Clemans v. New Werner Co. et al, No. 3:2012cv05186 - Document 75 (W.D. Wash. 2013)
Court Description: ORDER and Final Judgment Granting Final Appoval of Class Settlement, Certifying Settlement Class and Aproving the Proposed Notice Plan and Forms of Notice by Judge Ronald B. Leighton. (JAB)
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Clemans v. New Werner Co. et al Doc. 75 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LLOYD CLEMANS, on behalf of himself and CASE NO. 3:12-cv-05186 all similarly situated persons and entities, 11 12 Plaintiffs, v. 13 14 15 16 17 18 19 NEW WERNER CO. d/b/a WERNER CO., a Delaware corporation; NEW WERNER HOLDING CO (DE), LLC d/b/a WERNER HOLDING CO.; a Delaware corporation; LOWE’S COMPANIES, INC., a North Carolina corporation; and LOWE’S HOME CENTERS, INC., a North Carolina corporation Defendants. ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT CLASS; AND (3) FINALLY APPROVING THE PROPOSED NOTICE PLAN AND FORMS OF NOTICE 20 21 This matter came before this Court on November 22, 2013, for a final approval hearing 22 for the settlement embodied in the Class Action Settlement Agreement, dated June 27, 2013 23 (the “Settlement Agreement”) between Plaintiff Lloyd Clemans (“Plaintiff”) against Defendants 24 Werner Co., New Werner Holding Co., Inc. (collectively “Werner”), Lowe’s HIW Inc. and 25 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 1 TEL. 206.682.5600 FAX 206.682.2992 Dockets.Justia.com 1 Lowe’s Home Centers, Inc. (collectively “Lowe’s”).1 The Class Action Complaint alleges that 2 beginning in 2003, Werner n/k/a Old Ladder Co. (now bankrupt) began the manufacture and/or 3 distribution of a Steel “Easy Access Attic Ladder” in Model Numbers S2208 and S2210, Marks 4 1, 2, 3 or 4 (the “Ladders”) which contained defective zinc hinges that are prone to breaking 5 and shearing while the Ladders are being used and thus are not safe to use. 6 The Plaintiff has filed suit alleging (i) violations of the Washington Consumer 7 Protection Act, RCW 19.86.020 et seq., and the Consumer Protection and/or Unfair Business 8 9 Practice Acts arising under thirty-three (33) other States and the District of Columbia, (ii) 10 unjust enrichment, (iii) negligent misrepresentation, (iv) fraudulent concealment and (v) 11 violation of Washington’s Product Liability Act, chapter 7.72 RCW, et seq. 12 13 14 Werner and Lowe’s both maintain that they did not manufacture the Ladders and, instead, the Ladders were made by a defunct company that properly went through bankruptcy and, thus, discharged any liability asserted herein with respect to the Ladders. Defendants 15 16 further maintain that the Ladders were not defective and that any product failures consumers 17 experienced were caused by improper installation or usage. Lastly, Defendants maintain that 18 they were unaware of the alleged defect. 19 The parties have resolved this dispute and the proposed Class Action Settlement 20 provides a mechanism for Class Members to receive a new Werner attic replacement ladder but 21 does not release any personal injury claims. 22 On July 25, 2013, this Court entered an Order (1) Granting Preliminary Approval to the 23 24 Proposed Settlement; (2) Provisionally Certifying the Proposed Settlement Class; (3) 25 26 1 Werner and Lowe’s are jointly referred to further in this Order as “Defendants”. Plaintiff and the Defendants are jointly referred to herein as the “Parties.” [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 2 TEL. 206.682.5600 FAX 206.682.2992 1 2 3 Approving the Proposed Notice Plan and Forms of Notice; and (4) Scheduling the Final Fairness Hearing for November 22, 2013 (the “Preliminary Approval Order”). On October 28, 2013, in conjunction with Plaintiffs’ Motion for Final Approval of 4 Class Action Settlement, Phil Cooper of Kurtzman Carson Consultants, LLC (“KCC”), the 5 Court-approved Settlement Administrator and notice provider in this matter, filed a declaration 6 confirming the timely distribution to the Settlement Class of the Class Notice, Claim Form, and 7 Publication Notice required by the Preliminary Approval Order. Of approximately 300,000 8 9 Class Members, only four (4) individuals have opted out. (Cooper Decl. at ¶ 17). A complete 10 and accurate list of Class Members who opted out is attached to this Order as Exhibit A and 11 are not bound by this Court’s further Orders in this litigation. Those Class Members on Exhibit 12 A shall not share in the benefits of the Settlement. 