billing records relating only to work on
the Nebraska case. That is completely understandable, given the nature of
the case, but it still hampers a lodestar analysis. Counsel have produced
The available settlement funds are an appropriate measure of the benefit accrued by the
class members, regardless of whether the full measure of that sum is actually claimed. See
Boeing Co. v. Van Gemert, 444 U.S. 472, 480-81 (1980). And including attorney fees,
expenses, and administrative costs in the value of the common fund is also appropriate, as
the award to the class members and the agreement on fees and costs is a "package deal."
See Johnston, 83 F.3d at 245-46.
records summarizing their fees and costs, nationally. See filings 38-10 at 7
and 38-11 at 10. And upon the Court's request for further documentation,
counsel have provided the Court with lists of the hours spent on this
litigation through June 2011, broken down by employee and defendant, and
the litigation expenses incurred by the different law firms representing the
settlement class. See filings 42-1, 42-2, and 42-3. Counsel has also submitted
some information regarding the "historic hourly rates" charged during the
relevant time frames. Filing 42 at 3.
But on this record, the Court cannot calculate a "lodestar," even on a
national basis. The "reasonable hourly rate" for purposes of a lodestar
analysis is the "hourly amount to which attorneys of like skill in the area
would typically be entitled for a given type of work on the basis of an hourly
rate of compensation." Jorstad, 643 F.2d at 1313. Generally, attorneys have
been required to substantiate their fee claims by providing detailed records
relating to standard hourly rates for themselves or their firm and a complete
breakdown of who spent what time in what endeavors. Id.; see also Grunin,
513 F.2d at 127. Here, the Court has some information about the highest
rates charged, and the averages—but an average rate including everyone
from lead partners to paralegals does not provide the Court with a basis for
determining a "reasonable hourly rate." Simply put, without a "lodestar,"
there can be no lodestar cross-check.
This is not to be critical of counsel, for producing the information
available to them, or to question their compensation or skill. It is simply to
say that the lodestar approach requires particular data, and that data is
missing here. But the Court emphasizes that a lodestar analysis is not
necessary if the fee does not seem excessive as a percentage of the recovery.
See Petrovic, 200 F.3d at 1157. As discussed above, the request for fees and
expenses at issue here is not excessive. And while the evidence presented
does not permit a full lodestar analysis, it does demonstrate that counsel
have, on a national scale, invested a great deal of time and money into this
litigation. So to that extent, the evidence supports the settlement class
counsels' fee request. The Court also notes that the potential award of fees
and expenses was disclosed in the notices to class members, including the
amount, and no objections were received. See In re U.S. Bancorp. Litig., 291
F.3d at 1038.
Based upon the Court's percentage-of-the-benefit evaluation, as
supported by documentation of counsels' efforts on behalf of the settlement
class, the Court will award the requested fees and expenses. The settlement
agreement provides for payment of the award into a particular interestbearing U.S. Bank escrow account that settlement class counsel represent to
be a qualified settlement fund within the meaning of Treas. Reg. § 1.468B,
with the Garretson Firm Resolution Group (GFRG) as fund administrator,
consistent with the terms of an escrow agreement entered into on August 26,
2011, among settlement class counsel, U.S. Bank, and GFRG. The Court will
order payment of the award into that account on those terms.
The settling defendants have agreed to pay incentive compensation to
the class representatives, "reflecting their differing levels of involvement in
this litigation": John Ramsey: $1,300, David C. Ostblom: $1,300, Devon
Lewis: $3,200, and Gross-Wilkinson Ranch, Co.: $1,600. Filing 37 at 10. It is
within the Court's discretion to award incentive awards to plaintiffs who
serve as class representatives, considering the actions plaintiffs took to
protect the class's interests, the degree to which the class has benefitted from
those actions, and the amount of time and effort plaintiffs expended in
pursuing the litigation. In re U.S. Bancorp. Litig., 291 F.3d 1035.
There have been no objections to the incentive awards proposed here,
and the Court finds that they are fair, reasonable, and properly based in the
benefits to the class members generated by the litigation. The Court will
award the requested incentives.
