Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 1 of 27 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

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1 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 1 of 27 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION NATIONAL TRUCKING FINANCIAL RECLAMATION SERVICES, LLC, BRUCE TAYLOR, EDIS TRUCKING, INC., JERRY FLOYD, MIKE CAMPBELL, PAUL OTTO, TOWNES TRUCKING, INC. and R&R TRANSPORTATION, INC., individually, and on behalf of all others similarly situated, vs. Plaintiffs, PILOT CORPORATION, PILOT TRAVEL CENTERS, LLC D/B/A PILOT FLYING J, FJ MANAGEMENT, INC., CVC CAPITAL PARTNERS, JAMES A. JIMMY HASLAM, III, MARK HAZELWOOD, MITCH STEENROD, SCOTT WOMBOLD, JOHN FREEMAN, VINCENT GRECO and BRIAN MOSHER, Defendants. Case No. 4:13-cv JMM DEFENDANTS PILOT CORPORATION AND PILOT TRAVEL CENTERS LLC S MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT AND APPROVAL OF NOTICE TO SETTLEMENT CLASS Defendants Pilot Corporation (f/k/a Pilot Oil Corporation and Pilot Travel Centers LLC d/b/a Pilot Flying J (collectively, Defendants or Pilot Flying J submit this memorandum in support of the Joint Motion for Preliminary Approval of Class Settlement and Approval of Notice to Settlement Class Members. Preliminary approval of both is warranted for the reasons set forth below.

2 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 2 of 27 INTRODUCTION Plaintiffs National Trucking Financial Reclamation Services, LLC, Bruce Taylor, Edis Trucking, Jerry Floyd, Mike Campbell, Paul Otto, Townes Trucking, Inc., and R&R Transportation, Inc.(collectively, Plaintiffs bring this putative class action against Pilot Flying J the largest operator of travel centers in North America and the top retail seller of over-theroad diesel fuel in the United States and various other corporate and individual defendants. In the Consolidated Amended Complaint ( CAC, Plaintiffs allege that Pilot Flying J, through certain of its employees, engaged in a fraudulent scheme whereby it entered into diesel fuel rebate or discount programs with Plaintiffs and other similarly-situated customers for the purchase of diesel fuel for commercial use but failed to pay the full amounts of rebates or discounts owed. Plaintiffs seek to recover amounts they claim they were underpaid, as well as attorneys fees, costs, and punitive damages. Plaintiffs also ask the Court to enter a permanent injunction preventing Defendants from engaging in the misconduct alleged in the CAC. Over the past two months, the parties have engaged in arms-length settlement discussions in an attempt to bring the entire controversy to a close. The Settlement Agreement, which is attached to the parties Joint Motion for Preliminary Approval of Class Settlement and approval of Notice to Settlement Class Members ( Joint Motion as Exhibit 1, is the end result of those discussions. It provides, among other things, that any class member who was not paid or was underpaid for diesel fuel rebates or discounts (or both will be compensated at 100% of what he, she, or it is owed, plus interest calculated at six percent. Plaintiffs and Defendants now jointly move for preliminary approval of their proposed settlement. The Court may approve a class settlement if it is fair, reasonable, and adequate, and not the product of collusion. Fed. R. Civ. P. 23(e.Several factors guide this inquiry, but the fairness 2

3 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 3 of 27 of the proposed class settlement turns, in large part, on the amount and form of the relief offered against the plaintiff s likelihood of success. In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 933 (8th Cir As discussed below, it is a near certainty that Plaintiffs and the settlement class members would not receive any greater benefits than will be provided by the proposed settlement, given the cost and uncertainty of continued litigation and the consideration provided to all class members under the proposed settlement. Moreover, the proposed settlement is fair, adequate, and reasonable for the class and not the product of collusion among the parties. I. PROCEDURAL HISTORY BACKGROUND Plaintiff National Trucking Financial Reclamation Services filed this putative classaction lawsuit on April 24, Over the next two-and-a-half months, the other Plaintiffs filed nearly-identical actions in federal district courts across the country. On July 16, 2013, Plaintiffs subsequently filed the CAC in this action seeking recovery for themselves and on behalf of the following putative class: (CAC 57. All persons and entities in the United States who purchased over the road diesel fuel for commercial use in Class 7 and Class 8 vehicles (as Class 7 and Class 8 are defined by the United States Department of Transportation from Defendants Pilot Corporation and Pilot Travel Centers LLC d/b/a Pilot Flying J, pursuant to a diesel fuel rebate program or discount program (which rebate or discount program is defined as a cost-plus and/or retail-minus discount program (not to include discounts for payments made by cash, check, or major credit card at point of sale, or both, from January 1, 2008 to July 15, Consistent with each Plaintiff s original complaint, the CAC alleges that Defendants represented to its commercial customers that it would provide rebates or discounts on diesel fuel purchased at Pilot and Pilot Flying J truck stops operating throughout the United States, pursuant 3

