Julie Olden; Richard Hunter; Wilbur Bleau; v. C A R L G A R D N E R ; C L A R Alewandowski; Ronald McLenan, Sr

The Honorable John. R. Adams, United States District Judge for the Northern District of*
Ohio, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0567n.06
Filed: September 18, 2008
No. 07-1953
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JULIE OLDEN; RICHARD HUNTER;
WILBUR BLEAU; et al.,
Plaintiffs-Objectors-Appellants,
v.
C A R L G A R D N E R ; C L A R A
LEWANDOWSKI; RONALD MCLENAN,
SR.,
Plaintiffs-Appellees,
LAFARGE CORPORATION,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: ROGERS and MCKEAGUE, Circuit Judges; and ADAMS, District Judge.*
Rogers, Circuit Judge. The appellants in this case are some members of a class of plaintiffs
who sued the defendant, Lafarge Corporation, because of pollution emitted by its portland cement
plant in Alpena, Michigan. After the defendants had unsuccessfully appealed the district court’s
class certification decision, the class counsel and the defendant entered into settlement negotiations.
The class counsel and defendants came to an agreement whereby the defendant would pay the class

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members $1,900,000, while also spending $700,000 on capital improvements to reduce pollution.
The appellants (hereinafter, the “Objectors”) objected to this proposed settlement and asked the
district court to reject it. In turn, the class counsel asked the court to remove the class representatives
— who all objected to the settlement — and replace them with new class representatives. The
district court granted the motion to substitute new class representatives, although the court refused
to approve the settlement because it impermissibly required those who had previously opted out of
the litigation to do so again. Soon after the rejection of the first proposed settlement agreement, the
parties submitted a revised settlement agreement that resolved the opt-out issue, but was otherwise
substantially identical to the first settlement agreement. The Objectors filed objections yet again,
but the district court overruled those objections and approved the settlement. On appeal, the
Objectors contend that the revised settlement agreement should not have been approved because it
is not fair, reasonable, and adequate. They also argue that the original class representatives should
not have been removed as class representatives, and that the district court should have awarded fees
and costs to Objectors’ counsel. Although the fairness, reasonableness, and adequacy of the
settlement is a close call, and this court might not approve the settlement if it were evaluating the
issue de novo, the highly deferential standard of review requires affirmance of the district court’s
decision to approve the settlement. Likewise, the district court’s decisions to replace the original
class representatives and deny fees and costs to the Objectors’ counsel must also be affirmed.
I.

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The cement plant in question manufactures cement from limestone, sand, fly ash, gypsum,
and iron. These raw materials are blended together after having been dried and ground into powder.
Afterward, the mixture is heated to a high temperature in kilns fueled by coal and petroleum coke.
This transforms the mixture into hard nodules called clinker. After the clinker is cooled and ground
into powder, it is combined with gypsum to produce cement. This process results in the release of
substantial amounts of particulate into the air. Some of this pollution is composed of toxic
substances, such as mercury.
In 1994, Lafarge entered into a consent judgment with the State of Michigan concerning the
plant’s pollution. Nevertheless, the plant continued emitting pollution. Between 1996 and 1999,
the Michigan Department of Environmental Quality (“MDEQ”) determined that the plant committed
numerous violations of the consent judgment that resulted in stipulated penalties of $5.4 million.
These penalties do not appear to have stopped the pollution though. In 2005 — six years after this
lawsuit was filed — the plant emitted 802,119 pounds of EPA Toxic Release Inventory air
pollutants. The plant also emitted high levels of mercury during that year. According to MDEQ,
the plant emitted 520 pounds of mercury into the air during 2005, and Lafarge’s own monitoring
shows that the plant emitted between 422 and 555 pounds of mercury during that year. MDEQ
records indicate that this was the second largest source of mercury emissions in Michigan in 2005.
Of the mercury emitted from the plant, approximately 85%-90% was in the oxidized gaseous form,
which, according to the affidavit of the Objectors’ expert, was especially harmful because it is water
soluble and therefore “much more biologically available for toxic action.” The Objectors’ expert

