IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF MISSOURI
`WESTERN DIVISION
`
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`IN RE: PRE-FILLED PROPANE TANK
`ANTITRUST LITIGATION
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`THIS ORDER RELATES TO:
`INDIRECT PURCHASER ACTIONS
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`
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`MDL Docket No. 2567
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`Master Case No. 14-02567-MD-W-GAF
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`
`
` ORDER GRANTING PLAINTIFFS’ MOTION FOR
`FINAL APPROVAL OF CLASS ACTION SETTLEMENT
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`
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`AmeriGas Partners, L.P. (“AmeriGas”), on the one hand, and Class Representatives Mario
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`Ortiz, Steven Tseffos, Gary Snow, William S. Vincent, Jr., Josh Bartholow, Hanz De Perio, Eric
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`Blum, Jerry Marshall, Joseph Haala, Scott Zuehlke, Tom Roberts, Wesley McCullough, Dallas
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`May, Richard Sanchez, Greg Roberts and Kevin Marshall, on behalf of themselves and all
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`members of the proposed settlement classes (“Settlement Classes”), on the other hand, have
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`agreed, subject to Court approval following Notice to the Settlement Classes and a hearing, to
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`settle the above-captioned matter (“Litigation”) upon the terms set forth in a Stipulation of
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`Settlement, dated November 18, 2020, Exhibit 1 to Dkt. 484-2 (the “Stipulation of Settlement”).1
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`On November 30, 2020, this Court preliminarily approved the Stipulation of Settlement,
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`certified the Settlement Classes, and authorized and directed notice to all Class Members. Dkt.
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`489.2 Based upon the Declaration of Cameron Azari, on behalf of Epiq, the Administrator
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`1 All capitalized terms not defined herein have the meanings set forth in the Stipulation of
`Settlement.
`2 The Court affirms the following corrections to typographical errors in the Preliminary Approval
`Order, Dkt. 489: (1) the phrase “Exhibits [] and [], respectively” in Paragraph 10 of the Order
`should be read as “Exhibits 2 and 3, respectively”; (2) the phrase “Exhibit [] to the Preliminary
`Approval Motion” in Paragraph 10 should be read as “Exhibit 4 to the Preliminary Approval
`Motion.”
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`appointed by the Court, the Court finds that the Notice Program has been properly implemented.
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`That Declaration shows that there have been no requests for exclusion from the Settlement, and no
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`objections to the Settlement. Finally, the Declaration reflects that AmeriGas has given appropriate
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`notice of this settlement to the Attorney General of the United States and the appropriate State
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`officials under the Class Action Fairness Act, 28 U.S.C. § 1715, and no objections have been
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`received from any of them.
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`On March 12, 2021, Plaintiffs moved for an order granting final approval of the Settlement
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`and entering final judgment (the “Motion”). On March 30, 2021, this Court held a hearing to
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`consider that Motion. The Court has reviewed and considered the Stipulation of Settlement
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`together with the other materials that have been submitted in conjunction with the Motion, the
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`record in this case, the briefs and arguments of counsel, and all other arguments made and evidence
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`submitted in conjunction with the Motion. On the basis of this record, the Court finds that
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`substantial grounds exist for granting the Motion and finally approving the class action settlement
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`pursuant to Federal Rule of Civil Procedure 23.
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`NOW, THEREFORE, IT IS HEREBY ORDERED:
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`1.
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`The Court has jurisdiction over this Litigation (and all actions and proceedings
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`consolidated in the Litigation), the Class Representatives, the Class Members, and AmeriGas.
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`2.
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`Under Federal Rule of Civil Procedure 23(e)(2), a court may finally approve a
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`settlement binding class members “only after a hearing and only on a finding that it is fair,
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`reasonable, and adequate after considering whether: (A) the class representatives and class counsel
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`have adequately represented the class; (B) the proposal was negotiated at arm’s length; (C) the
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`relief provided for the class is adequate . . . ; and (D) the proposal treats class members equitably
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`relative to each other.”
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`3.
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`The requirement that a class action settlement be “fair, reasonable, and adequate”
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`is nothing new, as “each circuit has developed its own vocabulary for expressing these concerns.”
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`Fed. R. Civ. P. 23, advisory committee’s note to 2018 amendment. In the Eighth Circuit, courts
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`have long described the inquiry as focusing on the following factors, to be considered in the trial
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`court’s sound discretion: “the merits of the plaintiff’s case, weighed against the terms of the
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`settlement; the defendant’s financial condition; the complexity and expense of further litigation;
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`and the amount of opposition to the settlement.” Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir.
