If You Own or Owned Land in Missouri Where Sho-Me Power Electric Cooperative Installed Fiber-Optic Cable,

Transcription

1 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI, CENTRAL DIVISION If You Own or Owned Land in Missouri Where Sho-Me Power Electric Cooperative Installed Fiber-Optic Cable, You Could Receive Money from a Class Action Settlement. A federal court authorized this notice. This is not a solicitation from a lawyer. A Settlement has been reached in the class action about whether Sho-Me Power Electric Cooperative and Sho-Me Technologies, LLC, (the Sho-Me Defendants ) unlawfully used electric-transmission line rights of way for commercial telecommunications purposes. A $25 million Settlement Fund will pay landowners claims, as well as certain administrative expenses and fees for the lawyers appointed by the Court. In exchange, the Sho-Me Defendants will be provided certain permanent commercial telecommunications easement rights in the electrictransmission rights of way. You may be included in the Settlement if you own or owned property on or after January 21, 2005 through which Sho-Me Power Electric Cooperative had electric-transmission lines, when fiber-optic cables installed on those lines were used for commercial telecommunications. Your legal rights are affected whether you act or don t act. Please read this notice carefully. SUBMIT A CLAIM FORM YOUR LEGAL RIGHTS AND CHOICES IN THIS LAWSUIT The only way to get a payment. Claim Forms will be mailed after the Court grants final approval to the Settlement. OBJECT TO THE SETTLEMENT EXCLUDE YOURSELF GO TO A HEARING DO NOTHING You may write to the Court about why you don t like the Settlement. The deadline to exclude yourself from (or opt out of) this lawsuit has passed. If you object, you may also ask to speak in Court about the fairness of the Settlement. Get no payment. Current landowners will be subject to an Easement (see Question 17). These rights and options and the deadlines to exercise them are explained in this notice. The Court in charge of this case still has to decide whether to approve the Settlement. Payments will be made if the Court approves the Settlement and after any appeals are resolved. Please be patient. 1

2 WHAT THIS NOTICE CONTAINS BASIC INFORMATION... PAGE 3 1. Why did I get this notice? 2. Why is this a class action? 3. What is the lawsuit about? 4. Was there a previous notice? Should I disregard it? 5. Why is there a Settlement? 6. What is an easement and how do I know if I have one? WHO IS IN THE SETTLEMENT?... PAGE 5 7. How do I know if I am part of the Settlement? 8. Are there exceptions to who is included in the Settlement? 9. How do I determine if I m in the Sho-Me Class? 10. What if I know people who are Sho-Me Class Members who did not receive this notice? 11. What should I do if I move or sell my property? THE SETTLEMENT... PAGE What does the Settlement provide? 13. What can I get from the Settlement? 14. What are the Benefits? 15. What if I inherited my property? 16. What if there are multiple owners of my property? 17. What is the Easement? THE CLAIMS PROCESS... PAGE How can I get a payment? 19. When will I get my payment? 20. What if I disagree with the amount of my payment? THE LAWYERS REPRESENTING YOU... PAGE Do I have a lawyer in this case? 22. How will the lawyers be paid? OBJECTING TO THE SETTLEMENT... PAGE How do I tell the Court that I don t like the Settlement? THE COURT S FAIRNESS HEARING... PAGE When and where will the Court decide whether to approve the Settlement? 25. Do I have to come to the hearing? 26. May I speak at the hearing? IF YOU DO NOTHING... PAGE What happens if I do nothing at all? GETTING MORE INFORMATION... PAGE How do I get more information? 2