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No. 07-1953
Gardner v. Lafarge Corp.
The medical monitoring and trespass claims were eventually dismissed.2
- 4 -
has also attested to the fact that oxidized mercury not only has more dangerous properties than other
forms of mercury, but is a particular concern for the resident of Alpena because it is deposited closer
to its source than other forms of mercury.
On April 19, 1999, a putative class action complaint was filed against Lafarge. The
complaint named Julie Olden, Richard Hunter, and Wilbur Bleau as the putative class
representatives, and it alleged four causes of action: (1) a medical monitoring claim; (2) trespass; (3)
nuisance; and (4) negligence. The class alleged that they had suffered personal injury and property2
damage as a result of the cement kiln dust that was produced and emitted during the manufacturing
process. The class also claimed to have suffered similar injuries due to the emission of toxic by-
products that resulted from the burning of hazardous waste in the kilns.
On October 24, 2001, the case was certified as a class action. See Olden v. Lafarge Corp.,
203 F.R.D. 254 (E.D. Mich. 2001). The class was defined as “all owners of single family residences
in the City of Alpena whose persons or property was damaged by toxic pollutants and contaminants
which originated from the LaFarge [sic] cement manufacturing facility located in Alpena, Michigan.”
Id. at 271. The class certification was appealed to the Sixth Circuit. Before the appeal was heard,
however, the two parties went to mediation. The mediator — who was a former chief judge of the
Wayne County (Michigan) Circuit Court — concluded that a settlement of $1.8 million would be
fair and reasonable. Nevertheless, the parties were not able to come to an agreement, and the appeals
process continued. The class certification decision was affirmed by the Sixth Circuit in Olden v.

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Lafarge Corp., 383 F.3d 495 (6th Cir. 2004), and the Supreme Court denied certiorari in Lafarge
Corp. v. Olden, 545 U.S. 1152 (2005).
Almost immediately after the Supreme Court’s denial of certiorari, the parties entered into
settlement negotiations. The class counsel had no expert opinions, nor had they engaged in formal
discovery. Nevertheless, the class counsel — who had been involved in many environmental class
actions, but had never taken one to trial — reached a proposed settlement with Lafarge. The
proposed settlement agreement called for a total settlement value of $2.6 million, and it redefined
the class as:
All of those natural persons residing within the City of Alpena, Michigan, at any time
between April 19, 1996, and the date of this Agreement, together with all of those
natural persons or entities (including but not limited to proprietorships,
unincorporated associations, partnerships, institutions, business and professional
corporations, not-for-profit corporations, trusts, and their successors in title or
interest) owning residential property within the City of Alpena, Michigan, at any time
between April 19, 1996, and the date of this Agreement.
In consideration for this settlement, the class members were required to release all claims against
Lafarge relating to any alleged emissions from Lafarge’s Alpena plant that were, or could have been,
pleaded in the instant case. This release was to cover all damages or injuries — whether known or
unknown — except for “those claims of alleged personal injuries that were brought to the attention
of a health care provider by way of a personal visit prior to the date of this Agreement where either
the class member or the health care provider asserted, at the time of the visit, a causal connection
between the injury and an emission from the Defendant’s plant.”

