Dewhurst et al v. Century Aluminum Company et al

Filing 216

MEMORANDUM OPINION & ORDER pursuant to the 205 JOINT MOTION for preliminary approval of class action Settlement Agreement; approval of proposed class action notice; preliminary approval of enhancement awards; and an order setting the dates for objections to the proposed settlement and the fairness hearing; the Settlement Agreement is thus preliminarily approved, as directed and set forth more fully herein; the court directs that notice of the Settlement Agreement be provided to the Cl ass pursuant to Federal Rule of Civil Procedure 23(e)(1); the Revised Class Notice be substituted for Exhibit A-4 (ECF Doc. No. 205-5) to the Settlement Agreement, which Revised Class Notice is ORDERED filed; Century Aluminum of West Virginia, Inc., by 6/9/2017, will send the Class Notice to each identified Class Member household by first class mail at his or her last known current address; file and serve an Affidavit of Mailing by 8/3/2017; a hearing will be conducted before the court at 1:30 p.m. on 8/14/2017 toward final determination of the fairness, reasonableness, and adequacy of the terms and conditions of the settlement; a Class Member will not be heard, nor be entitled to contest the court's approval of the Settleme nt Agreement, unless by 7/24/2017 he or she has mailed a written objection and any supporting papers to the Clerk of the Court, such address to be set forth in the Class Notice; the parties may submit briefs in response to any objections by 8/3/2017. Signed by Judge John T. Copenhaver, Jr. on 5/31/2017. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
HAROLD DEWHURST, and DAVID
BRYAN, on behalf of themselves
and all other persons similarly
Situated, and UNITED STEEL, PAPER
AND FORESTRY, RUBBER, MANUFACTURING,
ENERGY, ALLIED INDUSTRIAL AND
SERVICE WORKERS INTERNATIONAL UNION,
AFL-CIO/CLC,
Plaintiffs,
v.

Civil Action No. 2:09-1546

CENTURY ALUMINUM COMPANY, and
CENTURY ALUMINUM OF WEST VIRGINIA,
INC., AND CENTURY ALUMINUM MASTER
WELFARE BENEFIT PLAN, and DOES
1 THROUGH 20
Defendants.

MEMORANDUM OPINION & ORDER
Pending is the joint motion for preliminary approval of
class action Settlement Agreement; approval of proposed class
action notice; preliminary approval of enhancement awards; and an

order setting the dates for objections to the proposed settlement
and the fairness hearing.1
I.

Summary of Proposed Settlement

The court has reviewed the proposed Settlement Agreement
and exhibits thereto, as well as the submissions of the parties.
The proposed Settlement Agreement provides that Century Aluminum
of West Virginia, Inc. (“CAWV”), will contribute $23 million to
the VEBA Trust to be used for some of class members’ health care
expenses.

Within fifteen days of the effective date of the

Agreement, CAWV will make a $5 million payment to the VEBA Trust,
and CAWV will thereafter make a $2 million payment to the VEBA
Trust annually, for nine years.
at 4.2.

See Proposed Settlement Agreement

The payments made into the VEBA Trust will be used to

reimburse some pre-settlement medical expenses and will
additionally provide annual contributions to Healthcare
Reimbursement Accounts that will be established in each class
member’s name to be used for future medical costs.

See Proposed

Notice to Class at 5.B.

1

Also part of the joint motion was a request by the parties to
modify the class definition. The court granted this request in a
separate memorandum opinion and order, entered on May 23, 2017.
2

The class, as modified in the court’s memorandum opinion
and order dated May 23, 2017, is defined as:
all current or former employees (including laid off
employees) of CAWV’s Ravenswood facility (“Ravenswood Plant”)
and their spouses, dependents, and surviving spouses who
either (1) retired (other than with a deferred vested
pension) from RAC or CAWV after February 6, 1989 and prior to
November 1, 2012 and who are not currently receiving medical
benefits from CAWV, (2) retired or retire (other than with a
deferred vested pension) from CAWV on or after November 1,
2012 and who may be currently receiving medical benefits from
CAWV, or (3) retired or will retire from CAWV after the
layoff at the Ravenswood Plant in February 2009 after losing
their active medical coverage while on layoff and as to whom
CAWV has denied or asserted that it will deny retiree medical
coverage due to their not being enrolled in the active
medical plan at the time of their retirement. Employees who
break service after November 1, 2012 without immediate
pension eligibility are not Class Members.
Memorandum Opinion & Order May 23, 2017 (ECF Doc. No. 212) at 1213.
In order to maximize recovery for class members, class
counsel is not asking the court to award any attorneys’ fees or
expenses.

