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Burrow v. Forjas Taurus, S.A.

United States District Court, S.D. Florida

September 6, 2019




         This matter is before the Court on the Proposed Class Representatives' Unopposed Motion for Final Approval of Class Action Settlement (D.E. 135; “the Motion”) filed on August 19, 2019, and Plaintiffs' Unopposed Motion for Approval of Attorneys' Fees and Incentive Award (D.E. 132; “the Fee Motion”), filed on June 10, 2019. Plaintiffs assert they have complied with the requirements of the Court's Preliminary Approval Order (D.E. 130) and now request that the Court finally approve the terms of the settlement as set forth in the Class Action Settlement Agreement and Release (D.E. 127-2), including the incentive award and attorneys' fees provisions.

         The Court held a fairness hearing on August 27, 2019, to consider any arguments in support of or in opposition to the Motion or the Fee Motion. Only counsel for the parties appeared at the hearing; no class member or objector appeared to present any opposition to the motions.

         For the reasons that follow, as well as the Court's review of the entire record that includes one filed objection to the proposed class settlement, the Court finds that the Motion and Fee Motion are now GRANTED, and the proposed settlement is APPROVED as a Final Order of the Court. A Rule 54(b) Judgment is hereby entered on all class claims, with the Court retaining jurisdiction in this pending action over any individual non-class claims.

         I. BACKGROUND

         On May 5, 2016, William Burrow and Oma Louise Burrow, filed a proposed class action complaint styled Burrow, et al., v. Forjas Taurus, S.A., et al., No. 1:16-cv-21606-EGT, in the United States District Court for the Southern District of Florida, alleging that their Rossi brand .38 Special Revolver was defective in that it fired when dropped, and asserting certain causes of action in relation thereto.

         On September 16, 2016, Suzanne Bedwell filed a proposed class action complaint in the United States District Court for the District of Alaska, No. 3:16-cv-00217-JWS, asserting that her Rossi brand .357 Magnum Revolver was defective in that it fired when dropped, and asserting certain causes of action in relation thereto. In an amended complaint filed with leave of court on June 12, 2017, Ernest Bedwell joined in case, asserting claims on behalf of himself and a proposed class. Thereafter, the Bedwell case was transferred to the United States District Court for the Southern District of Florida.

         By order dated February 9, 2018, the Court ordered the Burrow and Bedwell cases consolidated and merged into the Burrow action, provided, however, that the personal-injury claims of the Bedwells on behalf of themselves and their minor son should be stayed pending final disposition of the merged proposed class action in the Burrow case. (D.E. 51).

         On March 2, 2018, Plaintiffs filed their First Amended and Consolidated Class Action Complaint (D.E. 54). Plaintiffs asserted class claims for breach of warranty, strict products liability, negligence, and FDUTPA, seeking damages, injunctive and other relief against the Defendants in connection with alleged defects in the design and manufacture of the Class Revolvers. Plaintiffs sought damages and equitable relief only premised on alleged economic losses, and did not seek to recover for any member of the proposed class any relief for personal-injury or property-damage claims.

         Forjas Taurus and Braztech filed separate Answers and Affirmative Defenses to the First Amended Class Action Complaint on April 13, 2018 (Docs. 68 and 69), denying certain factual allegations, denying liability, and denying that the claims made are amenable to class treatment.

         Thereafter, Plaintiffs and Defendants engaged in voluminous and extensive written discovery and depositions regarding the claims and defenses at issue in the Action. Plaintiffs and litigated various discovery issues and sought the assistance of the Court in advancing discovery on multiple occasions. Class Counsel deposed numerous witnesses, including representatives of Forjas Taurus and Braztech, many of which had to be conducted through interpreters as a result of the Forjas Taurus's Brazilian origin. Class Counsel retained an expert engineer to inspect and test the subject revolvers and other class revolvers produced and sold by Forjas Taurus and Braztech during the class period. Detailed x-rays and inspections of the four Bedwell revolvers and four Burrow revolvers were conducted by the Parties and their respective experts. Depositions of the Bedwell Plaintiffs, witnesses, law enforcement, and experts were taken in Alaska. Throughout these events, the parties vigorously litigated this action.

         The Parties engaged in substantial and prolonged settlement negotiations with Mediator Terrence White, an experienced independent mediator. Between September 11, 2018 and November 7, 2018, the Parties engaged in five separate full-day mediation sessions. At least twice, the settlement process broke down entirely and litigation resumed. Finally, on November 7, 2018, the Parties agreed to the settlement terms that are reflected in the proposed Settlement Agreement. For several weeks thereafter, counsel for Plaintiffs and Taurus negotiated the terms of a Term Sheet memorializing the agreement reached on November 7, 2018, and in the ensuing months negotiated the terms of the formal Settlement Agreement being presented to the Court.

         On March 15, 2019, the Court entered the Preliminary Approval Order preliminarily approving the parties' proposed class settlement, approving the notice plan, and setting a final fairness hearing. (D.E. 130). The Settlement Class is comprised of all individuals in the United States, including territories and possessions, who owned one or more Class Revolver(s) on the March 15, 2019 (the Preliminary Approval Date). (Id. at p. 4-5).

         After distributing notice of the Settlement to the Settlement Class Members in accordance with the approved Class Notice Plan, the Plaintiffs filed the pending Motion that seeks final approval of the Settlement. (D.E. 135). In support of the Motion, Plaintiffs attached the declaration of the Settlement Administrator, Cameron R. Azari (D.E. 135-3) (“Azari Decl.”) and the declaration of Kimberly Dorsey from Braztech, the party responsible for conducting the Early Warning Program and providing the Enhanced Warranty Service under the Settlement. (“Dorsey Decl.”).