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No. 07-1953
Gardner v. Lafarge Corp.
“Qualifying Residence” was defined as: “(i) the primary residence in the City of Alpena3
occupied by a Claimant and any members of his or her household during the Class Period; or (ii)
residential property owned by a Claimant.”
It seems as though the intent was to establish a baseline assumed value of $1,000 for all4
claims. Otherwise, there would be no way to determine the value of the recognized claim for those
people who did not both reside in and own a Qualifying Residence since the proposed settlement
agreement does not establish an assumed value for people in that situation. Nevertheless, the plain
language of the agreement does not reflect the probable intent.
- 6 -
Of the $2.6 million settlement amount, Lafarge was to spend $700,000 on two capital
improvement projects: (1) upgrading the plant’s dust collection system, and (2) paving a parking lot
and road at the facility. The remaining $1.9 million of the settlement was to constitute the
Settlement Fund.
From the Settlement Fund would be paid the attorneys’ fees and costs, the class
representatives’ banner awards, and the compensation to class members who submitted claims.
Having top priority were the fees and costs sought by the class counsel, which amounted to nearly
$670,000. Next, the class representatives would be paid banner awards of $20,000 each. Finally,
the remaining money would be paid to members of the settlement class who submitted a claim. The
proposed settlement agreement established a formula for determining how much these individuals
would recover. Their claims would be based on their “recognized claim.” A claimant’s recognized
claim was to be determined according to the location of their residence, whether they owned their
residence, and the portion of the class period during which they owned or resided in their residence.
The recognized claim for a claimant who both resided in and owned a “Qualifying Residence”3
throughout the class period was assumed to have a value of $1,000. If, throughout the class period,4

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No. 07-1953
Gardner v. Lafarge Corp.
The “North Side Geographic Area” was defined as “the geographic area defined by drawing5
a line from Lake Huron along the northeast side of the Thunder Bay River to the east of the railroad
track that crosses the Thunder Bay River near 10th Street continuing on the track northeasterly to
Long Lake Road following the track thereafter southeasterly to Wessel and then southerly along
Wessel extending on a line through Ford Avenue to Lake Huron.” This represents the portion of
Alpena in closest proximity to the Lafarge cement plant.
As mentioned above in note 2, the proposed settlement agreement provided no mechanism6
for determining the assumed value of a claim made by a person who did not both reside in and own
a Qualifying Residence throughout the class period. Therefore, interpreting the agreement literally,
it is not possible to determine the assumed value of a claim made by a claimant who did not both
own and reside in a Qualifying Residence.
See supra note 4.7
- 7 -
a claimant resided in and owned a Qualifying Residence that was outside the North Side Geographic
Area (“NSGA”), then the claimant’s recognized claim would be 100% of the assumed value of the5
claim. See id. If, throughout the class period, a claimant owned a Qualifying Residence that was
outside the NSGA, but the claimant did not reside in the residence, then the claimant’s recognized
claim would be 50% of the assumed value of the claim. Likewise, a claimant would receive 50%6
of the assumed value of their claim if, throughout the claim period, the claimant resided in a
Qualifying Residence that was outside the NSGA but did not own the residence. If a claimant lived7
in or owned a Qualifying Residence in the NSGA, then the claimant would receive twice the amount
that the claimant would receive if the Qualifying Residence were not in the NSGA. Finally, if a
claimant lived in or owned a Qualifying Residence for less than the entire class period, the
claimant’s recognized claim would be reduced according to the proportion of days spent residing in
or owning a Qualifying Residence during the class period to the total number of days in the class
period.

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Gardner v. Lafarge Corp.
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According to affidavits submitted to the district court, none of the class representatives were
invited to participate in the settlement negotiations or even notified that such negotiations were
taking place. Two of the original class representatives — Bleau and Hunter — say that they were
not shown a copy of the proposed settlement agreement until after it had been submitted to the
district court. Hunter says that he was first informed of the proposed settlement by class counsel in
May of 2006. He further says that he was told that each of the class representatives would receive
$5,000, but that the mercury emissions would not be remedied by the settlement. In response,
Hunter informed the class counsel that the class representative’s award was not enough, and that the
settlement needed to resolve the underlying pollution issues. Hunter says that the class counsel
informed Hunter that the mercury problem was not the class counsels’ issue.
The third class representative, Olden, says that the class counsel initially informed her that
each class representative would receive $5,000, but that the amount was eventually raised to $20,000
each after she expressed disapproval of the settlement. She also says that she was shown the
proposed settlement agreement prior to its submission to the district court and that the class counsel
told her that the proposed settlement agreement would not be sent to the other class representatives
because it did not have to be sent to them. In addition, she says that the class counsel told her that
she should take the lead on the settlement for the good of the community, and that she signed the
proposed settlement agreement without really understanding what she was doing.
When the proposed settlement agreement was submitted to the district court for preliminary
approval on June 20, 2006, it bore the signature of only one class representative, Julie Olden. On

