Marty v. Anheuser-Busch Companies, LLC
Filing
171
ORDER overruling objections 161 Notice (Other) filed by Ross Muller, 159 Notice (Other) filed by Abner Leps. Signed by Magistrate Judge John J. O'Sullivan on 10/22/2015. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-cv-23656-JJO
[CONSENT]
FRANCISCO RENE MARTY,
SETH GOLDMAN, and
FERNANDO MARQUET
on behalf of themselves and all others
similarly situated;
Plaintiffs,
CLASS ACTION
v.
ANHEUSER-BUSCH COMPANIES, LLC;
Defendant.
________________________________/
ORDER OVERRULING OBJECTIONS
On June 23, 2015, this Court granted preliminary approval of the proposed class
action settlement set forth in the Settlement Agreement and Release ("Settlement
Agreement") between Plaintiffs Francisco Rene Marty, Seth Goldman, and Fernando
Marquet, individually and on behalf of themselves and all members of the Settlement Class, 1
and Defendant Anheuser-Busch Companies, LLC ("Defendant" or "A-B").
On October 20, 2015, the Court held a duly noticed final approval hearing to consider
(1) whether the terms and conditions of the Settlement Agreement are fair, reasonable, and
adequate; (2) whether a judgment should be entered permanently barring the Parties and
Settlement Class Members from prosecuting the other Parties and their officers, attorneys,
directors, shareholders, employees, agents, retailers, suppliers, distributors, endorsers,
1
Unless otherwise defined, capitalized terms in this Order Overruling Objections have the
definitions found in the Settlement Agreement.
consultants, and any and all other entities or persons upstream and downstream in the
production/distribution channels in regard to those matters released as set forth in Section VI
of the Settlement Agreement; and (3) whether and in what amount to approve Class Counsel's
application for the requested award of attorneys' fees and costs and the Class Representative
applications.
These Issues are addressed in the Court's Final Order and Judgment, entered
contemporaneously with this Order. This Order is concerned with whether the two objections
raised to the Settlement approval hearing -
which the Court also considered at the October 20, 2015 final
should be sustained or overruled.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.
The Court considers the reaction of the class to the proposed settlement to be
an important indicator as to its reasonableness and fairness. Of the approximately 1. 7 million
class members nationwide who received notice of the Settlement, there were only five opt
outs and two objections raised: one by Abner Leps; and one by Florida attorney Stephen D.
Field and his client Ross Muller. The Court finds this fact to be overwhelming support for the
settlement and clear evidence of its reasonableness and fairness. See Perez v. Asurion Corp.,
501 F. Supp. 2d 1360, 1381 (S.D. Fla. 2007) ("A low percentage of objections demonstrates
the reasonableness of a settlement.").
2.
The Court carefully reviewed the argument and position set forth in Mr.
Muller's written objection at the Final Fairness Hearing, specifically addressed the objections
raised by Mr. Muller, and rejected them. Mr. Muller did not attend the Final Fairness Hearing.
3.
Mr. Muller's objection relates to his belief that the Settlement provides
inadequate relief and calls for an excessive fee request and excessive class representative
2
award. This objection, however, does not compel this Court to find that the Settlement was
not fair, reasonable, or adequate. See Poertner v. Gillette Co., 14-13882, 2015 WL 4310896,
at *4 (11th Cir. Jul. 16, 2015) (affirming final approval of class action settlement with $6.00
recovery cap for claimants with no proof of purchase); Lee v. Ocwen Loan Servicing, LLC,
14-CV-60649, 2015 WL 5449813, at *17 (S.D. Fla. Sept. 14, 2015) (rejecting objector's
argument that settlement could have been improved through direct payments and noting that
an objector "must do more than just argue that she would have preferred a different settlement
structure"). Nor does Mr. Muller's objection take into account the inherent risks associated
with complex litigation such as this and the possibility that A-B may have ultimately
prevailed in this case. As such, Mr. Muller's objection is overruled in its entirety.
4.
Mr. Muller's objection to the proposed fee award on the grounds that the
"percentage of the fund" approach is inapplicable to a "claims-made settlement" is rejected.
In Poertner, 2015 WL 4310896, the Eleventh Circuit approved a claims-made class action
settlement based upon the deceptive labeling of a consumer product (batteries). !d. at *1, *4.
