Consumers Gas & Oil, Inc. v. Farmland Industries, Inc.

863 F. Supp. 1357, 1993 U.S. Dist. LEXIS 20722, 1993 WL 740170
CourtDistrict Court, D. Colorado
DecidedNovember 29, 1993
DocketCiv. A. No. 92-F-1394
StatusPublished

This text of 863 F. Supp. 1357 (Consumers Gas & Oil, Inc. v. Farmland Industries, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consumers Gas & Oil, Inc. v. Farmland Industries, Inc., 863 F. Supp. 1357, 1993 U.S. Dist. LEXIS 20722, 1993 WL 740170 (D. Colo. 1993).

Opinion

ORDER AND JUDGMENT AWARDING ATTORNEYS FEES AND DISBURSEMENTS

SHERMAN G. FINESILVER, Chief Judge.

On June 30, 1993, the parties entered into a Stipulation of Settlement in the captioned matter, one week prior to the commencement of trial. Following the Court’s preliminary approval of the settlement on August 5,1993, the law firms of Popham, Haik, Schnobrieh & Kaufman, Ltd. and Younge & Hockensmith, P.C. (“Class Counsel”) filed a Joint Application Of Class Co-Counsel For An Award Of Attorneys Fees And Disbursements, And For An Incentive Payment To The Members Of The Class Plaintiffs’ Steering Committee.

The Court is familiar with this matter, having reviewed the voluminous files generated by this litigation, considering the testimony presented at the August 5, 1993 hearing on preliminary approval of the settlement, and presiding at the November 23, 1993 hearing on final approval of the settlement. The evidence adduced during the November 23, 1993 hearing included Affidavits listed in Appendix A

A brief description of the matter is in order.

Defendant Farmland Industries, Inc. (“Farmland”) is a Kansas farm cooperative. The Defendants in this litigation include Farmland and certain present and former officers of Farmland. For purposes of brevity, Farmland and the Individual Defendants shall be referred to as the “Farmland Defendants.”

The named Plaintiff, Consumers, is a local farm cooperative that was organized and exists under the laws of the State of Colorado. Consumers has been in liquidation since 1981. Consumers is a former active member of Farmland, and is now an inactive member of Farmland. As an inactive member, Con[1359]*1359sumers holds equity in Farmland in the form of book entries called Capital Credits.

Consumers brought this suit on behalf of itself and other similarly situated cooperatives which were once active members of Farmland. On May 19, 1993, this Court entered an Order certifying a class as follows:

Class. Class shall mean:

All dissolved, liquidated or inactive cooperatives, who (A) were at one time active members of Farmland Industries, Inc. (“Farmland”) and either (B) currently hold a vested interest in Farmland’s unpaid profits represented by book entries called “Capital Credits” made by Farmland during the period from January 1, 1980 through January 4,1993, or (C) who held a vested interest in such Capital Credits during the period from January 1, 1980 through January 4, 1993, and who have sold any or all of such Capital Credits, and who were damaged thereby.

The Class Plaintiffs are inactive cooperatives which, like Consumers, hold Capital Credits in Farmland. As holders of Capital Credits, Class Plaintiffs are owners of Farmland. Like Consumers, the Class Plaintiffs were once active members of Farmland which earned patronage refunds by doing business with Farmland. The patronage refunds earned by Class Plaintiffs were generally paid 20% in cash and 80% in Member Common Stock.

The American agricultural economy soured in the early 1980s. As a result of the depressed agricultural economy, many of Farmland’s active members began to liquidate and go out of business. Consumers and the Class members are local cooperatives which were once active members of Farmland that have ceased doing business and are in liquidation.

At the time that an active member of Farmland — here the members of the Class— began to liquidate, Farmland required each liquidating member to convert its Member Common Stock to Capital Credits. The Class contends that Farmland required this conversion with the promise that Farmland would redeem the Capital Credits when it was financially able to do so. The Farmland Defendants have vigorously denied this assertion and contend that the Farmland Board has complete and unfettered discretion as to thé timing of redemption.

Consumers asserts, both individually and as a representative of the Class, that the conduct of the Farmland Defendants in failing to redeem the Capital Credits and subsequent conduct of the Farmland Defendants violated Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder as well as certain provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO). Consumers has further alleged that the Farmland Defendants have breached their fiduciary duty under Kansas state law to the members of the Class by refusing to redeem Capital Credits under the terms of various corporate instruments, documents and practices of agricultural cooperatives. Consumers has also alleged that the Farmland Defendants have been unjustly enriched through the prolonged retention of the contributions to Farmland’s capital made by the Class members which are represented by the Capital Credits. As a remedy for this alleged unjust enrichment, Consumers, on behalf of itself and the Class members, sought restitution to the Class of the amount of the alleged unjust enrichment.

Each of the Defendants filed an Answer denying all allegations of wrongdoing and denying any liability on the legal theories proposed by Consumers and the Class. The Farmland Defendants each asserted several affirmative defenses, including, inter alia, that the time has passed for filing claims, the claims were not supported by the facts, and Farmland’s Board of Directors and its officers exercised reasonable business judgment in determining which equities should be redeemed during each year that Farmland earned a profit. The Farmland Defendants continue to vigorously defend this matter.

This Court has jurisdiction over the parties to and the subject matter of this action, pursuant to: (i) 15 U.S.C. § 78a, et seq. (the Securities Exchange Act of 1934); (ii) 18 U.S.C. § 1964(a) (equity) and § 1964(d) [1360]*1360(Right to Sue Organizations Act); and (iii) 28 U.S.C. § 1332 (diversity of citizenship).

By Order dated November 24, 1993, the Court has approved the June 30, 1993 Stipulation of Settlement entered into by the parties.

I. COSTS AND EXPENSES.

Class Counsel have advanced costs and incurred out-of-pocket expenses and disbursements of $724,444.13 in this matter, as reflected by itemized statements of disbursements previously submitted to the Court. These expenses and out-of-pocket disbursements total $669,270.34, as set forth In Appendix B.

Uneontradicted evidence has been submitted concerning the necessity of these expenditures and their reasonableness. No Class Member has objected to them. In fact, the Court has not received any objections to this settlement. The Court has been asked to specifically approve certain distinct expense items. The Court has examined the evidence concerning these expenses, and concludes that they are reasonable and should be paid from the common fund established for the benefit of the Class members.' This is, of course, separate and apart from the award of attorneys’ fees which is discussed subsequently in this Order.

Since these expenses were submitted on September 1, 1993, Class Counsel has incurred expenses totaling $55,173.79, as itemized in Appendix C.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
863 F. Supp. 1357, 1993 U.S. Dist. LEXIS 20722, 1993 WL 740170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consumers-gas-oil-inc-v-farmland-industries-inc-cod-1993.