UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

NICK PEARSON, FRANCISCO PADILLA, 

CECILIA LINARES, AUGUSTINA BLANCO, 

ABEL GONZALEZ, and RICHARD 

JENNINGS, on Behalf of Themselves and All 

Others Similarly Situated,

Plaintiffs,

v.

NBTY, INC., a Delaware corporation; and 

REXALL SUNDOWN, INC., a Florida 

corporation; TARGET CORPORATION, a 

Minnesota Corporation,

Defendants.

Case No.: 11 CV 07972

CLASS ACTION

Judge James B. Zagel

PARTIES’ JOINT RESPONSE TO OBJECTIONS

Stewart M. Weltman

STEWART M. WELTMAN, LLC

53 W. Jackson, Suite 364

Chicago, Illinois 60604

Telephone: (312) 588-5033

(Of Counsel: Levin Fishbein Sedran & Berman)

Elaine A. Ryan 

Patricia N. Syverson

BONNETT, FAIRBOURN, FRIEDMAN & 

BALINT, P.C.

2325 E. Camelback Rd., Suite 300 

Phoenix, Arizona 85016

Telephone: (602) 274-1100

Attorneys for Plaintiffs Nick Pearson, Francisco 

Padilla, Cecilia Linares, Augustina Blanco, and 

Abel Gonzalez 

Peter N. Freiberg 

Jeffrey I. Carton 

DENLEA & CARTON LLP 

One North Broadway, Suite 509

White Plains, New York 10601 

Telephone: (914) 920-7400

Attorneys for Plaintiff Richard Jennings

Kara L. McCall

Michael W. Davis

Theodore R. Scarborough, Jr.

SIDLEY AUSTIN LLP

One South Dearborn Street

Chicago, IL 60603

Telephone: (312) 853-7000

Counsel for Defendants NBTY, Inc.; Rexall 

Sundown, Inc.; and Target Corp.

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TABLE OF CONTENTS

Page

I. THE OBJECTORS HAVE MISCHARACTERIZED THE STANDARD FOR 

THIS COURT’S REVIEW OF THE SETTLEMENT AGREEMENT...............................3

II. THE OBJECTORS HAVE GROSSLY UNDERVALUED THE COMPONENTS 

OF THE SETTLEMENT.....................................................................................................4

A. Available Compensation to the Class Is Worth Between $14.2 Million and 

$27.3 Million .............................................................................................................6

B. Notice and Administrative Costs Are a Part of the Value of the Settlement.............8

C. When Compared to All Components of the Settlement, the Attorneys’ Fees 

Are Reasonable ..........................................................................................................9

D. The So-Called “Clear Sailing” Provision and Reverter of Fees Are Proper............10

III. THE OBJECTION AND CLAIMS PROCESSES MEET THE RULE 23 

REQUIREMENTS AND DO NOT IMPOSE UNDUE BURDENS ON CLASS 

MEMBERS OR OBJECTORS..........................................................................................11

A. The Notice of Attorneys’ Fees Request Met the Rule 23(h) Requirements............11

1. Notice of Class Counsel’s Fee Request Was Published to the Class.............12

2. Mercury Interactive Has No Precedential Value Here ..................................13

3. The Adjourned Final Approval Hearing Moots the Objection. .....................14

B. The Objection Process Is Typical and Presents No Undue Burden to Class 

Members. .................................................................................................................14

1. Requiring Objectors and Opt-Outs To Mail Their Submissions Is 

Reasonable and Accepted in this Circuit.......................................................15

2. Requiring Objectors To Appear at the Fairness Hearing or Request 

To Be Excused from Appearing Is Not Burdensome ....................................17

3. The Law Allows the Parties to Depose Objectors.........................................18

C. The Claims Process, Including Two Tiers of Recovery, Is Appropriately 

Tailored to the Facts and Law Applicable to this Case ...........................................20

1. A Claims-Made Process Is Typical, Appropriate, and Necessary in a 

Consumer Fraud Case Like this One .............................................................20

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2. The Two-Tier Recovery Process Is Appropriate ...........................................21

IV. THE INCENTIVE AWARDS ARE REASONABLE.......................................................23

V. THE CY PRES COMPONENT OF THE SETTLEMENT IS MEANINGFUL 

COMPENSATION PROVIDING A BENEFIT TO THE CLASS ...................................24

A. The Use of Cy Pres Relief for Unclaimed Settlement Funds Has Been 

Accepted and Widely Used in the Seventh Circuit..................................................24

B. OREF Is a Proper Cy Pres Recipient.......................................................................27

C. The Cy Pres Amount Is of Value to the Class.........................................................29

VI. MANY OF THE OBJECTORS ARE SERIAL OBJECTORS WITH A HISTORY 

OF INTERFERENCE WITH CLASS ACTION SETTLEMENTS FOR 

PERSONAL GAIN............................................................................................................30

A. McNeal’s and Paul’s Counsel – Attorney Palmer – Is a Professional 

Objector, Whom Previous Courts Have Recognized as Interested Only In 

Financial Gain..........................................................................................................32

B. Easton’s Counsel Are Professional Objectors Whom Courts Have Found To 

Be Not Motivated by a Concern for the Welfare of the Settlement Class...............34

C. Theodore Frank and the Center for Class Action Fairness Are Serial 

Objectors Who Repeatedly Seek Thousands of Dollars in Attorneys’ Fees 

for Filing Objections................................................................................................36

VII. THE REMAINING “OBJECTIONS” HAVE BEEN ADDRESSED OR ARE 

NOT PROPERLY CONSIDERED OBJECTIONS ..........................................................37

A. Ms. Radlinski’s Objection Has Been Fully Addressed By The Parties...................37

B. Ms. Paulson’s Objection Should Be Overruled .......................................................38

C. The Remaining “Objections” Are Actually Claim Submissions.............................38

CONCLUSION..............................................................................................................................38

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TABLE OF AUTHORITIES

Page(s)

CASES

Barnes v. Fleetboston Fin. Corp., No. 01-10395, 2006 WL 6916834 

(D. Mass. Aug. 22, 2006).........................................................................................................31

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980)...............................................................6, 7, 8, 10

Bower v. MetLife, Inc., No. 1:09-cv-351, 2012 U.S. Dist. LEXIS 149117 

(S.D. Ohio Oct. 17, 2012)............................................................................................12, 13, 14

Cassese v. Williams, 503 F. App’x 55 (2d Cir. 2012) ...................................................................12

City of Greenville v. Syngenta Crop Prot., Inc., 904 F. Supp. 2d 902 (S.D. Ill. 2012) .................17

Crawford v. Equifax Payment Servs., 201 F.3d 877 (7th Cir. 2000).............................................23

Dewey v. Volkswagen of Am., 909 F. Supp. 2d 373 (D.N.J. 2012)..........................................36, 37

Embry v. ACER Am. Corp., No. C09-01808, 2012 WL 3777163 

(N.D. Cal. Aug. 29, 2012)........................................................................................................33

Fraser v. Asus Computer Int’l, No. C 12-00652, 2013 WL 3595940 

(N.D. Cal. July 12, 2013).........................................................................................................23

Galloway v. Kansas City Landsmen, LLC, No. 4:11-1020, 2012 WL 4862833 

(W.D. Mo. Oct. 12, 2012)........................................................................................................15

Hale v. Wal-Mart Stores, Inc., Nos. 01-CV218710 & 01-CV227774, 2009 WL 2206961

(Mo. Cir. Ct. June 17, 2009)....................................................................................................34

Hall v. AT & T Mobility LLC, No. 07-5325, 2010 WL 4053547 (D.N.J. Oct. 13, 2010)..............26

Hartless v. Clorox Co., 273 F.R.D. 630 (S.D. Cal. 2011) ...............................................................9

Herfert v. Crayola, LLC, No. 2:11-cv-01301, slip op. [D.E. 74] 

(W.D. Wash. Aug. 17, 2012) ..................................................................................................32

In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-MD-1775, 2009 WL 3077396 

(E.D.N.Y. Sept. 25, 2009)........................................................................................................12

In re Apple Inc. Sec. Litig., No. 5:06-CV-05208, 2011 WL 1877988 

(N.D. Cal. May 17, 2011) ..................................................................................................36, 37

In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935 

(N.D. Ill. 2011)...................................................................................................................13, 18

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iv

In re Cathode Ray Tube (CRT) Antitrust Litig., 281 F.R.D. 531 (N.D. Cal. 2012).......................19

In re Cellphone Fee Termination Cases, 186 Cal. App. 4th 1380, 113 Cal. Rptr. 3d 510 

(2010).......................................................................................................................................34

In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001)...............................................................22

In re Checking Acct. Overdraft Litig., 830 F. Supp. 2d 1330 (S.D. Fla. 2011).................18, 31, 34

In re Continental Ill. Secs. Litig., 962 F.2d 566 (7th Cir. 1992)....................................................23