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`1988). “A strong public policy favors agreements, and courts should approach them with a
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`presumption in their favor.” Little Rock Sch. Dist. v. Pulaski Cty. Special Sch. Dist. No. 1, 921
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`F.2d 1371, 1388 (8th Cir. 1990).
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`4.
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`Here, all relevant factors weigh in favor of finally approving the Settlement
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`Agreement and entering final judgment as to the indirect purchaser actions against AmeriGas.
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`5.
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`First, the Settlement Agreement is fair, reasonable, and adequate because it was
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`entered into by plaintiffs and Settlement Class Counsel that have adequately represented the
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`Settlement Classes. The Class Representatives and Settlement Class Counsel have effectively
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`represented the Settlement Classes through 6 years of litigation following the initial filing of these
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`lawsuits in 2014. The Litigation has been hard fought at both the trial court level and the appellate
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`level. The Class Representatives, through Settlement Class Counsel, have taken extensive
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`discovery and engaged in extensive motions practice. All but two Class Representatives have also
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`stood for deposition in this case. This plainly satisfies the first Rule 23(e)(2) factor.
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`6.
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`Second, the Settlement Agreement is the result of arm’s-length negotiations among
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`experienced counsel, following extensive motions practice, appeals, and discovery on both sides.
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`The parties engaged in lengthy and arm’s-length settlement discussions, including a one-day,
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`unsuccessful mediation before a respected neutral in April 2020. In addition, serious questions of
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`law and fact exist such that the value of an immediate recovery outweighs the mere possibility of
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`further relief after protracted and expensive litigation. The Court gives weight to the parties’
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`judgment that the Settlement is fair and reasonable. See In re Charter Commc’ns, Inc. Sec. Litig.,
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`MDL No. 1506, 2005 WL 4045741, at *5 (E.D. Mo. June 30, 2005); In re BankAmerica Corp.
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`Sec. Litig., 210 F.R.D. 694, 702 (E.D. Mo. 2002).
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`7.
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`Third, the total agreed-upon consideration of $6,500,000 is more than adequate
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`when considering all of the Rule 23(e)(2)(C) factors, including the substantial costs, risks, and
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`delay of proceeding to trial and appeal. By way of example, the statute of limitations has been a
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`hotly contested issue in this case. This Court initially dismissed plaintiffs’ consolidated amended
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`class action complaint on statute of limitations grounds, and an Eighth Circuit panel agreed and
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`affirmed that dismissal. Although an en banc Eighth Circuit granted rehearing, reversed the
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`dismissal, and held that plaintiffs had sufficiently alleged a continuing antitrust conspiracy,
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`Defendants continue to pursue that defense, and that statute of limitations issue undoubtedly injects
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`uncertainty into the ultimate outcome of this case. Issues that have yet to be litigated also include
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`class certification, and all factual issues relating to the alleged conspiracy and any alleged affects
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`thereof.
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`8.
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`Fourth, the proposed Plan of Allocation treats Settlement Class Members equitably
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`relative to each other and is fair and adequate because it distributes the settlement funds according
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`to each Settlement Class Member’s injury and pro rata share of total eligible purchases and
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`exchanges of propane tanks. Class members who can provide documentation to confirm qualifying
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`purchases can recover up to $5 per transaction, without any limit on the number of purchases.
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`Recognizing that many class members will not have documentation of their purchases, the
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`Settlement also allows class members to recover without such documentation, at the rate of up to
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`$2.50 per cylinder and up to a maximum of 50 cylinders or $125. This payment methodology is
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`fair and just, and will pay to those making claims 100% or more of the alleged overcharges at
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`issue. The award of service fees to Class Representatives and attorneys’ fees and expenses to
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`Settlement Class Counsel was also subject to further review and approval of this Court. The Court
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`finds that the Plan of Allocation is fair, reasonable, and adequate, and is hereby finally approved.
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`9.
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`Fifth, the lack of opposition from Settlement Class Members to the Settlement
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`Agreement or the Plan of Allocation (or to the Fee Award to Class Counsel or Service Award to
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`Class Representatives) similarly demonstrates that the Settlement Agreement is fair, reasonable,
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`and adequate and “weighs in favor of approving the settlement.” See, e.g., Keil v. Lopez, 862 F.3d
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`685, 698 (8th Cir. 2017) (collecting cases approving settlements as fair, reasonable, and adequate
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`even though “almost half the class objected”). After notice and the opportunity to comment on the
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`Settlement, no Settlement Class Members objected, which supports final approval. See, e.g.,
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`Kautsch v. Premier Commc’ns, No. 06-CV-04035-NKL, 2008 WL 11426766, at *3 (W.D. Mo.