4 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 4 of 27 to diesel fuel price rebate... and discount agreements between Pilot and its commercial customers, but failed to do so. (CAC 1-2, 26. Specifically, Plaintiffs allege that Pilot Flying J employees were intentionally defrauding customers by withholding diesel fuel price rebates and discounts... without the knowledge or approval of the customers, which resulted in Pilot [Flying J]charging a higher price for diesel fuel than customers had agreed to. (Id Defendants allegedly engaged in this scheme for the dual purpose of increasing Pilot [Flying J] s profitability and the sales commissions of Pilot [Flying J] employees. (Id. 33. Based on these and other allegations, Plaintiffs assert seven claims against Defendants:(1 common-law fraud; (2 violation of the 50 states consumer protection statutes; (3 unjust enrichment; (4 conversion; (5 breach of contract; (6 violation of the Racketeer Influenced and Corrupt Organizations Act; and (7 fraudulent concealment. (Id As of the date of this Motion, Pilot Flying J is aware of at least 13 other lawsuits pending in various courts based on substantially similar allegations. One of the plaintiffs in these other suits, Ohio Auto Delivery, Inc., has filed a motion with the Judicial Panel on Multidistrict Litigation to transfer all pending federal court cases to the Northern District of Ohio. See In re Pilot Flying J Fuel Rebate Contract Litig., MDL No. 2468, Dkt. 1. Oral argument on that motion is set for July 25, (Id., Dkt. 13. II. THE PARTIES SETTLEMENT AGREEMENT In mid-may 2013, the parties began discussing the possibility of an early resolution of this lawsuit. On July 13, 2013, following approximately two months of arms-length negotiations including multiple in-person and telephonic meetings between Defendants counsel and Plaintiffs counsel and many rounds of offers and counter-offers the parties agreed on the essential terms of the settlement, other than the payment of the fees, costs, and expenses 4

5 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 5 of 27 of Plaintiffs counsel.thereafter, the parties negotiated the amount of attorneys fees and costs to be requested by Plaintiffs counsel. The parties agreed that the amount of attorneys fees and expenses to be paid to Plaintiffs counsel shall be determined by the Court and that Plaintiffs counsel would request the Court to award them fees in an amount not to exceed percent of the Total Principal Amount Owed, or $14,000,000, whichever amount is less, and their costs and expenses incurred during the litigation, as well as incentive awards to Plaintiffs in an amount not to exceed $10,000 each. On July 15, 2013, the parties formally entered into a comprehensive written Settlement Agreement. The Settlement Agreement provides for a nationwide settlement of Plaintiffs class claims, with the proposed Settlement Class defined as: all persons and entities in the United States who purchased over the road diesel fuel for commercial use in Class 7 and Class 8 vehicles (as Class 7 and Class 8 are defined by the United States Department of Transportation from Defendants Pilot Corporation and Pilot Travel Centers LLC d/b/a Pilot Flying J pursuant to a diesel fuel rebate program or discount program (which rebate or discount program is defined as a cost-plus and/or retail-minus discount program (not to include discounts for payments made by cash, check, or major credit card at point of sale, or both, from January 1, 2008, to the Execution Date of this Agreement. (Ex. 1 3, 32. The key terms of the proposed settlement are: Defendants shall pay 100% of the amount owed to each class member(the Principal based on the audited results of Defendants Internal Auditing Department ( Defendants Internal Auditor or DIA investigation into the diesel fuel rebate and discount programs, plus interest calculated at six percent of the Principal multiplied by the number of years (expressed in whole numbers or fractions of years that have passed from the date that each original rebate payment was made or discount credit was applied to the date on which the Principal is calculated, and minus any amount already paid to that class member as part of Defendants voluntary payment program (id. 12, 29, 31, 41; A court-approved independent accounting firm( Independent Accountant will review the work performed by members of DIA in calculating the compensation to be paid to class members in order to confirm, to a reasonable degree of certainty, that the work performed (1 properly identifies the class members who are entitled to compensation and (2 accurately quantifies the amount of 5

6 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 6 of 27 compensation due. At the conclusion of its review, the Independent Accountant will issue a report to the parties and this Court as to whether DIA met the accuracy criteria specified in the Settlement Agreement (id. 20, 35-38; Settlement payments will be mailed to class members within 30 days of their payments being finally calculated, although Defendants are not required to make any payment prior to 30 days after the Court enters the Final Approval Order and Judgment (id. 41; Because the results of the audit may conclude that some class members received proper discount or rebate amounts, and thus are not entitled to any settlement payment, Defendants will inform those class members of the outcome of the audit process with an additional notice (see proposed Class Action Settlement Notice, attached to Joint Mot. as Ex. 2; Any class member who disagrees with the results of DIA s investigation may request that the Independent Accountant review the calculation, and if the class member is not satisfied with the Independent Accountant s determination, the class member may retain its own accountant, at its sole cost and expense, and subsequently file a motion with the Court to challenge the Independent Accountant s decision (Joint Mot. Ex. 1 40; Defendants agree to be permanently enjoined from deliberately and deceptively withholding price rebates or discounts from customers in the United States who purchase over the road diesel fuel for commercial use in Class 7 or Class 8 vehicles, without the knowledge or approval of the customers, and which results in Pilot Flying J charging its customers a higher price for diesel fuel than the agreed-upon price (id. 46; As a condition of the nationwide settlement, Defendants also have agreed to pay (1 the costs of providing notice to the class (id. 45; (2 all fees and costs of the Class Administrator for services rendered in performing the tasks assigned to the Class Administrator (id.; (3 attorneys fees and costs to Settlement Class Counsel in an amount to be approved by the Court, but not to exceed percent of the Total Principal Amount Owed or $14,000,000, whichever is less (id ; and (4 incentive awards to the class representatives (id. 61. The attorneys fees, costs, and expenses and the incentive awards are to be paid over and above any payments to members of the Settlement Class and will not reduce the amount of any settlement payments made to class members. (Id

