DONALD ELIASON, TODD MOOS, VALDIE MAGSTADT, RUTH HANSON, GERALD HERNING, DOUGLAS and KAREN LAMM, ROBERT PATRICK, PATRICK FLECK, GARY and DONNA McINTYRE, RHEA CLARK, DUSTIN JOHNSON, RICHARD WROUGHTON, VIRGINIA STROH, and KEVIN and CHARLENE OLSON, Individually, and on behalf of all others similarly situated, Plaintiffs,
GENTEK BUILDING PRODUCTS, INC., and ASSOCIATED MATERIALS, LLC., Defendant.
MEMORANDUM OF OPINION AND ORDER [Regarding ECF No. 144]
BENITA Y. PEARSON, District Judge.
FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT
AND NOW, this 1st day of August, 2013, upon consideration whether the proposed settlement of the above-referenced litigation (the "Litigation") should be finally approved, the parties having presented to the Court the Settlement Agreement and Release of Claims between Plaintiffs Donald Eliason, Todd Moos, Valdie Magstadt, Ruth Hanson, Gerald Herning, Jacqueline Herning, Douglas and Karen Lamm, Robert Patrick, Patrick Fleck, Gary and Donna McIntyre, Rhea Clark, Dustin Johnson, Richard Wroughton, Virginia Stroh, and Kevin and Charlene Olson (collectively, "Plaintiffs"), and Defendants Gentek Building Products, Inc. and Associated Materials, LLC (together "Gentek"), dated February 13, 2013, ("Settlement Agreement"); and the Court having considered (1) whether the proposed Settlement was fairly and honestly negotiated; (2) whether material issues of law and fact exist, making uncertain the ultimate outcome of the Litigation; (3) whether the value of an immediate recovery outweighs the possibility of future relief after protracted and expensive Litigation; and (4) the judgment of the parties to the Settlement and their respective counsel that the Settlement is fair and reasonable.
The Court, after carefully considering all papers filed and proceedings held herein, including all arguments and evidence presented at the Fairness Hearing held on August 1, 2013, and otherwise being fully advised in the premises, finds that the Settlement should be approved, and that there is no just reason for delay of the entry of this Final Order and Judgment approving the Settlement.
Accordingly, the Court directs entry of this Final Order and Judgment which shall constitute a final adjudication of this case on the merits as to the parties to the Settlement. Good cause appearing therefore, it is:
ORDERED, ADJUDGED AND DECREED that:
1. Jurisdiction of the Court. The Court has personal jurisdiction over all Settlement Class Members because adequate notice has been provided to them and because they have been provided the opportunity to exclude themselves from the Litigation. The Court has subject matter jurisdiction over this Litigation, including, without limitation, jurisdiction to approve the Settlement Agreement and to dismiss the Litigation on the merits and with prejudice.
2. Incorporation of Documents. This Final Order and Judgment incorporates herein and makes a part hereof (1) the Settlement Agreement (a copy of which, without exhibits, is appended hereto as Exhibit 1); (2) the Class Notice (a copy of which is appended hereto as Exhibit 2); and, (3) the CAFA service list (appended hereto as Exhibit 3). The definitions of terms set forth in the Settlement Agreement are incorporated hereby as though fully set forth in this Judgment.
3. Final Certification of the Class for Settlement Purposes. A class for settlement purposes is hereby finally certified consisting of all persons, organizations, municipalities, corporations and entities that own property, whether commercial or residential, on which Gentek Steel Siding was applied during the period January 1, 1991 through March 15, 2013, that are covered by a Gentek Steel Siding warranty and which siding experienced Steel Peel. Excluded from the Settlement Class are Defendants, Defendants' employees, Defendants' subsidiaries, the Judge to whom this case is assigned and the immediate family of the Judge to whom this case is assigned, those who repaired the Steel Siding on their own, those who previously accepted a cash remedy from Gentek in lieu of a repair or replacement (though only with respect to the particular face for which the cash remedy was previously accepted), and those who previously sued Gentek claiming that their Siding experienced Steel Peel and that lawsuit was resolved through a settlement or decision by a court or arbitrator.
4. There have been 28 Class Members who have timely and validly excluded themselves from the Settlement Class. Thus, other than those 28 Class Members, the remaining Class Members are bound by this Final Order and Judgment and the terms of the Settlement Agreement.
5. Class Findings. For purposes of the Settlement of the Litigation only (without an adjudication on the merits or a determination that class certification is otherwise appropriate), the requirements of due process and the Federal Rules of Civil Procedure and the Rules of the Court have been met in that:
(a) The members of the Settlement Class are so numerous that it is impracticable to bring all members of the Settlement Class before the Court.
(b) There is a well-defined community of interest among members of the Settlement Class and certain questions of law or fact that are common to the Settlement Class, are substantially similar, and predominate over any individual questions of fact and law. The Plaintiffs allege, inter alia, that steel siding manufactured by Gentek is defective and that Gentek has failed to honor the express Limited Lifetime Warranty issued at the point of sale and the implied warranty of merchantability. Thus, common questions include: (i) whether there was a defect in the siding; (ii) whether Defendants were aware of the defect in the siding; and (iii) whether Defendants failed to honor the express Limited Lifetime Warranty issued to Class Members. These common questions are central to each Settlement Class Member's claim and predominate over questions affecting only individual members of the Settlement Class.
(c) The claims of the Class Representatives, Virginia Stroh and Robert Patrick, are typical of the claims of the Settlement Class, and the Class Representatives will fairly and adequately protect the interests of the Class, in that: (i) the interests of the Class Representatives and the nature of their alleged claims are consistent with those of the Settlement Class; (ii) there are no conflicts between or among the Class Representatives and Settlement Class Members; (iii) the Class Representatives have been and are capable of continuing to be an active participant in both the prosecution of, and the settlement negotiations of, the Litigation; and (iv) the Class Representatives and the Settlement Class Members are represented by ...