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Gardner v. Lafarge Corp.
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June 28, 2006, the district court preliminarily approved the proposed settlement. In doing so, it
ordered that the class be redefined according to the definition provided in the proposed settlement
agreement, and it also concluded that the proposed settlement appeared “to be a fair result of arms
length negotiation that is likely to be in the best interest of [the] class members.” Shortly after this
preliminary approval, class representative Olden revoked her signature and her approval of the
proposed settlement. Additionally, class representatives Hunter and Bleau made a complaint against
the class counsel to the Michigan Attorney Grievance Commission.
On August 7, 2006, attorney Christopher M. Bzdok made an entry of appearance on behalf
of the class representatives and 79 other class members. Bzdok simultaneously filed objections to
the proposed settlement agreement on behalf of those 82 individuals. These objections argued that
the proposed settlement agreement was unfair for seven reasons: (1) the settlement agreement did
not have the endorsement of any of the class representatives; (2) class counsel had not obtained any
expert opinions or engaged in formal discovery before negotiating the settlement; (3) the settlement
would, for minimal or no consideration, release all claims, even personal injury claims that had not
yet accrued; (4) the settlement arbitrarily expanded the class from people actually damaged by
Lafarge’s emissions to everyone in the City of Alpena; (5) the proposed settlement agreement forced
back into the class all class members who had previously opted out of the litigation and required
them to opt out again if they did not want to be part of the settlement; (6) the deadline to object to
the settlement was the same as the deadline to opt out; and (7) there was no justification given for
the requested attorneys’ fees.

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Gardner v. Lafarge Corp.
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At the same time that the objections were being lodged, the class counsel were seeking to
replace the class representatives. On August 7, 2006, the class counsel filed a motion seeking to
withdraw as counsel for the original class representatives, and to remove Olden, Hunter, and Bleau
as class representatives and replace them with Carl Gardner, Clara Lewandowski, and Roland L.
McLennan. The class counsel argued that it was necessary to replace the class representatives
because their objections to the proposed settlement had “rendered them inadequate representatives
of the Class . . . .” The class counsel also alleged that the attorney-client relationship had
deteriorated to a point where they could no longer represent the class representatives. In support of
this argument, the class counsel pointed to the class representatives’ demands for more money, their
voicing of disapproval of the settlement in the local media, and Hunter’s and Bleau’s act of filing
a complaint with the Michigan Attorney Grievance Commission.
In an opinion and order issued on January 29, 2007, the district court addressed the objections
and the class counsels’ motion to replace the class representatives. The district court overruled all
but the fifth objection — i.e., that the settlement impermissibly forced back into the class those who
had already opted out of the litigation. See Olden v. Lafarge Corp., 472 F. Supp. 2d 922, 940 (E.D.
Mich. 2007). As to the other six objections, the district found no problems. In overruling these
objections, the district court reasoned that: (1) the disapproval of the original class representatives
was not a sufficient reason for rejecting the settlement because the class counsels’ obligations ran
to the class as a whole rather than the class representatives; (2) through informal discovery, the class
counsel conducted sufficient investigation of the claims to prepare the case for trial or settlement;