The parties have also suggested that the Court's order approving the
settlement agreement incorporate language that would certify this as a final
order and judgment, in the event that it is not a final judgment as to all
claims presented in the action. See Fed. R. Civ. P. 54(b). The Court declines to
do so, primarily because Rule 54(b) requires more consideration than the
parties' suggestion permits. Before certifying a final judgment pursuant to
Rule 54(b), the Court must undertake to weigh and examine the competing
interests involved in a certification decision. See Williams v. Cty. of Dakota,
687 F.3d 1064, 1067-68 (8th Cir. 2012). It is difficult to see how the Court
could do that when the Court would simply be entering boilerplate language
with no clear understanding of what claims might be at issue. And perhaps
more to the point, with this memorandum and order and an accompanying
Fed. R. Civ. P. 58(a) judgment, the Court intends to enter final judgment as
to all claims. If anything is inadvertently omitted, the Court would prefer to
have that raised and dealt with directly.
Accordingly, the Court declines to enter a contingent finding of a final
judgment pursuant to Rule 54(b). If, in fact, there are parties wishing to
appeal who question the finality of the judgment, then they may move for
Rule 54(b) certification at that time.
IT IS ORDERED:
The plaintiffs' Motion for Final Approval of Class-Action Settlement
and for Award of Attorneys' Fees and Expenses to Settlement Class
Counsel and Incentive Compensation to Class Representatives (filing
36) is granted.
The settlement agreement is approved in all respects, and the parties
are directed to perform and satisfy the terms and conditions of the
Class members shall be permitted to make claims for the benefits
described in the settlement agreement, subject to the conditions and
limitations stated in this memorandum and order.
The certification of the settlement class, under Rules 23(b)(3) and 23(e),
solely for settlement purposes, is confirmed.
After the date upon which this order and accompanying judgment have
become final, and all periods during which any party to the settlement
agreement may exercise a right of withdrawal have expired, whichever
is later (hereinafter, "the effective date"), the settling defendants and
all other released parties, including, without limitation, the right-ofway providers listed in Exhibit L to the settlement agreement, shall be
released from any and all settlement claims that any class member
(and all successors in interest) had, has, or may have in the future,
against the settling defendants or any other released party. This
release may be enforced by any released party. The right-of-way
providers listed in Exhibit L to the settlement agreement are:
Union Pacific Corporation, Union Pacific Railroad
Company, Southern Pacific Rail Corporation (together
"Union Pacific"); BNSF Railway Company, Burlington
Northern and Santa Fe Railway Company, The Atchison,
Topeka and Santa Fe Railway Company, Burlington
Northern Railroad Company (together "BNSF"); Nebraska
Central Railroad Company; Chicago Pacific Corporation,
and any of the predecessors-in-interest, predecessors-intitle, successors-in-interest, successors-in-title, members,
partners, affiliates, lessees, subsidiaries, parents, assigns
related entities, agencies, or officials of and any railroads or
terminal railroads wholly owned or partially owned by each
of the Right-of-Way Providers named above.
All settlement claims of any class member (and the successors in
interest of all members of the settlement class) are dismissed. Upon the
effective date, that dismissal shall be with prejudice.
Upon the effective date, the class members (and the successors in
interest of all members of the settlement class) shall be barred and
permanently enjoined from instituting, asserting, or prosecuting
against a settling defendant or any other released party, including,
without limitation, the right-of-way providers listed in Exhibit L to the
settlement agreement, any and all settlement claims they have, had, or
may have in the future, against a settling defendant or any other
released party, except any claims for enforcement of a settlement
The various forms of the claim for landowner benefits and releases of
claims (the "claim form"), and the telecommunications cable system
easement deed, set forth as Exhibits G, J and J(1), and H, respectively,
to the settlement agreement, are approved. In order to receive benefits
under the settlement agreement, all class members must comply with
the requirements for making and documenting a claim that are set
forth in that settlement agreement.
All class members who are current landowners, regardless of whether
they file a claim, are ordered to execute and deliver, after the effective
date, a telecommunications cable system easement deed to the claims
administrator in favor of each settling defendant whose
telecommunications cable system was installed on covered property
owned by the class member.
In order to receive benefits, each current landowner who submits a
qualified claim must execute a telecommunications cable system
Upon the effective date, the claims administrator shall be authorized
under Fed. R. Civ. P. 70 to execute and deliver to each settling
defendant a claims administrator telecommunications cable system
easement deed, substantially in the form of Exhibit I to the settlement
agreement, on behalf of all class members who are current landowners
and who do not personally execute and deliver a telecommunications
cable system easement deed. Any class member who is a current
landowner and who does not file a claim may rely upon the claims
administrator to execute and deliver to each settling defendant the
claims administrator telecommunications cable system easement deed.