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`Nov. 20, 2008) (holding that “the amount of opposition to the settlement, demonstrates that the
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`settlement and subsequent assignment were fair, reasonable, and adequate” because “Class
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`members were given the opportunity to object to the assignment,” and “No class members
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`objected”). Likewise, no Settlement Class Members requested to be excluded from the Settlement,
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`which also supports the fairness, reasonableness, and adequacy of the Settlement.
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`10.
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`Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court reaffirms its
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`certification, for purposes of effectuating this Settlement and for purposes of judgment on the
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`proposed settlement, Settlement Classes defined as follows:
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`Indirect Purchaser Settlement Class. All Persons who, between
`December 1, 2009, and November 30, 2020, in the States of
`Arizona, California, Iowa, Maine, Michigan, Minnesota, Nevada,
`New Mexico, North Carolina, North Dakota, South Dakota, Utah,
`and West Virginia, purchased an AmeriGas or Ferrellgas Propane
`Tank or paid to exchange their already-purchased Propane Tank for
`an AmeriGas or Ferrellgas Propane Tank, other than a wholesale
`purchase directly from AmeriGas or Ferrellgas for resale.
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`Direct Purchaser Settlement Class. All Persons who, between
`December 1, 2009, and November 30, 2020, in the United States,
`purchased an AmeriGas or Ferrellgas Propane Tank directly from
`AmeriGas or Ferrellgas, through a vending machine installed at a
`retailer or other location or paid AmeriGas or Ferrellgas directly
`through a vending machine installed at a retailer or other location to
`exchange an already-purchased Propane Tank for an AmeriGas or
`Ferrellgas Propane Tank, other than a wholesale purchase for resale.
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`11.
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`The following are excluded from membership in the Settlement Classes: AmeriGas,
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`as well as AmeriGas’s affiliates, subsidiaries, and parents, and each of their respective directors
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`and officers; any Judge to whom the Litigation is assigned; and Defense counsel and their law
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`firms’ partners and employees.
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`12.
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`Pursuant to Rule 23 of the Federal Rules of Civil Procedure, for the purposes of
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`Settlement only, (a) Mario Ortiz, Steven Tseffos, Gary Snow, William S. Vincent, Jr., Josh
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`Bartholow, Hanz De Perio, Eric Blum, Jerry Marshall, Joseph Haala, Scott Zuehlke, Tom Roberts,
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`Wesley McCullough, Dallas May, Richard Sanchez, and Greg Roberts are confirmed as the Class
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`Representatives of the Indirect Purchaser Settlement Class; (b) Kevin Marshall is confirmed as the
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`class representative of the Direct Purchaser Settlement Class; and (c) Hagens Berman Sobol
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`Shapiro LLP, Stueve Siegel Hanson LLP, and Paynter Law Firm PLLC are reconfirmed as
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`Settlement Class Counsel.
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`13.
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`The record plainly supports certification of and final approval of the Settlement
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`Classes. Rule 23 requires a two-step process to certify a class. First, under Rule 23(a), the proposed
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`class must satisfy the “requirements of numerosity, commonality, typicality, and fair and adequate
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`representation.” Luiken v. Domino’s Pizza, LLC, 705 F.3d 370, 372 (8th Cir. 2013). Second, the
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`proposed class must satisfy at least one of the provisions of Rule 23(b). Comcast Corp. v. Behrend,
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`569 U.S. 27, 33 (2013). A class may be maintained under Rule 23(b)(3) if “the court finds that the
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`questions of law or fact common to class members predominate over any questions affecting only
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`individual members, and that a class action is superior to other available methods for fairly and
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`efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
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`14.
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`The Court reaffirms its prior finding that, for purposes of the Settlement only, the
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`prerequisites for the Settlement Classes to be certified under Rule 23(a) and (b)(3) of the Federal
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`Rules of Civil Procedure have been satisfied in that, in the settlement context: (a) the number of
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`Class Members is so numerous that joinder of all members thereof is impracticable; (b) there are
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`questions of law and fact common to the Settlement Classes; (c) the claims of the Class
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`Representatives are typical of the claims of the Settlement Classes they seek to represent; (d) Class
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`Representatives fairly and adequately represent the interests of the Settlement Classes; (e) the
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`questions of law and fact common to the members of the Settlement Classes predominate over any
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`questions affecting only individual members of the Settlement Classes; and (f) a class action is a
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`superior to other available methods for the fair and efficient adjudication of this controversy.
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`15.
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`The Settlement Classes satisfy Rule 23(a)(2)’s commonality requirement in that
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`each Settlement Class Member alleges payment of inflated prices for pre-filled propane tanks from
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`Defendants’ alleged antitrust conspiracy.