7 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 7 of 27 In exchange for the consideration described above, Plaintiffs and members of the Settlement Class will release Defendants of all claims, actions, or causes of actions, whether known or unknown, that Plaintiffs or class members may have for any act, omission, harm, matter, cause, or event that has occurred at any time up to the Final Settlement Date(as that term is defined in the Settlement Agreement and relates to any error, omission, or act with respect to Defendants diesel fuel sales or its rebate or discount program. (Id. 23, 72. Also, upon entry of a Final Approval Order and Judgment, this action will be dismissed with prejudice, and all Released Claims (as defined in the Settlement Agreement would be deemed conclusively settled and resolved as to Plaintiffs and all Settlement Class members. (Id. 71. To be clear, by entering into the Settlement Agreement, Defendants do not make any admission of wrongdoing or liability or of the truth of any of the claims or allegations contained in the CAC. (See id. 80.That being said, the benefits of an early settlement of this dispute are clear. Defendants, therefore, respectfully request that this Court grant preliminary approval of the parties proposed settlement and notice plan. ARGUMENT I. THE PROPOSED SETTLEMENT IS FAIR, REASONABLE, AND ADEQUATE A. Standards for Preliminary Approval of a Classwide Settlement The federal judiciary has a strong policy of promoting and encouraging settlements between litigating parties, and this is especially true in the class action context. See Schoenbaum v. E.I. Dupont De Nemours & Co., No. 4:05CV01108ERW, 2009 WL , at *2 (E.D. Mo. Dec. 8, A class action, however, may be settled on a class basis only with the Court s approval. See Fed. R. Civ. P. 23(e ( The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court s approval.. Approval is 7

8 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 8 of 27 appropriate if the proposed class settlement is fair, reasonable, and adequate, Fed. R. Civ. P. 23(e(2, and not a product of collusion, Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 116 (2d Cir Courts consider four factors in determining whether a settlement is fair, reasonable, and adequate: (1 the merits of the plaintiffs case weighed against the terms of the settlement; (2 the defendant s financial condition; (3 the complexity and expense of further litigation; and (4 the amount of opposition to the settlement. In re Uponor, Inc., F1807 Plumbing Fitting Prods.Liab.Litig., Nos & , 2013 WL , at *4 (8th Cir. June 7, 2013 (citing Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir The first factor is [t]he most important consideration. Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d at 933. Approval of a class settlement is a two-step process. See Dryer v. Nat l Football League, CIV PAM/AJB, 2013 WL , at *1 (D. Minn. Apr. 8, First, the Court makes a preliminary determination on the fairness, reasonableness, and adequacy of the settlement terms, and, if preliminarily approved, direct[s] the preparation of notice of the certification, proposed settlement, and date of the final fairness hearing. Manual for Complex Litigation (Fourth at (2004. Second, after providing notice of the proposed settlement to the class, the Court conducts a final fairness hearing (during which the parties may present evidence and any objectors may appear and enters a final approval order. Id at 322; Dryer, 2013 WL , at *1.The last of the Van Hornfactors the amount of settlement opposition is analyzed only at the final approval stage. Dryer, 2013 WL , at *1. The fair, reasonable, and adequate standard is lowered at the preliminary approval stage. Schoenbaum, 2009 WL , at *3. Preliminary approval is appropriate [i]f the proposed settlement appears to be the product of serious, informed, non-collusive negotiations, 8

9 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 9 of 27 has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls with[in] the range of possible approval. In re Telectronics Pacing Sys., Inc., 137 F. Supp. 2d 985, 1015 (S.D. Ohio 2001; see Bredthauer v. Lundstrom, Nos. 4:10CV3132, 4:10CV3139, 8:10CV326, 2012 WL , at *6 (D. Neb. Oct. 12, 2012 (granting preliminary approval to settlement that appears, on preliminary review, to be within the range of reasonableness ; Schoenbaum, 2009 WL , at *3 (courts should consider whether the settlement carries the hallmarks of collusive negotiation or uninformed decision-making, is unduly favorable to class representatives or certain class members, or excessively compensates attorneys. That is because preliminary approval is at most a determination that there is what might be termed probable cause to submit the settlement proposal to the class. In re Traffic Executive Ass n E. R.Rs., 627 F.2d at 634 (2d Cir Application of the factors and this standard demonstrates that the proposed settlement is presumptively fair, reasonable, and adequate and should be preliminarily approved. A. The Terms of the Settlement Are Objectively Reasonable, Particularly In Light of the Risks, Length, and Expense of Continued Class Litigation The Settlement Agreement provides real, meaningful relief to the class. Specifically, DIA have been engaged in determining amounts owed to class members based on non-payments or underpayments of fuel rebates or discounts. (Ex As part of the settlement, DIA will continue to investigate and calculate any amounts owed, with their work being reviewed and verified by an Independent Accountant. (Id. 33, 35. After the auditing process determines that a class member is owed money, Defendants will send that class member a check for100 percent of what the class member is owed, plus interest calculated at six percent multiplied by the number of years that has passed since the original rebate payment was made or discount credit 9

