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Bowers v. Windstream Kentucky East, LLC

United States District Court, Sixth Circuit

November 1, 2013

DANA BOWERS, et al. Plaintiffs.


JOHN G. HEYBURN, II, District Judge.

Following over four years of hard fought litigation and several months of arms length settlement discussions, the parties have agreed upon a proposed Settlement Agreement that brings substantial relief to all Settlement Class Members as defined in the Agreement. The Settlement Agreement covers all claims asserted against Defendants. In exchange for the benefits provided to the Settlement Class, the Settlement Agreement provides for the release of any claims against Defendants that have been asserted in this Action.

The Class Representatives have moved the Court for final approval of the Settlement Agreement entered into with Defendants, Windstream Kentucky East, LLC and Windstream Kentucky West, LLC. The Court has reviewed Class Representatives' motion and has considered all relevant objections filed with the Court. In addition, on October 31, 2013, the Court conducted a Fairness Hearing on the proposed Settlement and invited all persons present to comment. The Court now has sufficient information to determine whether this Class Action Settlement is fair, reasonable and adequate in all respects. For the reasons that follow, the Court will approve this proposed settlement.


This Court granted preliminary approval of the proposed Settlement on June 13, 2013. Following preliminary approval, KCC (the Settlement Administrator selected by the parties and approved by the Court) and Windstream through joint efforts as outlined in the Settlement Agreement mailed Notice of the Settlement to all potential class members via first-class mail in the form and manner approved by this Court. In addition, the Settlement Agreement and relevant motions and court orders were made available on a website created under the direction of the parties and administered by KCC.

The Court finds that this notice process is adequate under Fed.R.Civ.P. 23 and the standards of due process, because it was directed in a reasonable manner to all prospective Settlement Class Members who would be bound by the Settlement Agreement and, in a manner that could be understood by the average prospective Settlement Class Member, fairly apprised the prospective Settlement Class Members of the terms of the proposed Settlement Agreement and their options with respect to their decision whether to join in the Settlement Class. See, e.g., Int'l Union v. GMC, 497 F.3d 615, 630 (6th Cir. 2007).


The Class Action Fairness Act ("CAFA"), requires that each defendant provide notice of a proposed class action settlement to "appropriate" federal and state officials. 28 U.S.C. § 1711. On June 3, 2013, Defendants sent notice to the appropriate federal and state officials as defined in 28 U.S.C. § 1711. Along with that notice, Defendants sent copies of the Complaint, the Notice of Hearing on Plaintiffs' Motion for Preliminary Approval of the Settlement Agreement, and Plaintiffs' Motion for Preliminary Approval of the Settlement Agreement, including the proposed Notice to the Settlement Class and a copy of the proposed Settlement Agreement. See 28 U.S.C. § 1715(b). The Court finds that Defendants have fully complied with the CAFA notice requirements.


Fed. R. Civ. P. 23 states that the Court may approve a settlement that would bind class members only after a hearing and a determination that the settlement is fair, reasonable and adequate.

The Sixth Circuit has identified seven factors that should aid a court in its determination of whether a class action settlement is fair, reasonable, and adequate: (1) the risk of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the amount of discovery engaged in by the parties; (4) the likelihood of success on the merits; (5) the opinions of class counsel and class representatives; (6) the reaction of absent class members; and (7) the public interest. Int'l Union, 497 F.3d at 631. No one of these factors is dispositive. Rather all are to be weighed and considered in light of the particular demands of this case. See, e.g., Granada Investments, Inc. v. DWG Corp., 962 F.2d 1203, 1205-06 (6th Cir. 1992).


The Court finds no fraud or collusion within or around this Settlement Agreement. In the absence of evidence to the contrary, the Court may presume that no fraud occurred and that there was no collusion between counsel. In the absence of evidence to the contrary, a court should presume that settlement negotiations were conducted in good faith and that the resulting agreement was reached without collusion. Int'l Union, 497 F.3d at 628, see also In re Telectronics Pacing Sys., 137 F.Supp.2d 985, 1008, 1018 (S.D. Ohio 2001) (citing Herbert Newberg & Alba Conte, Newberg on Class Actions § 11.51 (3d ed. 1992)).

This case was filed in this Court over four years ago. The parties have engaged in extensive motion practice, including the filing of multiple briefs on motions to dismiss and on motion for class certification. The parties exchanged documents and depositions were taken of the Class Representatives and of representatives of Defendants.

The Settlement Agreement also is the product of arm's-length, good-faith settlement negotiations. The parties engaged in several months of arms' length settlement discussions. Accordingly, the Court finds that the evidence before the Court ...

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