Pollard v. Alpha Technical Servs. Corp.

• Decision Date: 12 August 2011
• Docket Number: 2010–C–0805.,Nos. 2010–C–0788,s. 2010–C–0788
• Citation: 102 So.3d 71
• Parties: Leo POLLARD, Jr., et al. v. ALPHA TECHNICAL SERVICEs CORPORATION LC, et al. In re Harvey Term Litigation I Re Pamela Mitchell, et al.
• Court: Court of Appeal of Louisiana — District of US

102 So.3d 71

Leo POLLARD, Jr., et al.

v.ALPHA TECHNICAL SERVICEs CORPORATION LC, et al.

In re Harvey Term Litigation I

Re Pamela Mitchell, et al.

Nos. 2010–C–0788, 2010–C–0805.

Court of Appeal of Louisiana,

Fourth Circuit.

Aug. 12, 2011.

Robert G. Harvey, Sr., Justin A. Zitler, Law Office of Robert G. Harvey, Sr., APLC, Darleen M. Jacobs, Jacobs Sarrat & Lovelace, New Orleans, LA, for Earl Adams, et al.

Henry T. Dart, Grady J. Flattmann, Henry Dart, Attorney at Law, APLC, Covington, LA, for Leo Pollard, et al.

George F. Riess, Law Office of George F. Riess & Associates, LLC, New Orleans, LA, for Dottie Adams, et al.

Mary S. Johnson, Jill T. Losch, Ingrid M. Kemp, Johnson Gray McNamara, LLC, Mandeville, LA, Thomas M. McNamara, Johnson Gray McNamara, LLC, Lafayette, LA, Chad J. Mollere, Johnson Gray McNamara, LLC, New Orleans, LA, for Kerr–McGee Oil & Gas Corporation, Shell Oil Company, Shell Offshore Inc., and SWEPI LP.

Ronald A. Johnson, Bettye A. Barrios, Johnson Johnson Barrios & Yacoubian, New Orleans, LA, for BP America Production Company f/k/a Amoco Production Company and Atlantic Richfield Company.

Michael R. Phillips, Louis M. Grossman, Kean Miller Hawthorne D'Armond McCowan & Jarman, New Orleans, LA, for Chevron U.S.A., Inc., Texaco Inc., and Union Oil Company of California.

Deborah D. Kuchler, Janika D. Polk, Michele Hale DeShazo, Kuchler Polk Schell Weiner & Richeson, LLC, New Orleans, LA, for ConocoPhillips Company.

Richard S. Pabst, Julie Parelman Silbert, Kean Miller Hawthorne D'Armond McCowan, & Jarman, L.L.P., New Orleans, LA, for Marathon Oil Company and Transco Exploration Company, as Successor to Exchange Oil and Gas Corporation.

Christoffer C. Friend, Rene A. Curry, Jr., Brett F. Willie, Curry & Friend, PLC, New Orleans, LA, for Oxy USA Inc. and Placid Oil Company.

R.A. Osborn, Jr., Osborn & Osborn, APLC, Harvey, LA, for OFS, Inc.(Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, and Judge DANIEL L. DYSART).

CHARLES R. JONES, Judge.

[4 Cir. 1]This matter is before the Court pursuant to an order of remand by the Supreme Court dated November 5, 2010. The order directs this Court to reconsider the merits of these ¹ writ applications in view of the district court's May 26, 2010 order granting approval of a settlement class. After a review of the issues herein, we reverse and remand with instructions.

The facts underlying this matter are discussed at length in appeal No. 2008–CA–1486.² The scope of our review in the appeal concerned the judgment of the district court denying class certification in this toxic tort case. The denial of class certification by the district court was based on the recommendations made by the Special Master, who was appointed by the district court. Ultimately, this Court affirmed the judgment of the district court denying class certification on January 28, 2010.

[4 Cir. 2]On February 19, 2010, an emergency writ application, No. 2010–C–0250, also entitled Leo Pollard, et al v. Alpha Technical, et al., was filed by the Earl Adams, et al., plaintiffs (the Adams plaintiffs) in reference to the same toxic tort litigation. The Adams plaintiffs alleged therein that the district court, on January 11, 2010, rendered judgment granting the motion for Preliminary Approval of Class Settlement urged by the Plaintiffs' Management Committee (the respondents) which purported to include certain litigants. Particularly, in the writ application, we were presented with a disputed preliminary class settlement, but there was no “class,” as determined by the district court and affirmed by this Court on appeal. However, as reflected in the January 11, 2010 ex parte order attached to the writ application, the district court had in fact approved a class settlement that had been requested by the Plaintiffs' Management Committee. We also noted that while the district court purportedly approved the motion for Preliminary Approval of Class Settlement on January 11, 2010, the district court had been clearly divested of jurisdiction. In our disposition, this Court: (1) granted a stay of proceedings related to the rendering of judgment granting the motion for Preliminary Approval of Class Settlement pending the finality of the appeal, and (2) vacated the district court's rulings on the motion for new trial and remanded the matter for the district court's reconsideration.

Subsequently, in the instant consolidated writ applications, 2010–C–0788, and 2010–C–0805, the Adams plaintiffs (and the Mitchell plaintiffs, respectively) alleged that while the motion for new trial was before the district court for reconsideration, counsel for the Plaintiffs' Management Committee re-urged the identical motion for Preliminary Approval of Class Settlement and, that same was [4 Cir. 3]once again approved by the district court via written judgment and reasons dated May 26, 2010, followed by the detailed order dated May 28, 2010.