In re Hydroxycut Mktg. & Sales Pracs. Litig., No. 3:09-cv-01088 slip op. [D.E. 215] 

(S.D. Cal. Apr. 29, 2013).........................................................................................................19

In re IPO Secs. Litig., 728 F. Supp. 2d 289 (S.D.N.Y. 2010) .................................................35, 36

In re Kentucky Grilled Chicken Coupon Mktg. & Sales Pracs. Litig., 280 F.R.D. 364 

(N.D. Ill. 2001)................................................................................................................. passim

In re Law Office of Jonathan E. Fortman, LLC, No. 4:13MC00042, 2013 WL 414476 

(E.D. Mo. Feb. 1, 2013)...........................................................................................................20

In re Lawnmower Engine Horsepower Mktg. & Sales Pracs. Litig., 733 F. Supp. 2d 997 

(E.D. Wis. 2010)......................................................................................................................27

In re Lawnmower Engine Horsepower Mktg. & Sales Pracs. Litig., MDL No. 08-1999, 

2010 WL 4386552 (E.D. Wis. Oct. 28, 2010).........................................................................14

In re Lifelock, Inc. Mktg. & Sales Prac. Liltig., No. 08-1977, 2010 WL 3715138 

(D. Ariz. Aug. 25, 2010)..........................................................................................................13

In re LivingSocial Mktg. & Sales Prac. Litig., No. 11-CV-0745, 2013 WL 1181489 

(D.D.C. Mar. 22, 2013)............................................................................................................28

In re Lucent Techs., Inc., Sec. Litig., 307 F. Supp. 2d 633 (D.N.J. 2004).....................................22

In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988 (9th Cir. 2010) .............................13, 14

In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002 (N.D. Ill. 2000) ....................25, 27, 29

In re Motor Fuel Temp. Sales Pracs. Litig., No. 07-md-01840, slip op. [D.E. 3019] 

(D. Kan. Nov. 10, 2011) ..........................................................................................................15

In re New Motor Vehicles Canadian Exp. Antitrust Litig., 842 F. Supp. 2d 346 

(D. Me. 2012)...........................................................................................................................37

In re Oil Spill by Oil Rig Deepwater Horizon, No. MDL 2179, 2013 WL 144042 

(E.D. La. Jan. 11, 2013)...........................................................................................................33

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In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104 (S.D.N.Y. 1997).....................................22

In re Synthroid Mktg. Litig., 264 F.3d 712 (7th Cir. 2001) ...........................................................23

In re TD Ameritrade Acct. Holder Litig., Nos. C 07–2852 & C 09-4903, 

2011 WL 4079226 (N.D. Cal. Sept. 13, 2011) ........................................................................38

In re UnitedHealth Grp. Inc. PSLRA Litig., 643 F. Supp. 2d 1107 (D. Minn. 2009)....................31

In re Uponor, Inc., F1807 Plumbing Fittings Prods. Liab. Litig., No. 11-MD-2247, 

2012 WL 3984542 (D. Minn. Sept. 11, 2012).........................................................................33

Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468 (5th Cir. 2011).............................................29, 30

Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766 (N.D. Ohio 2010)...................................37

Mace v. Van Ru Credit Corp., 109 F.3d 338 (7th Cir. 1997) ..................................................25, 26

Mangone v. First USA Bank, 206 F.R.D. 222 (S.D. Ill. 2001) .............................................. passim

Mars Steel Corp. v. Continental Nat’l Bank & Trust Co., 834 F.2d 677 (7th Cir. 1987)................6

McKinnie v. JP Morgan Chase Bank, NA, 678 F. Supp. 2d 806 (E.D. Wis. 2009).....11, 20, 25, 26

Meyenburg v. Exxon Mobile Corp., No. 3:05-cv-15, 2006 WL 2191422 

(S.D. Ill. July 31, 2006)......................................................................................................23, 24

Milliron v. T–Mobile USA, Inc., No. 08-4149, 2009 WL 3345762 (D.N.J. Sept. 10, 2009).........21

Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781 (7th Cir. 2004) ...............................................29, 30

Murray v. GMAC Mortg. Corp., 434 F.3d 948 (7th Cir. 2006).....................................................23

Radcliffe v. Experian Info. Solutions Inc., 715 F.3d 1157 (9th Cir. 2013)....................................23

Schulte v. Fifth Third Bank, 805 F. Supp. 2d 560 (N.D. Ill. 2011)........................................ passim

Silverman v. Motorola Solutions, Inc., Nos. 12-2339 & 12-2354, 2013 WL 4082893 

(7th Cir. Aug. 14, 2013).............................................................................................................5

Simer v. Rios, 661 F.2d 655 (7th Cir. 1981) ............................................................................25, 26

Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990).......................26

Smith v. Levine Leichtman Capital Partners, Inc., No. C 10-00010, 2012 U.S. Dist. 

LEXIS 163672 (N.D. Cal. Nov. 15, 2012) ........................................................................15, 16

Smith v. Qwest Communications Co., No. C11-02599, 2013 WL 3200592 

(N.D. Cal. June 24, 2013) ......................................................................................................8, 9

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State v. Levi Strauss & Co., 41 Cal. 3d 460 (1986).......................................................................27

Stern v. AT&T Mobility Inc., No. 2:05-cv-08842, slip op. [D.E. 394] 

(C.D. Cal. Nov. 22, 2010)..........................................................................................................7

Stern v. Gambello, 480 F. App’x 867 (9th Cir. 2012) .................................................................7, 8

Stern v. Cingular Wireless Corp., No. 2:05-cv-08842, slip op. [D.E. 344] 

(C.D. Cal. Oct. 15, 2010) ........................................................................................................19

Trombley v. Nat’l City Bank, 826 F. Supp. 2d 179 (D.D.C. 2011)................................................37

Uhl v. Thoroughbred Tech. & Telecommc’ns, Inc., 309 F.3d 978 (7th Cir. 2002) .........................4

Wear v. Sprint Commc’ns Co., No. 2:11-cv-809, 2013 WL 3108312 

(D. Nev. June 18, 2013).............................................................................................................8

Weeks v. Kellogg Co., No CV 09-08102, 2011 U.S. Dist. LEXIS 155472 

(C.D. Cal. Nov. 23, 2011)........................................................................................................14

Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir. 1997) .........................7, 8

STATUTES AND RULES

Fed. R. App. P. 7......................................................................................................................31, 32

Fed. R. Civ. P. 5(b)(2)(C) ..............................................................................................................15

Fed. R. Civ. P. 23(e)(5)..................................................................................................................30

Fed. R. Civ. P. 23(h) ..........................................................................................................11, 12, 13

Fed. R. Civ. P. 30(a)(1)..................................................................................................................18

OTHER AUTHORITIES

ALBA CONTE & HERBERT B. NEWBERG, 3 NEWBERG ON CLASS ACTIONS

§ 8:45 (4th ed. 2002)................................................................................................................20

ALBA CONTE & HERBERT B. NEWBERG, 5 NEWBERG ON CLASS ACTIONS

§ 15:37 (4th ed. 2002)..............................................................................................................31

BARBARA J. ROTHSTEIN & THOMAS E. WILLGING, MANAGING CLASS ACTION

LITIGATION: A POCKET GUIDE FOR JUDGES 15 (Fed. Judicial Ctr., 2d ed. 2009)....................31

Brian T. Fitzpatrick, The End of Objector Blackmail?, 62 VAND. L. REV. 1623 (2009)...............31

MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.643 (2004)...................................................30

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NEWBERG ON CLASS ACTIONS § 10.15 (3d ed. 1992)....................................................................25

OREF, About OREF, http://www.oref.org/site/PageServer?pagename= oref_about (last 

visited Aug. 27, 2013)..............................................................................................................27

Theodore H. Frank, Resident Fellow, American Enterprise Institute and Director, AEI 

Legal Center for the Public Interest, Protecting Main Street from Lawsuit Abuse: 

Statement Presented to the Senate Republican Conference (March 16, 2009) at 1, 

available at http://www.aei.org/files/2009/03/16/Frank%20 testimony.pdf...........................36

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Plaintiffs Nick Pearson, Francisco Padilla, Cecilia Linares, Augustina Blanco, Abel 

Gonzalez, and Richard Jennings (“Plaintiffs”), through their counsel; and Defendants NBTY, 

Inc.; Rexall Sundown, Inc. (“Rexall”); and Target Corporation (“Settling Defendants”), through 

their counsel, request that the Court overrule the objections of Theodore H. Frank [D.E. 95] 

(“Frank Obj.”), Pamela Easton [D.E. 98] (“Easton Obj.”), Peggy Thomas [D.E. 99] (“P. Thomas 

Obj.”), Simone Thomas [D.E. 100] (“S. Thomas Obj.”), Kathleen McNeal and Alison Paul [D.E. 