10 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 10 of 27 was applied.(id. 41, 29. Any class member who disputes the calculation may request that the Independent Accountant review the calculation at Defendants expense and, if that class member is not satisfied with the Independent Accountant s review, the class member may retain its own accountant and file a motion to challenge the calculation. (Id. 40. Moreover, class members need not wait to receive their settlement checks until any appeal of the settlement has been adjudicated; rather, Defendants will send class members their settlement checks within 30 days of DIA s calculating those amounts (or, at its discretion, within 30 days of the final settlement approval. (Id. 41. And if this Court declines to approve the Settlement Agreement or if the final approval is reversed on appeal, all Settlement Payments already made will remain the property of the Class Members who received the Settlement Payments. (Id. 47. Still further, Defendants agree to be permanently enjoined from withholding price rebates or discounts from its customers without their knowledge or approval. (Id. 46. In other words, all class members who are entitled to compensation will receive more than what they are owed, do not have to wait for a lengthy litigation process to receive their compensation, and can retain the money even if the settlement ultimately falls through. And class members will receive these benefits without incurring any costs of administration or attorneys fees. (Joint Mot. Ex Class members who received the proper rebate or discount amounts in the ordinary course of business will be notified of this fact (id. Ex. 2 at 2, and they will be given an opportunity to challenge the auditors decision (id. Ex This is especially fair in light of the substantial risks that Plaintiffs would face if they were forced to litigate this class action through trial. If not approved, Defendants intend to vigorously litigate this case, including filing motions to dismiss and for summary judgment and 10

11 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 11 of 27 opposing class certification. Extensive litigation, including a class certification hearing, trial, and one or more appeals, would expend significant time and resources for each party and the Court. The complexities and uncertainties of this type of complex litigation in general, and of this case in particular, dictate that Plaintiffs settle and compromise in a way that will immediately provide them and the class with concrete, certain benefits. Cf. Air Line Stewards & Stewardesses Ass n v. Am. Airlines, Inc., 455 F.2d 101, 109 (7th Cir ( [T]he public interest may indeed be served by a voluntary settlement in which each side gives ground in the interest of avoiding litigation.. Several key facts cast significant doubt on whether this action would be properly maintainable as a class action for trial purposes and make it unlikely that Plaintiffs would succeed on the merits of a classwide trial using common, classwide proof. For instance, according to the CAC s allegations, Defendants fraudulent scheme targeted only unsophisticated customers while Pilot Flying J continued to properly pay its sophisticated customers the rebates and discounts they were owed. (CAC 38-41, 46. If Plaintiffs theory is correct, only those class members who were targeted by the scheme have been injured and suffered damagesand, thus, have potentially viable claims. Because Rule 23 cannot be used to alter the nature of a plaintiff s claims, at least a significant portion of the class cannot succeed on the merits. Plaintiffs also maybe unable to prove fact of injury and damages with common, classwide evidence, thus making it unlikely that any class-action trial would be manageable, efficient, and fair, all as required by Federal Rule of Civil Procedure 23(b(3. See Comcast Corp. v. Behrend, 133 S. Ct. 1426, (2013. The CAC also seeks recovery for common-law claims of fraud, fraudulent concealment, breach of contract, conversion, and unjust enrichment and for violations of the consumer 11

12 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 12 of 27 protection laws of the 50 states and the District of Columbia, on behalf of a nationwide class of Defendants customers. If this lawsuit were to proceed to trial as a nationwide class action, however, the Court would be required to instruct the jury on the laws of up to 50 different states. This would result in a complex, unmanageable trial or, more likely, an inefficient series of stateby-state trials. In contrast, the proposed settlement provides immediate compensation to the customers who did not receive their agreed-upon diesel fuel rebates and discounts, while also permanently enjoining Defendants from withholding price rebates and discounts in the future relief that the CAC specifically seeks. Importantly, the proposed settlement will relieve the parties and this Court of the inefficiencies and costs of litigating this putative class action. See DeBoer, 64 F.3d at 1178 ( The parties to a class action are not required to incur immense expense before settling as a means to justify that settlement. ; Telectronics, 137 F. Supp. 2d at 1013 ( [A]bsent a settlement, there would no doubt be substantial time and expense devoted to motion practice, likely appeals from those motions, multiple trial preparations, trials, and appeals from trials.. Simply put, this settlement ensures class members are made (more than whole without the time and expense of complex litigation. Thus, the Settlement Agreement is objectively fair, reasonable, and adequate to the class and qualifies for preliminary approval. B. The Settlement Was Reached Through Good-Faith Bargaining An important factor relevant to the fairness determination is whether the settlement was reached through good-faith bargaining among the parties. See Wal-Mart Stores, Inc., 396 F.3d at 116 (noting that a presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm s-length negotiations between experienced, capable counsel ;In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 122 (S.D.N.Y ( Where a 12