         The Settlement provides for the following class and relief:

         A. The Settlement Class

         The Settlement Class is defined as:

All individuals in the United States, including its territories and possessions, who owned one or more Class Revolver(s) on March 15, 2019, the Preliminary Approval Date.

(D.E. 127-2, ¶ 44 and D.E. 130, p. 4).

         The term “Class Revolvers” in the above definition includes all Rossi brand .357 Magnum and .38 Special revolvers of the following models-R35102, R35202, R85104, R97206, R97104, R46202, R46102-manufactured by Forjas Taurus between January 1, 2005 and December 31, 2017, as indicated by the serial number stamped on the frame of the revolver beginning with the letters Y, Z, A, B, C, D, E, F, G, H, I, J, or K. There are or were approximately 255, 000 Class Revolvers manufactured during the Class Period that were sold in the United States.

         Excluded from the Settlement Class are (a) all state, local, or federal bodies or agencies, etc., or Persons in an official capacity; (b) the District Judge and Magistrate Judge to whom the Action is assigned and any appellate judge assigned to any appeal in the Action, together with any member of their staffs and immediate families; (c) any Successful Opt-Out, and (d) any other Person who has been recognized by Order of the Court as excluded from the Settlement Class for any reason.

         B. Class Relief and Release

         There are four primary components to this Settlement: (1) the Safety Warning; (2) an Enhanced Warranty automatically extended to present and future owners of all Class Revolvers; (3) an Enhanced Warranty Service that provides for the free shipping, inspection, repair and/or replacement, certification and cleaning of each Class Revolver; and (4) an Inconvenience Payment of $50 to compensate Class Members for having to have their Class Revolver(s) inspected.

         Any court-approved attorneys' fees, litigation costs and incentive awards of Class Counsel and the Class Representatives are to be paid separately and in addition to the relief available to the Settlement Class Members. Additionally, Defendants have separately funded the costs of notice and settlement administration. (D.E. 127-2, § III.C.2.). Any persons who wished to pursue individual claims for damages were given the opportunity to do so by opting out of the Settlement Class.

         1. The Safety Warning Program or “Early Warning Program”

         This Program was negotiated during the Parties' first mediation session. It was designed and intended to make current and future owners of Class Revolvers immediately aware of the potential dangers with Class Revolvers and to inform them that the Class Revolvers should not be used or carried until they had been inspected and/or repaired. The Early Warning Program included prominent print ads in American Rifleman magazine and several digital ads on (1, 000, 000 impressions), (700, 000 impressions), and on (2, 500, 000 impressions). (See D.E. 127-3, Azari Dec.).

         The ads advised owners of Class Revolvers to immediately stop using them and to call a provided toll-free telephone number or visit the website for detailed information. The ads were written in plain language, free from legalese, and clearly identified that the warning was from the manufacturer. The ads also referenced the Burrow, et al. v. Forjas Taurus S.A., et al. litigation and case name specifically.

         The Early Warning Program also included a direct “SAFETY WARNING” notice that was sent to known dealers of the Rossi revolvers. The dealer notice requested dealers to prominently display an enclosed, colored SAFETY WARNING “flyer” in their shop to make it visible and easy to read by customers. The flyer was an easy-to-read warning that explained the potential danger posed by the revolvers and provided instructions to owners. (D.E. 127-3, Attachment 5).

         2. The Enhanced Warranty and Enhanced Warranty Service

         The “Enhanced Warranty” is extended to current and future owners of Class Revolvers as part of this Settlement, and is provided over and above the existing warranty available to owners of Rossi revolvers. Owners may take advantage of the Enhanced Warranty by submitting their Class Revolvers to Braztech one time for Enhanced Warranty Service at any time in the future. The Enhanced Warranty Service includes the following components:

(1) Shipping Benefits including the delivery to the Settlement Class Member's address pre-paid shipping labels for shipping through Fed Ex or other accepted shipping company so that Class Revolvers can be safely shipped to Braztech for inspection at no cost to the Settlement Class Member.
(2) Inspection Procedure whereby Braztech (as warranty service provider in the United States for Forjas Taurus) will take possession of the Class Revolver, and disassemble the firearm to the extent necessary to determine whether the Alleged Defects are or may be present and whether such Class Revolver may be serviced or repaired to address and eliminate any of the Alleged Defect(s).
(3) Repair Procedure whereby Braztech will replace any internal components of the Class Revolver deemed necessary to eliminate any of the Alleged Defects found during the Inspection Procedure.
(4) Replacement Procedure whereby if Braztech determines that a particular Class Revolver, for any reason, cannot be serviced or repaired in such a way as to render it safe for its intended use, Braztech will deliver to the Settlement Class Member a new Taurus-brand revolver of similar caliber, and size, free of charge.
(5) Certification Procedure whereby Braztech will, for each Class Revolver that has been through the Inspection and Repair Procedures and been deemed safe for its intended use, stamp each Class Revolver on the frame of the revolver, a “R” to indicate that the firearm has been through the Enhanced Warranty Service process and is deemed safe for its intended use.
(6) Cleaning Service whereby Braztech will professionally clean and test fire each Class Revolver before being returned to the Settlement Class Member.

         The foregoing Enhanced Warranty Service will be provided by Braztech at no charge to owners of Class Revolvers. This Enhanced Warranty Service is available one time per Class Revolver and may be taken advantage of at any time: there is no time limit. Braztech has already voluntarily implemented the Enhanced Warranty Service as Class Revolvers have been submitted during the Early Warning Program and Class Notice period. To date, approximately 9, 200 Class Revolvers ...

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