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No. 07-1953
Gardner v. Lafarge Corp.
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(3) considering the significant possibility that the plaintiff class would lose at trial, a $2.6 million
settlement was not insufficient consideration for the release of the class members’ claims; (4) the
redefinition of the class to include all residents of Alpena resulted in a superior class definition
because it provided more objective criteria for identifying class members; (5) the class members’ due
process rights were not violated by the fact that the deadlines to object to the settlement and to opt
out of the litigation were the same; and (6) the objection to the class counsels’ request for fees and
costs was premature because such a request had not yet been made. See id. at 931-36. Despite
overruling six of the seven objections, the district court concluded that the entire settlement must be
rejected because of the unacceptable opt-out provision. See id. at 936-37. Although it refused to
approve the settlement, the district court did grant the class counsels’ motion to substitute Gardner,
Lewandowski, and McLennan as the class representatives. See id. at 939.
After the rejection of the first proposed settlement agreement, the class counsel and the
defendant went back to the drawing board. On March 12, 2007, they jointly moved for preliminary
approval of an amended settlement agreement. The amended settlement agreement remedied the
opt-out problem that had sunk the previously proposed agreement, and it also reduced the class
representatives’ banner award from $20,000 each to $2,500 each. Other than these changes, the
amended settlement agreement was virtually identical to the original. The district court preliminarily
approved the amended settlement agreement on April 6, 2007. On May 29, 2007, Olden, Bleau,
Hunter, and 67 other individuals renewed their objections and requested attorney’s fees and costs.
Along with their objections, they submitted an affidavit from Alexander J. Sagady, an expert whom

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No. 07-1953
Gardner v. Lafarge Corp.
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they had retained for the purpose of demonstrating that there were serious environmental and health
risks that were not addressed by the amended settlement agreement. On June 12, 2007, the district
court granted final approval for the amended settlement agreement. See Gardner v. Lafarge Corp.,
No. 99-10176, 2007 WL 1695609 (E.D. Mich. June 12, 2007). In its opinion, the district court also
rejected Bzdok’s request for attorney’s fees because the district court found that his “work did not
produce a beneficial result for the class.” See id. at *7. In upholding the settlement, the district court
rejected the objections on the basis of the reasoning contained in its earlier opinion. See id. at *6-*7.
On July 6, 2007, a notice of appeal was filed on behalf of 64 objectors. At this point,
however, only 57 objectors (i.e., the “Objectors”) are still involved in the case. On appeal, the
Objectors contest the fairness of the settlement, and they also argue that the original class
representatives should not have been replaced, and that the district court should not have denied their
counsel’s request for attorney’s fees and costs. With respect to the fairness of the settlement, the
Objectors argue that the amended settlement agreement should have been rejected because: (1) it
provided insufficient consideration for an overly broad release of claims against Lafarge; (2) the
class counsel negotiated the settlement without having the benefit of expert opinions or formal
discovery; (3) the amended settlement agreement was disapproved by the original class
representatives and many other class members; and (4) the risks of trial did not weigh in favor of the
settlement.

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Gardner v. Lafarge Corp.
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II.
Before approving a class action settlement, a district court must conclude that the settlement
is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). A district court’s decision in this regard
is reviewed for abuse of discretion. See UAW v. Gen. Motors Corp., 497 F.3d 615, 625 (6th Cir.
2007). In evaluating the fairness of a settlement, this court considers these factors:
(1) the risk of fraud or collusion; (2) the complexity, expense and likely duration of
the litigation; (3) the amount of discovery engaged in by the parties; (4) the
likelihood of success on the merits; (5) the opinions of class counsel and class
representatives; (6) the reaction of absent class members; and (7) the public interest.
Id. at 631 (citing Granada Invs., Inc. v. DWG Corp., 962 F.2d 1203, 1205 (6th Cir. 1992); Williams
v. Vukovich, 720 F.2d 909, 922-23 (6th Cir. 1983)). Some of these considerations support the
settlement agreement at issue, and some do not. While some of the relevant factors certainly weigh
against approving the settlement, it cannot be said that the settlement agreement is unfair,
unreasonable, or inadequate, given the deference owed to the district court.
Weighing in favor of the settlement are the second, fourth, and sixth factors — i.e., the
complexity, expense, and likely duration of the litigation; the lack of great likelihood of success on
the merits; and the reaction of absent class members. First, the complexity, expense, and likely
duration of the litigation weigh in favor of the settlement because, if this case had gone to trial, it
most likely would have been a lengthy proceeding involving complex scientific proof. The experts
necessary to present — and defendant against — such proof would undoubtedly have been expensive

