The opinion of the court was delivered by: HARVEY
On July 16, 1970, this Court entered herein Settlement Order No. 2 pertaining to a proposed $2,000,000 settlement of claims of plumbing and general contractors in this multidistrict antitrust litigation. Such Order provided for the establishment of a temporary national class of plumbing and general contractors having claims against the settling defendants and for the publication and sending of notices to prospective members of the temporary settlement class who were given the right to either accept the proposed settlement or to exclude themselves therefrom and proceed with the prosecution of any claims they might have against the defendant manufacturers.
In Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corporation, 323 F. Supp. 364 (E.D. Pa., 1970), a motion filed by certain plaintiffs herein to vacate Settlement Order No. 2 was denied. Reference is hereby made to that opinion for a full discussion of the history of this litigation, of the background of this proposed settlement and of the provisions of such Order.
Settlement Order No. 2 provided for a hearing before this Court on December 22, 1970 to determine whether such proposed settlement should be finally approved. Matters to be presented to the Court at that hearing included whether applications for attorneys fees and other disbursements should be approved, whether the proposed temporary settlement class should be determined and ordered to be a final and permanent class under Rule 23 of the Federal Rules of Civil Procedure and whether final judgments should be entered against those plaintiffs and members of the temporary settlement class who had not excluded themselves as permitted in the proposed settlement agreement. As this Court noted in its opinion of September 24, 1970 (at page 372):
"Provided that the parties do not withdraw and the proposed settlement is presented to this Court at a final hearing, extensive additional data received by way of responses to the notices published or sent to prospective members of the proposed class will be available to the Court to aid it in finally determining whether the settlement is fair and adequate and whether the proposed national class is a proper one."
Such hearing has now been held as scheduled. Based upon the arguments presented at such hearing, this Court's knowledge of the history and nature of this litigation, and the pleadings, affidavits and exhibits submitted in support of and in opposition to the proposed settlement including the reports filed by the Contractors Settlement Committee, this Court makes the findings of fact and conclusions of law set forth hereinafter.
1. The findings of fact heretofore contained in this Court's opinion in Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corporation, supra, are hereby reaffirmed and are incorporated herein.
2. In Settlement Order No. 2, this Court approved a notice procedure designed to present the proposed settlement to prospective members of the class and to secure additional information from them to aid the Court in making an informed judgment as to whether the settlement should be approved. Under the procedure adopted and followed here, prospective class members could: (a) accept the proposed settlement; (b) elect to exclude themselves and litigate their claims even though the settlement was ultimately approved; or (c) do nothing, in which case they would be bound by any judgment entered herein.
3. The Contractors Settlement Committee established in Settlement Order No. 2 has fully complied with all of the requirements of said Order, and the notice procedures prescribed in said Order have been completed in conformity with Settlement Order No. 2 and Rule 23 of the Federal Rules of Civil Procedure.
4. The notice given the prospective members of the Temporary Settlement Class pursuant to Settlement Order No. 2 fully, fairly and accurately informed the members of the Class of all material elements of the proposed settlement, and their rights and obligations in connection therewith, and said notice was the best notice practicable under the circumstances. The notice which fairly advised the Class of their options was published in the September, 1970 issue of the following trade magazines, i.e. the Contractor, the Plumbing, Heating, Cooling Business, the Professional Builder and the House and Home. In addition, counsel for the Class Representatives contracted with Dun and Bradstreet for mailing lists of all general building contractors and all plumbing, heating (except electrical) and air conditioning contractors. Utilizing these lists, more than 243,000 individual notices were mailed to contractors on or before September 1, 1970. This number exceeds the Department of Commerce figure for domestic contractors. No other practicable means existed for the determination and notification of persons and firms who might be members of the class.
5. The Temporary Settlement Class established in Settlement Order No. 2 satisfies the requirements of Rule 23(a) and 23(b) of the Federal Rules of Civil Procedure. Said Class is homogeneous; the members of the Class are so numerous that joinder of all such members is impracticable; there exist questions of law and fact common to the Class; said common questions predominate over any question affecting only individual members of the Class; and a class action is superior to all other available methods for the fair and efficient adjudication of these claims.
6. The claims of the Class Representatives, plaintiffs in Civil Action No. 69-1256SC, designated in Settlement Order No. 2, are typical of the claims of the Class; said Class Representatives, and their counsel, have and will fairly and adequately protect the interests of the Class; and, therefore, said Class ...