A boy fell through the vinyl guardrail his father installed on the second story deck of their home.  After settling his son’s personal injury claims, the father sued Home Depot and the guardrail manufacturer on behalf of himself and other Kansas purchasers for breach of warranty and violations of the Kansas Consumer Protection Act alleging that the guardrail brackets were defective. The district court certified a class, and the Tenth Circuit granted the parties’ Rule 23(f) petitions for permission to appeal the certification order. The district court stayed the case pending appeal before class members received any notice. During the appeal, the parties agreed to settlement terms, and the Tenth Circuit remanded the case for the limited purpose of allowing the district court to consider the parties proposed settlement.

The district court first considered the proposed settlement class. The court observed that where a class has been certified before the parties agree on a settlement, the “heightened scrutiny” required by the Supreme Court’sAmchem decision does not apply. The court explained, however, that it retained the ability to monitor the appropriateness of class certification throughout the proceedings and to modify or decertify a class at any time before final judgment. In this case, the court found that while the proposed settlement class definition was slightly different than the original certified class, the revised definition actually strengthened the case for certification. Therefore, the court certified the proposed settlement class.

The court then turned its attention to the settlement terms. The court analyzed four settlement factors and determined that the settlement was fairly and honestly negotiated; that the amount of the settlement fund, expenses, and attorney fees were reasonable; that serious questions of fact and law existed, including whether the original class certification order would be sustained by the Tenth Circuit; and that the value of the settlement to class members outweighed the possibility of future relief after protracted and expensive litigation. As a result, the court granted preliminary approval of the settlement.

Finally, the court considered plaintiff’s proposal to notify the settlement class by publication in several Kansas municipal newspapers. The court began its analysis by quoting the unambiguous requirement in Rule 23(c)(2)(B) that class members must be provided with “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” The court noted that publication can satisfy Rule 23 and due process where the identities of the class members are unknown to the parties. In this case, plaintiff asserted that notice by publication was reasonable because Home Depot had stipulated that its records did not identify “all persons” who purchased the allegedly defective guardrail brackets. The court observed, however, that the Home Depot stipulation did not state it could identify “none” of the purchasers. As a result, the court found that plaintiff failed to demonstrate individual notice was impracticable and rejected notice by publication. The court ordered plaintiff to confer with Home Depot to determine which, if any, class members could be identified specifically to receive actual notice.

Jonathan Nieberding and Frederick Aloysius Nieberding v. Barrette Outdoor Living, Inc. and Home Depot USA, Inc.(D. Ks. April 14, 2015).