104] (“McNeal/Paul Obj.”), John Buckley [D.E. 93] (“Buckley Obj.”), and C. Jane Radlinski 

[D.E. 90] (“Radlinski Obj.”).1 To be sure, the objectors have generally ignored – or have no 

objection to – the primary features of the Settlement:

First, none of the objectors have any real objection to the amount of compensation to 

which claimants are entitled. While some of the objectors have half-heartedly objected to the 

two-tier payment structure, those objections are not based on case law in the Seventh Circuit, 

which allows for different levels of recovery based on different levels of proof. Thus, there can 

be no question that the amount of compensation available to claimants, and the process for 

seeking compensation, is reasonable and fair.

Second, the Settlement has no cap on the consideration to be made to Class Members. 

This means not only that all consumers who make valid claims will receive the full amounts that 

 

1 Each of the arguments made below are made on behalf of all Parties. Plaintiffs also are 

submitting herewith their own separate response to the objections, addressing the value of the 

injunctive relief to the Class. The Settling Defendants agree that the injunctive relief has value 

to the Class, but take no position on the value of such relief or how it should be calculated. 

Similarly, to the extent the Plaintiffs’ separate response relies on the alleged falsity or 

deceptiveness of the Settling Defendants’ labeling and advertising and/or the alleged lack of 

efficacy of the products, the Settling Defendants disagree with such assertions.

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they are due under the Agreement, but also that there is no limited “fund” from which attorneys’ 

fees will be taken. Thus, the award of attorneys’ fees has no impact on Class recovery.2

Third, none of the objectors take any issue with the strength of the Notice Program – nor 

could they, considering its breadth and scope. While the Objectors may predict a low claims 

rate, they cannot and do not argue that the claims rate was a result of any deficiency in the Notice 

Program, which reached an estimated 76 percent of the Class, and which the Court already 

approved (Preliminary Approval Order [D.E. 89] ¶ 6). Indeed, unlike most consumer class 

action settlements, which typically involve only publication notice, this settlement provided 

direct, individual notice to more than 4.7 million class members, or almost 40 percent of the 

estimated class.

Fourth, the monetary value of this Settlement alone is substantial. As more fully 

discussed below (see infra § II.A–C), the minimum total benefit to the Class of the monetary 

relief (direct compensation available to class members, notice and administration costs, and 

attorneys’ fees) is either $33.3 million or $20.2 million. Either way it is valued, this Settlement 

offers significant monetary value to the Class, and the attorneys’ fees and expenses requested by 

Class Counsel are proportional to that value.

 

2 Because this is not a “settlement fund” case where all costs (including attorneys’ fees and 

notice and administration costs) come out of the same fund, many of the background 

suppositions on which Objector Frank relies simply are not applicable. See, e.g., Frank Obj. at 

13 (“Every dollar the settlement administrator receives is a dollar that is not available to the class

in settlement.”); id. at 16 (“In a typical common fund settlement, the district court may, at its 

discretion, reduce the fees requested by plaintiffs’ counsel – when it does so, the class will 

benefit from the surplus.”). These statements, which appear to come from a brief in some other 

case, are simply not true: Because payment to claimants is uncapped, the amount of money 

spent on administration or attorneys’ fees has no effect on payments to the class.

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In the end, although the Objectors – particularly Mr. Frank – refer to “self-dealing” and 

the “unfairness” of the settlement, they provide no evidence for such baseless claims. Indeed, 

almost all of their arguments relate to attorneys’ fees. But in making such arguments, they 

ignore or undervalue important components of the settlement. The settlement provides for a 

claims-made procedure, with no ceiling, such that the monetary compensation made available to 

the Class is conservatively valued alone at approximately $27.3 million or approximately $14.2 

million. See infra § II.A–C; Plaintiffs’ Memorandum of Law in Support of Motion for Final 

Approval (“Final Approval Br.”), being filed herewith, §§ III.C.1.a, V.B.1. Attorneys’ fees of 

$4.5 million would constitute no more than 24 percent of the minimum value of the monetary 

compensation alone. The percentage is even lower once the value of the injunctive relief and the 

notice and administration costs are included. See generally Plaintiffs’ Response to Objections. 

Accordingly, the attorneys’ fees to which the Settling Defendants have agreed are within an 

acceptable percentage of the overall value to the Class. The remaining objections – related to the 

claim and objection processes, the incentive awards to the named plaintiffs, and the cy pres

component – are not supported by fact or the law in this Circuit and should also be overruled.3

I. THE OBJECTORS HAVE MISCHARACTERIZED THE STANDARD FOR THIS 

COURT’S REVIEW OF THE SETTLEMENT AGREEMENT.

This Court is required to carefully review the settlement. See, e.g., Schulte v. Fifth Third 

Bank, 805 F. Supp. 2d 560, 578 (N.D. Ill. 2011). However, this Court’s duty is not to determine 

whether the settlement “has achieved perfection,” Mangone v. First USA Bank, 206 F.R.D. 222, 

 

3 The only Objector who has stated an intent to appear at the Final Approval Hearing is Mr. 

Frank, through his counsel (Frank Obj. at 3-4).

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227 (S.D. Ill. 2001), to try to make it “better,” Schulte, 850 F. Supp. 2d at 591, or to otherwise 

interfere with a fair and reasonable compromise reached by the Parties.

As the Seventh Circuit has noted, a district court should grant approval if “the proposed 

settlement is lawful, fair, reasonable and adequate.” In re Kentucky Grilled Chicken Coupon 

Mktg. & Sales Pracs. Litig., 280 F.R.D. 364, 375 (N.D. Ill. 2001) (“In re KFC”) (quoting Uhl v. 

Thoroughbred Tech. & Telecommc’ns, Inc., 309 F.3d 978, 986 (7th Cir. 2002)); see also Final 

Approval Br., §§ III.A (discussing public policy strongly favoring class action settlements), 

III.B. (discussing procedural fairness of the settlement), III.C (discussing substantive fairness of 

the settlement).

The Court views the facts in the light most favorable to the settlement and “must not 

substitute its own judgment as to optimal settlement terms for the judgment of the litigants and 

their counsel.” In re KFC, 280 F.R.D. at 375. Moreover, the Court is required to reject 

objectors’ arguments that are “tantamount to complaining that the settlement should be ‘better,’ 

which is not a valid objection.” Schulte, 805 F. Supp. 2d at 591–92 (internal quotation marks 

and citations omitted) (stating further that the Court’s belief “that one or a few terms could have 

been improved . . . is an insufficient grounds for rejection”).

II. THE OBJECTORS HAVE GROSSLY UNDERVALUED THE COMPONENTS 

OF THE SETTLEMENT.

None of the Objectors truly contend that the monetary benefits available to Class 

members are deficient. The available benefits range from at least $3 to as much as $50 for each 

class member. Importantly, this is an uncapped settlement allowing compensation for all class 

members and all valid claims. Thus, Objectors have not and cannot contend that the amount 

available to the class members is anything other than fair and reasonable. See Final Approval Br. 

§ II.A.1 (discussing total potential benefit to class members provided by the settlement).

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Instead, it appears that the focus of the Objectors’ arguments is that the amount of the 

attorneys’ fees and expenses (“fees”) to which the Settling Defendants have agreed not to object 

– fees that do not reduce the recovery of any class member – is disproportionate in their view to 

the value of the Settlement.4 Objectors contend that, at most, the Settlement is worth $8 million 

(the sum of the $2 million claim payment floor, the minimum $1.5 million in notice and 

administration costs, and the $4.5 million in fees) (Frank Obj. at 15; Easton Obj. at 3; P. Thomas 

Obj. at 2; S. Thomas Obj. at 2), or as little as $6.5 million if one ignores the notice and 

administrative costs (Frank Obj. at 12–15; Easton Obj. at 3). The Objectors then contend that the 

ratio of fees to the amount recovered is disproportionate, supporting the baseless inference that 

the Settlement is the by-product of collusion or self-dealing (Frank Obj. at 9–12; Easton Obj. at 

3–4; P. Thomas Obj. at 2–3; S. Thomas Obj. at 2; McNeal/Paul Obj. at 6–7).

The Objectors, however, ignore well-settled law governing how courts are to value the 

monetary component of a claims-made settlement such as this one. They also contend that the 

injunctive relief is of no value when, in fact, the injunctive relief provides consumer protection 

and has a monetary value. See generally Plaintiffs’ Response to Objections. Finally, under 

Seventh Circuit law, the notice and administration costs are also of value to the Class.

 

4 Because the amount available for payment of claims is uncapped, the Objectors do not contend 

that the claims amounts provided in the Settlement are insufficient or should be increased as a 

result of any decrease in fees. Accordingly, they would not benefit from any reduction in fees. 

Under recent Seventh Circuit precedent, therefore, it would appear that Objectors lack standing 

or any legally cognizable interest in objecting to the fee amounts. In Silverman v. Motorola 

Solutions, Inc., Nos. 12-2339 & 12-2354, 2013 WL 4082893 (7th Cir. Aug. 14, 2013), the 

Seventh Circuit dismissed the appeal of an objector who was objecting to the fee award, but who 

had not filed a claim himself. The Court found that the objector “lacks any interest in the 

amount of fees, since he would not receive a penny from the fund even if counsel’s take should 

be reduced to zero.” Id. at *1. This same logic applies here.

