Kingsborough v. Sprint Communications Co., L.P.
| Citation | 673 F.Supp.2d 24 |
| Decision Date | 09 December 2009 |
| Docket Number | Civil Action No. 07-10651-LTS. |
| Parties | Richard KINGSBOROUGH, et al., Plaintiffs, v. SPRINT COMMUNICATIONS CO., L.P., et al., Defendants. |
| Court | United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts |
Nels Ackerson, Katheleen Kauffman, Ackerson & Kauffman Fex, P.C, Washington, DC, Lauren M. Burke, Timothy J. Perry, Perry, Krumsiek & Jack LLP, David Pastor, Gilman and Pastor, LLP, Boston, MA, John F. Daum, O'Melveny & Myers LLP, Los Angeles, CA, David A. Futscher, Parry Deering Futscher & Sparks, P.S.C., Covington, KY, Scott Gilchrist, Cohen & Malad, LLP, Indianapolis, IN, Robert E. Margulies, Margulies Wind, P.A., Jersey City, NJ, Daniel J. Millea, Zelle Hofmann Voelbel Mason & Gette LLP, Minneapolis, MN, for Plaintiffs.
David J. Andrews, Hare & Chaffin, Boston, MA, Douglas Dalgleish, J. Emmett Logan, Stinson Morrison Hecker LLP, Lathrop & Gage L.C., Kansas City, MO, Richard A. Davidson, Jr., Richard A. Davidson, Attorney at Law, Bedford, MA, Joseph E. Jones, Fraser Stryker PC, Omaha, NE, for Plaintiffs/Consolidated Plaintiffs/Consolidated Defendants.
Catherine M. Colinvaux, Zelle Hofmann Voelbel & Gette LLP, Waltham, MA, William T. Gotfryd, Susman Heffner & Hurst, Chicago, IL, Irwin B. Levin, Cohen & Malad LLP, Indianapolis, IN, Brad P. Miller, Hawley Troxell Ennis & Hawley, Boise, ID, Ron R. Parry, Parry Deering Futscher & Sparks, P.S.C., Covington, KY, for Plaintiffs/Consolidated Plaintiffs.
Jennifer S. Bernstein, Bernstein & Yang, LLP, Boston, MA, for Defendants/Consolidated Defendants.
Emily J. Brubaker, Corr Cronin Michelson Baumgardner & Preece LLP, Seattle, WA, for Consolidated Defendants.
David B. Chaffin, White and Williams LLP, Boston, MA, for Claimant/Consolidated Defendant.
Andrew W. Cohen, Koonz, McKenney, Johnson, DePaolis & Lighfoot, LLP, Washington, DC, for Plaintiff/Defendant/Consolidated Defendants.
Nathan L. Kaitz, Morgan, Brown & Joy, LLP, Boston, MA, for Plaintiff/Consolidated Defendants.
David T. Powell, Lathrop & Gage LC, Kansas City, MO, for Claimant.
REVISED MEMORANDUM AND ORDER ON JOINT MOTION FOR FINAL APPROVAL OF CLASS-ACTION SETTLEMENTS
[Take note that this Revised Memorandum and Order replaces the Memorandum and Order issued by the Court on September 10, 2009.]
This putative nationwide class-action arises out of the installation of fiber-optic cable on railroad rights-of-way by three of the nation's largest telecommunications companies. The plaintiffs are landowners in forty-six states who have asserted trespass, unjust enrichment, and related claims against the defendants for conduct that began over twenty years ago. After over a decade of litigation in numerous courts, the parties have jointly moved for final approval of forty-nine class action settlements.
On July 18, 2008, the court preliminarily certified forty-eight settlement classes and issued its preliminary approval to the corresponding proposed forty-nine settlement agreements.1 In addition, the parties have submitted for approval a Common Administration Agreement providing for the common administration of all of the settlements, the coordination of notice and claims processing, and an aggregate attorneys' fee award. On October 27, 2008, the parties filed a motion seeking final approval of the settlements, permanent certification of the classes, and entry of final judgment.
The court held a Fairness Hearing on November 17, 2008. Several individuals and entities objected to the proposed settlements, and were represented at the hearing by counsel. In addition, the court received numerous objection letters from individuals. After careful consideration of the parties' briefs, the evidence presented at the Fairness Hearing, the objections, and the full record of the case, the court will DENY the motion for final approval of the proposed settlement agreements as moot and DISMISS this matter for lack of subject matter jurisdiction.