13 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 13 of 27 settlement is the product of arm s length negotiations conducted by experienced counsel knowledgeable in complex class litigation, the negotiation enjoys a presumption of fairness. In this case, the settlement was reached after substantial good-faith bargaining. Specifically, after two months of negotiations and multiple rounds of offers and counter-offers, the parties agreed on the settlement s essential terms on July 13, It was only after this agreement as to the class members benefits did the parties negotiate a reasonable amount of attorneys fees to be requested by Settlement Class Counsel. The agreement also was negotiated between experienced, capable counsel. See, e.g., DeBoer, 64 F.3d at 1178 (noting that the settling parties views as to the propriety of the settlement are entitled to some weight and affirming class settlement where class counsel is experienced in this type of litigation. For instance, Don Barrett, the lead negotiating attorney for Plaintiffs, is one of the preeminent trial lawyers in America and has significant experience in complex, class-action litigation, including as lead counsel for the plaintiffs in Cox v. Shell Oil Co., a class-action case that resulted in the largest property-damage class settlement in the United States, and as a principal negotiator for the plaintiff class in In re Inter-Op Hip Prosthesis Liability Litigation, MDL No. 1401, in which he negotiated a $1.045 billion class settlement with the defendants. See Similarly, lead defense counsel Aubrey Harwell has more than four decades of commercial litigation experience, including in many cases receiving national attention.seehttp:// Neither the substantive terms of the Settlement Agreement nor its provisions regarding attorneys fees and costs indicate that the Settlement Agreement is the product of fraud, collusion, or Plaintiffs or their attorneys abandonment of the class interests. Thus, this factor favors preliminary approval of the proposed settlement. 13

14 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 14 of 27 C. The Settlement Agreement Provides for a Formal Fairness Hearing The Settlement Agreement provides for a formal Fairness Hearing. (Joint Mot. Ex At the Fairness Hearing, the Court will consider, among other things, whether to grant final approval of the certification of the Settlement Class and the terms of the Settlement Agreement, whether to grant Settlement Class Counsel s request for attorneys fees and costs and for an incentive awards to Plaintiffs, as well as any objections to the settlement or Settlement Class Counsels fee request. (Id. 68. To ensure that class members may exclude themselves from the settlement or object to the settlement, the Settlement Agreement provides for mailed notice to all class members. (Id. 51. It also requires the Class Administrator to maintain an Internet website with information about the settlement and requires Pilot Flying J to issue a press release announcing the settlement through a national news wire service.(id.given the substantial media interest in and coverage of the putative class actions filed against Defendants to date, the parties anticipate that the press release will generate substantial media coverage of the settlement. These settlement notice provisions satisfy [t]he essence of procedural due process... that the parties be given notice and opportunity for a hearing. Jones v. Nuclear Pharm., Inc., 741 F.2d 322, 325 (10th Cir. 1984; see also Telectronics, 137 F. Supp. 2d at II. THE COURT SHOULD CERTIFY THE SETTLEMENT CLASS The Federal Rules of Civil Procedure allow a case to be certified as a class action only if the action satisfies all four requirements of Rule 23(a numerosity, commonality, typicality, and adequacy and at least one of the three categories in Rule 23(b. These requirements apply when a class is proposed to be certified for settlement purposes. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997 (holding that requests for settlement-only class certification are subject to Rule 23 s certification requirements; Simmons v. Enter. Holdings, Inc., No. 14

15 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 15 of 27 4:10CV00625 AGF, 2012 WL , at *1 (E.D. Mo. March 6, 2012 ( [T]his Court may, upon request of the parties, certify a class solely for purposes of settlement after making a determination that the proposed class satisfies the criteria set out in Rule 23(a and at least one of the subsections of Rule 23(b. (internal quotation marks, citation omitted.in the context of settlement, Rules 23(a and (b continue to serve the purpose of focus[ing] court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. In re AIG, Inc. Sec. Litig., 689 F.3d 229, 239 (2d Cir (quoting Amchem, 521 U.S. at 621 (alteration in original. In Amchem, the Supreme Court held that a trial court may consider the settlement in determining whether Rule 23 is satisfied because [s]ettlement is relevant to class certification. 521 U.S. at 619.A district court [c]onfronted with a request for settlement-only class certification... need not inquire whether the case, if tried, would present intractable management problems, for the proposal is that there be no trial. Id.at 620; see also Sullivan v. DB Investments, Inc., 667 F.3d 273, 335 (3d Cir (Scirica, concurring ( A key question in a litigation class action is manageability how the case will or can be tried, and whether there are questions of fact or law that are capable of common proof. But the settlement class presents no management problems because the case will not be tried.. As briefly described above, this action likely could not be properly certified as a national class action for trial purposes because of the differences in experiences among the class members and the variations among the state laws at issue. Because the parties are requesting certification of a settlement class, not a trial class, the proposed settlement, if approved, means that there would not be a trial and that the many case-management problems that could plague a trial class 15

