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In re Motor Fuel Temperature Sales Practices Litigation

United States District Court, Tenth Circuit

July 19, 2013

IN RE MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION, MDL No. 1840 This Document Relates to All Cases

MEMORANDUM AND ORDER

Kathryn H. Vratil United States District Judge

Plaintiffs seek the Court’s approval of a combined notice plan regarding certain settlements and California cases.[1] See Revised Notice Plan For Class Action Settlements (Doc. #4513) filed February 15, 2013; Proposed Notice Plans For Class Action Settlements And California Trial Classes (“Combined Notice Plan”) (Doc. #4549) filed April 15, 2013. On May 29, 2013, the Court ordered plaintiffs to file notices and supplemental evidence regarding the proposed plan. Memorandum And Order (Doc. #4583). This matter comes before the Court on plaintiffs’ Notice Of Submission Of Revised Notice Plans For Class Action Settlements And California Trial Cases (“Revised Submissions”) (Doc. #4591) filed June 21, 2013, which the Court construes as a motion for order approving plaintiffs’ revised notice plan.[2] For reasons stated below, the Court orders plaintiffs to file additional information regarding the proposed plan.

A. Individual Notice

As discussed in the Court’s previous order, Rule 23(c)(2)(B), Fed. R. Civ. P., requires that plaintiffs provide the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. See Memorandum And Order (Doc. #4583) at 4-5; Fed.R.Civ.P. 23(c)(2)(B); DeJulius v. New England Healthcare Empls. Pension Fund, 429 F.3d 935, 944 (10th Cir. 2005). Individual notice to identifiable class members is not a discretionary consideration that can be waived in a particular case; rather, it is “an unambiguous requirement of Rule 23.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974).

In its previous order, the Court found that plaintiffs did not show that they cannot identify class members through reasonable effort.[3] Memorandum And Order (Doc. #4583) at 6. The Court ordered plaintiffs to supplement the record with stipulations by the California and settling defendants – or other evidence if necessary – as to whether individual class members are reasonably ascertainable. Id. In their revised submissions, plaintiffs assert that because only a few defendants could attempt to generate any contact list – and because any list generated would be incomplete, restricted and reach only a small fraction of the potential class – publication notice is the “most effective approach.” Revised Notice Plan (Doc. #4591) at 2-3. Although plaintiffs do not articulate it as such, they appear to be asserting that because contact information is not available for most class members, they are not required to give individual notice to any class members. Rule 23 requires otherwise; plaintiffs must give individual notice to any class members who can be identified through reasonable effort. See Eisen, 417 U.S. at 177. Thus, in addition to publication notice for class members who are not reasonably ascertainable, plaintiffs must give individual notice to any class members whom they can identify through reasonable effort. The Court therefore must determine whether plaintiffs can identify any class members through reasonable effort.

1. Settlement Classes

The settlement classes arise out of ten settlements with the following defendants (1) Dansk Investment Group, Inc. (formerly known as USA Petroleum Corporation); (2) BP Products North America Inc. and BP West Coast Products LLC (collectively, “BP”); (3) CITGO Petroleum Company; (4) ConocoPhillips Company; (5) Motiva Enterprises LLC and Equilon Enterprises LLC d/b/a Shell Oil Products U.S. (collectively, “Shell”); (6) Sinclair Oil Corporation and its corporate affiliates (collectively, “Sinclair”); (7) Casey’s General Stores, Inc.; (8) Sam’s Club, Sam’s East, Inc., Sam’s West, Inc., Wal-Mart Stores, Inc. and Wal-Mart Stores East, LLP (collectively, “Sam’s”); (9) Exxon Mobil Corporation, Esso Virgin Islands, Inc. and Mobil Oil Guam, Inc. (collectively, “ExxonMobil”); and (10) Valero Marketing and Supply Company and Valero Energy Corporation (collectively, “Valero”). See Memorandum And Order (Doc. #4583) at 1-2.

a. Dansk Settlement Class

The Dansk settlement class includes all persons who purchased motor fuel from Dansk in the State of California during the settlement period. See Memorandum And Order (Doc. #4424) at 18. Plaintiffs provide a declaration by a Dansk employee which states that Dansk does not collect, maintain or possess contact information of consumers who purchased fuel at its stations. See Declaration Of Travis C. Lane, Exhibit 1C to Revised Notice Plan (Doc. #4591). Based on this evidence, the Court finds that as to the Dansk settlement, plaintiffs cannot identify class members through reasonable effort.

b. BP Settlement Class

The BP settlement class includes all persons who, during the settlement period, purchased motor fuel from any retail motor fuel station in Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia and the District of Columbia. See Memorandum And Order (Doc. #4424) at 6. Plaintiffs provide a statement by BP’s attorney which submits that BP does not collect, maintain or possess the names, addresses or contact information of consumers who purchased fuel.[4] S e e Statement Of Defendants BP Products North America, Inc. And BP West Coast Products LLC, Exhibit 1G to Revised Notice Plan (Doc. #4591). Based on this representation, the Court finds that as to the BP settlement, plaintiffs cannot identify class members through reasonable effort.

