In re Centurylink Sales Practices Sec. Litig.

IN RE: CENTURYLINK SALES PRACTICES AND SECURITIES LITIGATION

This Document Relates to Civil File Nos. 17-2832, 17-4613,

17-4614, 17-4615, 17-4616, 17-4617, 17-4618, 17-4619, 17-4622, 17-4943,

17- 4944, 17-4945, 17-4947, 17-5046, 18- 1562, 18-1565, 18-1572, 18-1573

MDL No. 17-2795 (MJD/KMM)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

June 29, 2020

MEMORANDUM OF LAW & ORDER

Carolyn G. Anderson, Brian C. Gudmundson, Bryce D. Riddle, and Hart L. Robinovitch, Zimmerman Reed LLP, Plaintiffs' Interim Co- Lead and Liaison Counsel; Mark M. O'Mara, Alyssa J. Flood, Channa Lloyd, and Caitlin Reese, O'Mara Law Group, and Mark J. Geragos, Benjamin J. Meiselas, and Lori G. Feldman, Geragos & Geragos, APC, Plaintiffs' Interim Co-Lead Counsel; Daniel C. Hedlund and Michelle J. Looby, Gustafson Gluek PLLC, Plaintiffs' Executive Committee Chair; Richard M. Hagstrom, Anne T. Regan, Nicholas S. Kuhlmann, and Jason Raether, Hellmuth & Johnson, PLLC, Roxanne Barton Conlin, Roxanne Conlin & Associates, PC, and Francois M. Blaudeau, W. Lewis Garrison, Jr., Christopher B. Hood, and James F. McDonough, III, Heninger Garrison Davis, LLC, Plaintiffs' Executive Committee; and T. Ryan Langley, Hodge & Langley Law Firm, P.C., Michael Fuller, Olsen Daines PC, Brandon C. Fernald, Fernald Law Group LLP, Bonner C. Walsh, Walsh PLLC, Alfred M. Sanchez, and Orin Kurtz, Gardy & Notis, LLP, Counsel for Plaintiffs and the Proposed Class.

Douglas P. Lobel, David A. Vogel, and Jeffrey M. Gutkin, Cooley LLP; Carolyn J. Fairless, Michael T. Williams, Andrew Unthank, and Theresa Wardon Benz, Wheeler Trigg O'Donnell LLP; and William A. McNab and David M. Aafedt, Winthrop & Weinstine, P.A., and Jerry W. Blackwell, Blackwell Burke P.A., Counsel for Defendant CenturyLink, Inc. and the Proposed Intervenors.

Warren D. Postman and Ashley C. Keller, Keller Lenkner LLC; and Robert J. Gilbertson, Samuel J. Clark, Faris Rashid, and Virginia R. McCalmont, Greene Espel PLLP; Counsel for Proposed Intervenors Keisha Covington, Daniel Sokey, Tiffany Van Riper, James Watkins, Jaclyn Finafrock, and Kelly Johnson.

I. INTRODUCTION

This matter is before the Court on Defendant CenturyLink, Inc.'s Motion to Enforce Preliminary Approval Order. [Docket No. 654] The Court heard oral argument on June 23, 2020.

The Court grants CenturyLink's motion. Keller Lenkner LLC's clients are represented by sophisticated and experienced counsel, who previously litigated the propriety of this Court's Preliminary Approval Order and are well aware of the minimal requirements for opting out. The Court will extend the deadline for Keller's clients to opt out in accordance with the Court's requirements until August 25, 2020, and reject the purported requests to opt out contained in Keller's two letters to the Court.

II. BACKGROUND

The Settlement Agreement provides: "This Settlement Agreement will not bind Settlement Class Members who timely and validly request to be excluded(also known as opting-out) of the Settlement." ([Docket No. 469-1] Gudmundson Decl., Ex. A, Settlement Agreement § 6.2.) The Court approved the procedural requirements set forth in the Settlement Agreement and directed class members to comply with them:

Settlement Class Members may elect to not be part of the Class and to not be bound by this Settlement Agreement. To make this election, Class Members must send a written notification to the Settlement Administrator that (a) clearly identifies the case name and number; (b) includes the full name and either the unique identification number for the Settlement Class Member assigned by the Settlement Administrator, or the Settlement Class Member's account number with CenturyLink; (c) includes the address, telephone number (optional), and email address (optional) of the Settlement Class Member seeking exclusion; (d) is signed by the Settlement Class Member; and (e) contains a statement that the requestor does not wish to participate in the Settlement. A request for exclusion must be submitted no later than one hundred and fifty-one (151) calendar days after entry of this Order. Settlement Class Members who are opting out must each separately and individually comply with the requirements of this paragraph.

([Docket No. 528] Preliminary Approval Order, Jan. 24, 2020 ¶ 6.)

