In Re: Kentucky Grilled Chicken Coupon Marketing & Sales Practices Litigation

Filing 108

MOTION by In Re In Re: Kentucky Grilled Chicken Coupon Marketing & Sales Practices Litigation for judgment Final Approval of Class Action Settlement and Approval of Attorney Fees, Expenses and Incentive Award (Attachments: # 1 Exhibit A - Se ttlement Agreement, # 2 Declaration, # 3 Exhibit 1 to McMorrow Declaration, # 4 Exhibit 2 (Group) to McMorrow Declaration, # 5 Exhibit 3 (Group) to McMorrow Declaration, # 6 Exhibit 4 (Group) to McMorrow Declaration, # 7 Exhibit 5 to McMo rrow Declaration, # 8 Exhibit 6 to McMorrow Declaration, # 9 Exhibit 7 to McMorrow Declaration, # 10 Exhibit 8 to McMorrow Declaration, # 11 Exhibit 9 to McMorrow Declaration, # 12 Exhibit 10 to McMorrow Declaration, # 13 Declaration Of Jay Edelson)(McMorrow, Michael)

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Case 2:08-cv-00285-DMC -JAD Document 203

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

____________________________________)
In Re:
)
)
VYTORIN/ZETIA
)
MARKETING SALES PRACTICES
)
AND PRODUCTS LIABILITY
)
LITIGATION
)
____________________________________)
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THIS DOCUMENT RELATES TO
)
ALL CASES
)
____________________________________)

MDL NO. 1938
Master Docket No. 08-285 (DMC)

OBJECTIONS

NOW COME Sam A. Cannata and Dennis Levin, members of the Class who each
purchased Zetia between November 01, 2002 and September 17, 2009, by and through the
undersigned counsel, and hereby file these objections to the Proposed Settlement.
MEMBERSHIP IN CLASS
Mr. Cannata lives at 23200 Bryden Road, Beachwood, Ohio 44122. His telephone
number is [phone]. Mr. Levin has an office at 5910 Landerbrook Dr., Ste. 200,
Lyndhurst, Ohio 44124. His telephone number is [phone]. Evidence that Mr. Cannata is
a member of the Class (a receipt for Zetia dated 07/04/2009) is attached hereto as an Exhibit.
Evidence that Mr. Levin is a member of the Class (an affidavit from him) is attached hereto as an
Exhibit.

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NOTICE OF INTENT TO APPEAR
Objectors hereby notify this Honorable Court that they will appear, through counsel, at
the Fairness Hearing currently scheduled for February 8, 2010 before the Honorable Dennis M.
Cavanaugh, at the United States District Courthouse, 50 Walnut Street, Newark, NJ 07102.
SUMMARY OF OBJECTIONS
The proposed Settlement Agreement is not fair, reasonable or adequate for several
reasons. Chief among them is the fact that Class Counsel is requesting a fee of up to thirty-three
and one-third percent (33.3%) of the Class Settlement Amount for their fee and out of pocket
expenses and “can make a further request for additional expenses incurred by the Claims
Administrator… “ Notice Paragraph 18. The Class Settlement Amount is $41,500,000.
Therefore, the fee request is for $13.83 million. This is objected to because 1) the percentage is
too great for a settlement of this size; 2) Class Counsel has not submitted their time records so
there is no way to know whether or not the requested fee is fair and reasonable; 3) they should
not be allowed to request any additional amounts after approval of their fee request. In addition,
there is insufficient information in the Settlement Agreement concerning how much of the court
awarded fees will come from the Consumer Class, how much will come from the IRHP’s, and
how much from the TPA’s, TPP’s, ASO’s and PMB’s.
1.

PERCENTAGE OF SETTLEMENT FUND IS TOO GREAT

Based upon the size of the Settlement Fund, the Court should award total fees
and costs to counsel in an amount not exceeding approximately 24.8 % percent of the
Settlement Fund. Even this sum, which would be almost $10.3 Million, would reward Class
Counsel handsomely for their services. According to the study by the consulting firm of Logan,
Moshman and Moore which analyzed over 1100 Common Fund cases, the average award for

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fees and expenses in Class Action cases whose settlements were valued between $30 and $50
million was 24.8 percent. Stuart J. Logan, Jack Moshman and Beverly C. Moore, Jr., Attorney
Fee Awards in Common Fund Class Actions, 24 Class Action Rep. 169 (2003). A copy of the
executive summary from such study is attached hereto as Exhibit A.
2.

VIOLATION OF FED. R. CIV. P. 23(h)

The Notice provided that any objections to the Settlement were to be filed on or before
January 15, 2010. However, the fee petition was filed on January 13, 2010 which allows only
two (2) days to respond before the deadline set forth in the Notice. This is insufficient time in
which to thoroughly review said petition and file a response thereto. Under Fed. R. Civ. P 23(h),
each class member has a period of time as set forth in the Local Rules in which to respond to the
Motion for Fees.
Fed.R.Civ.P. Rule 23(h) provides:
(h) Attorney’s Fees and Nontaxable Costs.
In a certified class action, the court may award reasonable attorney's fees and nontaxable
costs that are authorized by law or by the parties' agreement. The following procedures apply:
(1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the
provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on
all parties and, for motions by class counsel, directed to class members in a reasonable manner.
(2) A class member, or a party from whom payment is sought, may object to the motion.
(3) The court may hold a hearing and must find the facts and state its legal conclusions
under Rule 52(a).
(4) The court may refer issues related to the amount of the award to a special master or a
magistrate judge, as provided in Rule 54(d)(2)(D) (emphasis added).
This Rule has three elements or conditions precedent to having a hearing on a fee request:
1) the request for fees must be by motion; 2) notice of the motion must be directed to class
members in a reasonable manner; and 3) class members must have an opportunity to object.
Although it is questionable whether or not the Notice of the motion has been directed to the
Class members in a reasonable manner, Objector hereby reserves the right to file a response to

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the Motion by way of Supplemental Objections within the applicable time period. Assuming
arguendo that the document filed on January 13, 2009 (Docket No. 200) is intended as a Motion
for Fees, any opposition thereto is due fourteen (14) days prior to the hearing date, or January 25,
2010. Local Rule 7.1 (d) (2). Supplemental Objections will be filed by such date.
3.