3 BASIC INFORMATION 1. Why did I get this notice? You have a right to know about a proposed Settlement of a class action lawsuit, and about your options, before the Court decides whether to approve the Settlement. You may have received a previous notice of this lawsuit if you owned land in Missouri on or after January 21, 2005 over which Sho-Me Power Electric Cooperative had written easements for electric-transmission lines. The Sho-Me Defendants installed fiber-optic cable on the poles or structures supporting the transmission lines and used or licensed the fiber optic cable for commercial telecommunications services. Commercial telecommunications services include those typically provided by telephone companies or Internet providers. The Court in charge of the case is the United States District Court for the Western District of Missouri, Central Division. The case is known as Barfield v. Sho-Me Power Electric Cooperative, No. 2:11-cv U.S. District Judge Nanette K. Laughrey is in charge of the class action. The people who sued are called Plaintiffs, and the companies they sued, Sho-Me Power Electric Cooperative and Sho-Me Technologies, LLC, are referred to as the Sho-Me Defendants. 2. Why is this a class action? In a class action, one or more people, called Class Representatives, sue on behalf of people who have similar claims. All these people with similar claims are called a Class and the individuals are called Class Members. One court resolves the issues for all Class Members, except for those who exclude themselves from the Class. 3. What is the lawsuit about? The lawsuit claims two electric cooperatives (the Sho-Me Defendants and KAMO Electric Cooperative and its subsidiary, K-PowerNet, LLC) exceeded the scope of easements granted for electric-transmission lines. Plaintiffs previously reached a Settlement with KAMO. The issue in this lawsuit is whether the Sho-Me Defendants needed to obtain new easements (besides the written electric easements they already had) from landowners to permit them to use the fiber-optic cables for commercial telecommunications. For an explanation of the term easement, see Question 6. The Plaintiffs asked the Court to rule that Sho-Me does not have the right to use the land for commercial telecommunications without paying for new easements. The Plaintiffs also asked for an award of money damages to eligible Missouri landowners for the commercial telecommunications use. The Sho-Me Defendants denied these claims and denied that they have done anything wrong. The Court concluded that the Sho-Me Defendants have differing levels of property rights in connection with their electric-transmission rights of way depending on the language of their easements. The Court concluded that whether the Sho-Me Defendants actions were wrong depends on the type of easement language used by the Sho-Me Defendants. An appellate court agreed that the Sho-Me Defendants should have obtained new easements from 3

4 some of the Class Members. After the appeal, both sides continued to disagree about the amount of compensation owed to the Class Members. 4. Was there a previous notice? Should I disregard it? In July 2014, after the Court decided that this case could be a class action, it notified Class Members about the class action. There was a direct mail notice sent to individuals whose names were recorded in county records as the owner of a parcel as of mid-year 2014 and a published notice that appeared in a newspaper supplement and consumer magazine. That notice advised Class Members to notify the Claims Administrator if they sold the property and provide information on the purchaser as well as to inform the new purchaser that they were Class Members. (See Question 11, below.) Both the published and the direct mail 2014 notices informed Class Members that the deadline for excluding oneself from the lawsuit was September 8, 2014 and that their decision would bind individuals who purchased the parcel after them. That deadline has passed and you can no longer exclude yourself or opt-out of the lawsuit. There is a small group of landowners who did not receive direct notice in Those landowners still have the right to exclude themselves. But, if you received this notice directly, then property records indicate that you already received notification to exclude yourself and you no longer have the right to do so. 5. Why is there a Settlement? A trial was held and there was an initial jury verdict, but it was overturned on appeal. A second trial was held, but the judge vacated or overturned the second jury verdict. As a result, both sides have decided to settle to avoid the costs and risks of a third trial and further appeals. If the Settlement with the Sho-Me Defendants is approved by the Court, the Sho-Me Defendants will make payments to Class Members whose property had easements that did not permit the Sho- Me Defendants to conduct commercial telecommunications. In exchange, under the Settlement, Class Members give the Sho-Me Defendants an Easement in the electric-transmission right of way, and the Class Members will release the Sho-Me Defendants from all claims brought in the lawsuit. The release does not include any individual claims for physical damage to persons or property related to the fiber-optic cables because these claims are not at issue in the lawsuit. The Easement given through the Settlement will be for Commercial Communications Purposes and is described more fully in Question What is an easement and how do I know if I have one? An easement is a right held by one party to use land owned by another party in the way stated in the easement. There are a number of different types of language used in the easements covered by this class action. The compensation available to a Sho-Me Class Member under the Settlement depends on the type of easement language that applies to the Sho-Me Class Member s land. You do not need to find a copy of your easement to be a Class Member. The attorneys appointed to represent all Class Members have already obtained copies of all the easements from the Sho-Me Defendants. But if you would like to know whether you have an electric easement on your property that is owned by Sho-Me, it should be indicated in the public records for your property. 4

