Cupples v. Mountaire Corporation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GARY and ANNA-MARIE CUPPELS,
individually and on behalf of all others
similarly situated, > C. A. No.: S18C-06-009 CAK
Plaintiffs,
Vv.
MOUNTAIRE CORPORATION, an
Arkansas corporation, MOUNTAIRE
FARMS, INC., a Delaware corporation, and :
MOUNTAIRE FARMS OF DELAWARE,
INC., a Delaware corporation,
Defendants.
Submitted: March 23, 2021
Decided: April 12, 2021
MEMORANDUM OPINION AND ORDER
Stipulated Motion to Approve Class Action Settlement
GRANTED
Chase T. Brockstedt, Esquire and Stephen A. Spence, Esquire, Baird Mandalas
Brockstedt, 1413 Savannah Road, Ste. 1, Lewes, Delaware 19958, Attorneys for
Plaintiffs.
Philip C. Federico, Esquire and Brent Ceryes, Esquire, Schochor, Federico and
Staton, P.A., 1211 Paul Street, Baltimore, Maryland 21202, Attorneys for
Plaintiffs.
F. Michael Parkowski, Esquire and Michael W. Teichman, Esquire, Parkowski,
Guerke & Swayze, P.A., 1105 North Market Street, 19" Floor, Wilmington,
Delaware 19801, Attorneys for Defendants.
Lisa C. McLaughlin, Esquire, Todd L. Goodman, Esquire and John C. Phillips, Jr.,
Esquire, Phillips, Goldman, McLaughlin & Hall, P.A., 1200 North Broom Street,
Wilmington, DE 19806, Attorneys for Defendants.
James R. Wedeking, Esquire, Timothy K. Webster, Esquire, Gordon D. Todd,
Esquire, Erika L. Maley, Esquire and Daniel J. Hay, Esquire, Sidley Austin, LLP,
1501 K Street, N.W. Washington, DC 20005, Attorney for Defendants.
KARSNITZ, J.
The Town of Millsboro sits on the Indian River in the shadow of the
chicken processing facility a few miles east of it. For many years the plant was the
only facility between Rehoboth and Millsboro. The plant has been operated by
Defendants Mountaire Farms, Inc., a Delaware corporation, Mountaire Farms of
Delaware, Inc., a Delaware corporation, and under the auspices of Mountaire
Corporation, an Arkansas corporation (collectively “Defendants” or “MFODI’).
In June of 2018, Plaintiffs Gary and Anna-Marie Cuppels sued the
Defendants in their own right and on behalf of the class of all similarly-situated
persons. Plaintiffs allege that Defendants disposed of contaminated wastewater
and liquefied sludge on lands near Plaintiffs’ residences. Plaintiffs allege that this
wastewater and sludge have seeped into the groundwater throughout the area,
causing nitrates and other contaminants to enter Plaintiffs’ drinking water wells,
resulting in health effects and property diminution for a class of individuals living,
working, leasing, or owning property and/or businesses in the area identified as
the “Groundwater Area” set forth on Exhibit A to the Motion for Approval.
Plaintiffs further allege that Defendants’ wastewater treatment plant
and their spray irrigation and sludge operations emit air pollutants, including
malodorous hydrogen sulfide that reach Plaintiffs’ residences at levels causing a
class of individuals living, working, leasing, or owning property and/or businesses
in the area identified as the “Air Area” set forth on Exhibit A to the motion to
suffer health effects and to endure nuisance conditions preventing and devaluing
the use of their properties.
Defendants deny Plaintiffs’ allegations. Specifically, Defendants
assert that they are not the cause of nitrate contamination in residential supply
wells and that they did not emit and are not emitting air pollutants in the nature
and quantity alleged by Plaintiffs. Defendants further assert, among other
defenses, that Plaintiffs cannot establish that Defendants’ actions are the
proximate cause of Plaintiffs’ injuries. Defendants have chosen to settle the case in
order to achieve final resolution of this matter and avoid the uncertainty associated
with litigation.