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A. Available Compensation to the Class Is Worth Between $14.2 Million and 

$27.3 Million.

The minimum total potential compensatory benefit available to the class is between $14.2 

million and $27.3 million, based upon the valuation methodology dictated by the U.S. Supreme 

Court’s seminal decision in Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), and its progeny. 

Boeing reaffirmed the principle “that a litigant or a lawyer who recovers a common fund for the 

benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from 

the fund as a whole.” Id. at 478 (emphasis added). Although Boeing involved a judgment, the 

valuation principle enunciated there applies to the valuation of settlements and the awards of fees 

therein. See Final Approval Br. § V.B (discussing Boeing and its application by the Seventh 

Circuit in Mars Steel Corp. v. Continental Nat’l Bank & Trust Co., 834 F.2d 677, 679 (7th Cir. 

1987), and elsewhere); see also In re KFC, 280 F.R.D. at 380 n.9 (citing Boeing to support the 

principle that “[a]bsent extenuating circumstances, fees are based on the benefit made available 

to the class, as opposed to the amounts actually claimed”) (emphasis added).

In this case, the settlement allows claims to be made on undocumented purchases, which 

is an extremely beneficial aspect of this Settlement. Typically, when a case proceeds to 

judgment following a trial, class members are required to prove the fact of their purchases 

through valid documentation; not so in this Settlement. Further, the Settlement Administrator 

estimates that there are more than 12 million class members (Notice Plan, attached as Ex. C to 

the Settlement Agreement), and that the notice program reached over 76 percent of the class 

(Affidavit of Mark D. Schey (“Schey Aff.”) (Ex. A) ¶ 10), such that approximately 9.1 million 

class members would have received notice of the settlement. Moreover, approximately 4.7 

million class members received direct, individual notice via email or postcard (Affidavit of 

Michael E. Hamer (“Hamer Aff.”) (Ex. B) ¶¶ 10–13; Declaration of Dan Ross (“Ross Decl.”) 

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(Ex. C) ¶¶ 5, 6), which is rare in consumer class actions (Schey Aff. (Ex. A) ¶ 10). Applying the 

Boeing methodology yields a minimum total potential compensatory benefit of $27.3 million (12 

million class members x 76 percent reach x $3.00 minimum claim) or, focusing only on class 

members who received direct notice, $14.2 million (4,718,651 million direct notice recipients x 

$3.00). Moreover, these amounts are conservative because class members are entitled to make 

multiple claims – up to $12 each for undocumented purchases and up to $50 for documented 

purchases. See also Final Approval Br. §§ III.C.1.a, V.B.1.

While Objector Frank relies heavily on Ninth Circuit law in support of his collusion 

arguments, he ignores that even the Ninth Circuit has consistently followed the Boeing approach 

in valuing settlements. For example, in Williams v. MGM-Pathe Communications Co., 129 F.3d 

1026, 1027 (9th Cir. 1997), the Ninth Circuit reversed a holding that had restricted a fee award to 

a percentage of the actual $10,000 claims made instead of the $4.5 million made available. 

Citing Boeing, the Ninth Circuit reversed and remanded, “conclud[ing] that the district court 

abused its discretion by basing the fee on the class members’ claims against the fund rather than 

on a percentage of the entire fund or on the lodestar.” Id.

The Ninth Circuit recently reaffirmed this approach over the objection of Mr. Palmer’s 

client5 and others in Stern v. Gambello, 480 F. App’x 867 (9th Cir. 2012). In Stern, 

approximately $36 million was available to pay claims. Objectors asserted that the fee award 

should be based upon the actual claims made and not the funds made available. The district 

court overruled these objections and evaluated the fee award based on the funds made available. 

Stern v. AT&T Mobility Inc., No. 2:05-cv-08842 (C.D. Cal. Nov. 22, 2010) [D.E. 394] (Ex. D). 

 

5 Mr. Palmer is one of the attorneys representing Objectors McNeal and Paul.

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Affirming the district court’s order, the Ninth Circuit held, “nor was it error to consider, in crosschecking the fees against the recovery, the potential recovery rather than the claims actually 

made.” 480 F. App’x at 870 (citing Williams, 129 F.3d. at 1027) (emphasis added).6

To the extent that the Objectors focus on the floor, the actual claims made, or anything 

other than the funds that Settling Defendants have made available to class members, their focus 

is misplaced.

B. Notice and Administrative Costs Are a Part of the Value of the Settlement.

Objector Frank also contends that notice and administrative costs should not be included 

in determining the value of the Settlement (Frank Obj. at 12–15). In rejecting this identical 

contention, the court in In re KFC stated, “[t]he Objection improperly deducts the cost of notice 

from the Settlement fund created in order to suggest that the requested fee represents a higher 

percentage of the common fund (Obj. at 7.) Deduction of notice costs from the fund is improper, 

 

6 Two more examples illustrate this point. In Wear v. Sprint Commc’ns Co., No. 2:11-cv-809, 

2013 WL 3108312 (D. Nev. June 18, 2013), the court approved a claims-made settlement that 

appeared to be uncapped, and the defendant’s payment of fees would not “‘reduce the benefits 

available for the Class.’” The court noted that “it is appropriate to base the percentage on the 

gross cash benefits available for class members to claim, plus the additional benefits conferred 

on the class by the Settling Defendants’ separate payment of attorneys’ fees and expenses, and 

the expenses of administration.” Id. at *1–2 (citing Boeing). The court concluded that the 

agreed-to fee and expense award, as 28.4 percent of the “value of the fund as whole,” was within 

the reasonable range allowed in the Ninth Circuit. Id. at *3.

In Smith v. Qwest Communications Co., No. C11-02599, 2013 WL 3200592 (N.D. Cal. June 24, 

2013), the district court approved a claims-made settlement similar to the Wear settlement and 

the Settlement here. Following Boeing, the court concluded that the approximate $4,273,000 of 

“cash benefits available for class members to claim” plus the “estimated administrative costs of 

$2,942,000,” to be borne by the Settling Defendants plus the “agreed-to attorneys’ fees and 

expenses of $2,901,000,” also to be paid separately by the Settling Defendants, in the total 

amount of “approximately $10,116.000” was the appropriate monetary value of the settlement. 

Id. at *2 (emphasis added). The court also concluded that “[t]he $2,901,000 fee-and-expense 

award therefore represents 28.68 percent of the fund as a whole” which is “within the range of 

reasonable percentage-fee awards in this Circuit.” Id. at *2–3.

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however, as the cost of notice and claims administration are properly considered part of the fund, 

as are attorney fees.” In re KFC, 280 F.R.D. at 386 (citing Schulte, 805 F. Supp. 2d 560); see 

also Smith, 2013 WL 3200592, at *2; Hartless v. Clorox Co., 273 F.R.D. 630, 645 (S.D. Cal. 

2011). These courts reason that if a judgment were obtained on behalf of the class, the class 

would be required to pay the notice and administrative costs; accordingly, it is a clear benefit to 

the class that the Settling Defendants are instead paying these costs in connection with the 

settlement. Mangone, 206 F.R.D. at 228 (finding the “biggest monetary benefit” to the class to 

be the defendant’s agreement to bear the costs of Notice “which is an expense that would 

ordinarily be borne by class action plaintiffs”). 

Nonetheless, even if the $1.5 million for notice and administrative costs are excluded, the 

Settlement still has a minimum total potential compensatory benefit that ranges from $31.8 

million ($27.3 million (compensation available to 76 percent of class that received publication 

notice) plus $4.5 million fees) to $18.7 million ($14.2 million (compensation available to direct 

notice recipients) plus $4.5 million fees) with fee percentage – at the most – at 24 percent.

C. When Compared to All Components of the Settlement, the Attorneys’ Fees 

Are Reasonable.

There can be no question that all components of the settlement should be considered 

when evaluating the fairness of the settlement and the reasonableness of the attorneys’ fees to be 

awarded. See supra § II.A–B; Final Approval Br. §§ III.C.1.a, V.B.1; see also Schulte, 805 F. 