See Proposed Settlement at 14.2.

its own fees and costs.

Each party will bear

Id.

Plaintiffs are seeking enhancement awards totaling
$31,000 for the surviving class representative, David Bryan, and
the members of the Retiree Committee.

Id.

Karen Gorrell will

receive $5,000; Mr. Bryan, Ronald Dixon, Luther Gibson, John
Morris, Lesley Shockey and James Weltner will each receive $4,000;
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and Clarence Lawrence will receive $2,000.

See Memo. in Supp. of

Joint Mot. for Preliminary Approval of Settlement at 18-19.
II.

Analysis

a. Preliminary Approval
In the preliminary approval stage, the court “should
make a preliminary determination that the proposed class satisfies
the criteria set out in Rule 23(a) and at least one of the
subsections of Rule 23(b). . . .

The judge must make a

preliminary determination on the fairness, reasonableness, and
adequacy of the settlement terms and must direct the preparation
of notice of the certification, proposed settlement, and date of
the final fairness hearing.”

Manual For Complex Litigation, 2004

WL 258821, § 21.632 (4th Ed.).
As noted in the court’s memorandum opinion and order
amending the class definition, dated May 23, 2017, the
requirements of 23(a) continue to be satisfied in this case.
Moreover, the class meets the requirements of a Rule 23(b)(1)(A)
and (b)(2) non-opt out class.

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1. Fairness of Proposed Settlement
In evaluating the fairness of a proposed class action
settlement, a district court should consider: (1) “the presence of
absence of collusion among the parties[;]” (2) “the posture of the
case at the time settlement is proposed[;]” (3) “the extent of
discovery that has been conducted[;]” and (4) “the circumstances
surrounding the negotiations and the experience of counsel.”

See

In re Mid–Atlantic Toyota Antitrust Litigation, 564 F. Supp. 1379,
1383–84 (D. Md. 1983) (citing In re Montgomery County Real Estate
Antitrust Litigation, 83 F.R.D. 305 (D. Md. 1979)).
The procedures by which the parties reached the
settlement meet the fairness prong.

The settlement appears to be

the product of good faith, arm’s length bargaining that has taken
place over more than seven years of litigation during which the
parties engaged in extensive discovery.

Though the parties

engaged in settlement negotiations throughout the pendency of the
litigation in this court, the proposed settlement was not reached
until after this court’s grant of summary judgment in defendants’
favor.

The settlement was accomplished while the appeal of that

judgment order was pending before the United States Court of
Appeals for the Fourth Circuit, which, on February 7, 2017,
remanded the case to this court to conduct settlement approval
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proceedings.

The negotiations have resulted in a generous

settlement proposal that is favorable to the certified class for
the reasons noted by the court in its memorandum opinion and order
entered on May 23, 2017, which defined the class.

Thus, the

resulting settlement does not raise suspicion of collusion.
Moreover, that each side has agreed to pay its own costs and does
not seek fees from the settlement further demonstrates its
fairness.
2. Adequacy of Proposed Settlement
In addressing the “adequacy” of a proposed class
settlement, district courts consider: “(1) the relative strength
of the plaintiffs’ case on the merits; (2) the existence of any
difficulties of proof or strong defenses the plaintiffs are likely
to encounter if the case goes to trial; (3) the anticipated
duration and expense of additional litigation; (4) the solvency of
the defendants and the likelihood of recovery on a litigated
judgment; and (5) the degree of opposition to the settlement.”
See id. at 1384 (citing In re Montgomery County Real Estate
Antitrust Litigation, 83 F.R.D. 305 (D. Md. 1979).
The proposed settlement meets the adequacy prong when
the likelihood of recovery is weighed against the proposed
settlement amount.

As discussed more fully in the court’s May 23,
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2017 memorandum opinion and order, the generous settlement in this
case is quite adequate when considering that the court granted
summary judgment in defendants’ favor.

