200 F.3d 1140 (8th Cir. 1999), 98-3816, Petrovic v Amaco Oil Company

Docket Nº:98-3816, 99-1334
Citation:200 F.3d 1140
Party Name:CHRISTOPHER J. PETROVIC, JANET HUNTER, ELIZABETH MARIE RAMIREZ, MIKE RICHARDS, JIMMIE L. VAN BIBBER, AND BARBARA CHAPPELL, INDIVIDUALLY AND AS CLASS REPRESENTATIVES, APPELLANTS, AND CITY OF INDEPENDENCE, CITY OF SUGAR CREEK, JEAN STEWART, LYLE JACKSON, MARCELLA JACKSON, JOHN BROCKMAN, ELBERTA BROCKMAN, DOROTHY J. BROCKMAN, BILLY COPELAND, VIRGINIA
Case Date:December 30, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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200 F.3d 1140 (8th Cir. 1999)

CHRISTOPHER J. PETROVIC, JANET HUNTER, ELIZABETH MARIE RAMIREZ, MIKE RICHARDS, JIMMIE L. VAN BIBBER, AND BARBARA CHAPPELL, INDIVIDUALLY AND AS CLASS REPRESENTATIVES, APPELLANTS, AND

CITY OF INDEPENDENCE, CITY OF SUGAR CREEK, JEAN STEWART, LYLE JACKSON, MARCELLA JACKSON, JOHN BROCKMAN, ELBERTA BROCKMAN, DOROTHY J. BROCKMAN, BILLY COPELAND, VIRGINIA COPELAND, BILL STEVENS, JANETH STEVENS, THOMAS LARKIN, JANEY STURGIS, MICHAEL A. RODAK, MICHAEL J. CARR, LUCILLE CARR, HELEN C. BUTKOVICH, DIANE HALL, PAUL A. HEDRICK, JOYCE HEDRICK, JOSEPH D. KENNEY, JOHN W. KIMAK, NANCY KIMAK, JOSEPH M. MIKULA, SUE ELLEN MIKULA, MARK O'RENICK, DEBBIE O'RENICK, DAN SALVA, AMY SALVA, JOSEPH M. SALVA, LORA L. SALVA, VERNON STEINMEYER, BETTY STEINMEYER, AND CHARLES WOODS, APPELLEES, AND

WILLIAM BAILEY, VERNON BAKER, DEBBIE BAZZELL, DAVID BEEBE, NANCY BEEBE, ROBERT BEHLER, ERNEST BELL, LOURINE BELL, ROBERT BLEDSOE, DEBRA BLEDSOE,

