In the United States District Court for the Western District of Missouri Western Division
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION IAN POLLARD, on behalf of himself ) and all others similarly situated, ) ) Plaintiffs, ) ) vs. ) Case No. 4:13-CV-00086-ODS ) REMINGTON ARMS COMPANY, LLC, et al. ) ) Defendants. ) ORDER AND OPINION (1) GRANTING PARTIES’ JOINT MOTION FOR FINAL SETTLEMENT APPROVAL, (2) CERTIFYING CLASSES FOR SETTLEMENT PURPOSES, (3) APPROVING PLAINTIFFS’ SUPPLEMENTAL FEE APPLICATION, AND (4) DISMISSING MATTER WITH PREJUDICE Pending are the parties’ Second Joint Motion for Final Settlement Approval (Doc. #179) and Plaintiffs’ Supplemental Fee Application (Doc. #181). For the following reasons, the parties’ Joint Motion for Final Settlement Approval is granted, and Plaintiffs’ Supplemental Fee Application is approved. I. BACKGROUND This matter began in January 2013 with the filing of a putative class action against Remington Arms Company, LLC, Sporting Goods Properties, Inc., and E.I. Du Pont Nemours and Company. Doc. #1.1 The Complaint alleges certain rifles manufactured by Defendants since 1948 would fire unexpectedly without a trigger pull, and made claims of unfair and deceptive trade practices under Missouri statutes, 1 Similar putative class action suits were filed in Florida, Washington, and Montana. Doc. #84, at 5. Chapman v. Remington Arms Co., Case No. 12-CV-24561 (S.D. Fla. Dec. 31, 2012); Moodie v. Remington Arms Co., Case No. 13-CV-172 (W.D. Wash. Jan. 29, 2013); Huleatt v. Remington Arms Co., Case No. 13-CV-113 (D. Mont. June 4, 2013). According to the parties, Chapman and Huleatt were voluntarily dismissed in 2013. Doc. #180, at 13. Moodie remains pending. Id. A fifth putative action was filed in the Western District of Missouri but was dismissed pursuant to Rule 41 of the Federal Rules of Civil Procedure. Hembree v. Remington Arms Co., Case No. 13-CV-05161 (W.D. Mo. Dec. 17, 2013) (Doc. #4). Case 4:13-cv-00086-ODS Document 221 Filed 03/14/17 Page 1 of 42 breach of express warranty, breach of implied warranty of merchantability, fraudulent concealment, and unjust enrichment in connection with the Walker Fire Control designed, manufactured, marketed, advertised, and sold by Defendants. Id. Defendants moved to dismiss the Complaint. Doc. #40. The Court dismissed Counts II (strict liability), III (negligence), IV (violation of the Magnuson-Moss Warranty Act), V (breach of express warranty), and VI (breach of implied warranty of merchantability). The Court also found that to the extent Count I (violation of the Missouri Merchandising Practices Act) relied upon fraudulent misrepresentations or fraudulent concealment, it must be dismissed. Doc. #40, at 5-8. The Complaint was later amended to include additional Plaintiffs and seek relief in connection with “all Model 700, 721, 722, 725, Seven, Sportsman 78, 600, 660, 673, XP-100, 710, 715 and 720 firearms manufactured by Defendants that contain trigger mechanisms utilizing a trigger connector, including the patented Walker Fire Control, and all Model 700 and Seven bolt-action rifles containing X-Mark Pro trigger mechanisms that are subject to an April 2014 voluntary recall by Defendants.” Doc. #90, ¶ 1. Among other things, Plaintiffs asked that the Court require Defendants to repair or replace their firearms. Id., Prayer for Relief. According to the parties, approximately 7,500,000 of these firearms have been sold in the United States. Doc. #180, at 17. After engaging in extensive settlement negotiations, the parties finalized the material terms of a nationwide settlement in July 2014, and informed the Court they were in the process of executing a comprehensive settlement agreement for all class claims. Doc. #61; Doc. #220, at 18. In December 2014, the parties filed their settlement agreement and sought conditional certification of settlement classes, preliminary approval of class action settlement, approval of their proposed notice plan, appointment of class action settlement administrator, and appointment of class counsel. Docs. #67-68, 79-80. The proposed settlement provides benefits in the form of retrofitted triggers, vouchers, and/or reimbursements for replacing the firearm’s original trigger mechanism to owners residing in the United States of certain Remington rifles manufactured from 1948 to the present. Doc. #68-1, at 15. In exchange, class members would release claims associated with the firearms, but retain the right to bring 2 Case 4:13-cv-00086-ODS Document 221 Filed 03/14/17 Page 2 of 42 claims for personal injury or property damage. Doc. #68-1, at 13, 27. The parties’ proposed notice plan included (1) a joint press release; (2) direct notice; (3) short form notice; (4) long form notice; (5) notice through the settlement website; and (6) notice through social media and the internet. Doc. #80, at 17-18, 38-39; Doc. #80-1, at 20-24; Doc. #80-3; Doc. #80-4; Doc. #80-5. In