Supp. 2d at 599 (“Where a settlement includes substantial affirmative relief, such relief must be 

considered in evaluating the overall benefit to the class.”). Thus, the Objectors’ arguments about 

collusion, as based on disproportionality, are baseless: The minimum value of this Settlement –

focusing on monetary relief only – is either: (1) $33.3 Million ($27.3 million (compensation 

available to the 76 percent of class that received publication notice) plus $1.5 million notice and 

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administrative costs plus $4.5 million in fees); or (2) $20.2 million ($14.2 million (compensation 

available to direct notice recipients) plus $1.5 million in notice and administrative costs plus $4.5 

million in fees and expenses). Using the Boeing valuation criteria, the percentage of attorneys’ 

fees agreed to be paid versus the minimum amount of funds made available by the Settling 

Defendants (including notice and administration costs), is no more than 22 percent.7 This 

percentage, based on the value of the monetary relief alone, are well under the 25 percent norm 

that the Objectors contend exists in the Seventh Circuit (Frank Obj. at 9; see also Easton Obj. at 

2 (appropriate percentage would be 20 to 30 percent)).8

Likewise, because the value of the Settlement is based upon the funds made available, 

and not the amount of claims ultimately made, there is no need to delay the fees and expenses 

award until the claims period ends in December, as some Objectors contend (see Frank Obj. at 

17–19; Easton Obj. at 4; McNeal/Paul Obj. at 8).

D. The So-Called “Clear Sailing” Provision and Reverter of Fees Are Proper.

Frank also objects to Defendants’ agreement not to object to a fee award above $4.5 

million as a collusive “clear sailing” agreement (Frank Obj. at 15–16). As a threshold matter, 

because the Settlement provides monetary amounts to which Objectors have no complaint, as 

well as substantial and valuable injunctive relief, Objectors’ hollow contentions of a “sell-out” 

are rebutted by the Settlement Agreement itself.

Further, a clear-sailing provision is a necessary component of any settlement where the 

fee amount is negotiated after the parties have agreed to the benefits to the class. Otherwise, an 

 

7 Percentage derived by dividing $4.5 million by $20.2 million. 

8 See, e.g., In re KFC, 280 F.R.D. at 380-81 (thorough discussion of case law in Seventh Circuit 

holding that 30 percent and above are appropriate percentages of fees).

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agreement to pay fees separate from the funds made available to the class could never be 

reached. Moreover, separate negotiation is a preferred practice because it ensures that class 

counsel obtain the best possible deal for the settlement class, as the quality of benefits provided 

by the Settlement will then serve as the basis for the subsequent fee negotiations and award. 

There is nothing per se objectionable about a clear sailing provision or a reverter of unawarded 

fees to the defendants. See McKinnie v. JP Morgan Chase Bank, NA, 678 F. Supp. 2d 806, 812 

(E.D. Wis. 2009) (“[T]he reversion of unclaimed funds to the defendant is not objectionable 

when class members receive full recovery for their damages and the parties agree to the 

reversion. . . . [A] defendant in a class action settlement has no obligation to oppose the fee 

petition submitted by class counsel. Thus, the fact that the proposed settlement includes these 

terms does not render it inherently unfair or unreasonable.”) (citation omitted); Mangone, 206 

F.R.D. at 230 (“Courts have broad discretion in distributing unclaimed class action funds, and 

where the parties agree on the distribution of unclaimed class funds, the court should defer to 

that method of distribution.”).

Finally, since there is no cap on claims, the reversion of any fees not awarded to class 

counsel does not signal collusion. Put another way, nothing related to the fee award will affect 

in any way the amount of monies that any class member will receive.

III. THE OBJECTION AND CLAIMS PROCESSES MEET THE RULE 23

REQUIREMENTS AND DO NOT IMPOSE UNDUE BURDENS ON CLASS 

MEMBERS OR OBJECTORS. 

A. The Notice of Attorneys’ Fees Request Met the Rule 23(h) Requirements.

Objectors Frank, McNeal, and Paul each offer the hyper-technical and procedural 

objection that the Settlement’s motion schedule violates Fed. R. Civ. P. 23(h) because Class 

Members’ objections were required to be filed two weeks before the deadline for Class 

Counsel’s submission in support of their fee award. Because the Objectors’ contention 

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(i) ignores the fact that notice to the Class clearly and conspicuously disclosed to Class Members 

that Class Counsel would seek an aggregate fee award up to $4.5 million; (ii) relies upon a Ninth 

Circuit case that has found little traction in any other court; and (iii) has been mooted by the 

adjournment of the final approval hearing, such an objection should be turned aside.

1. Notice of Class Counsel’s Fee Request Was Published to the Class.

Objectors concede that the Settlement Agreement forged between the parties 

contemplates a fee application being made up to an aggregate amount of $4.5 million. This 

aspect of the parties’ negotiated resolution is clearly and conspicuously disclosed in the 

Settlement Agreement itself, and memorialized in both the full class notice and on the settlement 

website. Fed. R. Civ. P. 23(h) provides that “[n]otice [of a claim for an award of attorneys’ fees] 

must be served on all parties and, for motions by class counsel, directed to class members in a 

reasonable manner.” Contrary to the Objectors’ suggestion, Rule 23(h) does not prescribe any 

schedule or defined procedure concerning the timing of Class Counsel’s fee petition vis-à-vis the 

deadline for objections. Rather, the statute requires only that notice of Class Counsel’s claim for 

fees be “directed to class members in a reasonable manner.” See, e.g., Bower v. MetLife, Inc., 

No. 1:09-cv-351, 2012 U.S. Dist. LEXIS 149117, at *14 (S.D. Ohio Oct. 17, 2012) (“Rule 23(h)

gives the Court the discretion to determine the timing of fee petitions, . . . and . . . does not by its 

plain language require that the fee petition be submitted at any specific time.”) (citations 

omitted); In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-MD-1775, 2009 WL 3077396, 

at *14 n.15 (E.D.N.Y. Sept. 25, 2009) (rejecting objection based on notice’s failure to inform 

when the fee application would be filed, because the maximum amount of the fees that would be 

requested by counsel was the subject of direct and publication notice, and posted on the 

settlement website); Cassese v. Williams, 503 F. App’x 55, 57–58 (2d Cir. 2012) (notice to the 

class satisfied due process where it disclosed the amount that would be requested in attorneys’ 

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fees). Thus, publication of notice to the Class, including the amount of Class Counsel’s 

anticipated fee application, is sufficient to satisfy Rule 23(h). See In re AT&T Mobility Wireless 

Data Servs. Sales Tax Litig., 789 F. Supp. 2d 935, 972–73 (N.D. Ill. 2011) (“[T]he fact that the 

class notice enabled Class Members to learn [the maximum amount Class Counsel would seek] 

constituted adequate notice. . . . The Class Notice was sufficient with respect to the costs and 

expenses that Counsel would likely seek.”).

2. Mercury Interactive Has No Precedential Value Here. 

Objector Frank’s argument relies heavily on In re Mercury Interactive Corp. Sec. Litig., 

618 F.3d 988 (9th Cir. 2010) (Frank Obj. at 5–6). In Mercury, the Ninth Circuit held that Rule 

23(h) requires that class members be allowed the opportunity to object to Class Counsel’s fee 

motion itself, not merely to the notice that such a motion would be filed. Id. at 993–94. 

Mercury, however, is not binding upon this Court, and “it appears that no court outside the Ninth 

Circuit has ever followed its conclusion that Rule 23(h) requires a fee petition to be filed before 

the objection deadline.” Bower, 2012 U.S. Dist. LEXIS 149117, at *15–16. As the court noted 

in Bower, Rule 23(h) “does not by its plain language require that the fee petition be submitted at 

any specific time.” Id. at *14.

Moreover, the holding in Mercury is inapposite because the proposed fee award in this 

case does not impact the monetary compensation to the Class or the injunctive relief. See, e.g., 

In re Lifelock, Inc. Mktg. & Sales Prac. Litig, No. 08-1977, 2010 WL 3715138, at *9 (D. Ariz. 

Aug. 25, 2010) (holding that Mercury did not impact a pending motion for attorneys’ fees 

because the proposed fee award had no effect on the scope of the injunctive and monetary 

benefits afforded to the class, and stating that “there [was] no ‘adversarial’ relationship at the fee 

setting stage requiring the Court to assume the ‘role of fiduciary for the class plaintiffs’ because 

the fee award is not coming from a common fund and will not affect class members’ rights.”) 

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(quoting Mercury, 618 F.3d at 994). Thus, the holding in Mercury provides no basis to upset the 

Parties’ settlement and this objection should be overruled.

3. The Adjourned Final Approval Hearing Moots the Objection. 

The adjournment of the Fairness Hearing from September 4, 2013 to October 4, 2013 

moots this procedural objection. Class Counsel is contemporaneously filing their fee petition 

and supporting documentation on September 4, 2013, alongside their response to the Objections. 

With the Fairness Hearing now scheduled for October 4, 2013, the Objectors will have a full 

month in which to review Class Counsel’s fee petitions. See, e.g., Weeks v. Kellogg Co., No CV 

09-08102, 2011 U.S. Dist. LEXIS 155472, at *80–81 (C.D. Cal. Nov. 23, 2011) (a week’s time 

for objectors to review the fee application was ample time). Thus, the adjournment of the 

Fairness Hearing nullifies this procedural objection.9

B. The Objection Process Is Typical and Presents No Undue Burden to Class 

Members.

