Tennille v. Western Union Company, The

Filing 299

ORDER re: 268 MOTION for Bond Class Plaintiffs' Motion for Appeal Bond by Plaintiffs and 273 Letter from Mr. Dorsey. I TREAT Mr. Dorsey's Letter as a MOTION FOR RECONSIDERATION . I REAFFIRM by Judge John L. Kane on 10/21/13. (dbrow, ) (Modified on 10/21/2013 to add linkage) (dbrow, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 09-cv-00938-JLK (consolidated with 10-cv-765-JLK)
JAMES P. TENNILLE, on behalf of himself and all others similarly situated,
Plaintiff,
v.
THE WESTERN UNION COMPANY and WESTERN UNION FINANCIAL
SERVICES, INC.,
Defendants.

ORDER
Kane, J.
This class action litigation arose out of Western Union’s business practice of
leveraging the time value of unclaimed transfer funds until state unclaimed property laws
mandated they disclose and attempt to repatriate them. In extensive motions practice over
a period of years, Western Union succeeded in dismissing all of Plaintiffs’ claims save for
Plaintiffs’ equitable claims premised on various theories of unjust enrichment. Western
Union’s motion to compel class members to submit to individual arbitration was denied,
and an appeal was taken. After lengthy negotiations before private and Tenth Circuit
mediators, the litigation culminated in a global settlement calling for sweeping and
substantive changes to the way Western Union does business. Class members were
notified of the Class Action Settlement Agreement and afforded the opportunity both to
opt out of the settlement class or to object to the Agreement’s terms.

At a fairness hearing held on June 24, 2013, the objections of various class
members including Sikora Nelson and Paul Dorsey were heard. See Minutes (Doc. 254).
Ms. Nelson appeared personally through counsel. Mr. Dorsey had been scheduled to
appear personally but did not, citing the fact that the hearing had been rescheduled ten
days from its original date and Mr. Dorsey could not change his flight. See Withdrawal
of Notice of Intention to Appear (Doc. 250).
At the fairness hearing, I heard from counsel on each of the pending objections,
including Mr. Dorsey’s. See Hg. Tr. (Doc. 257) at pp. 27-35. Mr. Dorsey’s objection
focused primarily on the issue of notice and it, together with Ms. Nelson’s objection and
the pro se objections of a handful of other class members, was overruled. I proceeded to
fairness determinations, and ultimately approved the settlement. In doing so I described
the difficult nature of the case and the exceedingly narrow path the Plaintiff Class faced
to a successful resolution. Id. at 30. I found the parties’ agreement to have been the
result of “vigorous, at times contentious, negotiations” over a long period of time. Id. at
30. Given the nature of the dispute and global business practices at issue, I went so far as
finding the settlement “remarkable.” Id. Final Judgment on my approval was entered the
following day, on June 25, 2013. (Doc. 253.)
Ms. Nelson, through her counsel, filed an appeal of the Final Judgment and my
findings overruling her objection, and Mr. Dorsey joined in that appeal. The matter is
before me now on Class Plaintiffs’ Motion for Appeal Bond (Doc. 268), which I
originally granted over Ms. Nelson’s written objection and without hearing from Mr.
2

Dorsey given that the time for responding to the Motion had run. (Doc. 272.) Mr.
Dorsey’s handwritten response was received in chambers later that same day. See Letter
from P. Dorsey (Doc.273). Given Mr. Dorsey’s pro se status and the nature of the relief
that had been ordered against him, I treated his letter as a Motion for Reconsideration and
directed Class Counsel to respond to it. See Order re Letter from Mr. Dorsey (Doc. 275).
Class Counsel did so in the form of a Motion to Supplement the Record to Respond to
Objector Dorsey’s Request for Claims Administration Invoice (Doc. 289). Class Counsel
also filed a separate Reply in support of their Motion for Appeal Bond. (Doc. 284). I
gave Mr. Dorsey the last word on the appeal bond issue by directing him to file his “final
response/reply in support of his Motion for Reconsideration” (Doc. 291), which he timely
filed on October 15, 2013. (Doc. 294). Accordingly, Mr. Dorsey’s response to Class
Plaintiffs’ Motion for Appeal Bond stands fully briefed, and I address it as follows:
The substance of Mr. Dorsey’s objection to Plaintiffs’ Motion for Appeal Bond
was the lack of evidentiary basis for the $1,007,294 bond amount.1 Mr. Dorsey questions
Class Counsel’s representations regarding the need for an additional mass mailing to the
nationwide class to notify them of the appeal and resulting delays, as well as counsel’s

