Posey v. Building Materials Corporation of America
Filing
86
ORDER granting (82) Motion for Final Approval of Non-Mobile Class Action Settlement in case 3:11-cv-02784-JMC; granting (74) Motion for Final Approval of Non-Mobile Class Action Settlement in case 8:11-cv-02785-JMC; granti ng (142) Motion for Final Approval of Non-Mobile Class Action Settlement in case 8:11-mn-02000-JMC; granting (74) Motion for Final Approval of Non-Mobile Class Action Settlement in case 8:11-cv-02879-JMC; granting (83) Motion for Final Approval of Non-Mobile Class Action Settlement in case 8:11-cv-02926-JMC; granting (73) Motion for Final Approval of Non-Mobile Class Action Settlement in case 8:11-cv-03085-JMC; granting (72) Motion for Final Approval of Non-Mobile Class Action Settleme nt in case 8:12-cv-00082-JMC; granting (75) Motion for Final Approval of Non-Mobile Class Action Settlement in case 8:12-cv-00095-JMC; granting (62) Motion for Final Approval of Non-Mobile Class Action Settlement in case 8:12-cv-00789-JMC; granting (47) Motion for Final Approval of Non-Mobile Class Action Settlement in case 8:13-cv-03424-JMC Signed by Honorable J Michelle Childs on 4/22/15.Associated Cases: 8:11-mn-02000-JMC et al.(alew, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENWOOD DIVISION
In re:
Building Materials Corporation of America
Asphalt Roofing Shingle Products Liability
Litigation
MDL No. 8:11-mn-02000-JMC
This Document relates to:
SUSAN D. ASHLEY, on behalf of herself
and all others similarly situated,
Plaintiff,
v.
Civil Action No. 8:13-cv-03424-JMC
GAF MATERIALS CORPORATION,
Defendant.
THOMAS BYRD, on behalf of himself and
all others similarly situated,
Plaintiff,
v.
Civil Action No. 8:12-cv-00789-JMC
GAF MATERIALS CORPORATION,
Defendant.
KATHLEEN ERICKSON, on behalf of
herself and all others similarly situated,
Plaintiff,
v.
Civil Action No. 8:11-cv-03085-JMC
GAF MATERIALS CORPORATION,
Defendant.
TINA GRIFFIN, on behalf of herself and all
others similarly situated,
Plaintiff,
v.
Civil Action No. 8:12-cv-00082-JMC
GAF MATERIALS CORPORATION,
Defendant.
DIANE HANER, on behalf of herself and all
others similarly situated,
Plaintiff,
v.
Civil Action No. 8:11-cv-02926-JMC
GAF MATERIALS CORPORATION,
Defendant.
SYBIL MCDANIEL, on behalf of herself
and all others similarly situated,
Plaintiff,
v.
Civil Action No. 8:11-cv-02879-JMC
GAF MATERIALS CORPORATION,
Defendant.
JAMES MOROCCO, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
Civil Action No. 8:11-cv-02785-JMC
GAF MATERIALS CORPORATION,
Defendant.
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ANGELA POSEY, on behalf of herself and
all others similarly situated,
Plaintiff,
v.
Civil Action No. 3:11-cv-02784-JMC
GAF MATERIALS CORPORATION,
Defendant.
MICHAEL RAGAN, on behalf of himself
and all others similarly situated,
Plaintiff,
v.
Civil Action No. 8:12-cv-00095-JMC
GAF MATERIALS CORPORATION,
Defendant.
ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF NON-MOBILE
CLASS ACTION SETTLEMENT
AND NOW, this 22nd day of April, 2015, upon consideration of the Joint Motion for
Final Approval of Non-Mobile Class Action Settlement, the Settlement Agreement and all
exhibits thereto (“Settlement Agreement” or “Settlement”), as well as all other pleadings,
submissions and filings in the above-captioned Actions, and the arguments presented to the
Court at the Final Approval Hearing that took place on April 22, 2015, and having concluded
that the Settlement Agreement is fair, reasonable and adequate, and in the best interest of the
Settlement Class, it is hereby ORDERED as follows:
1.