Three Objectors claim that the objection and opt-out process approved by this Court was 

“onerous” and therefore improper in various respects (Frank Obj. at 20–23; Easton Obj. at 9–10; 

McNeal/Paul Obj. at 5–6). As explained below, none of these objections provides any basis for 

rejecting the Settlement.

 

9 Moreover, even if Mercury were binding upon this Court (which it is not) any alleged error 

committed by filing the fee petition after the objection deadline would be harmless. See, e.g., 

Bower, 2012 U.S. Dist. LEXIS 149117, at *16 (where the Objectors still had over three weeks 

between the filing of the fee petition and the final fairness hearing, any earlier error in the timing 

of filing the fee petition would have been harmless); In re Lawnmower Engine Horsepower 

Mktg. & Sales Pracs. Litig., MDL No. 08-1999, 2010 WL 4386552, at *2 (E.D. Wis. Oct. 28, 

2010) (same).

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1. Requiring Objectors and Opt-Outs To Mail Their Submissions Is 

Reasonable and Accepted in this Circuit.

Objector Frank asserts that the process for objecting was “‘unnecessarily onerous’” 

because objectors and opt-outs could not submit their papers electronically (Frank Obj. at 21). 

As an initial matter, service by mail is, of course, a time-honored and accepted practice. See Fed. 

R. Civ. P. 5(b)(2)(C) (permitting service by “mailing [the paper] to the person’s last known 

address—in which event service is complete upon mailing”).

Moreover, Frank’s argument relies on just three out-of-circuit decisions (Frank Obj. at 21 

(citing opinions from California, Kansas, and Missouri)), none of which denied approval of a 

class action settlement on Frank’s theory that Rule 23 requires the parties to permit electronic 

submissions. In Galloway v. Kansas City Landsmen, LLC, No. 4:11-1020, 2012 WL 4862833 

(W.D. Mo. Oct. 12, 2012) (Frank Obj. at 21), the notice required exclusion forms to be “both 

emailed and either mailed first-class or hand-delivered,” which prompted the court to state that 

this obviously redundant procedure “seems unnecessarily onerous.” Id. at *6. Galloway

therefore does not mandate the far-reaching relief Frank seeks in his objection.

Objector Frank’s reliance on the unpublished order from In re Motor Fuel Temp. Sales

Pracs. Litig., No. 07-md-01840 (D. Kan. Nov. 10, 2011) [D.E. 3019] (Ex. E) (Frank Obj. at 21), 

is likewise misplaced. That order conditioned approval of the parties’ proposed notice plan on 

their allowing class members who received notice via email to object and-opt out electronically 

as well. That was simply a decision made by the Court in that particular case, without any 

holding or finding that it was required by law. Here, requiring a second notice advertising the 

availability of electronic submission would be unnecessary and wasteful.

Finally, Frank’s reliance on Smith v. Levine Leichtman Capital Partners, Inc., No. C 10-

00010, 2012 U.S. Dist. LEXIS 163672, at *8–9 (N.D. Cal. Nov. 15, 2012) (Frank Obj. at 21), is 

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also unconvincing. Smith was a civil RICO case (not a consumer fraud case like this one), 

brought to recover damages that consumers suffered as the result of a debt-collection scheme in 

which the defendants represented themselves as being an “official ‘district attorney bad check 

restitution program’” when in fact they had been hired by retail merchants. See Smith, 2d Am. 

Compl. ¶¶ 1–2 [D.E. 98 at 2] (Ex. F). The primary problem with the proposed settlement in 

Smith was the plaintiffs’ attempt to drastically enlarge the class definition when they sought 

preliminary approval. Smith, 2012 U.S. Dist. LEXIS 163672, at *5. This “alteration in the class 

definition significantly increases the number of parties from whom Defendants would receive 

releases if class members do not opt out of the class. Moreover, due to the increase in class size, 

the potential monetary recovery for individual class members is significantly diminished.” Id. 

Further, the Smith court took issue with the proposed settlement’s failure to include any 

injunctive relief, allowing the defendants to continue their unlawful conduct. Id. at *6.10 Only 

after discussing these blatant inadequacies did the court state, in two sentences, that the parties 

had made the procedures for filing objections “unduly burdensome” by requiring the submission 

of a telephone number, proof of class membership, and mailing of objections. Id. at *8–9. Smith

is distinguishable in numerous respects and therefore provides no authority for voiding the 

Settlement Agreement here.

Whatever the merits of electronic submission, counsel for the Parties is aware of no 

decision in this Circuit rejecting a class action settlement on the ground that objectors and optouts were required to expend the minimal effort necessary to print and mail copies of their 

 

10 Smith’s criticism of this facet of the proposed settlement refutes Frank’s contention that 

“prospective injunctive relief” can never offer any value to class members (Frank Obj. at 10–11 

n.6). See generally Plaintiffs’ Response to Objections.

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pleadings. Further, a recent case in this Circuit approved a settlement in which pro se objectors 

were required to mail or e-file their objection with the court and send a hard copy to class 

counsel and defense counsel (similar to the objection process here). See City of Greenville v. 

Syngenta Crop Prot., Inc., No. 3:10-cv-00188 (S.D. Ill. May 24, 2012) [D.E. 294-1 at Page ID 

#10429] (Ex. G); see also City of Greenville v. Syngenta Crop Prot., Inc., 904 F. Supp. 2d 902, 

903 (S.D. Ill. 2012) (granting final approval of the settlement). At any rate, Frank’s argument is 

factually baseless given that only 1,620 opt outs and eight objections were submitted. Hamer 

Aff. (Ex. B) ¶ 16; see also id. ¶ 19 (explaining that the objection process used in this settlement 

is standard). Because hundreds of class members did not find the submission process “onerous,” 

this objection should be denied.

2. Requiring Objectors To Appear at the Fairness Hearing or Request To Be 

Excused from Appearing Is Not Burdensome.

The three objectors represented by counsel take issue with the Notice’s statement that, to 

preserve their right to appeal, objectors must appear at the Fairness Hearing in person or through 

counsel unless the Court excuses such appearance (Frank Obj. at 20–23; Easton Obj. at 9–10; 

McNeal/Paul Obj. at 5–6; see also Preliminary Approval Order [D.E. 89] ¶ 9(c); Notice [D.E. 

73-1] at 6–7. The ability to request exclusion renders the objectors’ argument meritless: Both 

the Preliminary Approval order and the Notice explains that objectors may “ask the Court in 

your objection to excuse such appearance prior to the Fairness Hearing.” Id. at 7; Preliminary 

Approval Order [D.E. 89] ¶ 9(c). Indeed, Objector Easton asked to be excused from appearing at 

the Fairness Hearing (Easton Obj. at 1, 10). The other two represented objectors did not even 

make the request, indicating their ability to appear without undue burden.

Further, this argument is unfounded because no objector has presented any evidence that 

the Notice deterred a single person from objecting. Indeed, the available evidence demonstrates 

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that this requirement did not dissuade anyone, as four objectors – each of whom is not 

represented by counsel – asked the Court to consider their objections even though they indicated 

they would not attend the Fairness Hearing (P. Thomas Obj. at 2; S. Thomas Obj. at 1; Buckley 

Obj.; Radlinski Obj. at 2). See also, e.g., AT&T Mobility, 789 F. Supp. 2d at 970 (rejecting 

similar objection alleging deterrent effect because “the objectors have not presented any 

evidence that this notice deterred anyone from objecting, including themselves”). This 

indisputable fact refutes these serial objectors’ overwrought accusations that the Notice 

“consign[ed] objectors [and] opt-outs to second class status” (Frank Obj. at 22); “can only be 

interpreted as an attempt to quash all objectors” (McNeal/Paul Obj. at 5); and “violat[ed] the due 

process rights of class members” (Easton Obj. at 9).11

3. The Law Allows the Parties to Depose Objectors.

Objectors Frank and Easton also claim that the Preliminary Approval Order’s provision 

requiring objectors to make themselves available for deposition (Preliminary Approval Order 

¶ 9(d)) is “untoward” (Frank Obj. at 22), and “disturbing” (Easton Obj. at 9–10). This objection 

has been roundly rejected by courts in this District because it is well-established that the parties 

to a class action settlement can seek discovery from objectors, including by probing the merits of 

an objector’s claims at deposition. See, e.g., AT&T Mobility, 789 F. Supp. 2d at 970 (noting that, 

under Fed. R. Civ. P. 30(a)(1), “‘[a] party may, by oral questions, depose any person’”; 

 

11 In decrying this aspect of the settlement, these serial objectors surely “protest too much.” The 

obvious and legitimate reason for requiring objectors to appear at the fairness hearing is to allow 

the parties and the Court to assess the merits of, and the motivations for, objections that may 

have been “brought by professional objectors and others whose sole purpose is to obtain a fee by 

objecting to whatever aspects of the Settlement they can latch onto.” In re Checking Acct. 