1

I pause briefly to dispose of the parties’ dispute regarding the legal standard applicable to
Mr. Dorsey’s response. Class Counsel emphasizes the procedural vehicle, citing law in this circuit
regarding Motions for Reconsideration that preclude revisiting a decision of the Court absent
demonstration of a mistake “not of reasoning but of apprehension . . . [or] a significant change or
development in the law or facts since submission.” Class Pls’ Response (Doc. 284) at 1. Mr.
Dorsey asks that his Motion be treated as a request to respond to the Motion for Appeal Bond in the
first instance. Given Mr. Dorsey’s pro se status and his history of diligent participation throughout
the course of the settlement proceedings, I apply no heightened standard and consider his substantive
Reponse, filed on September 30, 2013 (Doc. 287) on its merits.
3

assertions regarding call volume and $37,180 per month in additional administrative
costs. Mr. Dorsey asks Class Counsel to provide copies of invoices and phone records to
support these claims “as a show of good faith,” and asks whether supplemental class
notice could not be effected “by simply and efficiently posting an update on the website
maintained by the Class Administrator” rather than pursue costly individualized mailing.
Finally, Mr. Dorsey asks whether Class Counsel “really intend(s) to advise the Class of
what their options are while the appeal remains pending, as it stated to the Court in its
Motion for Bond,” or is that “just posturing for the Court?” The gist of Mr. Dorsey’s
response is that Class Counsel’s estimates regarding the cost of the delay were
exaggerated as a “bullying tactic against the Objectors.” See Mr. Dorsey’s Response
(Doc. 287), pp. 2-4.
In response, Class Counsel moves to supplement the record, see Motion (Doc.
289), attaching the September Claims Administration Report – identifying over 9,045
total minutes of live agent calls and over 2,000 calls to the automated claims system in
September 2013 alone (Ex. 1 to Doc. 289) – as well as the claims administration bill for
September in the amount of $30,402.36 (Ex. 2). “There will be highs and lows along the
way,” Class Counsel states, “but there most assuredly will continue to be class member
contacts generating increases in the cost of administration the recurrence of which will be
elongated by the period of the appeal.” See id. I agree. The nature of the class action
settlement, its nationwide scope, and the sheer number of class members – many of whom
are unsophisticated or non-native English speakers or otherwise unfamiliar with legal
4

proceedings or their rights under the Agreement – portends a hands-on claims process
requiring considerable effort on the part of the Claims Administrator. As Class Plaintiffs
correctly observe, the setting of an appeal bond necessarily involves forward-looking
estimates and educated guesswork. Based on my familiarity with this case and the record
before me, Class Counsel’s cost estimate of $1,007,294 is not unreasonable and is not
asserted as a “tactic” merely to “bully” the appealing objectors.
Having considered Mr. Dorsey’s response to the Motion for Appeal Bond together
with Plaintiffs’ Motion to Supplement the Record and related briefing, I REAFFIRM my
Order granting the Appeal Bond (Doc. 272) and ORDER a bond in the amount of
$1,007,294 be payable jointly and severally by Ms. Nelson and Mr. Dorsey. With the
exception of ancillary attorney fee issues, which have been referred to Magistrate Judge
Tafoya and do not affect appellate jurisdiction, the proceedings in the district court are
CONCLUDED.
Dated October 21, 2013.
s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

5