5 WHO IS IN THE SETTLEMENT? 7. How do I know if I am part of the Settlement? You are a member of the Sho-Me Class if you own or co-own (or formerly owned or co-owned) covered land on or after January 21, 2005 in the following Missouri counties: Camden, Crawford, Dallas, Dent, Douglas, Franklin, Gasconade, Greene, Howell, Laclede, Maries, Miller, Oregon, Ozark, Phelps, Pulaski, Shannon, Texas, Webster or Wright. The covered land includes land burdened by a Sho-Me Power written electric easement on which Sho-Me Power installed fiber optic cable and used it for commercial communication purposes. 8. Are there exceptions to who is included in the Settlement? You are not a Sho-Me Class Member entitled to Benefits under the Settlement if: Your property is not crossed by a Sho-Me Power electric-transmission right of way. You own (or owned) land where the fiber-optic cable is only installed on or under public streets or highways. You receive commercial communications service directly from the Sho-Me Defendants. You mailed a valid and timely request to be excluded from this class action on or before September 8, If you excluded yourself, you cannot share in a judgment that awards money to Sho-Me Class Members with your type of claim. Your property is subject to an easement that contains an arbitration clause. Your property is subject to an easement that the trial judge interpreted to permit commercial telecommunications. Also excluded from the Class are the Defendants, their employees, all local, state, and federal governments and their agencies, any Indian tribe, and the trial judge. 9. How do I determine if I m in the Sho-Me Class? This notice was mailed to people who requested it or who were listed in county tax records as the current owners of the land under Sho-Me Power Electric Cooperative s electric-transmission lines where fiber-optic cable was installed. If you received this notice in the mail without requesting it, land records show you may be affected by this case. You can go to to see the description of the rights of way that are included in the Settlement. If you are still not sure if you are in the Sho-Me Class, you can call to see if your property is included in the Settlement. 10. What if I know people who are Sho-Me Class Members who did not receive this notice? Landowners who currently appear in the tax records or who appeared in mid-year 2014 and provided the Claims Administrator with notice of a change of address were included in the mailing 5

6 list. If you are a Sho-Me Class Member, then the people who sold you your property (or to whom you sold your property) may also be members of the Sho-Me Class. This notice will also be mailed to anyone who requests it. If you received this notice and believe you know other people who are Sho-Me Class Members who did not receive a notice, please ask them to request a copy of the notice by (1) calling , (2) sending a message to settlements@straupsolutions.com, (3) visiting or (4) writing to: Sho-Me Fiber Settlement, P.O. Box , Dallas, TX What should I do if I move or sell my property? If you move after receiving this notice, please send a letter with your new address to the address listed above. In addition, if you sell the land that is included in the Sho-Me Class, please send the name of the person who purchased your property to the address listed above. 12. What does the Settlement provide? THE SETTLEMENT A Settlement Agreement, available at the website, describes the details about the Settlement. Generally, the Settlement will pay valid claims from Sho-Me Class Members. Also, as a result of the Settlement, the Court will exercise its authority to grant the Sho-Me Defendants an Easement that includes the right to install and use Communications Systems, as described in the Easement Deed by Court Order in Settlement of Landowner Action attached to the Settlement Agreement as Exhibit F and available at the website listed below. 13. What can I get from the Settlement? The Settlement will provide cash payments to those who qualify. You do not need to calculate your payment amount. Your payment will be determined for you at a later date. This information is provided to you to help you understand the potential value of the Settlement. The amount of your payment will depend on a number of factors, including: How many feet of property you own under Sho-Me Power Electric Cooperative s electrictransmission right of way, The type of language in the Sho-Me Defendants easement on your property (see Benefits in Question 14), How many people co-own the property with you, Whether you are a current owner or former owner of the property, and How many former owners of your property submit claims. 14. What are the Benefits? If your property has an easement held by the Sho-Me Defendants where the easement language puts the easement into a category found by the Court not to permit use of your property for commercial telecommunications purposes, you are eligible to receive Benefits. 6

