RE: Doyle v. Fluor Corp. – One Shot At Opt Out in Missouri is Enough
In an opinion paralleling that in Anadarko, another lengthy class action came to (nearly) rest on the other side of the border in Doyle v. Fluor Corp., 2013 WL 150807 (E.D. Mo. Jan. 15, 2013). That opinion marks the resolution of the protracted Doe Run smelter property damage litigation, and involved the claims of some 700 surrounding current and former property owners whose properties were contaminated by elevated levels of lead. After a decade of litigation, the case reached resolution in 2012 whereby the class agreed to release all property-related claims in exchange for $55,000,000.00. On the eve of final approval, a group of objectors composed of twenty-four former property owners and four current property owners moved to intervene and challenge the settlement, asserting that the notice scheme was inadequate and the allocation plan unfair. The trial court denied their objections and approved the class settlement.
On appeal, Judge Ahrens, writing for the E.D. Mo. panel, affirmed the trial court’s order approving the class settlement. First, the Court held that the objectors had waived all arguments they had failed to raise at the fairness hearing and had only raised for the first time in their post-fairness hearing pleadings. Although the Court found no Missouri law on this point, it agreed with law from other jurisdictions that untimely objections to class settlements are deemed waived. This seems like common sense, but now there’s no doubt that you’d better timely raise all grounds for your objections at the fairness hearing or risk losing them forever.
Indulging the objectors by addressing the merits of their issues regardless of waiver, the Court found their complaints lacking any merit. First, the Court rejected the argument that class counsel could not adequately represent the interests of the different segments of the class as a whole. While recognizing the potential for some “tension” between current and former property owners, the Court found that the trial court did not abuse its discretion in finding class counsel to be adequate for the entire class. Although the objectors argued that remediated property owners required separate counsel from the unremediated property owners, the Court noted that very few properties were still in fact unremediated, and none of the objectors were in fact owners of unremediated properties, thereby mooting their concern.
The Court then rejected various complaints asserted by the objectors as to the adequacy of the class notice. Interestingly, the Court found no abuse of discretion in the trial court’s refusal to require the 2012 notice of settlement to provide a second opportunity to opt out of the class settlement after the original opt out date established by the 2010 notice of the existence of the certified class had passed. Unlike the Fed. R. Civ. P. 23(e)(4), Rule 52.08 contains no provision authorizing the trial court to refuse to approve settlement of a previously certified class unless class members are provided a new opportunity to opt out. Regardless, it is difficult to imagine that a trial court lacks discretion to condition approval on a second opt out opportunity, and the same reasons that compelled the addition of this provision to the federal rule make equal sense in Missouri. As Rule 23’s advisory notes explain: “A decision to remain in the class is likely to be more carefully considered and is better informed when the settlement terms are known.”
Finally, the Court found that the trial court had not abused its discretion by denying the objectors’ motion for a continuance and additional discovery, on the basis that adequate, albeit not complete, discovery had been provided to the objectors’ counsel both in that action, and in related personal injury cases against Doe Run where the objectors’ counsel represented the plaintiffs. After thirteen years, it is difficult to conceive of what additional discovery could have yielded.