After the filing of the Complaint, the parties litigated numerous
dispositive motions and engaged in preliminary discovery on issues of class
certification and jurisdiction. In August 2019, the Court granted the parties’
request to stay the case while they pursued mediation. The parties engaged the
services of two well-respected mediators: David White, an attorney and mediator
with extensive experience litigating and mediating cases, and Eric Green, a
mediator with extensive experience mediating class actions of national
prominence, including environmental matters. The parties mediated over four days
in Wilmington, Delaware. This mediation included presentations from both parties
and their experts. The mediation was not successful.
Following the parties’ initial attempt at mediation, this Court
authorized discovery on the merits of the case, and the parties resumed briefing on
class certification and certain dispositive motions. The parties and the Special
Discovery Master implemented an electronic discovery protocol, and over the
following months, the parties produced and reviewed hundreds of thousands of
pages of documents. Discovery also involved multiple site inspections both at the
Facility as well as the residences of class members, the scope and procedures of
which were litigated before the Special Discovery Master. The parties engaged in
over 20 discovery depositions, including the depositions of corporate designees,
class representatives, unnamed class members, an expert witness, and Defendants’
current and former employees (and many more depositions remain pending). The
parties litigated numerous discovery disputes through the Court-appointed Special
Discovery Master and before this Court. The parties continued to discuss
settlement in 2020, as an extension of the mediation that began in 2019.
Ultimately, in late 2020, the parties reached agreement and entered into the
proposed Settlement Agreement.
On December 23, 2020, the parties filed a Joint Motion for
Preliminary Approval of Class Action Settlement Agreement and Other Relief (the
“Preliminary Approval Motion”).' In addition to seeking preliminary approval of
the Settlement Agreement, the Preliminary Approval Motion requested that the
Court (1) preliminarily certify the settlement class; (2) appoint class
representatives; (3) appoint Plaintiffs’ counsel as Class Counsel; (4) designate
RG/2 as Claims Administrator; (5) approve and order the implementation of a
proposed Notice Plan; (6) establish a procedure for objections to the Settlement
Agreement; (7) establish a procedure for opt-outs from the Settlement Agreement;
(8) set a bar date for the submission of claims; and (9) schedule a briefing
schedule and date for a fairness hearing to consider final approval of Settlement
Agreement.
On January 11, 2021, the Court granted the Preliminary Approval
Motion. ”
Following preliminary approval, Class Counsel directed class notice
through RG/2 Claims Group pursuant to the Court-approved notice plan. The
notice campaign was robust. RG/2 Claims mailed the Notice to 6,720 Class
'D.I. 605.
*D.I. 610.
Members identified via property records.’ Further, the Class Counsel engaged in a
publication notice campaign, which included advertisements in multiple
newspapers, as well as a press release that generated news coverage in multiple
media outlets. Class Members were also provided with a toll-free number and an
informative website to obtain case-related documents and further information
regarding the proposed Settlement (www.mountairesettlement.com). Both the
direct and publication notices provided the Settlement Class Members with
information on how they could review a copy of the Settlement Agreement, the
deadline by which they were required to file any objections to the Settlement
Agreement, their right to exclude themselves from any settlement and the deadline
for doing so, the potential preclusive effect of the Settlement Agreement,
instructions on how to register for participation in the Settlement Agreement, and
a bar date for the submission of claims.
Class Member response has been overwhelmingly positive. Since the
initiation of notice, over 3,000 Class Members have registered claims. No Class
Members are objecting to the Settlement Agreement. Four individuals filed letters
styled as objections. The individuals are not in the class as Plaintiffs.
Declaration of Melissa Baldwin, attached as Exhibit B to the Motion.
ai
The parties now seek final approval of the Settlement Agreement and
other related relief necessary to implement the terms of this settlement.
Terms of Settlement Agreement
The proposed Settlement Agreement requires Defendants to pay $65
million cash in full satisfaction of Plaintiffs’ claims, including all legal fees, costs,
and expenses (including costs and expenses of administering the settlement fund
described below). The payment is required to be made in two installments: one
payment of $55 Million by December 31, 2020 and a second payment of $10
Million by December 31, 2022. Defendants have already made the first payment,
which is held by an independent escrow agent pursuant to the Settlement
Agreement.