In approving the requested attorneys' fees, the Court used the percentage-of-the-fund
analysis, and specifically noted that "no principled reason counsels against" applying Camden
Fs2 "percentage-of-recovery rule to claims-made settlements." 3 !d. at *4 n.2. The Poertner
decision is consistent with numerous other decisions from this district that use the percentageof-the-fund approach to evaluate the appropriateness of attorneys' fees in a claims-made class
Camden I Condominium Association, Inc. v. B. Dunkle, 946 F. 2d 768, 772 (11th Cir. 1991)
(hereinafter "Camden F').
2
The Eleventh Circuit explained that "properly understood, a claims-made settlement
is ... the functional equivalent of a common fund settlement where the unclaimed funds
revert to the defendant, indeed; the two types of settlements are fully synonymous." Poertner,
2015 WL 4310896, at *4 n.2 (citation and quotation marks omitted).
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3
action settlement like this one. See, e.g., Saccoccio, 297 F.R.D. at 694-95; Hall v. Bank of
Am., NA., 1:12-CV-22700-FAM, 2014 WL 7184039, at *8-*9 (S.D. Fla. Dec. 17, 2014);
Hamilton v. SunTrust Mortg. Inc., 13-60749-CIV, 2014 WL 5419507, at *7 (S.D. Fla. Oct.
24, 2014); Pinto v. Princess Cruise Lines, Ltd., 513 F. Supp. 2d 1334, 1339 (S.D. Fla. Feb.
16, 2007); In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323, 1328 (S.D. Fla. 2001). The
"percentage-of-the-fund" analysis applies here.
5.
Mr. Muller further claims that the proposed fee award is too large when
compared to the actual pay out to class members who make claims. A similar objection was
recently rejected by the Eleventh Circuit in Poertner because it was "based on [a] flawed
valuation of the settlement pie[,] limiting the monetary value to the amount of [Defendant's]
actual payouts," while excluding the value of the injunctive and other negotiated relief. See
2015 WL 4310896, at *6. The Court rejects this objection on the same grounds.
6.
The Court further rejects Mr. Muller's objection that Class Counsel has not
produced evidence sufficient to support a lodestar analysis. See Muller Objection at 2. In the
Eleventh Circuit, a lodestar analysis may be used as a "cross-check" to the percentage-of-thefund analysis. See, e.g., Pinto, 513 F. Supp. 2d at 1343. But use ofthe lodestar cross-check is
not mandatory. See In reChecking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1362-63
(S.D. Fla. 2011) (declining to perform lodestar cross-check because Camden I "mandated the
exclusive use of the percentage approach in common fund cases" and noting "courts in this
Circuit regularly award fees . . . without discussing lodestar at all.") (internal quotations
marks, brackets and emphasis omitted); see also Waters v. Int'l Precious Metals Corp., 190
F .3d 1291, 1298 (11th Cir. 1999) ("while we have decided in this circuit that a lodestar
calculation is not proper in common fund cases, we may refer to that figure for comparison.").
4
Moreover, Class Counsel provided detailed evidence of the number of hours expended, the
hourly rates for the various timekeepers, the prevailing market rates, and all of the lodestar
factors. (Exhibit 1 to Plaintiffs' Motion for Final Approval [D.E. 157]- Ronzetti Decl. and
Composite Exhibit 1 thereto).
7.
Mr. Muller's argument that the injunctive relief secured by the Settlement
should be given no weight when considering Class Counsel's fee is similarly rejected. Under
Eleventh Circuit law, injunctive changes such as label modifications represent a benefit to the
class and should be considered when approving a class settlement. See Poertner, 2015 WL
4310896, at *5, *6 (trial court properly concluded that "class received substantial benefit"
from label change that removed allegedly misleading statement from battery label and nonmonetary relief was properly considered in evaluating attorneys' fees); see also Lee, 2015
WL 5449813, at *26 (considering value of injunctive relief when approving class counsel's
fee request, even though no specific dollar amount was attributed to injunctive change and
noting "courts consider the value of injunctive relief and monetary relief together in assessing
whether a class action settlement provides sufficient relief to the class."). Moreover, the fiveyear length of the injunctive relief is adequate and reasonable, and protects consumers from
future harm. See Hall v. Bank of America, NA., Case No. 12-cv-22700, DE# 403-1 at 21
(S.D. Fla); Fladell v. Wells Fargo Bank, NA., Case No. 13-cv-60721, DE# 158-1 at 22-24
(S.D. Fla); Hamilton v. SunTrust Mortgage, Case No. 13-cv-60749, DE# 158-1 at 20-22 (S.D.