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No. 07-1953
Gardner v. Lafarge Corp.
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for both sides. Following the trial, there would most likely have been an appeal that would have
required an additional investment of substantial resources and time. These considerations suggest
that settling the case was an efficient and reasonable decision.
In addition, the reaction of absent class members — i.e., those class members other than the
class representatives — cuts in favor of the settlement agreement as well. Out of nearly 11,000
absent class members, only 79 objected to the settlement, and only 54 are involved in this appeal.
Although this is not clear evidence of class-wide approval of the settlement, it does permit the
inference that most of the class members had no qualms with it. This tends to support a finding that
the settlement is fair.
Further, the plaintiff class’s likelihood of success on the merits does not appear to have been
especially good. It would have been difficult to prove that any injuries suffered by the class
members were caused by the Lafarge plant rather than one of several other industrial facilities in the
area. It is difficult, though, to evaluate the likelihood of success on the merits in light of the class
counsels’ failure, as discussed below, to conduct any discovery or obtain expert opinions on the
issues of causation, negligence, or damages. Thus, while this factor weighs in favor of the
settlement, it does so only marginally.
Counseling against the settlement, on the other hand, are the first, third, fifth, and seventh
factors — i.e., the risk of fraud or collusion; the limited amount of discovery engaged in by the
parties; the opinions of the original class representatives; and the public interest.

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Gardner v. Lafarge Corp.
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The factor that weighs against the settlement most heavily is the limited amount of discovery
engaged in by the parties. In this case, the class counsel negotiated the settlement agreement without
first obtaining any expert opinions or engaging in formal discovery. Obtaining expert opinions and
engaging in formal discovery are usually essential to establishing a level playing field in the
settlement arena because it enables the class counsel to develop the merits of their case. See In re
Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litig., 55 F.3d 768, 813-14 (3d Cir.
1995). Indeed, without expert opinions or formal discovery, the class counsel could not have had
much — if any — evidence on the issues of causation, negligence, or damages. Without such
evidence, the class counsel could not have entered into the settlement negotiations with much more
than an uneducated guess as to the merits of the case and the propriety and fair value of a settlement.
This undoubtedly weakened the class counsels’ ability to advocate effectively for the plaintiff class
during settlement negotiations and therefore suggests that the settlement was not fair, reasonable,
and adequate. Cf. In re Corrugated Container Antitrust Litig., 643 F.2d 195, 211 (5th Cir. 1981)
(“Of course, if the record points unmistakably toward the conclusion that the settlement was the
product of uneducated guesswork, a court may be acting within its discretion in disapproving the
agreement without ever considering whether the agreement’s terms are adequate.”). Moreover, the
failure to obtain such evidence likely weakened the bargaining position of the class counsel since
their lack of preparation for trial would have prevented them from using “the threat of litigation to
press for a better offer.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1021 (9th Cir. 1998) (quoting
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997)). Although formal discovery and expert
opinions are not necessary conditions for the approval of a settlement, see In re Corrugated

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No. 07-1953
Gardner v. Lafarge Corp.
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Container Antitrust Litig., 643 F.2d at 211, their absence in this case suggests that class counsel may
not have obtained the best agreement possible for the plaintiff class.
It is true that the class counsel in this case acquired substantial amounts of information
through informal discovery methods, such as FOIA requests, but this information did not provide
much information on which to negotiate a settlement. Although the information provided significant
documentation of Lafarge’s pollution of the environment around Alpena, it provided virtually no
evidence on the issues of causation, negligence, or damages. It is true that a Public Health
Assessment conducted by the Agency for Toxic Substances and Disease Registry touched on the
issue of causation. However, that report did not support the plaintiffs’ claims. Therefore, the class
counsel would have been well advised to seek another expert opinion to counter-balance the Public
Health Assessment. Ironically, the only expert to offer an opinion on behalf of any of the plaintiffs
was Alexander J. Sagady, who was retained by the Objectors. Sagady reviewed the publicly
available information and opined that, in the absence of a Multi-Pathway Risk Assessment, one
would have to assume that the Lafarge plant’s mercury emissions presented a significant public
health concern.
The class counsel suggest that this court should defer to the class counsels’ belief that they
had sufficiently investigated their claims to allow for fair settlement negotiations, but the
circumstances of this case do not provide much of a basis for deference. Under ordinary conditions,
this court “should defer to the judgment of experienced counsel who has competently evaluated the
strength of his proofs.” Williams v. Vukovich, 720 F.2d 909, 922-23 (6th Cir. 1983) (citing Stotts