13 14 On November 22, 2013, this Court held a fully noticed formal fairness hearing to consider whether to grant final approval to the Settlement, and to consider Class Counsel’s 15 16 application for an award of attorneys’ fees and costs. The Court conducted a hearing, during 17 which the Court heard argument from the parties and all others who appeared, whether 18 represented by counsel or not. 19 20 21 Having read, reviewed and considered the papers filed with this Court, the oral arguments of counsel, and the written and oral comments of all those who have appeared in these proceedings, and based on its familiarity with this matter, this Court finds 22 and concludes as follows: 23 24 25 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 3 TEL. 206.682.5600 FAX 206.682.2992 1 2 I. THE CLASS NOTICE COMPLIED WITH THIS COURT’S ORDERS AND APPLICABLE LEGAL STANDARDS & THIS COURT HAS JURISDICTION 3 This Court has jurisdiction over the claims of the Class Members asserted in this action, 4 5 personal jurisdiction over the settling parties (including the Class Members), and subject matter 6 jurisdiction to approve this Settlement. On July 25, 2013, this Court ordered that Class Notice 7 be disseminated in substantially the form submitted by Plaintiffs at the preliminary approval 8 hearing, and further specified the manner in which such dissemination should occur. Based 9 upon the uncontroverted proof that KCC submitted to the Court, this Court finds that the 10 settling parties have complied with the Court’s Orders, as follows: 11 12 The Court-approved Class Notice was mailed directly to 15,408 potential Class 13 Members whose addresses were available through Werner’s business records. (Cooper Decl. at 14 ¶ 14). The Class Notice also appeared in nationally distributed editions of People magazine and 15 U.S. Today and a summary notice was distributed over PR NEWSWIRE announcing the 16 settlement to media outlets across the country. (Id. at ¶ 13). The Settlement Administrator also 17 caused a summary notice to be placed in Internet banner advertising through 24/7 Real Media 18 Networks advertising network. Lowe’s also directed the posting of the Publication Notice in its 19 20 21 approximately 1,700 retail stores. Further, the Settlement Administrator established a Court-approved website, 22 www.atticladdersettlement.com, where Class Members could and can download Claim Forms 23 and obtain information regarding the Settlement. The website was registered with hundreds of 24 search engines to ensure that it was easy to find on the internet. The Claims 25 Administrator also established a toll-free number for Class Members to learn more 26 about the Settlement. [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 4 TEL. 206.682.5600 FAX 206.682.2992 1 The Settlement Administrator also provided notice of the Settlement Agreement to the 2 U.S. Attorney General and the Attorney Generals of all fifty states and the District of 3 Columbia, as required by 28 U.S.C. § 1715(b). (Cooper Decl. at ¶ 21). The Court finds and 4 concludes that the Class Notice and the notice program as a whole provided the best practicable 5 notice to the members of the Class under the circumstances, and satisfies the requirements 6 prescribed by the United States Supreme Court. See, Phillips Petroleum Co. v. Shutts (1985) 7 472 U.S. 797, 811-12; Eisen v Carlisle and Jacqueline, 417 U.S. 156, 174-175 (1974). The 8 9 Notice clearly described the boundaries of the Class definition, the basis for the lawsuit, the 10 terms and provisions of the Settlement, the remedies available to Class Members, the proposed 11 method for benefit distribution, the proposed amount of the Named Plaintiff service award, and 12 the requested amount for attorneys’ fees and costs. See, Churchill Village, LLC v. General 13 Electric, 361 F.3d 566, 576 (9th Cir. 20040(“Notice is satisfactory if it generally describes the 14 terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate 15 16 17 and to come forward and be heard”). The Notice described the proposed Settlement with enough specificity to allow each 18 Class Member to make an informed choice whether to (a) accept and participate in it, (b) to opt 19 out of it to preserve the right to bring a separate action, or (c) to object to it. The Notice 20 explained the procedure by which a Class Member could take any such action. Finally, the 21 Notice provided the schedule for the Final Fairness Hearing, and informed Class Members how 22 to obtain additional information from Class Counsel or the Claims Administrator about the 23 24 25 Settlement. Accordingly, the Court finds and concludes that the method and content of the Notice satisfied all applicable legal requirements. 