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Famuliner v. Walmart Inc.

United States District Court, W.D. Missouri, Western Division

June 21, 2019

ARTHUR FAMULINER and RUSS MAPES, o/b/o himself and others similarly situated, et al., Plaintiffs,
v.
WALMART INC., et al., Defendants.

          ORDER AND OPINION (1) GRANTING PARTIES' JOINT MOTION TO STAY, (2) PRELIMINARILY APPROVING PROPOSED CLASS ACTION SETTLEMENT, AND (3) SETTING FINAL FAIRNESS HEARING

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending are the parties' joint motion to stay (Doc. #22) and joint motion for preliminary approval of a class action settlement reached between Plaintiffs and Defendants (Doc. #23). The Court has carefully reviewed the parties' filings in this matter, including but not limited to the pending motions and suggestions in support of the motions (Docs. #22-24), the Settlement Agreement and Release and exhibits attached thereto (Doc. #23-1), and the declarations of William Wickersham (Doc. #23-2) and Thomas Bender (Doc. #25). Having done so, the parties' motions (Docs. #22-23) are granted, and the Court orders as follows:

         1. The parties have agreed to settle and resolve this matter based upon the terms and conditions set forth in the Settlement Agreement and Release. Doc. #23-1.

         2. The Settlement Agreement and Release, including exhibits thereto, is preliminarily approved as fair, reasonable, and adequate, subject to further consideration at the Final Fairness Hearing, which is discussed infra.

         3. The definitions in the Settlement Agreement and Release are hereby incorporated as though fully set forth in this Order, and capitalized terms shall have the meanings attributed to them in the Settlement Agreement and Release.

         4. Plaintiffs Arthur Famuliner and Russ Mapes (“Plaintiffs”), by and through their counsel, investigated the facts and law relating to the matters alleged in the Petition, conducted extensive legal research as to the sufficiency of the claims, and evaluated the risks associated with continued litigation, class certification, trial, and potential appeal.

         5. The Settlement was reached as the result of extensive arm's length negotiations between Plaintiffs' counsel and Defendants' counsel, and included, but was not limited to, mediation with Ron Mitchell in St. Louis, Missouri in March 2019.

         6. The Settlement confers substantial benefits upon the Settlement Class, particularly in light of the damages Plaintiffs and Class Counsel believe are potentially recoverable or provable at trial, and does so without the costs, uncertainties, delays, and risks associated with continued litigation, class certification, trial, and potential appeal.

         7. The Court conditionally certifies, for settlement purposes only, the following Settlement Class:

All persons and other entities who purchased Super Tech 303 Tractor Hydraulic & Transmission Oil from Walmart Stores in Missouri at any point in time from August 30, 2013 to present, excluding those who purchased for resale. Also excluded from the Settlement Class are Defendants, including any parent, subsidiary, affiliate or controlled person of Defendants; Defendants' officers, directors, agents, employees and their immediate family members, as well as the judicial officers assigned to this litigation and members of their staffs and immediate families.

         8. Pursuant to the Settlement Agreement and Release and for purposes of settlement only, the Court preliminarily finds the prerequisites for a class action under Federal Rules of Civil Procedure 23(a) and 23(b)(3) have been satisfied in that:

(a) The number Settlement Class members is so numerous that joinder of all members thereof is impracticable;
(b) There are questions of law and fact common to the Settlement Class that predominate over any questions affecting only individual members of the Settlement Class;
(c) Plaintiffs' claims are typical of the Settlement Class members' claims;
(d) Plaintiffs have fairly and adequately represented the Settlement Class's interests and will continue to do so, and have retained experienced counsel to represent them;
(e) A class action is superior to other available methods for the fair and efficient adjudication of the controversy; and The Court also concludes that because this matter is being settled rather than litigated, it need not consider manageability issues that may be presented by the trial of a statewide class action involving the issues in this case. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). In making these findings, the Court has exercised its discretion in conditionally certifying, for settlement purposes only, the Settlement Class on a statewide basis.

         9. Preliminary approval is appropriate Federal Rule of Civil Procedure 23 in that the monetary relief and other appropriate terms of the Settlement Agreement and Release are such that “giving notice is justified by the parties' showing that the Court will likely be able to (i) approve the proposal under Rule 23(e)(2); and (ii) certify the class for purposes of judgment on the proposal.” This Court determines it “will likely be able to approve” the Settlement Agreement and Release pursuant to Rule 23(e)(2) because:

(a) The class representatives and class counsel have adequately represented the class;
(b) The proposal was negotiated at arm's length;
(c) The relief provided for the class is adequate, taking into account (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing claims; (iii) the terms of the proposed award of attorneys' fees, including timing of payment; (iv) and any agreement required to be identified by Rule 23(e)(3); and
(d) The proposal treats class members equitably relative to each other. With further regard to subsection (c)(iii), the Settlement Agreement and Release provides Defendants will separately pay the incentive awards and attorneys' fees and expenses awarded by the Court, up to the thirty-three percent cap, in the same timeframe as the Class Settlement Fund is to be paid. With further regard to subsection (c)(iv), there are no agreements other than the Settlement Agreement and Release presented to the Court for approval.

         10. The Court appoints Tom Bender and Dirk Hubbard from the law firm of Horn Alyward & Bandy LLC; Gene Graham, William Carr, and Bryan White from the law firm of White, Graham, Buckley & Carr, LLC; and Clayton Jones from the Clayton Jones Law Firm in Raymore, Missouri, as counsel for the Settlement Class (“Class Counsel”). For purposes of these settlement approval proceedings, the Court finds Class Counsel are competent and capable of exercising their responsibilities as Class Counsel.

         11. The Court designates named Plaintiffs Arthur Famuliner and Russ Mapes as the ...


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