16 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 16 of 27 would not arise. Thus, Defendants are willing to stipulate, for settlement purposes only, that the proposed Settlement Class complies with Rule 23(a s and (b(3 s certification requirements. A. Rule 23(a Is Satisfied for Settlement Purposes 1. The Settlement Class Is So Numerous That Joinder of All Members Is Impracticable The first prerequisite to class certification is that the class be so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a(1. Although... no arbitrary rules regarding the necessary size of classes have been established, the plaintiff bears the burden of establishing that numerosity does exist. Belles v. Schweiker, 720 F.2d 509, 515 (8th Cir.1983.Based on the information available to date, Defendants believe there are more than 4,000 Pilot Flying J customers who would fall within the Settlement Class. For purposes of effecting the settlement, Defendants stipulate that the numerosity requirement is satisfied. 2. There Are Questions of Law or Fact Common to All Class Members for Settlement Purposes The second prerequisite to class certification the commonality requirement is that there be questions of law or fact common to the class. Fed. R. Civ. P. 23(a(2.The commonality requirement is satisfied where the plaintiffs claims depend on a common contention that is capable of classwide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011. A single common question is sufficient to establish Rule 23(a(2. Id. at For purposes of effecting the settlement, Defendants stipulate to the existence of questions of law or fact common to all members of the proposed Settlement Class, including whether Defendants withheld agreed-upon rebates and discounts from class members. 16

17 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 17 of The Typicality Requirement Is Satisfied for Settlement Purposes The third prerequisite to class certification is that Plaintiffs claims be typical of the claims of the class. Fed. R. Civ. P. 23(a(3. Typicality focuses on whether other class members have claims similar to the named plaintiff, DeBoer, 64 F.3d at 1174, and is generally considered to be satisfied if the claims or defenses of the representatives and the members of the class stem from a single event or are based on the same legal or remedial theory, Ginardi v. Frontier Gas Servs., LLC, No. 4:11-CV BRW, 2012 WL , at *2 (E.D. Ark. Apr. 19, 2012 (quoting Paxton v. Union Nat l Bank, 688 F.2d 552, (8th Cir For purposes of effecting the settlement, Defendants stipulate that Plaintiffs claims are typical of the claims of the Settlement Class. Plaintiffs allege that they have been damaged by the same conduct that allegedly damaged other members of the Settlement Class: Defendants alleged scheme to wrongfully withhold or reduce agreed-upon fuel discounts and rebates. Moreover, the claims of Plaintiffs and other members of the Settlement Class are based upon corresponding theories, such as fraud, fraudulent concealment, breach of contract, unjust enrichment, conversion, and violations of RICO and other statutes. For purposes of the settlement, Plaintiffs claims are not in conflict with or antagonistic to the claims of the Settlement Class as a whole. 4. Plaintiffs Will Fairly and Adequately Protect the Settlement Class Interests The fourth prerequisite is that Plaintiffs and their attorneys be able to fairly and adequately represent the interests of the class. Fed. R. Civ. P. 23(a(4. The focus of Rule 23(a(4 is whether: (1 the class representatives have common interests with the members of the class, and (2 whether the class representatives will vigorously prosecute the interests of the class 17

18 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 18 of 27 through qualified counsel. Garner v. Butterball, LLC, No. 4:10CV01025 JLH, 2012 WL , at *4 (E.D. Ark. Feb. 22, 2012 (quoting Paxton, 688 F.2d at For purposes of effecting the settlement, Defendants stipulate that Plaintiffs will fairly, fully, and adequately protect the interests of the Settlement Class. Defendants are not aware of any interests Plaintiffs or their counsel may have that would conflict with, or be adverse to, those of the class. There also is no dispute that Settlement Class Counsel is experienced in prosecuting class litigation. B. The Class Satisfies Rule 23(b(3 for Settlement Purposes Rule 23(b(3 allows a class action to be maintained if the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b(3. To satisfy the predominance standard, plaintiffs must show that [various elements] can be proven on a systematic, class-wide basis. Blades v. Monsanto Co., 400 F.3d 562, 569 (8th Cir The predominance and superiority inquiries will sometimes be easier to satisfy in the settlement context, AIG Sec. Litig.,689 F.3d at 240, because the court need not inquire whether the case, if tried, would present intractable management problems, Amchem, 521 U.S. at 620. For purposes of effecting the settlement, Defendants stipulate to the existence of predominant questions of law and fact common to all members of the proposed Settlement Class based on Plaintiffs allegations that Defendants engaged in a scheme to withhold or reduce agreed-upon rebates and discounts from certain class members for the purpose of increasing Pilot Flying J s profitability and its employees sales commissions. 1 Defendants further stipulate, for 1 To the extent Plaintiffs seek certification for settlement purposes under Rule 23(b(2, Defendants will stipulate, for purposes of effecting the settlement only, that the Settlement Class 18