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 5 TEL. 206.682.5600 FAX 206.682.2992 1 2 3 II. THE SETTLEMENT IS FAIR, ADEQUATE AND REASONABLE When considering a motion for final approval of a class action settlement under Rule 4 23, the court’s inquiry is whether the settlement is “fair, adequate, and reasonable.” Class 5 Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); Linney v. Cellular Alaska 6 P’ship, 151 F.3d 1234, 1242 (9th Cir. 1998). A settlement is fair, adequate, and reasonable 7 when “the interests of the class as a whole are better served if the litigation is resolved by the 8 9 settlement rather than pursued.” MANUAL FOR COMPLEX. LITIG., Fourth, § 30.42 (2004). The 10 decision to approve or reject a proposed settlement is committed to the Court’s sound 11 discretion. See, City of Seattle, 955 F.2d at 1276; see also, Linney, 955 F.3d at 1242. 12 13 14 In affirming the settlement approved by the trial court in City of Seattle, the Ninth Circuit noted that it “need not reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in 15 16 litigation and avoidance of wasteful and expensive litigation that induce consensual 17 settlements.” Id. at 1291 (internal quotations and citations omitted). The district court’s 18 ultimate determination “will involve a balancing of several factors,” which may include: 19 20 21 the strength of plaintiffs’ case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel . . . and the reaction of the class members to the proposed settlement. 22 23 Id. (quoting Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982)). 24 This Court begins its analysis with a presumption that a class settlement is fair and 25 should be approved if it is the product of arm’s-length negotiations conducted by capable 26 counsel with extensive experience in complex class action litigation. See, M. Berenson Co. v. [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 6 TEL. 206.682.5600 FAX 206.682.2992 1 Faneuil Hall Marketplace, 671 F. Supp. 819, 822 (D. Mass. 1987). Each of these factors is 2 present here: Class Counsel has extensive experience in class action litigation, and they 3 reached the Settlement with Defendants only after instituting litigation and conducting 4 extensive investigation into factual merit of Class Claims and after extensive arm’s-length 5 negotiations and multiple settlement conferences concerning specific terms of the Settlement. 6 Further, the Court has considered each of the factors set forth in City of Seattle to 7 determine whether the proposed Settlement warrants final approval. The Court finds, based on 8 9 10 11 the record submitted, that the Settlement is fair, adequate, and reasonable in light of, inter alia, the following factors: A. 12 13 The Value Of The Settlement, And The Substantial Benefits It Provides To Class Members The Settlement provides relief for all of the approximately 300,000 Class Members in 14 the United States who currently own a Werner Model S2208 or S2210 steel attic ladder 15 designated as Marks 1, 2, 3 or 4 regardless of whether such Class Member has experienced a 16 product failure. All Class Members who submit a valid Claim Form will receive a free 17 comparable replacement ladder shipped directly to their homes. 18 B. The Settlement Serves The Interests of Class Members 19 20 Absent the Settlement, Plaintiffs would have had to obtain a class judgment against 21 Defendants, including obtaining class certification covering the entire Class and prevailing on 22 their legal claims. Such an outcome was by no means guaranteed. Indeed, based on the 23 Declaration of Class Counsel, Werner had asserted that it did not actually manufacturer the 24 ladder at issue in this litigation, contends the actual manufacturer has been discharged from 25 liability in prior bankruptcy proceedings and that it bought the assets of the manufacturer free 26 and clear from the bankruptcy estate. Moreover, the outcome of trial and any appeals are [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 7 TEL. 206.682.5600 FAX 206.682.2992 1 inherently uncertain and involve significant delay. The Settlement avoids these challenges and 2 provides prompt, substantial relief for Class Members, which weighs in favor of final approval 3 of the Settlement. 