Contemporaneously with the filing of this Motion, Plaintiffs have
moved for the establishment of a Qualified Settlement Fund (the “QSF’’) to receive
the settlement proceeds (the “QSF Motion”). The QSF will be funded with those
proceeds currently held in escrow pending approval of the proposed Settlement
Agreement and the entry of the First Amended Consent Decree in the Federal Case
(as defined below) as well as the second payment due at the end of this year, as
described above. Following this Court’s approval of the QSF Motion, the QSF
will be allocated and amounts will be distributed to Class Members in accordance
with the Allocation Plan described briefly below and further detailed in Exhibit C
to the motion. Legal fees, costs, expenses, and any liens will likewise be subject to
the approval of this Court prior to payment from the QSF.
Settlement Class Definition
Plaintiffs’ proposed class definition is as follows:
All Persons who, on or after May 1, 2000, owned, leased,
resided on, or were employed on a full-time basis at: (a) property
located in whole or part within the Groundwater Area, which is
geographically bounded by the solid blue line on Exhibit A, and not
the Air Area, which is bounded by the dashed red line on Exhibit A;
(b) property located in whole or part within the Air Area, but not the
Groundwater Area; and (c) property located in whole or part within
both the Groundwater Area and the Air Area.
Excluded from the class definition are: (1) Defendants; (2) any entity
in which Defendants have a controlling interest; (3) any person with an ownership
interest in Defendants; (4) any current or former officer or director of Defendants;
(5) any current or former employee of any Defendant for any potential exposure
during their employment by such Defendant; (6) persons who have entered into
separate settlement agreements with any Defendant related to claims similar to
those claims made in the action; and (7) the legal representatives, successors, or
assigns of Defendants.
The Groundwater Area has been defined as the area overlying the
groundwater contamination plumes alleged to have been caused in whole or in part
by Defendants. The Groundwater Area was developed by Plaintiffs’ expert
witness, Dr. Harvey Cohen, a hydrogeologist with more than 20 years of
contaminant fate and transport experience. Dr. Cohen reviewed dozens of reports
and models related to the groundwater near the Defendants’ facilities and plotted
nitrate and water levels in hundreds of monitoring and residential wells upgradient
and downgradient of Defendants’ spray irrigation and sludge fields. Based on
hundreds of hours of analysis and groundwater “particle tracking” by Dr. Cohen
and his colleagues at §.S. Papadopoulos & Associates, Dr. Cohen would testify
that this area has been or soon will be impacted by Defendants. Dr. Cohen’s report
describing the methodology utilized to reach these conclusions is included as
Exhibit D to the motion.
As to the Air Area, Plaintiffs allege Defendants’ conduct caused
multiple exceedances of the Delaware Air Quality Standard for hydrogen sulfide
and exceedances of the health standard established by the Agency for Toxic
Substances and Disease Registry (“ASTDR”) for ammonia and other air pollutants
that, in the aggregate, are believed to be sufficient to potentially affect human
health or cause property damage. The Air Area of potential hydrogen sulfide air
10
exposure has been modeled by John Purdum, an expert in Environmental
Protection Agency (“EPA”) air modeling techniques, based on EPA modeling
protocols and emissions. Mr. Purdum’s report describing the methodology utilized
to reach these conclusions is included as Exhibit E to the Motion. Glen Adams’
report describing how Mr. Purdum’s calculations were used to generate the class
map is attached as Exhibit F to the Motion.
As set forth in the accompanying declaration of Plaintiffs’ expert in
medical toxicology, William Meggs, M.D., attached as Exhibit G to the Motion,
the Air Area encompasses the area over which Class Members could have been
exposed to hydrogen sulfide emissions from Defendants’ operations sufficient to
cause health effects, to a reasonable degree of medical probability. Those outside
this area would not, to a reasonable degree of medical probability, have been
exposed to sufficient levels of pollutants from Defendants’ operations to permit
Dr. Meggs to conclude that those individuals suffered health effects as a result of
Defendants’ operations. Additionally, as described in the declaration of Plaintiffs’
expert in property diminution, Ken Acks, attached as Exhibit H to the Motion, the
Air Area also encompasses all properties that could, to a reasonable degree of
probability, have experienced a diminution of property value as a result of
Defendants’ emissions.