19 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 19 of 27 the purpose of this settlement, to the superiority of the Settlement Class and the Settlement Agreement over continued litigation. As described above, the settlement will provide all injured class members with full, immediate compensation and ensures that Defendants do not engage in the alleged wrongful conduct in the future. The settlement also relieves class members from engaging in time consuming, costly litigation. To be sure, Plaintiffs allege violations of all 50 states deceptive trade practices statutes, as well as various common-law claims that likely would have to be adjudicated under the laws of class members respective home states. See Phillips Petrol. Co. v. Shutts, 472 U.S. 797, 821 (1985. Although adjudication under the laws of up to 50 states would make certification for trial difficult, state-law differences will not defeat a finding of predominance for a nationwide settlement class. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 530 (3d Cir (the fact that there may be variations in the rights and remedies available to injured class members under the various laws of the fifty states in this matter does not defeat commonality and predominance ; accord In re Ky. Grilled Chicken Coupon Mktg.& Sales Prac. Litig., 208 F.R.D. 364, 385 (N.D. Ill. 2011; In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935, 974 (N.D.Ill. 2011; In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1059 (S.D. Tex This is so because the same concerns with regards to case manageability that arise with litigation classes are not present with settlement classes, and thus those [state-law] variations are irrelevant to certification of a settlement class. Warfarin Sodium, 391 F.3d at 529; see also Gotthelf v. Toyota Motor Sales, U.S.A., Inc., 2013 WL , at *6 n. 13 (3d Cir. May 21, satisfies Rule 23(b(2. See DeBoer, 64 F.3d at 1175 (noting that [i]f the Rule 23(a prerequisites have been met and injunctive or declaratory relief has been requested, the action usually should be allowed to proceed under subdivision (b(2. 19

20 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 20 of 27 Nor does the fact that the individualized questions of injury and damages preclude certification of the proposed Settlement Class. Although the presentation of individualized proofs of injury and damages would make a class trial unmanageable and inefficient, that same concern is not present with settlement classes. See, e.g., In re Oil Spill by Oil Rig Deepwater Horizon in Gulf of Mex., on April 20, 2010, 910 F. Supp. 2d 891, 924 (E.D. La ( [C]ertain causation issues remain that would have to be decided on an individual basis were the cases not being settled.... These limited individualized issues do not defeat predominance in light of the core common issues that are appropriate for classwide treatment.. To the contrary, the Settlement Agreement directly resolves issues of injury and damages: DIA will continue to determine amounts owed to class members based on non-payments or underpayments, if any; the Independent Accountant will verify this auditing procedure; and class members may object to their findings. Because this proposed resolution of injury and damages questions will not pose any management concerns to the Settlement Class, common issues predominate in this settlement class. See, e.g., In re FEMA Trailer Formaldehyde Prod. Liab. Litig., No. 2:07-MD- 1873, 2012 WL , at *3 (E.D. La. Sept. 27, 2012 (finding predominance where, inter alia, the Settlement sufficiently addresses issues of product identification, causation, injury and damages, which otherwise would be considered individual in a litigated class. Accordingly, the Rule 23(a and (b requirements for certification of the proposed Settlement Class are satisfied, and that class should be certified here. III. THE NOTICE AND DISTRIBUTION PLAN ARE REASONABLE Notice of a class action settlement must be reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Grunin v. Int l House of Pancakes, 513 F.3d 114,

21 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 21 of 27 (8th Cir (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950. In addition, the notice must reasonably... convey the required information and afford a reasonable time for those interested to make their appearance. Id. (citations omitted. Because Rule 23(e only provides that notice be given in such manner as the court directs, the mechanics of the notice process are left to the discretion of the court subject only to the broad reasonableness standards imposed by due process. Id. at 121. Those standards are met here. The parties have submitted a proposed Settlement Notice (attached to the Joint Motion as Exhibit 2 and a plan for its dissemination by direct mail to members of the Settlement Class following utilization of a National Change of Address database to ensure that the addresses on file are as accurate as possible. (Joint Mot. Ex The Class Administrator will send the Settlement Notice, by first-class United States Mail, to every member of the Settlement Class whose address is known to Defendants. (Id. The Class Administrator also will make the Settlement Notice available on an Internet website that will provide basic information regarding the Settlement. (Id. The proposed Settlement Notice states concisely and in plain language (1 the nature of the action, (2 the definition of the certified class, (3 the class claims, issues or defenses, (4 that a class member may enter an appearance through an attorney if the member so desires, (5 that the Court will exclude from the class any member who requests exclusion, (6 the time and manner for requesting exclusion, and (7 the binding effect of a class judgment on members under Rule 23(c(3 and the terms of the releases. The content of the notice therefore complies with Rule 23(c(2(B. Due process also requires that a settlement notice contains a description of class members rights in the litigation and informs class members that they have an opportunity to be 21

22 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 22 of 27 heard and to participate in the litigation, whether in person or through counsel, and an opportunity to present objections to the settlement. See Shutts, 472 U.S. at The parties proposed Settlement Notice meets these additional due process requirements. (See Ex. 2. CONCLUSION For all these reasons, Defendants Pilot Corporation and Pilot Travel Centers LLC respectfully request that the Court grant preliminary approval of the parties proposed settlement and approve the proposed notice to the class. A proposed form of order is submitted as Exhibit 3 to the parties Joint Motion. Dated: July 16,