4 C. 5 By the time the parties reached the Settlement, they had compiled sufficient information 6 The Amount of Investigation Completed At the Time of Settlement and conducted extensive analyses to assess the strengths and weaknesses of their respective 7 cases. Specifically, Class Counsel reviewed thousands of documents, and, together with 8 9 Plaintiffs’ experts, inspected multiple ladders to assess the nature and scope of the alleged 10 defect. In addition, Class Counsel reviewed and extensively analyzed Werner’s claims 11 regarding the bankruptcy discharge issues surrounding the true manufacturer of the ladder at 12 issue. By the time the Settlement was reached, the Parties had sufficient legal and factual bases 13 to make a thorough appraisal of the adequacy of the Settlement. 14 D. The Terms And Conditions Of The Proposed Settlement 15 16 The Settlement provides all eligible Class Members with a free comparable replacement 17 ladder shipped directly to their homes. The straight-forward claims process applies equally to 18 all Class Members, and assistance is available—from Class Counsel and the Claims 19 Administrator—for Class Members who need help in establishing eligibility 20 for relief under the Settlement. 21 E. The Views of Class Counsel 22 When assessing the fairness of a proposed settlement, the court must consider the views 23 24 and experience of counsel. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); 25 Pincay Invs. Co. v. Covad Communs. Group, Inc., 90 Fed. Appx. 510, 511 (9th Cir. Cal 2004). 26 Class Counsel in this case, who are experienced and skilled in class action litigation, support [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 8 TEL. 206.682.5600 FAX 206.682.2992 1 the Settlement as fair, reasonable, and adequate, and in the best interests of the Class as a 2 whole. Based on a review of Class Counsel’s credentials and their bases for supporting the 3 Settlement, the Court finds that this factor weighs in favor of Settlement approval. 4 F. 5 6 The Expense And Likely Duration Of Litigation In The Absence Of A Settlement Another factor courts consider in assessing the fairness of settlements is the complexity, 7 expense, and likely duration of the litigation had a settlement not been reached. City of Seattle, 8 955 F.2d at 1291. As discussed above, the Settlement guarantees a substantial recovery for the 9 Class while obviating the need for lengthy, uncertain, and expensive pretrial practice, trial, and 10 appeals. Even if the Class prevailed at trial, Defendants would likely appeal any adverse rulings 11 12 13 against it. Absent the proposed Settlement, Class Members would likely not obtain relief, if any, for a period of years. 14 G. 15 Courts should also consider the presence of good faith and the absence of collusion on 16 the part of the settling parties. Alba Conte & Herbert B. Newberg, Newberg on Class Actions 17 The Presence Of Good Faith And The Absence Of Collusion § 11.43 (4th ed. 2002). There is no indication of collusion or bad faith here, nor any allegations 18 thereof. Furthermore, courts recognize that arm’s-length negotiations conducted by competent 19 20 counsel are prima facie evidence of fair settlements. In re Consolidated Pinnacle West 21 Securities, 51 F.3d 194, 197 n.6 (9th Cir. 1995); see also Berenson, 671 F. Supp. at 822 22 (holding that where “a proposed class settlement has been reached after meaningful discovery, 23 after arm’s-length negotiations by capable counsel, it is presumptively fair”). (See D.E. 65 and 24 68, Declarations of Stephens and Watson, respectively). 25 The proposed Settlement here is the result of intensive, arm’s-length negotiations 26 between experienced attorneys who are highly familiar with class action litigation in general [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 9 TEL. 206.682.5600 FAX 206.682.2992 1 and with the legal and factual issues of this case in particular. Multiple settlement conferences 2 resulted in a tentative agreement-in-principle reached on or around March 8, 2013. After 3 reaching this agreement, the parties conducted confirmatory discovery and continued to 4 negotiate in detail and in good faith over the months that followed to finalize the Settlement 5 Agreement. 