REDACTION OF IMPORTANT OPERATIVE SECTIONS

The Class Settlement Agreement and Release that is posted on the website, and can be
found on PACER is inadequate and fails to provide Class Members with certain vital necessary
information. Specifically, Articles XVI and XVII have been redacted. In a conversation on
January 13, 2009, Mr. Cecchi, one of the Class Counsel, indicated that these sections only dealt
with the ability of the parties to withdraw from the settlement if there were a certain number of
opt-outs. Nevertheless, Class members are entitled to this and all other information concerning
the settlement.
Objectors also have serious questions concerning the allocation of attorneys fees. They
could find no provision in the Settlement agreement relating to attorneys’ fees and only a few
phrases in the notice. It clearly violates fundamental fairness to withhold such vital information
from the Class Members. They clearly have a right to know how much they are paying their
lawyers, how this is calculated, how much is coming out of their portion of the Class Settlement
Fund, etc. That a request will be made for “up to 33 and 1/3 percent (33 1/3%)” of the
Settlement Fund is meaningless in the abstract. It does not tell the class members how this is
calculated, how much time was spent by Class Counsel, whether or not there was a ex ante fee
agreement, or any other information needed to make an informed decision. Lacking such
information, the Notice must be deemed to be inadequate for purposes of holding a hearing on
the requested fees.

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The Notice provides that a portion of the Court-approved awards for attorneys’ fees and
other costs will be deducted from the $12,450,000 that is allocated to the Consumer Settlement
Pool. Notice ¶ 9. However, the Notice does not say how great a portion this will be. Will 100%
of the fees and expenses be taken from the Consumer Settlement Pool? 50%? 30%? 10%? An
aliquot percentage? It is impossible to know from the Notice just how much of the fees and
expenses will be paid by the consumer sub-class. Furthermore, there is nothing in the Settlement
Agreement or elsewhere on the website that addresses this issue. This is fundamentally unfair.
The Class has a right to know how much of the total fees and expenses they will be responsible
for. Without this information, the Notice is totally inadequate.
4. NO WITNESSES
Objectors will appear at the Fairness Hearing by and through Counsel, but will not
present any witnesses.
5. Objectors respectfully adopt and incorporate into these Objections all other welltaken, timely filed Objections that are not inconsistent with these Objections.
6. The Class members have a legally protectable interest in this
litigation. That interest will be impacted by the proposed settlement agreement,
particularly the legal fees that are proposed to be paid.
7. These Objections, presented to the Court as a matter of right, are
properly and timely filed by the Objectors. All of the legally required prerequisites
material to these Objections have been met.
WHEREFORE, Objectors respectfully request that this Court:
A.

Upon proper hearing, sustain these Objections;

B.

Continue the issue of attorneys’ fees and expense reimbursement

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for a subsequent hearing;
C.

Upon proper hearing, enter such Orders as are necessary and just to

adjudicate these Objections and to alleviate the inherent unfairness, inadequacies and
unreasonableness of the Settlement and the requested attorneys’ fees and expenses.
Respectfully submitted,

/s/Stephen Tsai____________
991 U.S. Highway 22 West
Bridgewater, N.J. 07060
[phone]
[phone] (fax)
[e-mail]
Edward F. Siegel (Ohio Bar 0012912)
27600 Chagrin Blvd. #340
Cleveland Ohio 44122
Voice: [phone]
Fax:
[phone]
e-mail: [e-mail]
Edward W. Cochran
(Ohio Bar no. 0032942)
20030 Marchmont Rd.
Cleveland Ohio 44122
Tel:
[phone]
Fax: [phone]
[e-mail]

Sam P. Cannata (Ohio Bar no. 0078621)
9555 Vista Way Ste. 200
Garfield Hts., Ohio 44125
Voice:
[phone]
E-mail:
[e-mail]
Co-counsel for Objectors
CERTIFICATE OF SERVICE
The foregoing objections were filed with the Court’s elelctronic system on January 15,
2010 and were by such system served on all other counsel of record.

/s/ Stephen Tsai

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Case 3:09-cv-00255-JPG -PMF Document 55

DORIS J. MASTERS, individually and as
the representative of a class of similarly
situated persons
Plaintiff,

v.
LOWE'S HOME CENTERS, INC.,
Defendant.

Filed 05/02/11 Page 1 of 10 Page ID #518

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Case No. 09-cv-255-JPG-PMF

OBJECTION TO CLASS
PROPOSED ACTION
SETTLEMENT

NOW COMES Grace M. Cannata, 23200 Bryden Rd., Cleveland, Ohio 44122
(telephone number [phone]), Pro Se ("Objector"), hereby files these Objections to
the Proposed Settlement of this Class Action and, in support thereof, state as follows:

PROOF OF MEMBERSHIP IN CLASS
Objector, past and presently, holds a Lowe's branded GE Money Bank credit card
and made a payment on her Lowe's branded GE Money Bank credit card balance at a
new Lowe's store during the class period. (See Attached Claim Notice and Claim Form).
Objector is eligible for at least one gift card as prescribed in the Claim Notice, the Notice
of Proposed Settlement of Class Action and the Settlement Agreement.

NOTICE OF INTENT TO APPEAR
Objector hereby gives notice that she does not intend to appear at the Fairness
Hearing presently scheduled for 1:30 P.M. on July 14,2011, in the United States District
Court for the Southern District of Illinois, Kenneth Gray Federal Building and U.S.
Courthouse, 301 West Main Street, Benton, IL 62812 and will rely on the written
Objections.
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Case 3:09-cv-00255-JPG -PMF Document 55

Filed 05/02/11 Page 2 of 10 Page ID #519

OBJECTIONS
The Settlement Agreement is unfair, wrreasonable and inadequate for the
following reasons:
I.