Fla.).
8.
Finally, the Court rejects Mr. Muller's objection to the extent it suggests that
Class Counsel did not post its fee motion to the Settlement Website, and that the requested
Class Representative awards of $5,000.00 are excessive. First, Class Counsel's fee motion has
5
been posted on the Settlement Website since September 22, 2015, before Mr. Muller filed his
objection and before the September 29, 2015 objection deadline. Further, Rule 23(h) does not
require a fee motion to be posted on the settlement website before the objection deadline.
Second, the $5,000.00 service award is reasonable and well-supported, and should be
approved. See Saccoccio, 297 F.R.D. at 695 (approving $5,000.00 representative service
award and noting that courts find it appropriate to reward class plaintiffs who act as private
attorneys general); Lee, 2015 WL 5449813, at *26 (approving $5,000.00 class representative
service award); Hamilton, 2014 WL 5419507, at *8 (same).
9.
The Court also carefully reviewed the argument and position set forth in Mr.
Leps' written objection at the Final Fairness Hearing, specifically addressed the objections
raised by Mr. Leps, and rejected them. Mr. Leps did not attend the Final Fairness Hearing.
10.
Mr. Leps' objection relates to his belief that the Settlement provides
inadequate relief and calls for an excessive fee request. This objection does not compel this
Court to find that the Settlement was not fair, reasonable, or adequate for the reasons set forth
in paragraphs 3-7, supra. Nor does Mr. Leps' objection take into account the inherent risks
associated with complex litigation such as this and the possibility that A-B may have
ultimately prevailed in this case. As such, Mr. Leps' objection is overruled in its entirety.
11.
Mr. Leps' objection further states: "It is also disturbing that Anheuser-Busch
has agreed not to challenge a fee of up to $3,500,000.00." Leps Objection at 2. Courts in this
circuit have referred to settlement provisions where defendants agree not to object to class
counsel's fee request as long as it does not exceed an agreed upon amount as "clear-sailing"
provisions. In Poertner, 2015 WL 4310896, at *6, the Eleventh Circuit addressed an
objector's self-dealing contention which included a "clear-sailing" provision and found that
6
the objector's "self-dealing contention [wa]s belied by the record" where "the parties settled
only after engaging in extensive arms-length negotiations moderated by an experienced,
court-appointed mediator." Here, the settlement occurred only after extensive arms' length
negotiations overseen by an experienced court-appointed mediator, there is absolutely no
evidence of collusion, and the parties negotiated attorneys' fees only after negotiating relief to
the Class. See id.; Lee, 2015 WL 5449813, at *12 (finding "clear-sailing provision to be
immaterial" where there was no evidence of collusion among the settling parties and fees
were negotiated only after all other terms were agreed upon); Fladell v. Wells Fargo Bank,
N.A., No. 0:13-cv-60721, 2014 WL 5488167, at *4 (S.D. Fla. Oct. 29, 2014) ("[A]lthough
the Settlement Agreement includes a 'clear-sailing' provision, that is immaterial. There was
no collusion in the settlement negotiations and the Parties began negotiations regarding
attorneys' fees only after finishing negotiating the Settlement itself.").
12.
The Court further rejects Mr. Leps' objection to the extent he asserts that the
Court should not grant final approval before the claims rate is known. "District courts often
grant final approval of class action settlements before the final claims deadline." Lee, 2015
WL 5449813, at *22-*23 (collecting cases, rejecting same argument by objector, and
granting final approval where final claims rate was unknown) (quoting Hamilton, 2014 WL
5419507); see also Saccoccio, 297 F.R.D. at 696 (overruling same objection because courts in
this district have upheld settlements before claims deadline had passed); Perez, 501 F. Supp.
2d at 1383 (court need not wait for final claims data to approve).
13.
Class Counsel submitted evidence and argued at the Final Fairness Hearing
that Mr. Leps' objection appears to be ghost written by a professional objector attorney,
pointing to the fact that the objection was mailed from a different state than the state in which
7
.
.
'
'
Mr. Leps resides, his October 13, 2015 letter to the Court was also mailed from a different
state, he paid approximately $60.00 to mail his objection via USPS Express mail (well
exceeding the value of his claim). Although this may constitute indicia that the objection is
ghost written, the Court need not rely upon that ground in overruling the objection and
overrules the objection on its merits for the reasons stated herein.
this
DONE AND ORDERED
0 ~J, b,~
'2015.
Copies furnished to all counsel of record
8
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