1]
Allocation of Settlement Proceeds
Plaintiffs have proposed that a Claims Adjudicator be retained for the
allocation of the proceeds of the Settlement Agreement. Specifically, Plaintiffs
have proposed, and Defendants have consented to, the Hon. Irma Raker (Ret.)
serving as Claims Adjudicator.
Judge Raker has extensive class action allocation experience, having
recently led the distribution of settlement proceeds from a $190 million settlement
to approximately 9,000 claimants in Jane Doe No. 1, et al. v. Johns Hopkins
Hospital, et al., No. 24-C-13- 001041 (Md. Cir. Ct. 2014). Judge Raker has also
served as an Associate Judge of the District Court of Maryland, Montgomery
County from 1980 to 1982, Associate Judge of the Circuit Court for Montgomery
County, Maryland from 1982 to 1992, and on the Maryland Court of Appeals from
1994 until her retirement in 2008.
The Claims Adjudicator will evaluate each claim and categorize each
claimant to determine fair, reasonable, and equitable compensation based upon the
established categories of damages and the Allocation Plan, attached as Exhibit C
to the Motion. In doing so, the Claims Adjudicator will utilize the injury
categories and additional factors noted in the Allocation Plan. Following
notification to each claimant of their allocation, a period will be provided during
12
which each claimant may appeal to the Claims Adjudicator before the allocation
becomes final. An estimate of Judge Raker’s fees in connection with this service is
provided as Exhibit I to the motion.
Plaintiffs further request the continued appointment of RG/2 as
Claims Administrator. RG/2 will assist Judge Raker in the administration of the
settlement program, including issuing necessary mailings, data entry, developing
and maintaining access to databases, managing documents provided in support of
claims, and providing other services necessary to implement the settlement
program. An estimate of RG/2 fees in connection with this service is provided
within Exhibit B to the motion.
The Federal Case
There is a pending matter in the United States District Court for the
District of Delaware that relates to the proposed Settlement Agreement: Delaware
Department of Natural Resources and Environmental Control v. Mountaire Farms
of Delaware, Inc. 1:18-cv-00838 MN-JLH (the “Federal Case”). The Cuppels,
individually, and Plaintiffs’ Counsel have been engaged in litigation as intervenors
before the U.S. District Court for the District of Delaware in the Federal Case. The
Federal Case involves claims raised by DNREC against Mountaire Farms of
Delaware, Inc. (““MFODI’) under federal law related to alleged violations and
13
contamination at the Facility. The claims at issue in the Federal Case are premised
on some of the same operative factual allegations as the claims in this matter. In
the Federal Case, DNREC and MFODI entered into a proposed consent decree,
and then a First Amended Agreement and [Proposed] Consent Decree (“First
Amended Consent Decree”) that requires MFODI to (a) make certain Facility
improvements to prevent future groundwater contamination; and (b) engage in
certain efforts to remove existing nitrate contamination from the groundwater,
among other terms and conditions. The Cuppels, as intervenors in the Federal
Case, raised objections to the Consent Decree as originally proposed as well as the
First Amended Consent Decree. The Cuppels also moved for a preliminary
injunction in the Federal Case, seeking a suspension or curtailment of MFODI
operations.
Contemporaneously with the settlement of this class action case, the
Cuppels intervenors and MFODI have entered into a separate confidential
settlement agreement in the Federal Case to resolve the intervenors’ claims in that
case, including its motion for preliminary injunction and its opposition to the First
Amended Consent Decree. Pursuant to that agreement, intervenors anticipate that
they will withdraw their objections and ask the Federal Court to enter the First
Amended Consent Decree, and that MFODI will be required to engage in certain
14
additional activities to prevent future harm to the groundwater and provide
residents an avenue to report and receive follow-up on air pollution complaints.