LOWE'S STANDS TO BENEFIT MORE TIIAN THE CLASS. This Settlement

is nothing more than a coupon settlement and a marketing incentive program for Lowe's.
In fact, if you purchased products from Lowe's and you used their branded credit card,
the only relief is to get a gift card (or coupon) to buy more products from Lowe's. That is
a benefit to Lowe's! Essentially, Class Members receive little more than the right to
purchase more products from the defendant at a discounted price.
Given the abuse Class Members have already suffered at the hands of Lowe's,
they certainly are reluctant to engage in further dealings with Lowe's. Hence, in light of
the dubious value of the benefit offered to Class Members, the redemption rate is
virtually guaranteed to be miniscule. The low redemption rates which typically
accompany these "in-kind" settlements make a mockery of the concept that Class
Members should receive value for settling their claims. This abuse is particularly
troubling when, as in the instant case, class attorneys are paid in cash while Class
Members receive gift cards or coupons of dubious value.
This Court should determine the actual value of the settlement prior to granting or
denying final approval. The settling parties have failed to produce sufficient evidence in
this regard. Not only is the final claims rate unavailable, the Court has not even been
presented a reasonable approximation of the claims rate. Accordingly, the Court does not
have the information it needs to evaluate the settlement's reasonableness.
Notwithstanding the absence of evidence concerning the "actual value", here even
the stated value $7,000,000 is suspect. First, the $7,000,000 cap is arbitrary and no

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Filed 05/02/11 Page 3 of 10 Page ID #520

evidence has been presented that the benefit offered will be commensurate with released
claims. If there is no reasonable approximation of the number of claims to be filed, there
is absolutely no way to know whether individual class members will receive an amount
that is adequate to compensate them for claims they are releasing. Second, the benefit
offered is per "qualifying payment" at a Lowe's store up to three (3) qualifying
payments. As such, a Class Member who made 3 qualifying payments at a Lowe's store
is eligible for the same benefit as some who made a thousand qualifying payments. Under
the terms of the proposed settlement, heavy volume users are subsidizing, to their
detriment, Class Members who made 3 or less qualifying payments. This disparate
treatment of class members is unfair and results in the smallest benefit going to the class
members with the greatest damages.
Finally, regardless of whether the Court is inclined to approve the settlement's
substance in the absence of claims data, it must, according to Class Action Fairness Act
("CAFA"), wait to see how many "gift cards" or coupons are issued to Class Members
before awarding attorneys' fees. Additionally, the Court should require publication of the
final claims rate in the interest of tracking the efficacy of this type of settlement.
2.

ATTORNEYS FEES ARE EXCESSIVE. Class Counsel indicates in the Notice

and in the Settlement Agreement that it will request up to $1,724,000 in Attorneys' fees
and expenses. That is entirely too much compensation considering how short this case's
"time-line" is and the fact that it represents 25% to 49% (and maybe higher) of what the
class members will receive.
The Court should award total fees and expenses in proportion to the benefit that
the Class Members receive which is likely to be significantly less than what is requested
here, and should make sure that the lodestar multiplier, if any, is reasonable.

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In addition, a significant portion of Class Counsel's fees should be deferred until
such time as the Court has received reports indicating the amount of monetary relief that
has actually been delivered to the Class.
3.

INSUFFICIENT INFORMATION IS AVAILABLE REGARDING THE

REASONABLENESS OF THE REOUESTED ATTORNEYS FEES.
In the instant case, the Court cannot ascertain the true value of the benefit to the
class until it knows exactly how much cash value is paid out to Class Members rather
than some charities. The Court does not know the exact amount that will be paid to the
Class Members at this time. Without this information, the Court has no basis for
determining what the relief is worth; without knowing the value of the settlement to Class
Members, the Court cannot make an independent fmding about whether or not the
requested fees are fair.
This Court should wait to award attorneys' fees and expense reimbursements until
such time as it has had a chance to review the claims actually made to assure it that the
attorneys' fees are reasonably related to the actual benefit received by the Class.
Because this is, in effect, a claims-made settlement, with unclaimed benefits
going to 0' pres recipients chosen by Counsel and approved by the Court, the Court
should await a report detailing exactly the amount of monetary benefit received by the
Class. It should be based on the actual relief received by the Class, not the potential.
Therefore, this Honorable Court is urged to wait until it receives a report on actual
payments to Class Members before awarding fees.
4.

CY PRES DISTRIBUTION
The Settlement Agreement provides that if "the amount of claims Lowe's must

pay to Class Members does not reach $3,500,000, the difference between $3,500,000 and

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Filed 05/02/11 Page 5 of 10 Page ID #522

the amount distributed as gift cards to qualifying Claimants shall be treated as a cy pres
fund to be distributed to a Section 501 (c)(3) charitable organization." There is no
requirement that the cy pres be limited to organizations whose purpose will benefit the
class in some way. The amount that is received by this presently unknown organization,
whose purpose may not benefit the Class Members at all, should not be considered when
determining the appropriate amount of fees to be awarded.
In addition, the Class Members who submit a qualifying claim should directly

receive the benefits, and should not go into a cy pres fund.
5.

LACK OF FEE PETITION NOTICE
In addition, Class Counsel has not giving the class members adequate notice of

their fee petition. As of such date no fee petition, or Motion for Award of Counsel Fees,
has been filed. This puts Objector in the unfeasible position of objecting to a Motion for
Fees prior to the time that the motion is filed. The Motion for Fees should be filed prior
to the time of the objection deadline.
Since Objector did not have an opportunity to review the fee petition prior to the
objection deadline, she reserves the right to file additional and supplemental objections
after the fee petition is filed.
6.

Objector respectfully adopts and incorporates into these Objections all other well-

taken, timely filed Objections that are not inconsistent with these Objections. Objector
also reserves the right to supplement these Objections with other and fuller objections
after the fee request is filed.
7.

The class members have a legally protectable interest in this litigation. That

interest will be impacted by the proposed settlement agreement, particularly the legal fees
that are proposed to be paid.