c. CITGO Settlement Class

The CITGO settlement class includes all persons who, during the settlement period, purchased motor fuel from any retail motor fuel station in Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia and the District of Columbia. See Memorandum And Order (Doc. #4424) at 9-10. Plaintiffs provide a statement by CITGO’s attorney which submits that CITGO does not collect, maintain or possess the names, addresses or contact information of consumers who purchased fuel. See Statement Of Defendant CITGO Petroleum Corporation Exhibit 1D to Revised Notice Plan (Doc. #4591). Based on this representation, the Court finds that as to the CITGO settlement, plaintiffs cannot identify class members through reasonable effort.

d. ConocoPhillips Settlement Class

The ConocoPhillips settlement class includes all persons who, during the settlement period, purchased motor fuel from any retail motor fuel station in Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Guam and the District of Columbia. See Memorandum And Order (Doc. #4424) at 11. Plaintiffs provide a statement by ConocoPhillips’ attorney which submits that ConocoPhillips does not collect, maintain or possess the names, addresses or contact information of consumers who purchased fuel. See Statement Of Defendant ConocoPhillips, Exhibit 1A to Revised Notice Plan (Doc. #4591). Based on this representation, the Court finds that as to the ConocoPhillips settlement, plaintiffs cannot identify class members through reasonable effort.

e. Shell Settlement Class

The Shell settlement class includes all persons who, during the settlement period, purchased motor fuel from any retail motor fuel station Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia and the District of Columbia. See Memorandum And Order (Doc. #4424) at 14. Plaintiffs submit a statement by Shell’s attorney which provides as follows: During the class period, Shell did not keep contact information for every consumer who purchased motor fuel at Shell-branded stations. Statement Of Defendants Shell Oil Products LLC And Motiva Enterprises, LLC, Exhibit 1J to Revised Notice Plan (Doc. #4591). Shell has maintained a repository of some contact information for customers or potential customers who have registered for a Shell-branded credit card, a Shell rewards program or other sweepstakes or similar programs. Id. The fact that a person’s contact information is in the repository does not mean that he or she purchased Shell-branded fuel. Id. Shell’s use of the information is contractually limited to specific purposes and requires the consent of its credit card and reward program partners. Id. Also, privacy policies govern the credit card and reward card programs. Id. On this record, as to the Shell settlement, the Court cannot determine whether through reasonable effort plaintiffs could ascertain the identity of some class members, based on Shell’s repository of contact information for customers or potential customers.

f. Sinclair Settlement Class

The Sinclair settlement class includes all persons who, during the settlement period, purchased motor fuel from any retail motor fuel station in Arizona, Arkansas, Kansas, Mississippi, Missouri, Nevada, New Mexico, Oklahoma, Oregon, Texas and Utah. See Memorandum And Order (Doc. #4424) at 15. Plaintiffs provide a statement from Sinclair’s attorney which states as follows: Sinclair does not typically keep contact information of retail customers. See Statement Of Defendant Sinclair Oil Corporation, Exhibit 1F to Revised Notice Plan (Doc. #4591). Sinclair has “some information on the names of a very small portion of individuals who have applied for and/or received a Sinclair Oil Corporation payment card.” Id. at 1. The information is over-inclusive because not everyone who possesses a Sinclair payment card has used it to purchase fuel in the states at issue during the class time period. Id. Based on these representations, however, it appears that through reasonable effort plaintiffs could ascertain the identity of some Sinclair settlement class members, i.e. those who have applied for and/or received a Sinclair Oil Corporation payment card.

g. Casey’s Settlement Class

The Casey’s settlement class includes all persons who, during the settlement period, purchased motor fuel from Casey’s in Arkansas, Indiana, Kansas, Missouri and Oklahoma. See Memorandum And Order (Doc. #4424) at 16. Plaintiffs provide a statement by Casey’s attorney which states as follows: Casey’s does not have information available to identify individual motor fuel purchasers. Statement Of Defendant Casey’s General Stores, Inc., Exhibit 1I to Revised Notice Plan (Doc. #4591). Casey’s has a reward card program which is administered through proprietary credit cards issued by a specific bank (formerly MasterCard, now Visa). The only information which is available to Casey’s is the amount spent on a card once the reward level is reach. Id. at 1. Casey’s cannot tell whether the credit card holder has ever purchased fuel from Casey’s. Based on these representations, the Court finds that as to the Casey’s settlement, plaintiffs cannot identify class members through reasonable effort.

h. Sam’s Settlement Class

The Sam’s settlement class includes all persons who, during the settlement period, purchased motor fuel from Sam’s in Alabama, Arizona, Arkansas, California, Delaware, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Jersey, New Mexico, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah and Virginia. See Memorandum And Order (Doc. #4424) at 19-20. Plaintiffs provide a statement by Sam’s attorney which states as follows: The Sam’s settlement covers motor fuel sales at Sam’s Club and Wal-Mart stores. Statement Of Defendant[s] Sam’s East, Inc., Sam’s West, Inc., Wal-Mart Stores, Inc., And Wal-Mart Stores East L.P. at 1-2, Exhibit 1H to Revised Notice Plan (Doc. #4591). Wal-Mart stores sell motor fuel to the public and do not have a list of purchasers. Id. Sam’s Club stores generally sell only to club members, but some Sam’s Club stores also sell motor fuel to the general public and do not have a list of those purchasers. Id. Sam’s maintains a list of its club members, but providing notice to the entire list would be over-inclusive to the extent it includes members who did not buy motor fuel during the settlement period. Id. at 1. Sam’s does not state whether ...


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