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GERALD BOYLE, EDWARD BUFORD, JESSIE BUFORD, WILLIAM BUFORD, NORIE BUFORD, BILLY BURKE, ILA BURKE, DORAS BUTKOVICH, FABIAN BUTKOVICH, FILIP BUTKOVICH, GLADYS BUTKOVICH, JOSEPH BUTKOVICH, T. J. BUTKOVICH, DRAGICA BUTKOVICH, PHILIP CAMPBELL, CATHERINE CAMPOS, DAVID CANZONERE, CAROLINE CANZONERE, JOSEPH CARTER, RUSSELL CLARK, JAMES COFFEY, SUSAN COFFEY, JEAN COLONA, DON COOK, DAREL CORNELIUS, DEBBIE CORNELIUS, P. JEAN CORNELIUS, MARK COSGROVE, JERRY CREEK, JULIE CREEK, IRENE CRNKOVICH, MICHAEL DALE, JUDY DALE, RICHARD DEIHL, JAMES DEVASHER, STEPHANIE DEVASHER, EMIL DYKAL, CLAUDIA DYKAL, HAROLD ECHOLS, SR.; AND KAROLYN ELLIOTT, JERRY ELLIOTT, JANET ELLIOTT, CHERYL ENGLAND, HERBERT FILLMORE, LULUA FILLMORE, LARRY GARLAND, MARJORIE GARLAND, FRANK GIBBS, JOHN GRAYHAM, CHARLOTTE GRAYHAM, WILLIAM GREEN, JACQUELINE GREEN, CHARLES GREER, LYNN GREER, BILL HAMAN, CAROLYN HAMAN, WILBUR HAMILTON, HELEN HAMILTON, RICHARD HAND, MARCIA HAWORTH, MAXINE HEDGES, HELEN HEDRICK, JOHN S. HEDRICK, DIXIE HEDRICK, JOHN B. HEDRICK, MARY HEDRICK, JOSEPH HEDRICK, JO ANN HEDRICK, RITA HARDY HORTENSTINE, SAUL IMIQUEZ, DANIELA IMIQUEZ, JUNE JACKSON, RICHARD JARRETT, MARGARET JARRETT, DEANNA KENNEDY, MARY KING KERNS, JOE KING, WILLIAM JAMES KING, JAMES WILLIAM KING, JOSEPH KIPPER, GARY KROHM, PEARL KROHM, ADA KULP, MARVYN LAWSON, CLARA LEWIS, HILDRED LIGHT, SARA MACE, JAMES MANSELL, MARY ANN MANSELL, BETTY JO MCCORD, PARK MCCLUNE, II; AND OTHELLO MCDAVITT, JOHN MIKULICH, SANDRA MIKULICH, LINDA MIKULICH, ELIZABETH MILLER, DAVID MUNCY, ESTHER MUNCY, TIMOTHY JAMES MYERS, FRANK NOCH, BETTY NOCH, JERRY NOVAK, JOSEPH OLIVAREZ, JANICE OLIVAREZ, JOHN OWINGS, KAREN OWINGS, HOYT PALMER, MARY PALMER, CAROLE PARK, WILLIAM PARSON, RUTH PATTERSON, FRANK PELJAE, DORIS PELJAE, ALBERT PETROSKI, WILLIAM R. PLATT, LOYE RAINS, DOROTHY RAINS, RAY RYAN, JUNE ADELE RHOADS, LEONARD RICHARDS, MELISSA RICHARDS, LEONARD RILEY, JOHN RITTEL, ROZE RITTEL, JOHN ROACH, CHARLES ROGERS, JANICE ROPER, MIKE ROPER, ANTONIA ROPER, MIKE E. ROPER, ANN ROPER, PETER J. ROPER, R. J. ROPER, JR.; AND MARY ROZGAY, MIREILLE RUNDELL, CLIFFORD SANDERS, MARGARET SANDERS, SUSAN SHELBY, JUANITA SLAYTON, DANIEL SLAYTON, JR.; AND TERRY SLAYTON, LARRY SMITH, MILDRED SMITH, ZITA STANARD, F. W. STANGER, LEWAYNE STARKS, CLARA STEPHENSON, ALBERT STOVICH, LAVERNA STOVICH, LEX SWOFFORD, ELLEN SWOFFORD, RONALD TAYLOR, OTTILIE THOMPSON, BUELAH TOLLIVER, LUVA VAUGHAN, KARL VAUGHN, SHERRALYN VAUGHN, CLIFFORD WEAKLEY, ANGELA WEIKAL, PAMELA WHITE, ANNA WIX, KIM WOLLENBERG, BEULA FAY WORLEY, CLARENCE WORLEY, JERRY WRABEC, LEONARD WRABEC, MARY WRABEC, STEVEN YSLAS, ELIZABETH YSLAS, JERRY ZEVECKE, JANET ZEVECKE, JOHN ZEVECKE, STEVE ZEVECKE, AND JANET ZEVECKE, APPELLANTS,

v.

AMOCO OIL COMPANY, APPELLEE.

THOMAS HART BENTON GROUP, OZARK CHAPTER, SIERRA CLUB, AMICUS CURIAE ON BEHALF OF APPELLANTS.

Nos. 98-3816, 99-1334

United States Court of Appeals, Eighth Circuit

December 30, 1999

Submitted: September 15, 1999

Appeals from the United States District Court for the Western District of Missouri.

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Before Bowman, Lay, and Morris Sheppard Arnold, Circuit Judges.

Morris Sheppard Arnold, Circuit Judge.

Christopher Petrovic and others brought a class action against Amoco Oil Company in which they sought injunctive and monetary relief for pollution to their property that allegedly occurred as a result of underground oil seepage originating from an Amoco petroleum refinery. The appellants in these cases are various plaintiff class members who object to the approval of the settlement of this class action and to other orders entered by the district court1 over the course of the litigation.