Before the Settlement Administrator sent the Court-approved notices to class members, it created a unique identification number for each account number within the Class Period ("settlement identification number"). When the Settlement Administrator sent the Court-approved notice to class members, eachnotice contained a unique settlement identification number. (Wright Decl. ¶¶ 15-16.)

In its order denying a previous motion to stay proceedings pending appeal brought by clients of the law firm Keller Lenkner LLC ("Keller"), the Court reaffirmed these requirements, explaining:

Before the Court is a complex, multi-district action involving a Settlement Class of more than 17 million consumers spread across dozens of states that was settled after substantial motion practice, extended negotiations, and extensive confirmatory discovery. . . . The Court's Order set forth an orderly, efficient manner for class members to opt out and, thus, pursue parallel actions, including lawsuits and arbitrations, with little delay. The Court's chosen process was carefully crafted considering the practicality of efficiently managing a class of more than 17 million consumers and, thus, the possibility of millions of opt-out requests.

In re CenturyLink Sales Practices & Sec. Litig., No. CV 17-2832, 2020 WL 869980, at *5 (D. Minn. Feb. 21, 2020).

On April 7, 2020, Keller filed a letter in this action stating it represented a number of class members who wished to pursue their claims against CenturyLink, Inc. ("CenturyLink") in individual arbitrations and therefore "hereby opted out of the putative class action and the preliminarily-approved settlement." [Docket No. 631] Attached to the letter was a list of names, email addresses, telephone numbers, and addresses of approximately 2,000individuals. [Docket No. 632] No account numbers, settlement identification numbers, or signatures were included for any client.

Of the 1,933 individuals in the mass opt-out list, 11 had already submitted flat payment ($30) claims to the Settlement Administrator; 1,769 had never filed an arbitration demand against CenturyLink at the AAA; and 29 were not previously disclosed to CenturyLink by Keller. (Wright Decl. ¶¶ 22-24.) More than 800 of Keller's clients who did file arbitrations with the AAA in November 2019 do not appear in the mass opt-out list. (Id. ¶ 24.)

CenturyLink brings the current motion to reject the mass opt out by approximately 2,000 Keller clients and to require each of the 2,000 individual Class Members to opt out individually in accordance with the terms of the Preliminary Approval Order and Settlement Agreement. In particular, CenturyLink requests that the Court enforce the requirements that opt-out requests include an individual signature and either a CenturyLink account number or a settlement identification number.

On June 23, after oral argument on this motion, Keller filed a new letter attaching a list of approximately 14,500 "additional clients . . . who informed us that they would like to opt-out of the class-action settlement." [Docket Nos. 746,747] The attached list identifies each client by name, email address, telephone number, and mailing address. [Docket No. 747] The list does not include individual signatures; nor does it include account numbers or settlement identification numbers for any clients. CenturyLink's preliminary analysis of the list found that more than 250 of those individuals have also made a claim for payment from the settlement fund. [Docket No. 753]

By letter dated June 26, CenturyLink informed the Court that, on June 23, Keller submitted 4,000 opt-out requests to the Settlement Administrator, each of which includes the name, address, CenturyLink account number or settlement identification number, and an electronic signature for each class member. [Docket No. 754]

III. DISCUSSION

A. Class Members' Right to Opt Out

Each class member has a due process right to opt out of the class settlement. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). "The right to opt out of a class action is one that must be exercised individually," because "individual class members . . . have the right to intelligently and individually choose whether to continue in a suit as class members." In re Nat'l FootballLeague Players' Concussion Injury Litig., No. 2:12-md-02323-AB, 2019 WL 95917, at *5 (E.D. Pa. Jan. 3, 2019) (citation omitted).

B. Failure to Include Individual Signatures

District courts have the discretion whether to accept or reject opt-out requests that violate the Court's signature requirement, because the Court has discretion, in the "interests of justice," to "disregard certain hyper-technical violations of its orders." In re Gen. Am. Life Ins. Co. Sales Practices Litig., 268 F.3d 627, 635 (8th Cir. 2001), vacated sub nom. Henderson v. Gen. Am. Life Ins. Co., 536 U.S. 919 (2002). However, the district court also has discretion to require that opt-out requests be signed by the individual class member and reject requests signed by an attorney. See, e.g., Moulton v. U.S. Steel Corp., 581 F.3d 344, 355 (6th Cir. 2009) (noting that there is no case "that requires district courts to accept opt-out forms signed by attorneys," because "[t]o impose such an unbending rule would unduly interfere with the district court's broad authority to manage class actions by governing the conduct of counsel and the parties") (citation omitted). Such an exercise of discretion to enforce the "common and practical requirement" that each opt-out individual sign their request is appropriate based on "concern about setting precedent for similar requests in the MDL" given "[t]he gargantuan size and extraordinary complexity of thislitigation." In re...