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No. 07-1953
Gardner v. Lafarge Corp.
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v. Memphis Fire Dept., 679 F.2d 541, 554 (6th Cir. 1982); Cotton v. Hinton, 559 F.2d 1326, 1330
(5th Cir. 1977); Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir. 1975)). However, “the
deference afforded counsel should correspond to the amount of discovery completed and the
character of the evidence uncovered.” Id. at 923 (citing Flinn, 528 F.2d at 1173; Women’s Comm.
v. Nat’l Broad. Co., 76 F.R.D. 173, 176 (S.D.N.Y. 1977)). Because the class counsel conducted
virtually no discovery related to the crucial issues of causation, negligence, and damages, their
arguments are entitled to little deference.
Further militating against the settlement is the risk of collusion. The specter of collusion
between the class counsel and Lafarge is present here, just as it is “in every situation where class
counsel is allowed to prosecute an action and negotiate settlement terms without meaningful
oversight by the class representative.” In re Cal. Micro Devices Sec. Litig., 168 F.R.D. 257, 262
(N.D. Cal. 1996). In this case, the original class representatives provided no meaningful oversight
of the class counsel during the settlement negotiations. In fact, the evidence indicates that the
original class representatives were not even aware of the negotiations until after they had concluded.
Although there is no direct evidence of any collusion, the issue is raised by the original class
representatives’ complete lack of involvement in the settlement process and their corresponding
inability to oversee the class counsel. On the other hand, the possibility of collusion is called into
question by the fact that an experienced mediator concluded prior to the settlement negotiations that
a fair settlement would involve a total value of $1.8 million, which is $800,000 less than the
settlement value eventually agreed upon. The mediator’s recommendation, however, does not

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No. 07-1953
Gardner v. Lafarge Corp.
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completely eliminate the possibility that there was collusion, because it is not clear why the mediator
considered that to be a fair settlement value. Therefore, the risk of collusion weighs against the
settlement, albeit only marginally.
Also weighing against the settlement is the opinion of the original class representatives,
which is decidedly negative. One could argue that the opinion of the original class representatives
is cancelled out by the positive opinion of the class counsel, but, as explained above, the class
counsels’ failure to conduct discovery on critical issues diminishes the deference that is owed to their
opinion.
The public interest also appears to counsel against the settlement. The settlement agreement
does not entirely comport with the public interest since it does not address the most significant
environmental hazards created by the Lafarge plant, such as mercury emissions. However, this only
slightly weighs against the settlement. Settlements are compromises, and therefore, plaintiffs cannot
get everything they want.
Finally, the Objectors also argue that the settlement is unfair because it requires an overly
broad release of claims on the part of the class members. This objection is not well taken. Like any
other settlement, this one requires the plaintiffs to release their claims against the defendant. The
release covers all claims against Lafarge — even those that were unknown or had not accrued at the
time of settlement — relating to any alleged emissions from Lafarge’s Alpena plant that were, or
could have been, pleaded in the instant case. Specifically, the release covers claims based on