The objectors argue that the district court's failure to divide the certified class into subclasses deprived them of adequate representation, that the settlement agreement was not fair, adequate, and reasonable, that the notice of settlement fell short of the requirements of Fed. R. Civ. P.

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23(d)(2) and Fed. R. Civ. P. 23(e), and that the district court erred in granting Amoco's motion for summary judgment on the plaintiffs' claims under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), see 42 U.S.C. §§ 9601-9675. The objectors also maintain that the district court erred in disqualifying one of the original class counsel and in refusing to award attorney fees and costs to that counsel, that the district court's award of attorney fees to the other class counsel was excessive, and that the district court wrongly denied some of the objectors' motions to intervene in the case so that they could appeal with respect to the certification of the class and the approval of the settlement. For the reasons set forth below, we affirm the district court in all respects.

I.

The settlement agreement provides both injunctive and compensatory relief to the class, which contains more than 5,000 members. With respect to the compensatory benefits, the settlement agreement divides the affected properties into three groups. The owners of the 129 properties in "Zone A," which are situated above the underground oil, are guaranteed to receive 54 percent of the value of their properties. The owners of the 373 properties in "Zone B," which surrounds Zone A, are guaranteed to receive $1,300 per property. The owners of the approximately 5,000 properties in "Zone C," the area farthest removed from the underground oil, receive no guaranteed compensation, but have access to a "special circumstances" fund to which they, along with all other property owners, can apply for compensation if they can demonstrate damage. The objectors contend that the interests of the various property owners are at odds with each other and, therefore, that the district court should have separated the class into multiple subclasses, each with its own counsel.

A district court has a duty to assure that a class once certified continues to be certifiable under Fed. R. Civ. P. 23(a). See Hervey v. City of Little Rock, 787 F.2d 1223, 1227 (8th Cir. 1986). A district court must reconsider a ruling certifying a class, for instance, if a subsequent development creates a conflict of interest that prevents the representative party from fairly and adequately protecting the interests of all of the class members. See Boucher v. Syracuse University, 164 F.3d 113, 118-19 (2nd Cir. 1999). While the docket does not indicate that the objectors made a formal motion to decertify or to divide the class, during a hearing on the fairness of the settlement they did advocate separating the class into subclasses or, in the alternative, decertifying the class. We believe that this was sufficient to preserve the right of the objectors to contest the class certification on appeal. See In re Dennis Greenman Securities Litigation, 829 F.2d 1539, 1542-43 (11th Cir. 1987); cf. Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1213 (6th Cir. 1997).

It is within the discretion of a district court to determine whether the class action device is appropriate, and we review that decision only for an abuse of discretion. See Belles v. Schweiker, 720 F.2d 509, 515 (8th Cir. 1983). We recognize, as the objectors have pointed out, that the Supreme Court has stated that "other specifications of [Fed. R. Civ. P. 23] -- those designed to protect absentees by blocking unwarranted or overbroad class definitions -- demand undiluted, even heightened, attention in the settlement context." Amchem Products, Inc. v. Windsor, 521 U.S. 591, 620 (1997); see also Ortiz v. Fibreboard Corporation, 119 S.Ct. 2295, 2316 (1999). We believe, however, that the circumstances in Amchem and Ortiz that called for heightened attention to the requirements of Fed. R. Civ. P. 23(a) are not present in our case.

Amchem, 521 U.S. at 601-02, and Ortiz, 119 S.Ct. at 2305, each involved a situation in which the parties agreed upon a class definition and a settlement before formally initiating litigation,

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and then presented the district court with the complaint, proposed class, and proposed settlement. The difficulty inherent in such a situation is that the district court "lack[s] the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold." Amchem, 521 U.S. at 620. In our case, however, the parties engaged in more than three years of extensive discovery and preparation for trial, and the class was certified under Fed. R. Civ. P. 23(b)(3) many months before the parties reached the settlement. Indeed, the settlement was reached on the eve of trial.

The difficulties associated with settlements like those in Amchem and Ortiz -- the possibility of "collusion between class counsel and the defendant ... [and] the need for additional protections when the...

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