The claims administrator is appointed as attorney-in-fact for each class
member who is a current landowner, with power and authority, upon
the effective date, to execute and deliver a claims administrator
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telecommunications cable system easement deed, substantially in the
form of Exhibit I to the settlement agreement, to the applicable settling
defendant and to authorize such settling defendant to record such
claims administrator telecommunications cable system easement deed
as provided in Section IV.C.2 of the settlement agreement.
Upon the effective date, the settling defendants or settlement class
counsel may, at their respective option and cost, file, record, and/or
index the easement deed by court order in settlement of landowner
action also entered on this date, or notice thereof, and any executed
telecommunications cable system easement deed, on behalf of any class
member, in the judgment or land records of the county in which the
real estate is located as provided in Section IV.C.2 of the settlement
agreement. The Court retains jurisdiction, as provided pursuant to
section VIII.A.1.(n) of the settlement agreement, to enter supplemental
orders and judgments to effectuate the recordation of any and all rights
conveyed to the settling defendants under the settlement agreement.
The expenses of administering the settlement agreement shall be paid
from the administrative account in the manner set forth in the
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 connected with the filing, recordation, or indexing of the
easement deed by court order deed in settlement of landowner action,
or notice thereof, or any telecommunications cable system easement
deed, except claims to enforce the settlement agreement and/or this
Upon the effective date, the settlement agreement will provide the
exclusive remedy for any and all settlement claims of settlement class
members (and any successors in interest) against the settling
defendants and any and all other released parties.
Upon the effective date, all claims against the class representatives, or
their counsel or any of them, arising out of, relating to, or in connection
with the action shall be released by the settling defendants and their
counsel, and they shall be permanently enjoined and barred from
instituting, asserting, or prosecuting any and all claims that the
settling defendants or their counsel or any of them had, have, or may in
the future have against the class representatives or their counsel,
except claims to enforce the settlement agreement and/or this order.
Upon the effective date, all class members (and all successors in
interest), whether or not they file a claim for landowner benefits, shall
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be permanently enjoined and barred from instituting, asserting or
prosecuting, either directly or as a class representative, any settlement
The form of the notice of final approval of settlement, set forth as
Exhibit F to the settlement agreement, is approved. Upon this order
and accompanying judgment becoming final, the settlement
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
No claims by the settling defendants against any right-of-way
providers, insurers or other third parties for contribution,
indemnification, or insurance benefits, are barred, released, or
otherwise affected by the settlement agreement or this order and
Incentive awards to the class representatives are ordered in the
following amounts: John Ramsey: $1,300; David C. Ostblom, $1,300;
Devon Lewis, $3,200; and Gross-Wilkinson Ranch, Co.: $1,600.
The Court approves a fee-and-expense award of $1,107,000 to
settlement class counsel.
Pursuant to the settlement agreement, the defendants shall deposit the
fee-and-expense award into the interest-bearing escrow account—
established as a qualified settlement fund within the meaning of Treas.
Reg. § 1.468B and as a trust under state law—with U.S. Bank in New
York, New York, no later than ten (10) days after the date on which
this order and accompanying judgment become final.
Any alleged or actual civil liability against the settling defendants for
attorney fees arising out of the tort claims resolved by the settlement
agreement is satisfied and extinguished through the settling
defendants' payment of the fee-and-expense award.
Any interest earned on the escrow account shall be recognized as gross
income of the qualified settlement fund.
Appointment of GFRG as the fund administrator for the escrow account
The escrow account shall be governed by the escrow agreement entered
into as of August 26, 2011, among settlement class counsel, U.S. Bank,
The Court reserves its exclusive, general, and continuing jurisdiction
over the parties to the settlement agreement, including defendants and
all class members, as needed or appropriate in order to administer,
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supervise, implement, interpret, or enforce the settlement agreement in
accordance with its terms, including the investment, conservation,
protection of settlement funds prior to distribution, and distribution of
A separate judgment will be entered.
Dated this 3rd day of December, 2012.
BY THE COURT:
John M. Gerrard
United States District Judge
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