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`16.
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`Rule 23(a)(3)’s typicality requirement also is satisfied by the Settlement Classes
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`because Class Representatives and all Settlement Class Members allege paying supracompetitive
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`prices due to Defendants’ alleged antitrust conspiracy.
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`17.
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`The Court further finds, under Rule 23(a)(4), that Class Representatives will fairly
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`and adequately represent the interests of the Settlement Classes. Class Representatives allege they
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`suffered the same injuries as the rest of the Settlement Classes, and together they share an interest
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`in proving their allegations about the alleged conduct and resulting damages. In the context of this
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`settlement, Class Representatives do not have any conflicts of interest with the Settlement Class
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`Members and have demonstrated a willingness to vigorously prosecute the interests of the
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`Settlement Class—by agreeing to be Class Representatives and participating in discovery. Further,
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`Settlement Class Counsel are accomplished litigators with ample experience in complex antitrust
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`class actions like this one.
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`18.
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`In order to certify a Rule 23(b)(3) class, the Court must further find “that the
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`questions of law or fact common to class members predominate over any questions affecting only
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`individual members.” Fed. R. Civ. P. 23(b)(3). However, the predominance requirement is relaxed
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`in the settlement context: “Confronted with a request for settlement-only class certification, a
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`district court need not inquire whether the case, if tried, would present intractable management
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`problems, . . . for the proposal is that there be no trial.” Amchem Prods., Inc. v. Windsor, 521 U.S.
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`591, 620 (1997). The Court finds that the predominance inquiry is satisfied here with respect to
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`the proposed Settlement Classes because the central issues underlying the Settlement Class
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`Members’ claims relate to Defendants’ alleged conduct and are alleged to not vary from class
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`member to class member.
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`19.
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`The Court further finds that a class action is superior to other available methods in
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`light of the common claims and issues that predominate among the Settlement Class Members, as
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`described above. Accord Wright, Miller & Kane, Federal Practice and Procedure: Civil Procedure
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`§ 1781, at 254–55 (3d ed. 2004) (“[I]f common questions are found to predominate in an antitrust
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`action, . . . courts generally have ruled that the superiority prerequisite of Rule 23(b)(3) is
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`satisfied.”). Without a class action approach, a significant number of individual lawsuits could be
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`filed, and “[s]eparate proceedings would produce duplicate efforts, unnecessarily increase the costs
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`of litigation, impose an unwarranted burden on this Court and other courts throughout the country,
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`and create the risk of inconsistent results for similarly situated parties.” In re Potash Antitrust
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`Litig., 159 F.R.D. 682, 699 (D. Minn. 1995).
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`20.
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`The Court has also considered Indirect Purchaser Plaintiffs’ Motion for Attorneys’
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`Fees, Litigation Expenses, and Service Awards, Dkt. 520, and finds the requested attorneys’ fees,
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`expenses, and Service Awards for Class Representatives to be reasonable for the reasons stated in
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`the motion and in the Court’s separate order granting the motion.
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`21.
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`The Court also reaffirms its holding during the preliminary approval process that
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`all costs incurred in disseminating Notice and administering the Settlement shall be paid from the
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`Settlement Fund pursuant to the Stipulation of Settlement. The Court finds that the incurred and
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`expected fees and costs identified in the Motion and accompanying exhibits have been reasonably
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`and necessarily incurred in order to effectuate the Settlement and provide relief to the Settlement
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`Classes.
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`22.
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`Accordingly, based on the findings herein, and the documents and pleadings
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`submitted in this case, the Court GRANTS FINAL APPROVAL to the Settlement under Rule
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`23(e)(2); reaffirms its certification of the Settlement Classes solely for purposes of effectuating the
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`Settlement; and approves payment of the following from the Settlement Fund: (a) attorneys’ fees
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`to Settlement Class Counsel in the amount of 33.33% of the $6,500,000 common fund
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`($2,166,450.00); (b) $318,818.84 to Settlement Class Counsel for litigation costs and expenses
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`they advanced; (c) Service Awards of $2,500 each to Greg Roberts and Kevin Marshall, and $5,000
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`each to Mario Ortiz, Steven Tseffos, Gary Snow, William S. Vincent, Jr., Josh Bartholow, Hanz
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`De Perio, Eric Blum, Jerry Marshall, Joseph Haala, Scott Zuehlke, Tom Roberts, Wesley
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`McCullough, Dallas May, and Richard Sanchez.; (d) $361,749.97 to settlement Administrator
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`Epiq for reasonable costs of administration and Notice incurred to date. In addition, the Court
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`authorizes Plaintiffs to file a supplemental motion to authorize reimbursement of additional
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`reasonable administrative costs related to the settlement and incurred after the date of this Order.