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Case 3:09-cv-00255-JPG -PMF Document 55

8.

Filed 05/02/11 Page 6 of 10 Page ID #523

These Objections, presented to the Court as a matter of right, are properly and

timely filed by the Objector. All of the legally required prerequisites material to these
Objections have been met.
9.

The Objector hereby declares that she intends to hire Attorney Sam P. Cannata to

represent her interests in this matter. Please direct correspondence to him at Law Offices
of Sam P. Cannata, 9555 Vista Way, Ste. 200, Cleveland, Ohio 44125; telephone (216)
214-0796; email [e-mail].

WHEREFORE, Objector respectfully requests that this Court;

A.

Upon proper hearing, sustain these Objections;

B.

Continue the issue of attorneys' fees and expense reimbursement for a

subsequent hearing;
C.

Upon proper hearing, enter such Orders as are necessary and just to

adjudicate these Objections and to alleviate the inherent unfairness,
inadequacies and unreasonableness of the Settlement and the requested
attorneys' fees and expenses.

Respectfully submitted,

Grace M. Cannata
Pro Se Objector

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Filed 05/02/11 Page 7 of 10 Page ID #524

CERTIFICATE OF SERVICE
I certify that on April 29, 2011, I mailed and filed the foregoing objection by
Federal Express Overnight Mail to the Office of the Clerk of Court, United States
District Court for the Southern District of Illinois, Kenneth Gray Federal Building
and U.S. Courthouse, 301 West Main Street, Benton, IL 62812 and by ordinary US
Mail, first class, postage prepaid to the following addresses:
Settlement Administrator:
Payment Receipt Settlement
P.O. Box 2003
Chanhassen, MN 55317-2003
For the Class:
Phillip A. Bock
Richard 1. Doherty
Bock & Hatch LLC
134 N. La Salle Street
Suite 1000
Chicago, IL 60602
For Lowe's:
Kimball R. Anderson
Winston & Strawn LLP
35 West Wacker Drive
Chicago, IL 6060 I

~?JL,.~
Grace M. Cannata
Pro Se Obj ector

7

Case 3:09-cv-00255-JPG -PMF Document
Payment Receipt Settlement
NOTICE OF PENDENCY
P.O. Box 2003
OF(;LASS ACTION AND
Chanhassen, MN 55317-2003
~ROPOSED SETTLEMENT

55

Filed 05/02/11 Page 8 of 10 Page ID #525
Presorted
First-Class Mail
U.S Postage

PAID
Minneapolis, MN
Permit No. 3648

Masters v. Lowe's Home
Centers, Inc.
According to our records
you made 1 qualifying
'. payment(s) at a Lowe's
store on your GE Money
Bank account balance, If
you disagree with our
records, please follow the
Instructions on the claim
form,

Postal Service: Please Do Not Mark Barcode

LHC00832DA509

Ilmlll 1111 11111 1111 11m IImlll~1 ~IIIIIIIII ~n III 11111 11111 I!! ~II
Grace Cannata

ro file your claim online:

Password: 0520EE39

23200 Bryd~n Rd
Beachwood OH 44122-4017

Claim Number: 2157537·,

'1111'111'11111111"1"1111111'111111'1111.11111'11'111

,

NOTICE OF PRopoSED SETT1 EMENT AND RIGHT TO

Qrr QI II

A Federal Court authorized this Noti,ce. This is not a solicitation/rom a lawyer.
The U.S. District Court, Southern District of Illinois has preliminarily approved a class action settlement in Masters v. Lowe's
Home Centers, Inc., No. 3:09-CV-255. Class members are: All
past anti present holders of Lowe's brallded GE Mone), Balik
credit cards who made an in-store payment on their Lowe's
branded GE Money Bank credit card balance at a new Lowe's
store behvem January 1, 2005 and December 3, 2006 or at any
Lowe's store between December 4,2006 and March 24, 2008,
alii/ who received a receipt for their in-store paymelJt showing
more than the last five digits of their account. A new Lowe's
store is a Lowe's store opened after January 1, 2005 and is ide,,ti,fied in Exhibit A which is available on the website. This is a summary of your legal rights. Call or visit the website for more details.
What is this about? The lawsuit claims that Lowe's printed more
than the last five digits of credit card numbers on receipts when
Class Members made in-store payments on their Lowe's branded
GE Money Bank credit card account balances. Lowe's did not
print the cardholder's entire account number on these receipts
and Lowe's denies that it did anything wrong. The Court has not
decided who is right.
What are my rights? You are a Class Member and you have the
following choices: (1) Submit a Claim Form: Submit a claim online or by mail by September 1,2011 and you may receive a gift
card. The maximum value of the gift card will be $25 if you made
one payment on your Lowe's credit card at a Lowe's store, $33 jf
you made two payments, and $40 if you made three or more payments. If the total amount of approved claims exceeds the $7 million settlement fund, the gift cards' value will be reduced pro rala.
(2) Do Nothing: By doing nothing, you will remain in the class, but
you will not receive a gift card. You will be legally bound by all

orders and judgments of the Court, and you will not be able to sue,
or continue to sue, Lowe's about the same claims in this case. (3)
Exclude Yourself: If you exclude yourself, you cannot receive a
gift card; however you will keep your right to sue Lowe's about the
same claims in this case and you will not be bound by any orders
or judgments of the Court. To be excluded, you must send a letter
to the Settlement Administrator postmarked by May 2, 2011, stating that you want to be excluded from the Payment Receipt Settlement. Include your name, address, phone number, and the last four
digits of your GE Money Bank account number. (4) Object: You
may write to the Court about why you are objecting to the settlement. Your objection must be filed by May 2,2011 and sentto:~
~: Phillip Bock & Richard Doherty, Bock & Hatch LLC, 134
N. LaSalle St., Suite 1000, Chicago, IL 60602; ~: Kimball
Anderson, Winston & Strawn LLP, 35 West Wacker Dr., Chicago,
IL 60601; Settlement Administrator: PO Box 2003, Chanhassen,
MN 55317-2003. (5) Go to a hearing: You may also appear and
ask to speak at the Fairness Hearing on July 14.20]1. Visit the
website, call, or write to the Settlement Administrator for details
on how to ask to speak.
Do I have a lawyer in the case? The Court appointed attorneys for
the Class, but you will not be charged for them. They will be paid
up to $1.724 million, if the Court approves that amount. You may
hire your own lawyer to represent you at your own expense. If you
hire your own lawyer, they must file an appearance by May 2, 2011.
Want more Information? Visit the website, call, or write to the
Settlement Administrator.

