Jeter et al v. Wild West Gas, LLC et al
Filing
257
OPINION AND ORDER by Judge Terence Kern ; setting/resetting deadline(s)/hearing(s): Motion for Preliminary Approval (Doc. 244) is set for hearing on 3/7/2018 at 1:30 PM. ( Motion Hearing set for 3/7/2018 at 01:30 PM before Judge Te rence Kern); denying 250 Motion for Appointment (Re: 244 Joint MOTION Preliminary Approval of Settlement Agreement with Defendant Bullseye Energy Inc., et al., for Certification of a Settlement Class, and for Approval of Notice of Settlement and Plan of Notice ) (lmc, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
KEVIN L. JETER, et al., Individually and
as Class Representatives on Behalf of All
Similarly Situated Persons,
Plaintiffs,
and
JAMES D. ENLOE, et al., Individually and
as Class Representatives on Behalf of All
Similarly Situated Persons,
Consolidated Plaintiffs,
v.
BULLSEYE ENERGY, INC., et al.,
Defendants.
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Case No. 12-CV-411-TCK-PJC
Base File
Consolidated with:
Case No. 15-CV-455-TCK-TLW
OPINION AND ORDER
Before the Court are (1) the Joint Motion for Preliminary Approval of Settlement Agreement
With Defendant Bullseye Energy, Inc., et al., for Certification of a Settlement Class, and for
Approval of Notice of Settlement and Plan of Notice (“Motion for Preliminary Approval”) (Doc.
244), which was filed on behalf of Plaintiffs Kevin L. Jeter and Joe A. Jeter (the “Jeters”) and
Defendants Bullseye Energy, Inc., CEP Mid-Continent, LLC, KRS&K, an Oklahoma Partnership,
Gashoma, Inc., Purgatory Creek Gas, Inc., Redbird Oil, an Oklahoma partnership, Wild West Gas,
LLC, White Hawk Gas, Inc., Robert M. Kane, Louise Kane Roark, Ann Kane Seidman, Mark Kane,
Pamela Brown, and Gary Brown; (2) the Response in Objection to Motion for Preliminary Approval
of Settlement Agreement by Non-moving Plaintiffs (Doc. 249) (“Response in Objection”), which
was filed by Plaintiffs Barbara Lucas, James H. Miller, Sharon Rigsby Miller, Larry Smith, Janice
Sue Parker, James D. Enloe, Carolyn R. Enloe, and Scott Bailey, individually and as putative class
representatives on behalf of all similarly-situated persons (the “Objecting Plaintiffs”); and (3) the
Motion for Appointment of Independent Evaluator of Proposed Settlement (“Motion for
Appointment”) (Doc. 250) filed by the Objecting Plaintiffs.
In their Response in Objection to the Motion for Preliminary Approval, the Objecting
Plaintiffs note that only two of the ten named Plaintiffs desire to settle this action on behalf of the
proposed class. They contend the proposed settlement does not adequately compensate Plaintiffs
or class members and that it gives preferential treatment to the Jeters by awarding them a Class
Representative fee of up to $21,000. The Objecting Plaintiffs also object to the Declaration of Paul
DeMuro (“DeMuro”) (Doc. 245-1), which was submitted by the Jeters in support of the Motion for
Preliminary Approval. The Objecting Plaintiffs suggest that DeMuro’s opinion as to fairness of the
proposed settlement “does not lend itself to a view of independence,” because he was retained by
the Jeters. (Doc. 245, at 8; Doc. 250, at 2.) In their Motion for Appointment, the Objecting
Plaintiffs contend that if the Court finds testimony and evaluation from an expert would be of benefit
at the preliminary approval stage, it should appoint an independent expert to review the proposed
settlement.
A court may appoint an independent evaluator if it finds an independent assessment of the
proposed settlement would be beneficial to determine the fairness, reasonableness, and adequacy
of specific aspects of the settlement. See WILLIAM RUBENSTEIN, NEWBERG ON CLASS ACTIONS
(“NEWBERG”) § 13.40 (5th ed. 2017). Such an assessment may be useful in certain cases where
there are no objectors or objectors are unrepresented by counsel, because “absent objectors, the court
is presented information representing only one side of the issue (pro-settlement), and even if
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objectors appear and argue against the settlement, the pro-settlement presentation is typically far
stronger. Hence, the court often lacks the information necessary to make a truly informed decision.”
(Id.) A court may also benefit from an independent evaluation in cases with “a sparse record.”
MANUAL FOR COMPLEX LITIG. § 21.644 (4th ed. 2004).
However, neither condition applies here. Defendants’ counsel has advised the Court that the
Objecting Plaintiffs participated in a lengthy settlement conference and follow-up conference with
Magistrate Judge Lane Wilson before the proposed settlement was reached. The Objecting Plaintiffs
are represented by competent counsel, which is capable of providing the Court with further
information as to the fairness and reasonableness of the proposed settlement. See NEWBERG § 13.40
(noting that objections “provide the court an adversarial presentation of the issues under review,
bringing the decision-making process closer to a familiar judicial decision”). The Motion for
Preliminary Approval will be set for hearing, and the Objecting Plaintiffs therefore will have an
opportunity to present their objections and evidence before the Court determines whether to grant
preliminary approval to the proposed class settlement. Accordingly, the Court finds that an
independent evaluator is not needed at this stage.
The Objecting Plaintiffs’ Motion for Appointment (Doc. 250) is DENIED. The Motion for
Preliminary Approval (Doc. 244) is set for hearing on March 7, 2018 at 1:30 p.m. in District
Courtroom 245 located at Federal Building, 224 S. Boulder Ave., Tulsa, Oklahoma.
SO ORDERED this 14th day of February, 2018.
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