Foos v. Ann, Inc.

Filing 71

ORDER granting 66 Objector's Ex Parte Motion for Disclosure of Claims Rate Data. Plaintiffs shall provide the claims rate data to objector and opposing counsel on or before May 24, 2013. Objector may file a response to plaintiffs motion for attorneys fees within 10 days of the receipt of the claims rate data. Plaintiff may file a reply to objectors response within 5 days of service of the response. Signed by Judge M. James Lorenz on 5/20/2013. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 AMELIA FOOS, individually and on
behalf of all others similarly situated,
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Plaintiff,
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v.
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ANN, INC., a Delaware corporation doing
15 business as Ann Taylor Retail, Inc.,
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Defendant.

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Civil No. 11cv2794 L (MDD)
ORDER GRANTING OBJECTOR’S
EX PARTE MOTION FOR
DISCLOSURE OF CLAIMS RATE
DATA [doc. #66]

The Court previously found the settlement of this action to be fair, reasonable and

19 adequate. Plaintiff’s counsel submitted a motion for attorneys’ fees which remains pending.
20 Sarah McDonald, who objected to the class action settlement, now moves ex parte for the
21 disclosure of claims rate data in order for the Court to properly consider the attorneys’ fees
22 requested. Claim members had until February 8, 2013, in which to submit claims for relief under
23 the settlement. Accordingly, the claims administrator has the data showing how many class
24 members requested a coupon under the settlement agreement.
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In seeking disclosure of the number of claims submitted by class members, McDonald

26 contends the information would (1) assist the Court in reviewing the merits of the attorneys’ fees
27 sought and (2) provide valuable information in general concerning class actions settlements,
28 particularly with the type of benefit obtained by class members here. But plaintiff opposes the
11cv2794

1 disclosure request as procedurally improper and irrelevant.
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Since the filing of the ex parte motion, the Ninth Circuit Court of Appeals has addressed

3 this specific issue of attorneys’ fees in the context of a coupon settlement under CAFA, an issue
4 of first impression. See In re HP Inkjet Printer Litigation, 2013 WL 1986396 (9th Cir. May 15,
5 2013). In HP Inkjet, objectors contended that the attorneys’ fees award violated CAFA,
6 specifically 28 U.S.C. § 1712(a)-(c), which controls the calculation of attorneys’ fees when the
7 settlement contains an award of coupons to class members or injunctive relief or both. Id. The
8 district court found the settlement was fair, reasonable and adequate, and by separate order,
9 awarded attorneys’ fees by applying the loadstar method to an estimated “ultimate value” of the
10 settlement. The Court of Appeals reversed.
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Section 1712(c) is the relevant portion of the statute in the present case because the

12 settlement involves both an award of coupons and injunctive relief to class members, i.e., a
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If a proposed settlement in a class action provides for an award of coupons to class
members and also provides equitable relief, including injunctive relief –

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(1) that portion of the attorney’s fee to be paid to class counsel that is based upon a
portion of the recovery of the coupons shall be calculated in accordance with
subsection (a); and

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(2) that portion of the attorney’s fee to be paid to class counsel that is not based
upon a portion of the recovery of coupons shall be calculated in accordance with
subsection (b).

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Thus, “[t]he practical effect of § 1712(c) is that the district court must perform two

21 separate calculations to fully compensate class counsel.” HP Inkjet at *8. The first calculation is
22 a determination of a “reasonable contingency fee based on the actual redemption value of the
23 coupons awarded.” Id. (emphasis added.) The second calculation is a determination of “the
24 reasonable lodestar amount to compensate class counsel for any non-coupon relief obtained.” Id.
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Noting that “one of the main purposes of CAFA” is “discouraging coupon settlements”,

27 the appellate court pointed to the legislative history: “[T]he fee award should be based on the
28 demonstrated value of coupons actually redeemed by the class members.” Id. at *10 (quoting
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11cv2794

1 S. Rep. 109-14 at 30).
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The HP Inkjet case held:
Under § 1712 of CAFA, a district court may not award attorneys’ fees to class
counsel that are “attributable to” an award of coupons without first considering the
redemption value of the coupons. A district court may, however, award lodestar
fees to compensate class counsel for any non-coupon relief they obtain, such as
injunctive relief.

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6 Id.
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Here, objector seeks disclosure of claims rate data. Because under controlling law such

8 information will be necessary for the Court to undertake the appropriate review of plaintiffs’
9 attorneys’ fees motion,
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IT IS ORDERED:

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Objector’s ex parte motion for disclosure of claims rate data is GRANTED. [doc.

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#66] Plaintiffs shall provide the claims rate data to objector and opposing counsel

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on or before May 24, 2013.

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2.

days of the receipt of the claims rate data.

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Objector may file a response to plaintiff’s motion for attorneys’ fees within 10

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Plaintiff may file a reply to objector’s response within 5 days of service of the

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response.

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IT IS SO ORDERED.

19 DATED: May 20, 2013
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M. James Lorenz
United States District Court Judge

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23 COPY TO:
24 HON. MITCHELL D. DEMBIN
UNITED STATES MAGISTRATE JUDGE
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ALL PARTIES/COUNSEL
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11cv2794