www.paymentreceiptsettlement.com
1-866-890-4859

Case 3:09-cv-00255-JPG -PMF Document 55

•

Filed 05/02/11 Page 9 of 10 Page ID #526

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
DORIS J. MASTERS, individually and as the representative of a ciass of similarly situated persons, Plaintiff,
v. LOWE'S HOME CENTERS, INC., Defendant. Case No. 09-cv-255-JPG-PMF

DO NOT MAIL.
THIS IS FOR YOUR RECORDS ONLY.

•

*LHCOOAA3C1094*
2157537
111111111111111111111111111111111111111111111111111111111111111

PROOF OF

CLAIM

DEADLINE FOR SUBMISSION: September 1, 2011.
If you submit a Proof of Claim that is incomplete or inaccurate, it may be rejected, and you will be precluded from obtaining
a benefit under the Settlement Agreement.
Please do not mail or deliver this form to the Court or to any of the Parties or their Counsel. In addition, do not telephone
the Judge or Clerk of the Court or any representatives of Lowe's,

To speed processing, please fill out the form in blue or black ink, using block letters, with one letter in each square, as shown:

IAIBlclDI 111213141
PART I: CLAIMANT IDENTIFICATION
[If different from information on Notice and Proof of Claim)
Name of Claimant (if business or other entity, full name of the entity):
First Name

IG IR IAIC EI I I I I I I
I

Last Name

;=cTIA::::YI~NT":N:-rlA:-lI-=TT"":1A"I-'-I-rl--'I---'--'---'r--o--.--,.-,
:1
"I

If business or other entity, full name of the entity:

I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I
I I I I I I I I I I I I I I I I I I I I I I
I I
If claimant is business or other entity, name and title of person filing claim on behalf of the entity:

Claimant Street Address

City

StatelProvince Zip Code

IBIEIAICIHIWIOIOIOI I I I I I I I 1@I8] r'-4-r14--'1-10-12-'-1-'21
I
I I I I I I I I I I <=1 s'rl:': ;: 1~I~1=11---r-1-r-I-r-I""'-I-rl-'I-r-I-r-I-r-I--'--'--'-'Ic--II
UT!!JI
Postal Code

Country Name/AbbreviatIon

Claimant telephone contact number(s):
Daytime

Evening

0522
12111611513131 1 1 1 1 1 1211161-1715111141511191
Claimant Identification Number From Postcard:

•

(CONTINUED ON BACK)
LOW001001

•

1111111111111111111111111111111111111111111111111111111

•

Case 3:09-cv-00255-JPG -PMF Document 55

•

Filed 05/02/11 Page 10 of 10 Page ID #527

•

PART II: CLAIM FOR SETTLEMENT PAYMENT

UNDER THE TERMS OF THE PROPOSED SETTLEMENT, YOU ARE ONLY ELIGIBLE TO RECEIVE THE BENEFIT OF
A LOWE'S GIFT CARD FOR EACH TIME YOU MADE A QUALIFYING PAYMENT AT YOUR LOWE'S STORE ON YOUR
LOWE'S BRANDED GE MONEY BANK ACCOUNT BALANCE; THE VALUE OF THE GIFT CARD SHALL BE $25 IF YOU
MADE ONE QUALIFYING PAYMENT AT A LOWE'S STORE, $33 IF YOU MADE TWO QUALIFYING PAYMENTS AT A
LOWE'S STORE, AND $40 IF YOU MADE THREE OR MORE QUALIFYING PAYMENTS AT A LOWE'S STORE OR YOUR
PRO RATA SHARE THEREFROM (IF THE TOTAL AMOUNT OF APPROVED CLAIMS EXCEEDS $7 MILLION), IF YOU
ARE A MEMBER OF THE FOLLOWING SETTLEMENT CLASS:
All past and present holders of Lowe's branded GE Money Bank credit cards who made an in-store payment on
their Lowe's branded GE Money Bank credit card balance at a new Lowe's store between January 1, 2005 and
December 3, 2006 or at any Lowe's store between December 4, 2006 and March 24, 2008, and who received a
receipt for their in-store payment showing more than the last five digits of their account. A new Lowe's store is a
Lowe's store opened after January 1, 2005 and is identified on the list attached to the Agreement as Exhibit A and
is available on the website.

IF YOU WOULD LIKE TO OBTAIN THIS BENEFIT, PLEASE COMPLETE PARTS I AND II OF THIS CLAIM FORM AND
RETURN TO THE SETTLEMENT ADMINISTRATOR.
The number of qualifying in-store payments reflected in our records is indicated to the left of your name and address on the
notice. If you disagree with the number of in-store payments listed on your notice or if you did not receive a notice, please
indicate below the number of qualifying in-store payments made and provide the receipts for qualifying in-store payments
showing more than the last five digits of the Lowe's branded GE Money Bank account number.