6 H. Class Members’ Positive Reaction Supports Final Approval 7 Finally, and perhaps most importantly, the Settlement has already received a positive 8 9 response from the Class. The reaction of class members to a proposed settlement is an 10 important factor in determining whether a settlement is fair, adequate, and reasonable. City of 11 Seattle, 955 F.2d at 1291. A court may appropriately infer that a class action settlement is fair, 12 adequate, and reasonable when few class members object to it. See, e.g., Marshall v. Holiday 13 Magic, Inc., 550 F.2d 1173, 1178 (9th Cir. 1977). Indeed, a court can approve a class action 14 settlement as fair, adequate, and reasonable even over the objections of a significant percentage 15 16 17 of class members. See, City of Seattle, 955 F.2d at 1291-96. Only one objection was lodged against the proposed Settlement by a one Robert A. 18 Roper, in which he asserts that he will not be able to install the replacement ladder on his own 19 and, thus, implies that the Settlement should include his anticipated installation costs. (D.E. 20 57). Subsequently, Mr. Roper withdrew his objection, asking the Court to fully approve all 21 aspects of the proposed settlement. (See, D. E. 71, Ex. A attached thereto). The Court accepts 22 Mr. Roper’s withdrawal. Even in the absence of such withdrawal, however, the Court finds 23 24 that this single objection is without merit given, inter alia, that the subject ladders were 25 originally sold on a “do-it-yourself” basis and did not included the consumer’s cost of 26 installation. Further, given the exceptional relief provided to the Class and the fact that the [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 10 TEL. 206.682.5600 FAX 206.682.2992 1 Settlement represents a compromise, the lack of providing installation costs (which would vary 2 widely throughout the nation for each Class Member and, thus, would be unmanageable) does 3 not defeat the fairness of the proposed Settlement. 4 5 6 In addition, the named class representative supports the Settlement. Further, out of an estimated three hundred thousand Class Members, only four (4) have opted out of the Settlement. The scarcity of objections and requests to opt out of the Settlement both indicate 7 the broad, class-wide support for the Settlement and support its approval. The Court finds the 8 9 10 overwhelming non-opposition to and participation in the Settlement as strong indications of Class Members’ support for the Settlement as fair, adequate, and reasonable. 11 I. 12 One final matter for the Court to consider in granting final approval to the Settlement is 13 14 Class Counsel Seek Reasonable Fees And A Reasonable Service Award the issue of attorneys’ fees and costs and a service award to the Class Representative. The Court has considered and awarded Class Counsel’s attorneys’ fees and costs and a Service 15 16 Award by separate Order. Accordingly, the entire matter of the proposed Settlement having 17 been duly noticed, and having been fully considered by the Court, 18 IT IS HEREBY FOUND, ORDERED, ADJUDGED AND DECREED THAT: 19 20 21 1. Unless otherwise provided herein, all capitalized terms in this Order shall have the same meaning as set forth in the Settlement Agreement (the “Settlement Agreement”), previously filed with this Court. 22 2. The Court finds that notice to the Settlement Class has been completed in 23 24 conformity with the Preliminary Approval Order. The Court finds that this notice was the best 25 notice practicable under the circumstances, that it provided due and adequate notice of the 26 proceedings and of the matters set forth therein, and that it fully satisfied all applicable [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 11 TEL. 206.682.5600 FAX 206.682.2992 1 requirements of law and due process. 3. 2 The Court finds it has personal and subject matter jurisdiction over all claims 3 asserted in the Class Complaint with respect to all members of the Settlement 4 Class. 5 6 4. The settlement of this Class action on the terms set forth in the Settlement Agreement is approved as being fair, adequate and reasonable in light of the degree of recovery 7 obtained in relation to the risks faced by the Settlement Class in litigating the claims. The 8 9 Settlement Class is properly certified as a class as part of this settlement. The relief with 10 respect to the Settlement Class is appropriate, as to the individual members of the Settlement 11 Class and as a whole. 