7 Future Use Benefits: If you own the property on the date on which the Court s order and judgment granting final approval to the Settlement becomes final, your payment would be at an amount to be determined later with the Court s approval, but not less than $1.84 per foot. Past Use Benefits: If you owned the property at any time after January 21, 2005, you are eligible to share an additional per foot payment with any others who owned the same property during that time period and who submit a claim for Benefits. If no other owner submits a claim for Benefits, you would receive all of the additional Past Use Benefits, in an amount to be determined later with the Court s approval, but not less than $1.84 per foot. Supplemental Benefits: Supplemental Benefits only will be available if there are Settlement Funds remaining after payment of Qualified Claims, attorneys fees, and administrative expenses. Available Supplemental Benefits will be distributed on a pro-rata or proportional basis among the Qualified Claims. If the amount of Qualified Claims is below 30% of the Settlement Fund (after attorneys fees and expenses), then the Court may decide to either distribute additional money to Class Members or to distribute money to non-profit organizations. Both current and former owners are eligible for Benefits. The documents that must be submitted to qualify for Benefits are described in the Claim Form that will be distributed to Sho-Me Class Members if the Court approves the Settlement. 15. What if I inherited my property? If you are eligible for Benefits and you inherited your property after January 21, 2005, along with any property-based claims that were owned by your ancestor, you will be able to make a separate claim for an additional share of Past Use Benefits based on your ancestor s ownership. For example, if: You owned the property from January 1, 2011 to the present, Your ancestor owned the property from January 1, 2008 to January 1, 2011, and An unrelated former owner owned the property from January 1, 2006 to January 1, 2008 The Benefits would be paid as follows: You would receive two-thirds of the Past Use Benefits available for the property The unrelated former owner would be eligible to receive one-third of the Past Use Benefits available for the same property. Please note that you will need to provide the Claims Administrator with a personal representative s deed or beneficiary s deed showing you acquired your property by inheritance. You will also need to provide a deed or certificate of title that reflects your ancestor s acquisition of the property. 7

8 16. What if there are multiple owners of my property? If you file a valid claim, the Claims Administrator will write a single check payable to all coowners of the property. The check will be mailed in care of the person who filed the claim. If your ownership of the property has changed since January 21, 2005, then each owner or group of co-owners (including estates) may submit a separate Claim Form for each period of ownership. Ownership may change, for example, through a transfer between family members, by or to a related corporation, or to a trust, or through the addition or deletion of co-owners. 17. What is the Easement? The Easement will grant any rights the Sho-Me Defendants don t already have to use Sho-Me Power Electric Cooperative s electric-transmission rights of way for Commercial Communications Purposes. It will be granted to the Sho-Me Defendants where they have already used Communications Systems for Commercial Communications Purposes. The Easement will: Cover the portion of your property that already has Sho-Me Electric Power Cooperative s Electric-Transmission Right of Way; Allow the Sho-Me Defendants, if they don t already have the right to do so, to construct, alter, reconstruct, install, replace, repair, patrol, maintain, own, lease, license, and operate Communications Systems within the Easement area; and Allow the Sho-Me Defendants, if they don t already have the right to do so, to access the Easement area. The Easement will not: Expand the width of Sho-Me Power Electric Cooperative s pre-existing Electric- Transmission Right of Way; Allow the Sho-Me Defendants to add or expand buildings on the Easement area; Allow the Sho-Me Defendants to add microwave or cellular towers; and Allow the Sho-Me Defendants to increase the burden they place on the surface of the Easement area. This means Sho-Me cannot put more things on the surface for commercial communications that will interfere with the right of the landowner to use the property for other purposes. If you are a Sho-Me Class Member who is a current landowner of a parcel not excluded from the lawsuit by September 8, 2014, as described in the previous notice issued by the Court, you will automatically grant an Easement to the Sho-Me Defendants. The Court will enter an Easement Deed by Court Order in Settlement of Landowner Action on your behalf. You can read and download the Easement Deed by Court Order in Settlement of Landowner Action at or call to request a copy. 18. How can I get a payment? THE CLAIMS PROCESS 8

9 You don t have to do anything now. If the Settlement receives final approval, Sho-Me Class Members who received this notice in the mail will receive a Claim Form automatically. You can view the Claim Form at the website. Please note that you will not be able to submit a claim until after the Court grants final approval to the Settlement. When you receive your Claim Form, you will need to complete it. There may be additional required documents based on the Benefits for which you are applying. Please carefully read the Claim Form. If you still have questions about documentation requirements, you can call When will I get my payment? The Court will hold a hearing on November 15, 2018 at 1:00 p.m. to decide whether to give final approval to the Settlement (see Question 24). If the Court approves the Settlement, anyone in the Claims Administrator s database will be sent a Claim Form to complete and return to the Claims Administrator. After your claim is received, the Claims Administrator will determine if you qualify for payment. If you do, the Claims Administrator will send a benefit payment to you. The Claims Administrator will also send a copy of the Easement Deed by Court Order in Settlement of Landowner Action to current landowners. An appeal after the Court approves the Settlement may cause additional time delays. Claim Forms will not be distributed, and payments will not be made while an appeal is pending. The amount of time an appeal takes is always uncertain, but it can be more than a year. Please check the website periodically for updates on this case. 20. What if I disagree with the amount of my payment? There is a process in the Settlement to resolve disagreements over whether you are eligible for a payment or the amount of your payment. If you file a claim, you will get further details in the letter you receive about your eligibility. You have the right to ask the Claims Administrator to reconsider the decision on your claim. Please review the letter carefully when you receive it because there are specific time limitations for the reconsideration process. More details are available in the Settlement Agreement, which is available at Do I have a lawyer in this case? THE LAWYERS REPRESENTING YOU The Court has appointed lawyers to represent you and other Class Members. These lawyers are called Class Counsel. Heidi Doerhoff Vollet COOK, VETTER, DOERHOFF & LANDWEHR, P.C. 231 Madison Street Jefferson City, MO Ronald J. Waicukauski PRICE WAICUKAUSKI JOVEN & CATLIN, LLC 301 Massachusetts Avenue Indianapolis, IN Kathleen C. Kauffman ACKERSON KAUFFMAN FEX, PC 1701 K Street, NW, Suite 1050 Washington, DC You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. 9