I state under penalty of perjury under the laws of the United States of America that the statements below are true:
[CHECK ALL BOXES, IF TRUE]

[Z]

I am (or the business that I am making the claim on behalf of is) a member of the Settlement Class as defined above
and did not request to be excluded from the Settlement Class. (check box if true)

[Z]

I am or was (or the business that I am making the claim on behalf of is or was) a holder of a Lowe's branded GE Money
Bank credit card between January 1, 2005 and March 24, 2008. (check box if true)

[Z]

I have (or the business that I am making the claim on beha~ of has) made a payment at a new Lowe's store between
January 1, 2005, and December 3, 2006 or between December 4, 2006 and March 24, 2008 at any Lowe's store.
(check box if true)

[Z]

The information supplied by me in this Proof of Claim is true and accurate and executed under the pains and penalties
of perjury. (check box if true)
Date Signed
MM

[Z]

DD

yyyy

@E]1[~TIlI21 0111

Signed Electronically

11

Print Name
First Name

Last Name

IMPORTANT NOTICE: If you did not receive a postcard providing you notice of this settlement or you are not on the
settlement administrator's list of class members, you may still participate in this settlement if and only if you provide proof
showing that you are a class member. The only acceptable proof under the settlement is the actual receipts for a payment
at a new Lowe's store between January 1,2005, and December 3,2006, or at any Lowe's store between December 4,2006,
and March 24, 2008 showing more than the last five digits of the account number.
THE SETTLEMENT ADMINISTRATOR MAY INVESTIGATE THE VALIDITY OF ANY AND ALL PROOFS OF CLAIM .

•

LOW001002

•

1111111111111111111111111111111111111111111111111111111

•

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Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 1 of 10. PageID #: 711

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES GEMELAS, et al.,
Plaintiffs,
vs.
THE DANNON COMPANY, INC.,
Defendant.

)
)
)
)
)

Case No. 1:08-cv-00236
CLASS ACTION
Judge Dan Aaron Polster

OBJECTION TO CLASS ACTION SETTLEMENT
AND REQUEST FOR ATTORNEYS’ FEES, AND
NOTICE OF INTENT TO APPEAR
Class members Robert Falkner, Wanda Cochran, Grace M. Cannata, Danette
Loeffler, Michelle Ritchey, William (Buck) Price, Brad Henry and Sheila Lodwick1
(“Objectors”) hereby object to the proposed class action settlement and request for
attorneys’ fees. Objectors purchased Activia, Activia Light, DanActive and DanActive
Light products during the class period.
I.

NOTICE OF INTENT TO APPEAR

Objectors hereby give notice that they intend to appear and argue at the fairness
hearing scheduled for June 23, 2010 at 12:00 p.m. in the United States District Court for
the Northern District of Ohio.
II.
THE PROPOSED SETTLEMENT DOES NOT CREATE A
COMMON FUND
The Notice states that a $35 million “fund” is being created to pay the claims of

1

Robert Falkner resides at 20826 Almar Rd. Shaker Heights, Ohio 44122; Sheila Lodwick resides at 13113
Spring Blossom Trail, Chesterland Ohio 44026; Wanda Cochran resides at 1044 Alta Vista Road,
Louisville Kentucky 40205; Grace M Cannata resides at 23200 Bryden Rd. Beachwood Ohio 44122;
Danette Loeffler resides at 15807 Valleyview Ave. Cleveland Ohio 44135; Michelle Ritchey lives at 4932
SW 19th St., Gainesville Florida 32608; Brad Henry resides at 6343 Spokane Ave, Chicago Ill. 60646, and
William (Buck) Price resides at 4017 SW 28th Terrace Gainesville, Florida 32608.

1

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 2 of 10. PageID #: 712

class members in amounts between $15 and $100. Furthermore, the Notice advises of an
additional $10 million cash fund that will be available if the claims filed exceed the $35
million amount. In fact, the use of the words “settlement fund” is not justified for either
of these amounts, as the settlement does nothing more than require Defendant to give
security for any and all claims submitted by members of the class in amounts between
$15 to $100. If the claims rate in this case holds true to the historical average noted by
numerous Federal courts, the amount paid to members of the class will be much less than
either $45 million or $35 million in cash. See Sylvester v. CIGNA Corp., 39 F.Supp.2d
34, 52 (D. Me. 2005):
Unfortunately, when this matter first came before the Court for
preliminary approval in July, 2004, the Court was not independently
aware (nor did any proponent of the settlement bring to the Court’s
attention) what the parties and the settlement administrator already
knew – namely, that the ‘claims made’ settlements regularly yield
response rates of 10% or less.
There is nothing in the facts of this case that would indicate that the claims rate is going
to be significantly higher than the historical average. This means that the amount of cash
that will be claimed and paid to class members is certainly unknown at this time, and may
well be much less than $35 million; indeed, the amount claimed may be less than the
$10 million in attorneys’ fees to be requested.
The $45 million in potential cash is clearly not a “fund” for the following reasons:
1. The last $10 million of said “fund” will never be paid unless claims
exceed $35 million (which in all likelihood they will not).
2. As to the $35 million “fund”, no monies will ever be paid except
those that are actually claimed through written claim forms
received from class members. As to this “cash fund”, any
unclaimed amount of the cash will revert back to the Defendant.
The charitable donations are not cash (but likely unused product
of the Defendant), and they are not being paid to the class members.

2

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 3 of 10. PageID #: 713

If it were truly a cash fund, the entire $35 million would be distributed
among the class members who filed claims.
The settlement could, and should, be amended to provide some minimum
guaranteed payment, or “floor”, that the Defendant will have to pay regardless of the
claims rate. If the claims submitted do not reach the floor, then the difference between
the amounts claimed and the amount of the floor can be distributed in cash pro rata to
those who have filed claims; or, that amount of cash could be distributed to appropriate
charities in the form of a cy pres, as was done in the case of Moulton v. U.S. Steel Corp.,
581 F.3d 344 (6th Cir. 2009). Objectors suggest that this floor be set at the amount of at
least $25 million. This would cause the Defendant to make a known payment amount
(actual payment in cash) in consideration for release of the class’ claims; it would also
constitute an actual cash fund out of which a percentage attorney fee could be awarded.