Overdraft Litig., 830 F. Supp. 2d 1330, 1361 n.30 (S.D. Fla. 2011) (discussing the problem of 

“objector blackmail”).

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concluding that class notice appropriately stated that objectors may be subject to depositions 

because “[a]pprising objectors of their legal rights and obligations is entirely proper, even if such 

notification has a marginal deterrent effect”; and finding that “the objectors have not presented 

any evidence that this notice deterred anyone from objecting, including themselves”); In re 

Cathode Ray Tube (CRT) Antitrust Litig., 281 F.R.D. 531, 533 (N.D. Cal. 2012) (granting 

motion to compel discovery from objector because the plaintiffs’ “requests for documents focus 

solely on the objector’s standing, the bases for his current objections, his role in objecting to this 

and other class settlements, and his relationships with the counsel that are believed to be behind 

the scenes manipulating him”).

McNeal and Paul’s counsel Darrell Palmer knows this objection lacks merit, as another 

district court recently ordered two objectors represented by Palmer to appear at an evidentiary 

hearing so class counsel in that litigation could ask them questions pertinent to (i) standing, 

(ii) objections they had made in other cases within the past five years and rulings on those 

objections, and (iii) any monetary compensation they received in connection with those 

objections. In re Hydroxycut Mktg. & Sales Pracs. Litig., No. 3:09-cv-01088, Order Granting in 

Part and Denying in Part Motion to Quash Deposition Subpoena (S.D. Cal. Apr. 29, 2013) [D.E. 

215] (Ex. H); see also Stern v. Cingular Wireless Corp., No. 2:05-cv-08842, Civil Minutes –

General at 1 (C.D. Cal. Oct. 15, 2010) [D.E. 344 at 1] (Ex. I) (likewise ordering objectors 

represented by Palmer to be deposed on “the objectors’ standing, factual allegations supporting 

objections, and whether objections in other class action cases have been made by the objectors”).

A federal court has rejected a similar objection from Objector Easton’s counsel Jonathan 

Fortman. After Fortman filed an objection in another class action earlier this year, the district 

court denied Fortman’s motion to quash a subpoena instructing the custodian of records for his 

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office to attend a deposition and to produce documents. See In re Law Office of Jonathan E. 

Fortman, LLC, No. 4:13MC00042, 2013 WL 414476, at *1-2 (E.D. Mo. Feb. 1, 2013). Because 

depositions are a proper means of examining “the merits of [an] objection to [a] class action 

settlement,” id. at *2, Easton’s and Frank’s objection to this Court’s Preliminary Approval Order 

should be denied.

C. The Claims Process, Including Two Tiers of Recovery, Is Appropriately 

Tailored to the Facts and Law Applicable to this Case.

Objectors Frank, McNeal, and Paul appear to challenge the claims-made nature of the 

settlement (Frank Obj. at 10 n.4; McNeal/Paul Obj. at 4–5). Objectors McNeal, Paul, Buckley, 

Peggy Thomas, and Simone Thomas appear to challenge the use of two tiers of recovery 

(McNeal/Paul Obj. at 3–4; Buckley Obj.; P. Thomas Obj. at 3; S. Thomas Obj. at 2–3). 

Nonetheless, the claims process employed is typical of consumer fraud cases, and appropriate in 

light of the facts and law applicable to this case.

1. A Claims-Made Process Is Typical, Appropriate, and Necessary in a 

Consumer Fraud Case Like this One.

In a footnote only, Frank appears to take issue (albeit half-heartedly) with the 

requirement that Claimants submit a claim form, rather than Rexall providing direct payment to 

all known class members (Frank Obj. at 10 n.4). This argument falls short for two reasons: 

First, settlements using a proof of claim requirement are “commonly employed” in consumer 

fraud cases. ALBA CONTE & HERBERT B. NEWBERG, 3 NEWBERG ON CLASS ACTIONS § 8:45 (4th 

ed. 2002); see also, e.g., Schulte, 805 F. Supp. 2d at 593–94 (“there is nothing inherently suspect 

about requiring class members to submit claim forms in order to receive payment”); McKinnie, 

678 F. Supp. 2d at 814 (rejecting objection that requiring claimants to “attest that they withdrew 

cash from a Chase ATM using a non-Chase card ‘under penalty of perjury’ made the process too 

onerous and deterred potential class members from filing claims” because “requiring claimants 

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to verify on the claim forms that they meet class requirements” was not improper); Milliron v. T–

Mobile USA, Inc., No. 08-4149, 2009 WL 3345762, at *6 (D.N.J. Sept. 10, 2009) (finding “it 

perfectly appropriate to require Class members to submit certain information proving that they 

are entitled to collect the relief awarded in this case”), aff’d, 423 F. App’x 131 (3d Cir. 2011). 

Requiring claimants to present proof of purchase is warranted because it reflects each plaintiff’s 

burden to establish liability and damages. See Mangone, 206 F.R.D. at 234–35 (rejecting 

objectors’ argument that bank should bear the burden of establishing which class members were 

entitled to relief because “[c]lass action status does not alter th[e] basic principle” that “plaintiffs 

in civil actions bear the burden of proving their damages”). 

Second, although Rexall could identify certain class members, Rexall does not have 

complete purchase information for these class members and does not know, for instance, how 

many purchases each class member has made, what covered products they purchased, how many

covered products they purchased, or when those purchases were made. See, e.g., id. at 234 

(rejecting objection to claims-based character of settlement because it “wrongly assumes that 

[the defendant bank] keeps records in the ordinary course of its business that would permit” the 

defendant to ascertain amount of damages to be awarded to each class member). Therefore, even 

if direct payment without a claim requirement were feasible, Rexall would not know the amount 

of money to which each class member would be entitled under the Settlement Agreement. The 

use of a claims process ensures that each claimant has an opportunity to declare and seek 

recovery for all covered purchases.

2. The Two-Tier Recovery Process Is Appropriate.

McNeal and Paul raise additional frivolous objections to the claim process (McNeal/Paul 

Obj. at 3–4). McNeal and Paul initially claim that “the bifurcated award level is ethereal at best” 

because the cost of mailing used bottles to the settlement administrator “would outweigh the 

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additional $2 per bottle one is entitled to by submitting.” Id. This argument is meritless because 

Claimants do not have to send a “used bottle,” but rather can upload proof of purchase on the 

settlement website at no cost,12 or can submit copies of the proof of purchase when they submit 

their claims – requiring no extra postage.

McNeal and Paul then claim that “the distinction between those who save drug store 

receipts and those who do not is unfair and must be rejected.” Id. at 4. Objectors Buckley, P. 

Thomas, and S. Thomas similarly assert that providing more recovery to those with proof of 

purchase is somehow unfair (Buckley Obj.; P. Thomas Obj. at 3; S. Thomas Obj. at 2–3). But it 

is well-settled that stronger claims deserve more favorable treatment. See Schulte, 805 F. Supp. 

2d at 589 (“[W]hen real and cognizable differences exist between the likelihood of ultimate 

success for different plaintiffs, it is appropriate to weigh distribution of the settlement in favor of 

plaintiffs whose claims comprise the set that was more likely to succeed.”) (internal quotation 

marks and citations omitted); id. at 589–90 (“This allocation method ensures that the benefits of 

the settlement are made available to all Class Members, while protecting the interests of Class 

Members with the strongest claims . . . . The way in which the settlement allocates benefits is 

fair because it recognizes these important differences among Class Members.”);13 see also In re 

KFC, 280 F.R.D. at 373, 387 (giving final approval to class action settlement with three tiers of 

recovery depending on proof of purchase and noting, in granting final approval, that “all 

 

12 See Glucosamine Settlement, Submit Claim, http://www.glucosaminesettlement.com/claim.

13 Accord In re PaineWebber Ltd. P’ships Litig., 171 F.R.D. 104, 133 (S.D.N.Y. 1997) 

(collecting cases in which “merit-based weighting has been approved . . . where substantially 

different or additional claims have been asserted by certain class members and not others”); In re 

Lucent Techs., Inc., Sec. Litig., 307 F. Supp. 2d 633, 649 (D.N.J. 2004) (“Courts have routinely 

approved plans of allocation that provide different payments to class members.”) (citing In re 

Cendant Corp. Litig., 264 F.3d 201, 248–49 (3d Cir. 2001)).

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Settlement Class members are entitled to make a claim on the Available Amount, whether they 

retained [proof of] their membership in the class or not”).

IV. THE INCENTIVE AWARDS ARE REASONABLE.

Relying on Pampers and cases cited by the Pampers court in which the relief did not 

benefit class members or was insignificant,14 Objector Frank argues that the requested incentive 

awards for the named Plaintiffs ($5,000 each) are “excessive,” as to “cast doubt” on whether 

Rule 23(a)(4)’s adequacy requirements have been met (Frank Obj. at 19). Objector Frank 

ignores that Plaintiffs have made at least $14.2 to $27.3 million in direct compensation available 

to class members and negotiated for injunctive relief that provides significant consumer 

protection and monetary value (see supra § II.A–C). 

