United States District Court, D. Kansas
ORDER TO SHOW CAUSE
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE.
March 2, 2018, plaintiffs filed Plaintiffs' Motion
For Preliminary Approval Of Settlement (Doc. #814). On
March 8, 2018, the Court held a preliminary settlement
approval hearing. At the hearing, the Court voiced concerns
about certain aspects of the proposed settlement agreement.
On March 16, 2018, plaintiffs filed a Supplemental
Memorandum In Support Of Plaintiffs' Motion For
Preliminary Approval Of Settlement (Doc. #821).
Plaintiffs' supplemental memorandum provided additional
information concerning (1) revisions to the class definition;
(2) revisions to the settlement process; (3) the
reasonableness of the settlement amount; (4) the parties'
efforts to ensure the most practicable notice of settlement;
and (5) the new cy pres recipient. See generally
id. The Court has reviewed plaintiffs' supplemental
submissions and orders as follows.
Class Counsel Fee Agreement
counsel shall submit a copy of all written fee arrangement
agreements between class counsel and plaintiffs. The Court
expects that such agreements will, among other things,
specify whether any contingency fee is based on gross
recovery or gross recovery less litigation costs and
Prevailing Market Rates
counsel shall submit affidavits establishing prevailing
market rates for attorneys of similar qualifications and
experience in the Minneapolis area. Class counsel shall also
submit, for in camera review, a list of all clients who have
been billed and have paid the rates stated in the
Declaration Of Michele R. Fisher In Support Of
Preliminary Approval Of Settlement (Doc. #815-1) filed
March 2, 2018 at 2. The list shall include copies of all
bills to such clients and affidavits of payment by counsel.
Defendants' counsel shall also submit, for in camera
review, information concerning the hourly rates which they
have charged during this suit.
Class Member Settlement Allocations
parties shall submit analysis of the proposed class member
settlement allocations. This analysis should include, but is
not limited to, the following: (1) the distribution of the
allocation amounts; (2) a bell chart which summarizes the
range of allocation amounts and number of allocations at each
level; (3) the average class member allocation, assuming
various settlement participation rates; and (4) the number
and percentage of class members who would receive the minimum
Settlement Process And Notice
The Court orders the parties to show cause why, before
sending the proposed Notice Of Settlement, (Doc.
#821-4) filed March 16, 2018 at 32, they should not be
required to mail notice cards to class member addresses which
are currently on file. The notice cards would place class
members on notice of the settlement; the forthcoming
settlement checks; their ability to opt out; the need to
update and confirm contact information (name, mailing
address, e-mail address and telephone number) on
and their duty to update contact information if it changes.
Thirty days after the parties send the notice cards, they
would provide the Court a report which outlines the number of
class members who updated their contact information, the
number of notice cards which were returned undeliverable or
mailed to the wrong address and other relevant data to
confirm the adequacy of the current address data. The
parties' responses shall include a joint proposal on
incorporating any notice card information into the proposed
Certain parties are previously stipulated to be outside the
class, and they received notice to this effect in early 2014.
See Joint Stipulation Specifying Class Membership And
Class Period (Doc. #503) filed January 15, 2014; see
Order (Doc. #504) filed January 27, 2014. The Court
orders the parties to show cause, as to those class members,
why the proposed Notice of Ineligibility (Doc.
#821-5) filed March 16, 2018, is not superfluous and
Class Member Contact Information
After reviewing the Supplemental Memorandum In Support Of
Plaintiffs' Motion (Doc. #821), the Court cannot
determine the adequacy of class counsel's data concerning
contact information for class members. Class counsel shall
submit the results of their third-party National Change of
Address system contractor's most recent report. The
submissions should identify how many addresses of class
members are verified, partially verified or unable to be
verified, and when each address was last verified. Further,
the parties' submission shall include the number of class
member telephone numbers and e-mail addresses that are
verified; when they were most recently verified; and the
extent to which verified addresses, telephone numbers and
e-mail addresses pertain to the same individuals.
The Court orders the parties to show cause why it should not
appoint an expert, at plaintiffs' expense, to study the
demographics of the class (particularly class members'
individual ages and patterns of mobility); suggest
alternative notice plans which are conducive to the
demographics of the class (such as the use of e-mail); review
the quality of class counsel's data concerning contact
information for class members; provide an unbiased estimate
of what percentage of the class will receive notice under the
parties' proposed notice process; verify the
qualification of the Claims Administrator; opine on whether
the parties' proposed notice process provides class
members with sufficient time and ...