III.
IF THE PERCENTAGE OF FUND METHOD IS UTILIZED BY
THIS COURT, ATTORNEYS’ FEES SHOULD NOT EXCEED 25% OF
THE AMOUNT ACTUALY RECEIVED BY THE CLASS.
This is a “claims made” settlement, so the only “fund” that can result is the
amount of cash that is actually paid to class members who file claims. Federal courts
have generally followed the Federal Judicial Center guidelines and endeavored to
accurately value claims-made settlements when awarding attorneys’ fees. They do not
simply use the amount made available to the class when calculating a percentage
attorneys’ fee, but they wait for the claims to come in and calculate the fee based upon
the amount actually paid out to the class members. See e.g., In re Compact Disc
Minimum Advertised Price Litig., 370 F.Supp.2d 320 (D. Me. 2005)(awarding attorneys’
fees of 3% of value of redeemed coupons which was 30% of claimed lodestar).

3

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 4 of 10. PageID #: 714

Recognizing that percentage of funds is the preferred method of assessing
fees in a settlement like this, with lodestar analysis providing only a check,
I can effectively gauge appropriate attorney fees only if I know the total
value of the settlement. But although I am satisfied that the coupon
settlement has value to the class, I am not confident of the redemption rate
that has been projected and thus of the settlement’s total value. Therefore,
I have determined to delay awarded of attorney fees until experience shows
how many vouchers are exercised and thus how valuable the settlement
really is.
In re Compact disc Minimum Advertised Price Antitrust Litig., 292 F. Supp.2d 184 18990 (D. Me. 2003) (Hornby, D.J.).

The procedure urged by class counsel has been universally rejected by federal
courts, and was termed a “fiction” and “pure fantasy" by the Northern District of
California. In Yeagley v. Wells Fargo & Co., 2008 U.S. Dist. LEXIS 5040 (N.D. al.
2008), the court confronted the task of valuing a settlement for the purpose of awarding
attorneys’ fees:
Class counsel contend that the Court must consider the amount Wells
Fargo could have paid under the settlement in determining the common
fund for the purpose of attorney’s fees. They argue that under the Ninth
Circuit’s decision in Williams v. MGM-Pathe Communications Co., 129
F.3d 1026 (9th Cir. 1997), the court must find that since 3.8 million class
members could have made a claim for a free tri-merged credit report, the
value of the recovery, that is, the common fund, is at least $114 million …
Williams does not require this court to adopt the fiction that the settlement
is worth $114 million … Williams, in contrast, was a settlement of a
securities-fraud class action for $4.5 million in cash …
Class counsel’s $114 million figure is pure fantasy. Counsel does not
offer a shred of evidence that suggests that the parties reasonably
believed that Wells Fargo would actually pay anything near that
4
amount, and the Court finds that they did not … To award class
counsel the same fee regardless of the claim participation rate, that is,
regardless of the enthusiasm of the class for the benefits purportedly
negotiated on their behalf, would reduce the incentive in future cases
for class counsel to create a settlement which actually addresses the

4

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 5 of 10. PageID #: 715

needs of the class. In this case, for example, the one percent claim
rate demonstrates that the brochure did not effectively educate the
claim members about the importance of credit reports and monitoring
their credit … Common sense dictates that a reasonable fee in a class
action settlement is a fee that takes into account the actual results
obtained.
Id. at *20-28. The court in Yeagley went on to award class counsel a fee of $325,000, or
25% of the value of claimed settlement benefits plus attorneys’ fees, a figure that was
Approximately one-third of class counsel’s claimed lodestar. See also Managing Class
Action Litigation: A Pocket Guide for Judges, Federal Judicial Center 2005.
The Supreme Court in Boeing Co. v. Van Gemert, 444 U.S. 472 (1980),
distinguished its holding in that case from settlements like the one currently before
this Court.
The District Court explicitly ordered that “plaintiffs in behalf of
all members of the plaintiff class … shall recover as their damages
herein from the defendants the principal sum of $3,289,359 together
with interest …” Nothing in the court’s order made Boeing’s
liability for this amount contingent upon the presentation of
individual claims. Thus, we need not decide whether a classaction judgment that simply requires the defendant to give
security against all potential claims would support a recovery
of attorneys’ fees under the common-fund doctrine.
Boeing, 444 U.S. at 479 n. 5 (emphasis added).
This settlement is identical to the one the Supreme Court expressly exempted
from its holding in footnote 5 in Boeing. Here, Defendant has agreed to give security
against claims filed by class members, up to a maximum of $45 million, but experience
shows that much less than that is likely to be claimed.
The Sixth Circuit has refused to calculate attorneys’ fees on a percentage of the
final methodology where no true common fund is created. See Geier v. Sundquist, 372
F.3d 784, 789 (6th cir. 2004). Where a court is purporting to award attorneys’ fees under

5

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 6 of 10. PageID #: 716

a common fund method, the first inquiry is whether a common fund has been created,
and whether attorneys’ fees will be taken from that fund. Geier, 372 F.3 at 790. In this
case, the answer to both of those questions is no.
This case is clearly distinguishable from cases in which any remainder of
unclaimed cash is paid to a cy pres recipient, in cash, with the result that no amount of
the settlement cash reverts to the defendant. See, e.g., Moulton v. U.S. Steel Corp., supra
(unclaimed settlement funds paid to public schools). Here, any amount of the cash that is
not paid to the class through the claims process will revert back into the pocket of
Defendant.
Ideally, the Court should defer ruling on class counsel’s attorneys’ fees until the
claims deadline, or October 1, 2010. This delay of approximately 3 ½ months after the
fairness hearing will be well worth the wait, as it will permit the Court to make an
accurate fee award based upon the amount that the class actually receives, rather than the
fiction of the “ceiling” agreed to by Defendant, and will insure that class counsel’s fee is
no more than a reasonable 25% of the total amount paid out by Defendant.
6
IV.
ANY FEE AWARDED PRIOR TO KNOWING THE SIZE
OF THE “FUND” PAID TO THE CLASS MUST BE LIMITED TO A
LODESTAR CALCULATION.
As there is no “settlement fund” that can be accurately quantified prior to
knowing the claims data, any fee awarded at this time should be limited to a lodestar
calculation. And based on the very recent United States Supreme Court case, Perdue v.
Kenny A. ex rel. Winn, --- U.S. ---, 2010 WL 1558980, at *8 (April 21, 2010), the Court
should be reluctant to award any multiplier of the lodestar unless a judgment is made that