All terms used in this Order have the same meaning ascribed to them in the
Settlement Agreement.
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2.
This Court’s October 15, 2014 Order Granting Motion to Certify Class for
Settlement Purposes and for Preliminary Approval of Class Action Settlement and Form and
Dissemination of Notice to the Class (MDL No. 8:11-mn-02000-JMC ECF No. 115) (the
“Preliminary Approval Order”), preliminarily certified and ordered that notice of the Settlement
be directed to the following class:
All persons and entities who are Qualifying Owners who own any property
located in the United States with Non-Mobile Timberline® Shingles manufactured
during the period from January 1, 1998 through December 31, 2009.
Excluded from the Settlement Class are:
(a)
all persons and entities who timely exercise their rights under
Federal Rule of Civil Procedure 23 to opt out of the Settlement;
and
(b)
all persons or entities who have executed a release, and/or received
compensation in any form from GAF, whether in cash and/or
through a certificate for shingles, for any claims or complaints
concerning, or for the replacement or repair of, any and all
Cracked Non-Mobile Timberline® Shingles installed on the
property owned by them that was the subject of the release or
compensation, including in connection with any warranty claim
made to GAF pursuant to the terms of the GAF Limited Warranty
or any other GAF warranty, regardless of whether such complaint
or warranty claim identified cracking as the basis of the complaint
or warranty claim; and
(c)
all persons and entities who have asserted a claim in any court of
law or arbitral forum concerning Cracked Non-Mobile
Timberline® Shingles that has been resolved in a final judgment or
disposition, whether or not favorable to the claimant, with respect
to the property owned by them that was the subject of the claim;
and
(d)
all persons and entities who have asserted a claim in any court of
law or arbitral forum that has resulted in compensation to such
person or entity for the replacement or repair of Cracked NonMobile Timberline® Shingles installed on properties owned by
them that were the subject of the claim, regardless of whether such
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claims identified or alleged Cracked Non-Mobile Timberline®
Shingles as the basis for any relief sought; and
(e)
(f)
GAF, any entity in which GAF has a controlling interest, any
entity which has a controlling interest in GAF, and GAF’s assigns
and successors; and
(g)
3.
all persons and entities who are or were builders, developers,
contractors, roofers, manufacturers, wholesalers, or retailers of
homes, modular homes, manufactured homes, residences,
buildings, or other structures containing Cracked Non-Mobile
Timberline® Shingles (except as to personal residences or
commercial structures owned by them); and
the Judge to whom the MDL Litigation is assigned and any
member of the Judge’s immediate family;
The Court finds that the manner and form of notice (the “Notice Plan”) set forth
in the Settlement Agreement was provided to Settlement Class Members. Notice was also
provided to pertinent state and federal officials. The Notice Plan was reasonably calculated to
give actual notice to Settlement Class Members of the right to receive benefits from the
Settlement, and to be excluded from or object to the Settlement. The Notice Plan met the
requirements of Rule 23 and due process.
4.
The Court finds that the Settlement Agreement was reached following meaningful
and substantive briefing (numerous motions to dismiss), discovery and investigation.
The
Settlement is the result of adversarial, arm’s-length negotiations between the parties, and the
terms and conditions of the Settlement are fair, adequate and reasonable when balanced against
the probable outcome of further litigation. At the time the Settlement was negotiated, counsel
were reasonably able to evaluate their respective positions. This Settlement will avoid substantial
additional costs to all parties, as well as the delay and risks that would be presented by further
prosecution of the underlying Actions.
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5.
In so finding, the Court considered evidence regarding Plaintiffs’ case, the risk,
expense and complexity of the claims presented, the likely duration of further litigation, the
amount obtained in settlement, the extent of investigation and discovery completed, and the
experience and views of Co-Lead Counsel. The Court also considered the objections and
requests for exclusion submitted by potential Settlement Class Members.