The Parties estimate that the aggregate value of MFODI’s commitments, including
under the First Amended Consent Decree, is expected to be approximately $120
million for incurred and contracted costs, exclusive of long-term operation and
maintenance and contingencies that the intervening Cuppels value at an additional
$20 million. These remedies are not included as part of the Settlement Agreement
in this matter, and Intervenors’ Counsel (Class Counsel here) will not be
requesting a legal fee, costs, and expenses for the Federal Case in connection with
this resolution of this matter, as the legal fees, costs, and expenses related to the
Federal Case have been separately negotiated.
Payment of the Settlement Amount in this case is contingent on entry
of the First Amended Consent Decree (or any successor thereof) in the Federal
Case, which is anticipated to occur shortly following final approval of this
Settlement Agreement, if approved, if not sooner. Defendants shall not be entitled
to a return of any portion of the Settlement Amount if both the proposed
Settlement Agreement is finally approved and the First Amended Consent Decree
is approved and entered in the Federal Case. However, if the Court does not enter
final approval of the Settlement Agreement, if the Court’s final approval of the
15
Settlement Agreement is overturned on appeal, or if the First Amended Consent
Decree is not entered in the Federal Case, the Settlement Amount shall be returned
to Defendants, together with any interest or other gains that have accrued on each
of their respective contributions, less permissible notice and administrative
expenses incurred subsequent to preliminary approval of the proposed Settlement
Agreement.
THE NOTICE PLAN
Delaware Superior Court Civil Rule 23(c)(2) requires that when a
Class is certified under Rule 23(b)(3), as here, the “Court shall direct to the
members of the class the best notice practicable under the circumstances”,*
describing the right of exclusion from the class; the potential preclusive effect of
the settlement, and the right to enter an appearance through counsel. In the case of
settlement, Delaware Superior Court Civil Rule 23(e) further requires that “notice
by mail, publication or otherwise of the proposed dismissal or compromise shall
be given to all members of the class in such manner as the Court directs” of any
class action settlement.
‘Rule 23 (c)(2).
16
The Court approved Plaintiffs’ proposed Notice Plan, finding it was
consistent with Rule 23(c)(2), represented the best practicable notice under the
circumstances, and was reasonably calculated to apprise Class Members of the
facts of this litigation and their rights with respect to the Settlement Agreement.”
Class Counsel complied with this Court Order by directly mailing
notice of the proposed Settlement to over 6,720 current and former residents
within the Class Area.° Similarly, Class Counsel provided publication Notice
through newsprint advertisements and an internet site in a manner consistent with
the Notice Plan.’ Having provided Notice to the Class Members in the manner
directed by the Court, Plaintiffs have satisfied Rules 23(c)(2) and 23(e). I find that
Class Counsel provided sufficient notice of the Settlement Agreement to Class
Members.
°D.I. 610.
Declaration of Melissa Baldwin, attached as Exhibit B to the Motion.
Id.
17
APPROVAL OF THE SETTLEMENT
In order to prove a class action settlement agreement, I must first
determine that the four requirements of Superior Court Civil Rule 23(a) have been
met.* If I am satisfied then I must find the proponents of the settlement have
satisfied requirements of Superior Court Civil Rule 23 (b). I preliminarily found
the dictates of Rule 23 had been satisfied in my order in January of this year.
Nothing has changed my mind. The case could not have been practically litigated
as individual actions. The complexities and expense would have overwhelmed
any recovery for even the most seriously damaged Plaintiff. The liability issues
are complex and similar and typical to each case. The number of claims exceed
six thousand. The class representatives have shown to be competent to represent
the class, and have vigorously litigated the case with counsel from experienced
class action litigators. The class has been ascertained by qualified experts.’ In
short, all of the elements necessary to class certification exist. In my view the
question is not close. Class litigation is appropriate and necessary pursuant to
Superior Court Civil Rule 23(b)(3).
*Crowhorn v. Nationwide Mut. Ins. Co., 836 A.2d. 558 (Del. Super., Nov. 6, 2003)
(“Crowhorn’’).
”Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349 (3d Cir. 2013). See also Bentley v.