12 13 14 5. The settlement is binding on all members of the Settlement Class. The Settlement Class is defined as: all individual persons or entities in the United States who currently own a Werner Model S2208 or S2210 steel attic ladder designated as Marks 1, 2, 3 or 15 16 4 (an attic ladder which was manufactured from September 2003 to September 2005 and 17 contains one or more cast zinc hinges). Excluded from the Class are the Judge assigned to this 18 matter and any member of the Judge’s staff and immediate family. As indicated and 19 specifically defined in the Settlement Agreement, claims for personal injury are specifically 20 excluded from the Settlement and are not being released in this litigation. This Class satisfies 21 the requirements of Rule 23 and is properly certified pursuant to Rule 23(b)(3) for the purposes 22 of settlement. 23 24 25 6. Class Members, except those listed on Exhibit A, must submit a valid, verified Claim Form in accordance with the terms of the Settlement Agreement and Claim Form, 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 12 TEL. 206.682.5600 FAX 206.682.2992 1 2 3 including proof of purchase or the ladder label, to the Settlement Administrator by January 21, 2013. 7. All members of the Settlement Class are bound by the terms of the Settlement 4 Agreement. As of the Effective Date, all Class Members shall conclusively be deemed to have 5 released all settled claims as described in the Settlement Agreement, which provides: “Plaintiff, 6 and all other Class Members who have not excluded themselves from the Settlement, hereby 7 expressly release and forever discharge Defendants and all of their present, former, and future 8 9 officers, directors, employees, shareholders, agents, predecessors, successors, assigns, parents, 10 subsidiaries, affiliates, insurers, attorneys, heirs and legal representatives (“Releasees”) of and 11 from any and all Released Claims (as defined in Section 19) and agree that they shall not now 12 or hereafter initiate, maintain, or assert against any of the Releasees any causes of action, 13 claims, rights, demands, or claims for equitable, legal, and/or administrative relief connected 14 with, arising out of, or related to the Released Claims in any court or before any administrative 15 16 body (including any state department, regulatory agency, or organization), tribunal, arbitration 17 panel, or other adjudicating body” Notwithstanding the foregoing, no claims are released 18 hereunder for personal bodily injury or any claim arising out of any personal bodily injury 19 claim arising out of or in connection with the use, maintenance or ownership of the S2208 or 20 S2210 ladders, including, but not limited to, claims for mental distress, loss of consortium, and 21 medical expenses. 22 8. As of the Effective Date, Plaintiff and all Class Members, except those listed on 23 24 25 Exhibit A, whether or not they return a Claim Form within the time and in the manner provided for, shall be barred from asserting any Released Claims against Defendants and the Releasees, 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 13 TEL. 206.682.5600 FAX 206.682.2992 1 2 3 and any such Class Members shall have released any and all Released Claims as against Defendants and the Releasees. 9. All Class Members, except those listed on Exhibit A, are hereby forever barred 4 and enjoined from filing, commencing, prosecuting, intervening in, continuing or participating 5 as a plaintiff, claimant or class member in any lawsuit or administrative, regulatory, arbitration, 6 or other proceeding in any jurisdiction based on, relating to, or arising out of the claims and 7 causes of action, or the facts and circumstances alleged in the Clemans Action and/or relating 8 9 to Released Claims. The Settlement Agreement and this Order are binding on and have res 10 judicata and preclusive effect in all pending and future lawsuits or other proceedings 11 encompassed by the Release maintained by or on behalf of Plaintiff and all Class Members, as 12 well as their heirs, executors and administrators, successors and assigns. 13 14 10. Neither this Order nor any aspect of this settlement is to be construed or deemed an admission of liability, culpability, negligence, or wrongdoing on the part of any Defendant. 15 16 In particular, and without limiting the generality of the foregoing, nothing in this Order or in 17 this settlement shall be offered or construed as an admission of, or evidence of, liability, 18 wrongdoing, impropriety, responsibility or fault whatsoever by Defendants or their employees 19 and agents. In addition, and also without limiting the generality of the foregoing, nothing about 20 this Order or the settlement shall be offered or construed as an admission or evidence of the 21 propriety or feasibility of certifying a class in any other action for adversarial, rather than 22 settlement, purposes. 