Although the appeal of

that determination is still pending before the Fourth Circuit, the
likelihood that the decision will be reversed is small when
considering that the court of appeals found that the court did not
abuse its discretion in denying plaintiffs’ motion for a
preliminary injunction on the grounds that they were not likely to
succeed on the merits of their claims, together with the Fourth
Circuit’s recent decision in Barton v. Constellium Rolled
Products-Ravenswood, LLC, which similarly involved a company’s
decision to modify the health benefits program of its retirees.
See Dewhurst v. Century Aluminum Co., 649 F.3d 287 (4th Cir.
2011); Barton v. Constellium Rolled Products-Ravenswood, LLC, No.
16-1103, ___ F.3d ___, 2017 WL 1948918 (4th Cir. May 11, 2017).
The Settlement Agreement is thus preliminarily approved.
The court finds that the settlement set forth in the Settlement
Agreement is within the range of possible final approval as being
fair, reasonable, and adequate.

Accordingly, the court directs

that notice of the Settlement Agreement be provided to the Class
pursuant to Federal Rule of Civil Procedure 23(e)(1).

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b.

Class Notice

The court has reviewed the form of the Revised Class
Notice (ECF Doc No. 215-1) and finds that it complies with the
requirements of Federal Rule of Civil Procedure 23(d), (e) and (h)
and fairly presents the terms of the Settlement Agreement and the
Class Members’ rights and responsibilities in the settlement
approval process.

The court ORDERS that the Revised Class Notice

be substituted for Exhibit A-4 (ECF Doc. No. 205-5) to the
Settlement Agreement, which Revised Class Notice is hereby ORDERED
filed.
By June 9, 2017, Century Aluminum of West Virginia, Inc.
(“CAWV”) will send the Class Notice to each identified Class
Member household by first class mail at his or her last known
current address.

Counsel for CAWV will file an Affidavit of

Mailing with the court and serve copies of that Affidavit on all
counsel by August 3, 2017.
The mailing of the Class Notice to those Class Members
provides due and sufficient notice of the proceedings and of the
proposed settlement approval procedure, thus satisfying the
requirements of Federal Rule of Civil Procedure 23 and due
process.

The court finds that such notice is the best notice

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practicable under the circumstances and will effectuate actual
notice to the Class of the settlement.
c.

Enhancement Awards

The court has reviewed the proposed enhancement awards
for Class Representative David Bryan and seven other Class Members
who contributed to Plaintiff’s efforts in this case.

The court

finds these enhancement awards within the range of possible final
approval as being reasonable.

Thus, the proposed enhancement

awards are preliminarily approved.
d.

Objections to Proposed Settlement and Fairness Hearing
A hearing will be conducted before the court at 1:30

p.m. on August 14, 2017, toward final determination of the
fairness, reasonableness, and adequacy of the terms and conditions
of the settlement set forth in the Settlement Agreement and
Exhibits thereto, including the enhancement awards.

Any Class

Member may appear personally or by counsel at the hearing and may
object or express his or her views regarding the Settlement
Agreement.

However, a Class Member will not be heard, nor be

entitled to contest the court’s approval of the Settlement
Agreement, unless on or before July 24, 2017, he or she has mailed

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v.

Civil Action No. 15-14025

THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE any supporting papers to the Clerk of the
a written objection and COMPANY OF BOSTON,
a Massachusetts Corporation, and
DOES 1 THROUGH 10, to be set
Court, such address inclusive, forth in the Class Notice.
Defendants.
Any Class Member who does not file and serve his or her
ORDER AND NOTICE
objections in this manner will be deemed to have waived his or her
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following and will hereby fixed as the time by or on which
objections dates are be permanently precluded from making any
certain events must occur:
objections to the fairness or adequacy P. 12(b), together with
01/28/2016
Motions under F.R. Civ. of the proposed Settlement
supporting briefs, memoranda, affidavits, or other
Agreement and/or enhancement awards. thereof. (All motions
such matter in support
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
The parties may submit briefs in response to any
02/08/2016
Last day for Rule 26(f) meeting.
objections on or before August 3, 2017.
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
The hearing may be continued or adjourned by order of
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
the court, from time to time, and Courthouse in Charleston, before
Byrd United States without further notice to the
the undersigned, unless canceled. Lead counsel
Class, except that notice will be provided to any Class Member who
directed to appear.
02/29/2016
Entry of scheduling order.
has timely filed an objection.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is directed to transmit copies of this order
The Clerk is requested to transmit this Order and
to all counsel of record and any unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: May 31, 2017
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

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