Honeywell, Intern., Inc., 223 F.R.D. 471 (S.D. Ohio 2004).
18
THE SETTLEMENT IS FAIR
It is always difficult to determine if enough is enough in any
settlement. Arguments can always be made that settlement amounts should be
larger. The difficulty is exacerbated where, as here, significant liability issues
exist. Defendants, as is their right, have vigorously defended the case.
Defendants contested nearly everything, including raising both personal and
subject matter jurisdictional defenses. Defendants sought to certify for appeal the
subject matter jurisdictional issue at the time the parties agreed to settlement of the
case. Had Defendants been successful on their liability defenses, Plaintiffs would
have received nothing.
From a judicial perspective I find it difficult to evaluate liability
issues prior to trial. Here experienced trial counsel decided the settlement amount
is fair. The amount is substantial. I also am persuaded by and take comfort from
the affidavit of Eric D. Green, Esquire. Mr. Green is a full-time mediator with
Resolutions, LLC, an ADR firm located in Boston. He was also a long-time
professor at Boston University School of Law teaching inter alia, ADR methods
and resolution of mass torts. Mr. Green and David White, Esquire, well known to
me for his ADR skills, conducted the mediation in this case. In an affidavit
provided by Mr. Green he tells me both sides to this case diligently, skillfully and
19
professionally conducted the mediation. Most importantly he tells me the
settlement is fair. I agree.
In Jane Doe 30's Mother v. Bradley'® the Court applied a two-step
process to its fairness analysis. The Court first conducts a preliminary review to
determine any patent grounds to question the fairness. I have done that here and
found none.
Second, the Court is required to conduct a fairness hearing to receive
evidence in support or in opposition to the settlement. We have done that today,
and I find that under all relevant factors the settlement is fair. I reviewed the
following:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
the advantages of the settlement as opposed to
to the outcome at trial;
duration and costs of trial;
extent of participation in settlement negotiations
by class representatives and by special master;
number and force of objections by class members;
effect on other actions;
fairness of the claims administration process;
intrinsic fairness of the settlement terms; and,
64 A.3d 379 (Del. Super., Nov. 19, 2012).
20
(8) extent class representatives only get
monetary relief.'!
Here all factors are met, but several deserve comment. The settlement
amount is substantial. Liability is significantly at issue, and success at trial is
subject to doubt. The length and expense of trial and potential appeals are
enormous. No class members are objecting to the settlement. Finally, the
monetary relief will be administered through a comprehensive claims process to
share the fruits of the efforts with all class members after evaluating each class
members’ damages.
NON-CLASS MEMBERS OBJECTIONS
A relatively small number of non-class members object to the
settlement because they are not within the designated class area. Their
disappointment in being excluded is obvious and understandable. They have no
standing to object.'* Plaintiffs proposed and I certified a geographic class
configuration. Experts determined the boundaries of the class through painstaking
work using scientific methods. Because of the settlement J was unable to evaluate
the methods through the litigation process. Two points standout. First,
''Crowhorn, supra.
'?Marie Raymond Revocable Trust v. MAT Five, LLC 980 A.2d 388 (Del. Ch. 2008); see
also Jane Doe 30's Mother v. Bradley, 64 A.3d 379 (Del. Super., Nov. 19, 2012).
21
Defendants opposed the geographic limits of the class advocating for much
smaller sizes to the air and water pollution areas. Thus, if the parties had fully
litigated the case, the area designating the class would have not grown larger, and
well may have diminished.
Second, I have reviewed the qualifications of Plaintiffs’ experts, and
their reports. The experts are well qualified, their work detailed, and they relied
upon established scientific principles.
The non-class member objectors (“commenters”) raise all sorts of
speculation about their exclusion. They claim, among other things, individuals
were excluded to benefit business interests. No facts or other basis exists to
support this contention.
One other claim is worth comment. The “commenters” contend that
class counsel never intended to see the case through, and were seeking a quick
settlement which was in Class Counsel’s interest. I need only point to Class
Counsel’s substantial effort in time, and expenditure of money in costs to refute
this claim. I saw the vigorous and determined work of Class Counsel expended to
prove the case, in the face of an equally determined defense. Class Counsel’s
work was the opposite of a sell out.