23 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 23 of 27 Respectfully submitted, /s/ Aubrey B. Harwell, Jr. Aubrey B. Harwell, Jr. Aubrey B. Harwell, III George H. Cate III Neal & Harwell, PLC 150 Fourth Avenue, North, Suite 2000 Nashville, TN Telephone: ( Facsimile: ( aharwell@nealharwell.com ATTORNEYS FOR DEFENDANTS PILOT CORPORATION and PILOT TRAVEL CENTERS LLC /s/ Glenn Kurtz Glenn Kurtz Greg Starner Josh Weedman White & Case LLP 1155 Avenue of the Americas New York, NY Telephone: ( gstarner@whitecase.com ATTORNEYS FOR DEFENDANTS PILOT CORPORATION and PILOT TRAVEL CENTERS LLC /s/ Michael T. Williams James E. Hooper Michael T. Williams Wheeler Trigg O Donnell LLP 370 Seventeenth Street, Suite 4500 Denver, CO Telephone: ( Facsimile: ( hooper@wtotrial.com ATTORNEYS FOR DEFENDANTS PILOT CORPORATION and PILOT TRAVEL CENTERS LLC 23

24 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 24 of 27 CERTIFICATE OF SERVICE I hereby certify that on this 16th day of July, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which shall serve the following: Don Barrett (MS Bar No Barrett Law Group, P.A. 404 Court Square North Lexington, MS Telephone: ( Facsimile: ( dbarrett@barrettlawgroup.com ATTORNEY FOR BRUCE TAYLOR Michael L. Roberts Roberts Law Firm, P.A. 20 Rahling Circle PO Box Little Rock, AR Telephone: ( Facsimile: ( mikeroberts@robertslawfirm.us ATTORNEY FOR NATIONAL TRUCKING FINANCIAL RECLAMATION SERVICES, LLC Thomas P. Thrash (AR Bar No Thrash Law Firm, P.A Garland Street Little Rock, AR Telephone: ( Facsimile: ( TomThrash@sbcglobal.net ATTORNEY FOR NATIONAL TRUCKING FINANCIAL RECLAMATION SERVICES, LLC Ben Barnow Sharon A. Harris Erich P. Schork Blake A. Strautins Barnow & Associates, P.C. 1 North LaSalle Street, Suite 4600 Chicago, IL

25 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 25 of 27 Telephone: ( b.barnow@barnowlaw.com ATTORNEY FOR EDIS TRUCKING, INC. Shpetim Ademi John D. Blythin Ademi & O Reilly, LLP 3620 E. Layton Avenue Cudahy, WI Telephone: ( sademi@ademilaw.com ATTORNEY FOR EDIS TRUCKING, INC. Richard L. Coffman The Coffman Law Firm 505 Orleans, Suite 505 Beaumont, TX Telephone: ( Facsimile: ( rcoffman@coffmanlawfirm.com ATTORNEY FOR EDIS TRUCKING, INC. G. Robert Blakey 7002 East San Miguel Ave. Paradise Valley, AZ ATTORNEY FOR EDIS TRUCKING, INC. Dewitt M. Lovelace Lovelace Law Firm, P.A US HWY 98 W STE 200 Miramar Beach, FL Telephone: ( Facsimile: ( courtdocs@lovelacelaw.com ATTORNEY JERRY FLOYD Richard R. Barrett Law Office of Richard R. Barrett, PLLC 1223 Jackson Ave., Suite 203 Oxford, MS Telephone: ( Facsimile: ( rrb@rrblawfirm.net ATTORNEY FOR MIKE CAMPBELL 25

26 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 26 of 27 William E. Hoese Kohn, Swift, & Graf, P.C. One S. Broad Street, Suite 2100 Philadelphia, PA Telephone: ( Facsimile: ( whoese@kohnswift.com ATTORNEY FOR MIKE CAMPBELL Elizabeth A. Alexander Michael W. Sobol Kenneth S. Byrd Lieff, Cabraser, Heimann & Bernstein, LLP One Nashville Place 150 Fourth Avenue, N, Suite 1650 Nashville, TN Telephone: ( Facsimile: ( ealexander@lchb.com ATTORNEY FOR PAUL OTTO Charles F. Barrett Barrett & Associates, P.A Highway 100, Suite 210 Nashville, TN Telephone: ( Facsimile: ( charles@cfbfirm.com ATTORNEY FOR PAUL OTTO Daniel E. Becnel, Jr. Becnel Law Firm, LLC 106 W. Seventh St. P. O. Drawer H Reserve, LA Telephone: ( dbecnel@becnellaw.com ATTORNEY FOR TOWNES TRUCKING, INC. 26

27 Case 4:13-cv JMM Document 5 Filed 07/16/13 Page 27 of 27 Michael Hausfeld Hausfeld LLP 1700 K Street NW, Suite 650 Washington, DC Telephone: ( Facsimile: ( mhausfeld@hausfeldllp.com ATTORNEY FOR R&R TRANSPORTATION, INC. /s/ Ronald G. Harris 27