February 2015, the Court held a hearing on the parties’ joint motion. Doc. #84. The Court granted the parties’ joint motion and preliminarily approved the settlement, conditionally certified the settlement classes, approved the notice plan, appointed the class action settlement administrator, and appointed class counsel. Doc. #88. The Court directed all requests for exclusion from the settlement and objections to the settlement be received by October 5, 2015. Id. at 6-8. The Court scheduled a final approval hearing for December 14, 2015. Id. at 7. In May 2015, the parties executed the Court-approved notice plan. Postcard notices were sent to approximately 2,500 individuals who paid Remington for trigger replacements. Doc. #92-9, at 6; Doc. #180-10, at 3. A notice about the settlement was published in several magazines with a combined circulation of more than 36 million. Doc. #92-9, at 5-6.2 Poster-sized notices were mailed to nearly 700 vendors known to have mailed in Remington firearms on behalf of customers seeking trigger replacements. Id. at 7. The joint press release appeared on at least 225 websites, and reached a potential audience of more than twenty-one million people. Id. at 8. Internet banners, purportedly garnering more than 970,000 impressions,3 were utilized, and some Facebook advertising was implemented. Id. at 6-7. As a result, 2,327 claims were submitted. Id. at 9. In September 2015, the parties filed their joint motion for final settlement approval, accompanied by, among other things, the Second Amended Settlement Agreement,4 claims forms, and declarations. Doc. #91. Plaintiffs also filed their 2 These publications reached 57% of rifle owners. Doc. #139-1, at 8. 3 “Impressions” are the number of times a post or advertisement is displayed, regardless of whether a person clicks on the post or advertisement. Doc. #139-2, at 6; Doc. #142, at 30-31. 4 The benefits outlined in the initial settlement agreement remained unchanged in the amended settlement agreement. Doc. #68-1; Doc. #92-1. 3 Case 4:13-cv-00086-ODS Document 221 Filed 03/14/17 Page 3 of 42 application for attorneys’ fees. Doc. #93. Objections to the settlement were timely filed by Terry Pennington, Jack Belk, and Rodney Townsend. Docs. #96-98. On December 8, 2015, the Court issued an order cancelling the final approval hearing, deferring consideration of the parties’ joint motion for settlement approval and Plaintiffs’ application for attorneys’ fees, and directing the parties to provide supplemental briefing. Doc. #112. The Court’s principal concern was “the low number of claim forms that have been completed,” noting the claims rate was “quite low” given several million firearms were potentially involved in the class action settlement. Id. at 1. The Court ordered the parties to develop a notice plan that “will be effective and result in a more significant response rate.” Id. The Court also directed the parties to address additional concerns, including, most significantly, the settlement agreement potentially waiving personal injury claims. Id. at 2. The parties were directed to file their supplemental briefing by January 15, 2016. Id. The Court later granted the parties three extensions of time. Docs. #115, 124, 126.5 On June 10, 2016, the parties filed their supplemental brief in response to the Court’s December 8, 2015 Order. Doc. #127. The supplemental briefing was accompanied by, among other things, the parties’ amended notice plan and the Third Amended Settlement Agreement.6 Docs. #127-1 – 127-6.7 The Court scheduled a hearing on August 2, 2016, which the Court deemed a second preliminary approval hearing. Doc. #128. Prior to the hearing on August 2, 2016, Objectors Townsend and Pennington filed withdrawals of their objections. Docs. #131, 132.8 Additionally, Todd Hilsee, who represented himself as a “class action notice expert,” submitted a letter expressing concerns with the proposed settlement, particularly the proposed supplemental notice plan. Doc. #134. 5 After the Court issued its December 8, 2015 Order, the parties engaged a mediator to assist them in developing a supplemental notice plan. Doc. #142, at 5-15. 6 The benefits inured to class members did not change in the amended settlement agreement. Doc. #58-1; Doc. #92-1; Doc. #127-1. 7 A complete copy of the Third Amended Settlement Agreement was filed on August 1, 2016. Doc. #135. 8 The parties jointly moved to approve the withdrawal of these objections. Doc. #137. The Court granted the parties’ motion on August 23, 2016. Doc. #141. 4 Case 4:13-cv-00086-ODS Document 221 Filed 03/14/17 Page 4 of 42 The hearing was held on August 2, 2016. Docs. #136, 142. As of the date of the hearing, more than 6,500 claims were submitted. Doc. #142, at 40-41. During the hearing, the parties presented their proposed supplemental notice plan and addressed the other concerns set forth in the Court’s December 8, 2015 Order.