22
Lawyers presenting a case like this must necessarily rely upon expert
witnesses to determine the scope of the harm. In particular here, and in addition to
the experts who opined on the geographic breadth of the pollution, Class Counsel
consulted a well-qualified toxicologist and medical expert, William Meggs, M.D.
Dr. Meggs provided his opinion in the negative: he cannot say to a reasonable
degree of medial probability that any health issues of those outside the designated
geographic area are the result of exposure to toxic chemicals allegedly caused by
Defendants. In short, the evidence failed to prove a case for those outside the
geographic area.
No doubt the commenters do not accept the expert conclusions and
will forever rely upon their intuition. This settlement does not prejudice their right
to prove otherwise. I understand commenters’ disappointment in not being the
beneficiaries of fruits of this case. Class Counsel, and ultimately this Court, must
follow the evidence which led to their exclusion.
RELATED MATTERS
1. Attorneys’ Fees and Costs.
Class Counsel requests that I approve payment of the litigation
expenses and attorneys’ fee of 25% of the settlement amount. This level
percentage fee is consistent with, and at the low end of the standard in tort cases.
23
This type of request always raises the temptation to limit the fee to benefit the
class, and at the expense of the attorneys. The temptation increases with the size
of the settlement. I am going to resist the temptation and approve the fee request.
Class Counsel provided me a report from an expert in the field
expressing the opinion the fee request is appropriate. The report is not all that
helpful. What I do find helpful and important is my review and analysis of this
case. In my view the liability of Defendants was always a serious issue and
question. The costs of proving liability was enormous. Class Counsel spent
millions of dollars of their money in their efforts. The potential for no recovery
for the class and Class Counsel was very real.
Class Counsel worked diligently and professionally to bring about
what to me is a remarkable result. They faced formidable opposition who
contested everything, at least one time in a way that, for me, was beyond
reasonable boundaries. This Court wrote no less than ten (10) full opinions on
important and potentially case dispositive issues. I point that out not as a pat on
the back to the Court - the work is our job and responsibility. But preceding each
opinion is counsel’s efforts to create the record to allow the decision, and to brief
and legally argue the merits. All of this work was done in a timely fashion, and
often under significant time constraints. In addition, the work was done in the
24
midst of a world-wide pandemic.
For me one of the most important factors in reviewing and awarding
attorneys’ fees is if the attorneys cannot take on other work because of the
requirements of the case for which fees are sought.'’ I observed Class Counsels’
efforts. I doubt they have been able to work on much else but this case over the
past three years. I award the full fee requested.
2. Class Representative Bonus
For similar reasons I grant the class representatives’ modest
request for additional compensation. The class representatives led the class
appropriately. They expended many additional hours of effort to achieve the
result. Their request is a very small portion of the settlement. To me the small
reward is appropriate.
3. The Qualified Settlement Fund
Plaintiffs asked me to approve the Qualified Settlement Fund (QSF)
consistent with Federal law; including tax law. Creation of the fund is consistent
with the best interests of the class, and the administration of the settlement
proceeds. I approve it.
"See Del. Lawyers’ R. Prof’! Conduct 1.5 (a)(2).
25
4. The “Gag” Order
This Court entered two orders limiting the parties’ ability to publicly
discuss the case in the media and elsewhere. The orders were entered for good
reasons as stated in companion opinions. J do not believe given the settlement and
the current posture of the case the reasons for the orders any longer exist. I am
withdrawing the orders.
This opinion is long enough, but one last topic. As I have noted
repeatedly, the case was energetically and forcefully litigated. The efforts were
almost always civil and in keeping with what I expect and what this Court expects,
and in keeping with our finest traditions. The stakes were high. All parties had
much at risk. I congratulate all counsel for their efforts to reach this settlement
agreement.
I will be signing additional orders necessary to approve the
settlement.
IT IS SO ORDERED
/s/ Craig A. Karsnitz
cc: Prothonotary
26