The procedural history of this litigation is lengthy and complex. Beginning in the mid-1980's, the defendants undertook the installation of fiber-optic cable systems in railroad rights-of-way. The installations were done pursuant to agreements executed by the defendants and the railroads possessing the rights-of-way, without the consent and/or knowledge of the landowners on whose property the cable systems were installed. In the 1990's, numerous landowners filed settlement agreement and sets forth terms and conditions common to each state, suit against the defendants in state and federal courts across the country.2 In the fall of 2001, several plaintiffs and the defendants reached a nationwide settlement that covered all of the claims at issue in this litigation. The settlement was submitted to Judge Wayne R Andersen of the United States District Court for the Northern District of Illinois. During a five-month period from fall of 2001 into early 2002, counsel appeared before Judge Andersen for numerous conferences related to the settlement. Judge Andersen appointed a Special Master to handle the settlement approval process, and set a hearing for a date in March of 2002. However, prior to the hearing, some of the parties wrote a letter to Judge Andersen informing him that they were withdrawing the proposed settlement from his consideration. Shortly thereafter, those parties headed west and moved for approval of the settlement in the District of Oregon. The move was to no avail; the Oregon Court dismissed the amended complaint as a sanction for "clear evidence of judge-shopping by the settling parties." Zografos v. Qwest Comm. Corp., 225 F.Supp.2d 1217, 1223 (D.Or.2002). The Court ruled that
[t]he fact that the settling parties grew increasingly unhappy with Judge Anders[e]n as he expressed concern about giving quick approval to a proposed settlement with so many objecting intervenors, supports the finding that the settling parties wanted to find a new jurisdiction where the court, perhaps, would not share Judge Anders[e]n's concern.... The settling parties' action of abruptly removing themselves from the Chicago District Court's jurisdiction to start anew in Portland will not be sanctioned by this court.
Id. at 1223-1224. The parties returned to Chicago, where they appeared before Judge Andersen once more, seeking approval of a revised proposed settlement. Judge Andersen preliminarily approved a settlement agreement and enjoined all related right-of-way cases nationwide. A group of intervenors appealed.
The United States Court of Appeals for the Seventh Circuit reversed Judge Andersen's preliminary approval, ruling that because a nationwide class "has not been and cannot be certified for trial," the class plaintiffs entered into settlement discussions in a "disarmed" state, unable to use the threat of litigation as leverage in further negotiations. Smith v. Sprint Comms. Co., L.P., 387 F.3d 612, 614 (7th Cir.2004)(quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). The Seventh Circuit additionally held that the plaintiffs' interests were not adequately protected due to an absence of proper class representatives. Smith, 387 F.3d at 614.3 Following the Seventh Circuit's decision, settlement discussions resumed under the guidance of the Special Master that had been appointed by Judge Andersen. In 2005, after this process was unsuccessful in producing final agreements, the named plaintiff moved to dismiss all non-Illinois plaintiffs and sought certification of a state-wide class of landowners against only one of the defendants (Sprint).
In March of 2006, the parties to the instant litigation retained Professor Eric Green in Boston to mediate further settlement discussions.4 Just over one year later, in March of 2007, the plaintiffs filed the Master Complaint in this Court. On July 2, 2008, after additional issues arose and were resolved with the assistance of Professor Green, the plaintiffs filed a Second Amended Class-Action Complaint, wherein they assert four causes of action: trespass (Count I); unjust enrichment (Count II); and slander of title (Count III). In addition, the plaintiffs assert a claim for injunctive relief (Count IV), seeking, inter alia, a declaration that the defendants have no right to use the rights-of-way, and an Order instructing the defendants to remove their telecommunications cable systems from the properties at issue.
As previously noted, the proposed settlement of this case involves forty-nine separate agreements.5 Class members are to be compensated based upon the number of linear feet comprising their affected property. The amounts to be paid to class members under each Agreement vary greatly, based upon the parties' state-by-state analysis of the strengths and weaknesses of the claims and defenses at issue for each of the subclasses. Issues under consideration during negotiations included the particularities of state laws with regard to the extent of the railroads' easements, whether continuing trespass is a viable claim, statutes of limitations, and applicable measures of damages.
There are two levels of cash benefits available to class members under the proposed settlements, which depend upon the extent of the documentary proof submitted. In the simplest explanation of the payment scheme, class members may opt to seek minimum benefits, which they can obtain after providing nothing more than their deed or certificate of title. Minimum benefits run the gamut from $0.18 per foot, to $0.91 per foot, depending on the state. Class members may, in the alternative, seek full benefits, which would pay an amount ranging from $.26 per foot to $3.64 per foot, again depending on the state. Those class members seeking full benefits must prove that the source document relating to their particular property did not convey a fee interest in the right-of-way to the railroads.6
Under the proposed settlements, all current...
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