10 22. How will the lawyers be paid? The Court will decide how much Class Counsel will be paid. Class Counsel will ask the Court for attorneys fees of $8,333,333 and costs and expenses of up to $1,200,000. The costs and expenses include $30,000 that Class Counsel requests to be paid in total to the Sho-Me Class Representatives who helped the lawyers on behalf of the Sho-Me Class. OBJECTING TO THE SETTLEMENT 23. How do I tell the Court that I don t like the Settlement? If you are a Sho-Me Class Member, you can object to the Settlement or to requests for fees and expenses by Class Counsel. To object, you must send a letter, postmarked by October 9, 2018, that includes the following: Your name and address, The title of the case, Barfield v. Sho-Me Power Electric Cooperative, No. 2:11-cv-4321, A statement saying that you object to the Sho-Me Settlement in Barfield v. Sho-Me Power Electric Cooperative, The reasons you object, and Your signature. Your objection, along with any supporting material you wish to submit, must be mailed to the following four addresses: Claims Administrator Sho-Me Fiber Settlement P.O. Box Dallas, TX Class Counsel Heidi Doerhoff Vollet COOK, VETTER, DOERHOFF & LANDWEHR, P.C. 231 Madison Street Jefferson City, MO Court Clerk of the Court United States District Court for the Western District of Missouri 80 Lafayette Street Jefferson City, MO Defense Counsel Robert J. Wagner Thompson Coburn LLP One US Bank Plaza St. Louis, Missouri Please do not send any other communications to the Court. 10

11 THE COURT S FAIRNESS HEARING The Court will hold a hearing to decide whether to approve the Settlement and any requests for fees and expenses. You may attend and, if you submit a written objection and a Notice of Intention to Appear, you may ask to speak, but you don t have to. 24. When and where will the Court decide whether to approve the Settlement? The Court will hold the Fairness Hearing at 1:00 p.m. on November 15, 2018, at the United States District Court for the Western District of Missouri, located at 80 Lafayette Street, Jefferson City, MO 65101, in Courtroom 4A. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check At the hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider how much to pay Class Counsel and the Sho-Me Class Representatives. If there are objections, the Court will consider them at this time. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long these decisions will take. 25. Do I have to come to the hearing? No. Class Counsel will answer questions Judge Laughrey may have. But, you may come at your own expense. If you send an objection, you don t have to come to Court to talk about it. As long as you mailed your written objection on time, to the proper address, the Court will consider it. You may also pay your own lawyer to attend, but it s not necessary. 26. May I speak at the hearing? If you submitted a written objection, you may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that you intend to appear and wish to be heard. Your Notice of Intention to Appear must include the following: Your name and address, The title of the case, Barfield v. Sho-Me Power Electric Cooperative, No. 2:11-cv-4321, A statement that this is your Notice of Intention to Appear, and Your signature. You must mail your Notice of Intention to Appear, postmarked no later than October 9, 2018, to the four addresses in Question What happens if I do nothing at all? IF YOU DO NOTHING If you received this notice in the mail, a Claim Form automatically will be mailed to you after the Court grants final approval to the Settlement. If you do not file a claim, you will not get any money from the Settlement. Current landowners will be subject to an Easement (see Question 17). 11

12 28. How do I get more information? GETTING MORE INFORMATION You can visit the website at where you will find answers to common questions about the Settlement and other information to help you determine whether you are a Sho- Me Class Member. If you still have questions, you can call toll-free or write to Sho-Me Fiber Settlement, P.O. Box , Dallas, TX Please do not contact the Court for further information. 12