6.
The request for final certification of the Settlement Class is granted pursuant to
Rule 23 of the Federal Rules of Civil Procedure and the Court makes the following findings
pursuant to FED. R. CIV. P. 23:
a.
The Settlement Class is sufficiently numerous that joinder is impracticable;
b.
There exist questions of fact and law common to the Settlement Class Members.
All Settlement Class Members contend, inter alia, that the Shingles are defective and allege
breach of warranty, negligence and unfair trade practices claims against GAF;
c.
The claims of the Named Plaintiffs are typical of the claims of the Settlement
Class Members;
d.
The Named Plaintiffs and Co-Lead Counsel will fairly and adequately protect the
interests of the Class;
e.
The questions of law or fact common to the Settlement Class Members, and
which are relevant for settlement purposes, predominate over the questions affecting only
individual Settlement Class Members; and
f.
Resolution of this litigation in the manner proposed by the parties’ Settlement
Agreement is superior to other available methods for a fair and efficient adjudication of the
underlying Actions.
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7.
The Court notes that because this litigation is being settled rather than litigated,
the Court need not consider manageability issues that may have been presented by the trial of a
nationwide class action involving the issues in this case. See Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997).
8.
The Court finally appoints the Plaintiffs Susan D. Ashley, Thomas Byrd, Kathleen
Erickson, Tina Griffin, Diane Haner, Sybil McDaniel, James Morocco, Angela Posey and
Michael Ragan, as the Class Representatives.
9.
The Court finally appoints Charles J. LaDuca of Cuneo Gilbert & LaDuca, LLP
and Shawn Raiter of Larson King, LLP as Co-Lead Counsel for the Settlement Class.
10.
The Court finally approves Heffler Claims Group as the Third Party Claims
Administrator to perform the duties assigned to that function in the Settlement Agreement.
11.
The Settlement creates a claims process providing meaningful cash and
replacement benefits based on property location, roof size, and the extent of any damaged
Shingles.
12.
The Settlement Agreement is hereby finally approved pursuant to FED. R. CIV.
P. 23(e) as fair, reasonable and adequate, and it shall be consummated in accordance with its
terms, which are incorporated as though fully set forth here.
13.
The Court held a Final Approval Hearing to consider the fairness, reasonableness
and adequacy of the Settlement and was advised that only nine objections were received. The
Court has considered the objections and determined that they are not well-founded and lack legal
and factual support.
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14.
The Court finds that only 424 potential Settlement Class Members filed valid
requests for exclusion and that any rights they have shall not be affected by the Settlement.
Thus, they shall not receive any of the benefits of the Settlement.
15.
Upon entry of this Order, the remaining Settlement Class Members, and all and
each of them, are hereby bound by the terms set forth in the Settlement Agreement.
16.
The Court finds that the claims asserted in the underlying Actions were complex,
with many potential intricate factual and legal issues, and the results of litigation, including in
this case, can never be predicted with absolute accuracy.
17.
Co-Lead Counsel informed the Court of their belief that this Settlement is fair,
reasonable and adequate. The Court finds that Co-Lead Counsel are experienced in the area of
complex defect and warranty class action litigation such as this case, that they conducted
sufficient discovery to determine that the Settlement was fair to the Settlement Class, and that
their judgment is entitled to weight.
18.
The Court hereby grants final approval of the Settlement, and all claims asserted
by Plaintiffs and the Settlement Class in the underlying Actions are hereby dismissed with
prejudice. The Settlement Class Members, except for those set forth above who returned valid
requests for exclusion, are deemed to have released their claims as set forth in the Settlement
Agreement, provided that the Settlement Agreement does not extinguish any rights of Settlement
Class Members to make a claim for cracked Timberline® Shingles under any applicable GAF
limited warranty following the Claims Submission Period.
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APPROVED BY THE COURT:
United States District Judge
April 22, 2015
Columbia, South Carolina
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