23 24 25 11. Defendants and Defendants’ counsel shall have no liability whatsoever for any acts or omissions of the Settlement Administrator or Class Counsel other than to pay for the 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 14 TEL. 206.682.5600 FAX 206.682.2992 1 2 3 costs and expenses of the Settlement Administrator in disseminating the Class Notice and administering the Settlement. 12. Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the Clerk shall 4 enter final judgment dismissing this action on the merits with prejudice and without costs or 5 attorney fees to any party (except as otherwise provided in this Court’s Order Granting Class 6 Counsel’s Application For Award of Attorneys’ Fees and Expenses and Incentive Award to the 7 Named Plaintiff), there being no just reason for the delay in the entry of this Order and Final 8 9 10 Judgment. The claims that are thereby dismissed shall include all claims encompassed by the release set out in the Settlement Agreement. 11 13. The dismissal of this case is without prejudice to the rights of the parties to 12 enforce the terms of the Settlement Agreement and the rights of Class Counsel to seek attorney 13 fees, costs, and service awards to the named Plaintiffs as provided in the Settlement 14 Agreement. Without affecting the finality of this Order, or the judgment to be entered pursuant 15 16 hereto, in any way, the Court retains jurisdiction over Plaintiff, the Class Members and 17 Defendants as to all matters relating to the administration, consummation, enforcement, and 18 interpretation of the terms of the Settlement, the Settlement Agreement, including the Release, 19 this Order, and for any other necessary purposes. 20 21 IT IS SO ORDERED. DATED this 22nd day of November, 2013 23 A 24 Ronald B. Leighton United States District Judge 22 25 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 15 TEL. 206.682.5600 FAX 206.682.2992 1 2 3 4 5 6 Presented by: By: /s/ Kim D. Stephens Kim D. Stephens, WSBA #11984 TOUSLEY BRAIN STEPHENS, PLLC 1700 Seventh Avenue Suite 2200 Seattle, Washington 98101-4416 Phone: (206) 682-5600 Fax: (901) 682-2992 Email: kstephens@tousley.com 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By: /s/ Frank L. Watson, III Frank L. Watson, III (admitted pro hac vice) William F. Burns (admitted pro hac vice) WATSON BURNS, PLLC 253 Adams Avenue Memphis, Tennessee 38103 Phone: (901) 529-7996 Fax: (901) 529-7998 Email: fwatson@watsonburns.com Email: bburns@watsonburns.com By: /s/ Paul C. Peel Paul C. Peel (admitted pro hac vice) Malcolm B. Futhey III (admitted pro hac vice) FARRIS BOBANGO, PLC 253 Adams Avenue Memphis, Tennessee 38120 Phone: (901) 259-7100 Fax: (901) 259-7150 Email: ppeel@farris-law.com. Email: mfuthey@farris-law.com By: /s/Stewart D. Matthews Stewart D. Matthews (admitted pro hac vice) S.D. MATTHEWS & ASSOCIATES 2222 West Spring Creek Parkway Ste 101 Plano, Texas 75023 Phone (972) 398-6666 Fax (972) 398-6634 Email: productslawyer@aol.com Counsel for Plaintiff Lloyd Clemans, and the Settlement Class Members [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 16 TEL. 206.682.5600 FAX 206.682.2992 1 2 3 4 5 By: /s/ Fred Burnside, WSBA #32491 Fred Burnside, WSBA #32491 DAVIS WRIGHT TREMAINE LLP 1201 Third Avenue, Suite 2200 Seattle, Washington 98101-3045 Telephone: (206) 622-3150 Facsimile: (206) 757-7700 Email: fredburnside@dwt.com 6 11 By: /s/ Christopher M. Murphy Christopher M. Murphy (admitted pro hac vice) MCDERMOTT WILL & EMERY 227 West Monroe Street Chicago, Illinois 60606-5096 Phone: (312) 984-3607 Facsimile: (312) 984-7700 Email: cmurphy@mwe.com 12 Counsel for Defendants 7 8 9 10 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 17 TEL. 206.682.5600 FAX 206.682.2992 1 EXHIBT A – LIST OF INDIVIDUALS EXCLUDED FROM THIS ACTION 2 1. James H. Bandish 100 Maplewood Avenue Carmichales, PA. 15320. 2. John Bellinger 751 Newburg Place Westerfield, IN. 46074 3. John Simpson 318 W. Pleasant Drive Pierre, SD 57501 4. David Ungacta 1343 E. Anastasia Street San Tan Valley, AZ 85104 5. Lester L. Leslie 8511 27th Ave. SE Olympia, WA 98513 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] ORDER AND FINAL JUDGMENT (1) GRANTING FINAL APPROVAL OF CLASS SETTLEMENT; (2) FINALLY CERTIFYING SETTLEMENT TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 CLASS; AND (3) FINALLY APPROVING THE PROPOSED Seattle, Washington 98101 NOTICE PLAN AND FORMS OF NOTICE - 18 TEL. 206.682.5600 FAX 206.682.2992
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