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`23.
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`The Court further finds that the proposed Plan of Allocation is fair, reasonable, and
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`adequate, and is hereby finally approved. Settlement Class Counsel and Administrator are directed
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`to effectuate the Plan of Allocation according to its terms.
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`24.
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`The Court further finds that the Settlement is a good faith settlement pursuant to
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`California Code of Civil Procedure sections 877 and 877.6 and meets analogous standards of the
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`laws of the other 13 indirect purchaser states whose residents make up the Indirect Purchaser
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`Settlement Class, as well as of the other states whose residents make up the Direct Purchaser
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`Settlement Class, and therefore bars any state law claims against AmeriGas by joint tortfeasors or
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`co-obligors for contribution or equitable indemnity.
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`25.
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`The Court further approves the establishment of the Settlement Fund as a qualified
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`settlement fund (“QSF”) pursuant to Internal Revenue Code § 468B and Treasury Regulations §
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`1.468B-1, et seq. Settlement Administrator Epiq is hereby appointed as the Administrator of the
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`QSF.
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`26.
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`There being no opt-out requests, all Settlement Class Members shall, upon entry of
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`this Final Approval Order and the Judgment, be bound by all the terms and provisions of the
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`Stipulation of Settlement, including the release provisions, whether or not such Class Member
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`objected to the Settlement and whether or not such Class Member made claims and/or received
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`payments under the Settlement.
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`27.
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`No Settlement Class Member timely submitted an objection in writing in
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`accordance with the procedure set forth in the Notice and therefore all Settlement Class Members
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`shall be deemed to have waived any objection to (a) the Settlement; (b) entry of a Final Approval
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`Order and Judgment; (c) Settlement Class Counsel’s application for attorneys’ fees and expenses
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`(including administrative and notice costs approved to be paid to the Administrator); and (d)
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`Service Award requests for the Representative Plaintiffs, whether by appeal, collateral attack, or
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`otherwise.
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`28.
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`Upon entry of this Final Approval Order and accompanying Final Judgment, all
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`Settlement Class Members, and their respective heirs, administrators, representatives, agents,
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`partners, successors and assigns, will be and hereby are enjoined from proceeding against
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`AmeriGas and all other Released Parties as defined in the Stipulation of Settlement, with respect
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`to all of the Released Claims as defined in the Stipulation of Settlement. As agreed by the Parties,
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`any Released Person’s continued sales of pre-filled propane cylinders at 15 pounds of propane do
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`not form the basis for any future claims against or liability of the Released Person. For avoidance
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`of doubt, no provision of the Releases in the Stipulation of Settlement shall release any claims
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`Releasing Persons have against Ferrellgas.
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`29.
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`Neither this Order nor the Stipulation of Settlement, nor any other Settlement-
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`related document nor anything contained or contemplated therein, nor any proceedings undertaken
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`in accordance with the terms set forth in the Stipulation of Settlement or herein or in any other
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`Settlement-related document, shall constitute, be construed as or be deemed to be evidence of or
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`an admission or concession by AmeriGas as to (a) the validity of any claim that has been or could
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`have been asserted against either or as to any liability by either as to any matter encompassed by
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`the Stipulation of Settlement or (b) the propriety of certifying any litigation class against
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`AmeriGas.
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`30.
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`Neither the Stipulation of Settlement, nor any of their terms or provisions, nor any
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`of the negotiations or proceedings connected with them, shall be construed as an admission or
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`concession by Plaintiffs or AmeriGas, respectively, of the truth or falsity of any of the allegations
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`in the Litigation, or of any liability, fault or wrongdoing of any kind.
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`31. Without affecting the finality of this Order, the Court retains jurisdiction for
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`purposes of enforcement and administration of the Stipulation of Settlement. See Kokkohnen v.
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`Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) (providing that a district court must indicate
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`in its dismissal order that it retains continuing jurisdiction regarding the settlement agreement;
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`otherwise, a district court does not have continuing jurisdiction over such agreements).
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`32.
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`The Court finds that there is no just reason for delay in the entry of judgment with
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`respect to the claims against AmeriGas in this Litigation and, accordingly, judgment shall be
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`entered forthwith with respect to such claims pursuant to Rule 54(b) of the Federal Rules of Civil
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`Procedure.
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`IT IS SO ORDERED.
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`DATED: March 30, 2021
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`s/ Gary A. Fenner
`GARY A. FENNER, JUDGE
`UNITED STATES DISTRICT COURT
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