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No. 07-1953
Gardner v. Lafarge Corp.
Following oral argument, the Objectors sought to strengthen their arguments by filing a8
citation of supplemental authority pursuant to Fed. R. App. P. 28(j), drawing the court’s attention
to Woodman v. KERA, LLC, ___ N.W.2d ___, Nos. 275079/275882, 2008 WL 3355624 (Mich. Ct.
App. Aug. 12, 2008). Review of Woodman does not alter our conclusion that this settlement has not
been shown to be unfair.
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“alleged airborne pollution, emissions, releases, spills and discharges, exposure to hazardous
substances, air contaminants, toxic pollutants, particulate, or odors [emanating from the Alpena
plant].” Because such claims have an identical factual predicate as the claims pled in the complaint,
no problem is posed by their release. See Williams v. Gen. Elec. Capital Auto Lease, Inc., 159 F.3d
266, 273-74 (7th Cir. 1998) (quoting Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1287 (9th Cir.
1992)). Therefore, the release does not call for a finding of unfairness.8
Evaluating all of these factors together, it is a close call as to whether the district court should
have approved the settlement agreement. The district court is much nearer to this case than we are,
and where the balance is close, we cannot say that the district court abused its discretion in finding
the settlement to be fair, reasonable, and adequate.
III.
Although we ultimately conclude that the district court did not abuse its discretion in
replacing the original class representatives, this is a close question in this case and we may well have
made a different decision if we were the trial judges. Replacing class representatives for objecting
to a proposed settlement appears inconsistent with the theory of class representatives. Class
representatives are expected to protect the interests of the class. See Fed. R. Civ. P. 23(a)(4). This

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No. 07-1953
Gardner v. Lafarge Corp.
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requires that the class representatives exercise some oversight of the class counsel so as to avoid
simply turning the conduct of the case over to the class counsel. See Bovee v. Coopers & Lybrand,
216 F.R.D. 596, 615 (S.D. Ohio 2003). Oversight from the class representatives is particularly
important in the context of settlements. See In re Cal. Micro Devices Sec. Litig., 168 F.R.D. at 262
(risk of unfair settlement is greater when negotiations are carried out “without meaningful oversight
by class representative”). These principles suggest that class representatives should not be removed
from their positions as class representatives simply because they have attempted to fulfill their duty
to protect the interests of the class. Nevertheless, the law allows class representatives to be replaced
when events occurring after class certification have rendered them inadequate, see 5 James Wm.
Moore et al., Moore’s Federal Practice § 23.25[6], and the law also recognizes that the development
of a conflict of interest between the class representatives and the other class members may be
sufficient to render the original class representatives inadequate. See Heit v. Van Ochten, 126 F.
Supp. 2d 487, 495 (W.D. Mich. 2001); cf. UAW, 497 F.3d at 626 (absence of conflicts of interest is
important consideration in determining adequacy of class representatives). In this case, the district
court found that the original class representatives’ objections to the settlement created a conflict of
interest between them and the rest of the class, and the Objectors — whose argument focuses on the
inadequacy of the new class representatives — have not shown that finding to be an abuse of
discretion. Therefore, we uphold the district court’s decision in this regard.

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No. 07-1953
Gardner v. Lafarge Corp.
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IV.
The district court also acted without abusing its discretion by refusing to award fees and costs
to the Objectors’ attorney. Fees and costs may be awarded to the counsel for objectors to a class
action settlement if the work of the counsel produced a beneficial result for the class. See Fed. R.
Civ. P. 23, Committee Notes to Subdivision (h); In re Cardinal Health, Inc. Sec. Litig., 550 F. Supp.
2d 751, 753 (S.D. Ohio 2008) (citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1051 (9th Cir.
2002); In re Prudential Ins. Co. of Am. Sales Practices Litig., 273 F. Supp. 2d 563, 565 (D.N.J.
2003)). In this case, the district court found that the work of the Objectors’ counsel did not produce
such a result for the class. Gardner, 2007 WL 1695609, at *7. This finding was not an abuse of
discretion because, with the settlement agreement still in place, it is not apparent that the district
court’s finding was wrong. The Objectors argue that their counsel conferred a benefit upon the class
by causing the removal of the unfair opt-out provision from the settlement agreement. However, it
is not clear that this conferred any benefit on the class. One may argue that this reduced the size of
the class and thereby increased the amount of money recovered by each plaintiff, but there is no
indication that those who had previously opted out would not have done so again. As a result, the
district court did not abuse its discretion in concluding that the Objectors’ counsel did not produce
a beneficial result for the class.
V.
For the foregoing reasons, the district court is AFFIRMED.

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