In its May 26, 2010, judgment and written reasons, the district court wrote in pertinent part:

JUDGMENT AND REASONS FOR JUDGMENT

This matter came for hearing on May 26, 2010 on the Motion for New Trial filed on behalf of Defendant Intracoastal Tubular Service, on Motion for New Trial with Motion to Set Aside, Vacate and Annul Preliminary Order filed on behalf of Earl Adams, et al. Plaintiffs, and on Motion to Set Aside Judgment and for New Trial filed on behalf of Pamela Mitchell, Melvin Lewis, Rose Benjamin, Rev. Johnny McKinnis, Rev. Calton Lewis and Rev. Jerry Davis, Sr. Additionally, the Court heard argument on the Plaintiff Management Committee and Settling Defendants Joint Motion to Re–Urge Joint Motion for Preliminary Approval of Settlement and Certification of Settlement Class and to Amend January 11, 2010 Order to Re–Set Deadlines, Objections to Preliminary Approval of the Settlement and Certification of the Settlement, and Supplemental Objections to Motion to Re–Urge Preliminary Approval of Settlement Class and to Amend Deadlines for Opting Out.

* * * * * *

The Court after considering the law, evidence and argument of counsel, renders judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED that Intracostal Tubular Service's Motion for New Trial is DENIED.

IT IS ORDERED, ADJUDGED AND DECREED that Plaintiffs Pamela Mitchell, Melvin Lewis, Rose Benjamin, Rev. Johnny McKinnis, Rev. Calton Lewis, and Rev. Jerry Davis, Sr.'s Motion For New Trial is DENIED.

IT IS ORDERED, ADJUDGED AND DECREED that Earl Adams, et al. Plaintiffs' Motion for New Trial with Motion to Set Aside, Vacate and Annul Preliminary Order on the Grounds of ill Practice, Denial of Due Process and Fraud Upon the Court is DENIED.

[4 Cir. 4]IT IS ORDERED, ADJUDGED AND DECREED that Earl Adams, et al Plaintiffs' Objections to Preliminary Approval of Settlement and Certification of Settlement Class are DENIED.

IT IS ORDERED, ADJUDGED AND DECREED that Earl Adams, et al Plaintiffs' Supplemental Objections to the Motion To Re–Urge Preliminary Approval of the Settlement Class and to Amend Deadlines for Opting out is DENIED.

IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff Management Committee and Settling Defendants' Joint Motion to Re–Urge Joint Motion for Preliminary Approval of Settlement and Certification of Settlement Class and to Amend January 11, 2010 Order to Re–Set Deadlines is GRANTED.

The two-step approach for approval of a settlement class is laid out in Gates v. Rohm & Haus [ Haas] Co., 248 F.R.D. 434, 438–439 (E.D.Pa.2008), Armstrong v. B.Q. [ Board] of School Dirs., 616 F.2d 305, 314 (7 Cir.1980), overruled on other grounds by Felzen v. Andreas, 134 F.3d 873 (7 Cir.1998); In re Mid–Atlantic Toyota Antitrust Litig., 564 F.Supp. 1379, 1384 (D.Md.1983); Horton v. Merrill Lynch, Pierce Fenner & Smith, Inc., 855 F.Supp. 825, 827 (E.D.N.C.1994). First, the Court issues a preliminary approval of the settlement, where the court reviews the proposed settlement for obvious deficiencies, schedules a fairness hearing, and provides the class with notice of the proposed settlement and hearing. Second, the court considers the final approval of the proposed settlement at a formal fairness hearing during which arguments and evidence are presented in support of and in opposition to the proposed settlement.

On a motion for preliminary approval the Court need only ascertain whether there is “probable cause” to notify the class members of the proposed settlement and to proceed with a fairness hearing. Mid–Atlantic Toyota, 564 F.Supp. at 1384. When making the preliminary determination of fairness of the settlement, the standard is not whether the settlement was the best of all possible deals, but rather, “whether it is fair, adequate, and free from collusion.” Hunlon [ Hanlon] v. Chrysler Corp., 150 F.3d 1011, 1027 (9 Cir.1988) [ (9 Cir.1998) ]. When a proposed settlement appears to fall within the range of possible approval, it is appropriate to issue preliminary approval [4 Cir. 5]and direct notice to members of the settlement class. Horton, 855 F.Supp. [825] at 827. Thus, for these reasons the Court preliminarily approves the proposed settlement class.

Additionally, Movers requested a new trial on the basis that they had not received notice and were not given a meaningful opportunity to be heard. Under La. C.C.P. Art. 594(B), a formal hearing is not required until after preliminary approval and notice of the compromise has been provided to the class. Further, Rule 9.8(c)(2) of the Rules for Louisiana District Courts exempts parties from filing contradictory motions in instances where all affected parties have been joined in the filing of the motion. Here, the settling parties were the only parties in this case affected by the joint motion for preliminary approval of the settlement. The Defendant objectors were not “affected” parties and the objecting Plaintiffs were not parties at all. Thus, the settling parties were neither required to obtain their...