6

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 7 of 10. PageID #: 717

the hourly rates applied are inadequate. Although this recent decision related to a
statutory fee award under 42 U.S.C. §1988, Perdue has been interpreted and
applied more generally to apply to a class action settlement of this type. In fact, in this
very district, Perdue has been applied by U.S. District Court Judge James Gwin to apply
to a “claims made” settlement similar to this case:
As the Supreme Court has recently cautioned, however, courts should
hesitate to employ a multiplier, especially when the factors supporting
a multiplier have already been considered in the underlying lodestar
calculation. Perdue v. Kenny A. ex rel. Winn, --- U.s. ---, 2010 WL
1558980, at *8 (April 21, 2010). Although decided in the context of
statutory fee shifting under 42 U.S.C. Section 1988, Perdue nevertheless
provides persuasive caution that multipliers must be reserved for ‘rare’
and ‘exceptional’ circumstances. Id. Although this Court does not
read Perdue to prohibit the use of multipliers in class actions, the
case does suggest that enhancements are atypical and should not
duplicate the same considerations affecting the lodestar rate.
Shannon Van Horn et al. v. Nationwide Property & Casualty Ins. Co., et al., Case
No. 1:08-605 (N.D. Ohio, 2010), Docket No. 308, p. 10.
In that case, which was a claims-made class action settlement, Judge Gwin awarded a
lodestar multiplier of approximately 1.2. Any multiplier awarded in this case should not
exceed 1.2.
7

V.
THE TERMS OF THE PROPOSED SETTLEMENT ARE
INADEQUATE AND WORTH MUCH LESS THAN REPRESENTED
IN THE NOTICE.
The proposed settlement is inadequate and misleading for the following reasons:
A.

The class consists of past purchasers who have either overpaid for the

product, or been falsely induced to purchase the product in the first place. Those class
members have been financially damaged, and have a clear claim for money damages.

7

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 8 of 10. PageID #: 718

The prospective (injunctive) relief will in no way compensate for those damages. The
prospective relief benefits only an unknown class of future purchasers. Given that the
health claims as to “immunity” etc. are now called into question, it is possible, if not
likely, that many of the class members will no longer purchase these products.
Therefore, this prospective relief should not be included in any calculation of
benefits being provided to the actual settlement class.
B.

The injunctive relief itself is inadequate, as it is limited to only three years.

Given the important nature of these allegations, why should the Defendant be released
from these obligations after some artificial, three-year period of time? The injunctions
should be permanent.
C.

As virtually no one keeps their grocery receipts for items like yogurt, there

will be very few, if any, $100 claims. In effect, the maximum claim will be $30. Even
for that $30, you must file a claim form and swear to the truthfulness thereof.
Accordingly, nowhere near $35 million is going to be claimed from this “fund”. Of
course, the $35 million is not a “settlement fund” at all; it is only a guarantee to pay
claims up to that amount.

D.

The “extra” $10 million will likely never be paid, because the claims will

likely not exceed $35 million.
E.

Presuming that the charitable donations will be valued at the retail price,

these donations will be worth much less than the cash they are replacing. The Complaint
in this case seems to indicate a mark-up in the 30%-40% range and, in fact, the “cost of
production” will be even less than that. In addition, money donated to a charity can be
used for more efficiently and for more benefit (because of its liquidity) than donation of a

8

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 9 of 10. PageID #: 719

physical product like yogurt. Objectors suggest that any charity would be more interested
in receiving 25 cents on the dollar in cash as compared to 100 cents at retail price for
perishable yogurt. In fact, it is highly doubtful if a charity could sell the donated yogurt
for 25 cents on the dollar. Accordingly, the charitable donations, which do not even go to
the class members, are worth no more than 25% of the cash payments that it replaces. In
other words, if $20 million in physical product is donated to charities, that product
represents an equivalent cash value of no more than $5 million.

VI.

RESERVATION OF RIGHT TO SUPPLEMENT OBJECTIONS.

As the fee petition has not even been filed as of the objection deadline, objectors
reserve the right to supplement these Objections as to attorneys’ fees until such time as
the Motion for Fees is filed.
WHEREFORE, the Objectors request the following relief from the Court:
A. That the Court sustain each and every of these Objections;

B. That the Court wait to award attorneys’ fees until such time as

the Court can be told what amount was actually paid in cash to the
class; or that the Court award attorneys’ fees based only on the
lodestar method, and not the percentage of fund method;
C. That the Court apply no multiple to the lodestar submitted by
class counsel;
D. That the Court require a minimum cash payment of $25 million
to the class;
E. That the three-year injunction be made permanent; and

9

Case: 1:08-cv-00236-DAP Doc #: 60 Filed: 05/24/10 10 of 10. PageID #: 720

F. That any donations of yogurt product to charities be valued at no
more than 25% of the cash value they are replacing.
Respectfully submitted,
_/s/ Edward F. Siegel______________
Edward F. Siegel (Ohio Bar 0012912)
27600 Chagrin Blvd., Suite 340
Cleveland OH 44122
[phone]
[phone] fax
[e-mail]
EDWARD W. COCHRAN (0032942)
20030 Marchmont Road
Shaker Heights, Ohio 44122
216.751.5546 Voice
216.751.6630 Fax
[e-mail]
Sam P. Cannata
9555 Vista Way Ste. 200
Garfield Hts., Ohio 44125
Voice:
[phone]
E-mail:[e-mail]

Attorneys for Objectors Robert Falkner,
Wanda Cochran, Danette Loeffler, Grace M.
Cannata, Michelle Ritchey, William (Buck)
Price, Brad Henry and Sheila Lodwick

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was filed with the Court's electronic system
on this 24th day of May, 2010 and was by such system filed on all other counsel of
record.
By: _/s/ Edward F. Siegel__

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