Further, “[t]his circuit has indicated that incentive fees are designed to encourage 

individuals to become named plaintiffs.” Meyenburg v. Exxon Mobile Corp., No. 3:05-cv-15, 

2006 WL 2191422, at *2 (S.D. Ill. July 31, 2006) (citing In re Continental Ill. Secs. Litig., 962 

F.2d 566 (7th Cir. 1992)); see also In re KFC, 280 F.R.D. at 382 (same) (citing In re Synthroid 

Mktg. Litig., 264 F.3d 712, 722–23 (7th Cir. 2001)). In Meyenberg, the court found a $3,000 

 

14 Objector Frank cites to Murray v. GMAC Mortg. Corp., 434 F.3d 948, 951–52 (7th Cir. 2006) 

(noting that class members may only receive $1 – which was less than 1 percent of the statutory 

minimum available; unlike here where even without proof of purchase, class members can 

receive a refund of approximately 10-15 percent of the purchase price paid); Crawford v. Equifax 

Payment Servs., 201 F.3d 877, 882 (7th Cir. 2000) (no monetary relief for class); Radcliffe v. 

Experian Info. Solutions Inc., 715 F.3d 1157, 1164–65 (9th Cir. 2013) (involving a settlement 

agreement that “explicitly conditions the incentive awards on the class representatives’ support 

of the settlement” resulting in class representatives having “very different interests than the rest 

of the class” and having financial motivations that may have surpassed their motivations to 

ensuring a fair and reasonable settlement for the class); Fraser v. Asus Computer Int’l, No. C 12-

00652, 2013 WL 3595940, at *3 (N.D. Cal. July 12, 2013) (adjustment to incentive award was 

made based on “review of the declarations of named plaintiff and the cooperating class 

members”).

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incentive fee to be appropriate because plaintiff “took the inconvenience and risk of pursuing 

litigation with only the possibility of monetary gain that at best would be modest. Granting an 

incentive fee to him will serve the added purpose of encouraging other individuals to pursue 

similar litigation in the future.” 2006 WL 2191422, at *2. The same is true as to each of the 

Plaintiffs in this action. Thus, the requested incentive awards are appropriate. See Final 

Approval Br. § V.E (collecting cases approving comparable incentive awards).

V. THE CY PRES COMPONENT OF THE SETTLEMENT IS MEANINGFUL 

COMPENSATION PROVIDING A BENEFIT TO THE CLASS.

No portion of the $2,000,000 floor not claimed by class members will revert back to the 

Settling Defendants. Rather, under the settlement’s cy pres clause, any monies under the 

$2,000,000 floor not claimed by class members (after the appropriate tripling (documented 

purchases) and doubling (undocumented purchases) of payments to class members) will be 

donated to the Orthopedic Research and Education Foundation (“OREF”). Objector Easton 

takes issue with the use of the cy pres to distribute unclaimed funds and the choice of the cy pres 

recipient (Easton Obj. at 5–8). Objector Frank does not find fault with the choice of cy pres 

recipient or the use of cy pres as a method of disseminating any residual funds, but argues in a 

footnote that, in determining the value of the settlement, “[a] dollar to the cy pres is not worth a 

dollar to the class.” Frank Obj. at 12 n.9.15 As explained below, these objections are meritless.

A. The Use of Cy Pres Relief for Unclaimed Settlement Funds Has Been 

Accepted and Widely Used in the Seventh Circuit.

Easton’s contention that the Seventh Circuit has rejected cy pres relief in cases like this 

one (Easton Obj. at 5–8) is unfounded. Courts in this Circuit routinely uphold cy pres provisions 

 

15 Objectors McNeal and Paul expressly “do not find any fault with” the cy pres provision 

(McNeal/Paul Obj. at 5).

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in class action settlements similar to the instant one. See, e.g., In re KFC, 280 F.R.D. at 387 

(“Courts of the Seventh Circuit have routinely approved the use of cy pres distributions in class 

action settlements, particularly when locating and ascertaining the status of all individual class 

members is prohibitively difficult or expensive.”) (internal quotations and citations omitted); In 

re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, 1031 (N.D. Ill. 2000) (“The Seventh 

Circuit and other courts have recognized that cy pres contributions are proper and often are part 

of class action settlements. . . . Particularly in cases like this, where it may well be difficult to 

locate class members or to ascertain their status, a cy pres distribution is useful.”); McKinnie, 

678 F. Supp. 2d at 813 (stating that “[t]he use of a cy pres contribution is proper and acceptable 

in class action settlements” and granting final approval of settlement that contained a reverter 

clause and a clear sailing provision); Mangone, 206 F.R.D. at 230 (“Courts have broad discretion 

in distributing unclaimed class action funds, and where the parties agree on the distribution of 

unclaimed class funds, the court should defer to that method of distribution.“) (citing NEWBERG

ON CLASS ACTIONS § 10.15 (3d ed. 1992)).16

Easton relies solely on two cases that are inapposite due to their patently different 

procedural postures (Easton Obj. at 5–8 (repeatedly citing Mace v. Van Ru Credit Corp., 109 

F.3d 338 (7th Cir. 1997), and Simer v. Rios, 661 F.2d 655 (7th Cir. 1981))). Neither Mace nor 

 

16 As Objector Easton notes in her brief, the Parties were able to identify in the settlement 

agreement which products should be covered, but because the covered products are sold through 

retailers over-the-counter, Rexall cannot identify all purchasers of the covered products. And 

while the Parties were able to identify some class members to receive direct notice (primarily 

members of the Osteo Bi-Flex loyalty club and Costco purchasers of the Kirkland products), 

Rexall does not have complete information regarding the types of products they purchased, how 

many they purchased, or when they made their purchases. Moreover, although the Settlement 

Administrator was able to create a notice program to reach the class, the Parties are still without 

information regarding actual purchaser identification for the unknown class members.

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Simer addressed the propriety of including a cy pres provision in a class action settlement to 

dispose of residual funds. Instead, in each case – neither of which involved a class action 

settlement – the Seventh Circuit rejected the putative class representative’s attempt to use the cy 

pres doctrine as a ground for authorizing class certification in ongoing litigation. See Mace, 109 

F.3d at 345 (rejecting argument that “the availability of cy pres recovery [offered] an alternative 

ground for class certification”); Simer, 661 F.2d at 675–76 (upholding denial of class 

certification in part because using a “fluid recovery” to allocate damages to the putative class 

“would be to ignore the requirements of Rule 23”). Thus, contrary to Easton’s contention, 

neither Mace nor Simer foreclose the option of using a cy pres method of recovery in this type of 

class action settlement.17

Moreover, the cy pres provision promotes the parties’ legitimate interest in fashioning a 

claims process that provides benefit to the class but is not susceptible to fraudulent claims. 

Increasing the payment amount for documented and undocumented claims any further is 

problematic because it will increase the likelihood that fraudulent claims are submitted. Hamer 

Aff. (Ex. B) ¶ 18 (providing more than $24 to a consumer for undocumented purchases creates 

significant risk of fraudulent claims); see, e.g., Hall v. AT & T Mobility LLC, No. 07-5325, 2010 

WL 4053547, at *11 (D.N.J. Oct. 13, 2010) (rejecting objection asking court to distribute 

residual funds to class members on pro rata basis in part because “the potential for fraudulent 

claims” presented a “significant” and “well-founded” risk); McKinnie, 678 F. Supp. 2d at 813 

 

17 Easton’s reliance on Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 

1990), is also unhelpful. There, the Court disapproved a cy pres order granted as part of a 

judgment – not a negotiated settlement – to an entity without a substantial track record, without a 

sufficiently defined purpose, without an established distribution procedure, and without a 

“reasonable certainty that any member will be benefited.” Id. at 1307–09.

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(“distributing any unclaimed amounts to claimants on a pro rata basis will result in an 

unwarranted windfall for those claimants); State v. Levi Strauss & Co., 41 Cal. 3d 460, 476 

(1986) (rejecting objection arguing that cy pres distribution should instead be allocated to 

claimants because providing additional money to claimants – whether legitimate or fraudulent –

would constitute a “windfall”); In re Lawnmower Engine Horsepower Mktg. & Sales Pracs. 

Litig., 733 F. Supp. 2d 997, 1010 (E.D. Wis. 2010) (approving parties’ attempt to prevent 

payment of fraudulent claims).

B. OREF Is a Proper Cy Pres Recipient.

Secondly, Easton argues that OREF is not a suitable cy pres recipient because its mission 

“is not specific in its application or benefit for the class members in this case” (Easton Obj. at 6). 

In short, Easton complains that the relationship between the alleged injury suffered by the class 

members is “too remote” from OREF’s charitable purpose. Id. Easton’s argument fails because 

OREF’s mission plainly aligns with the interests of the class: OREF is a 501(c)(3) organization 

that leaders of the three major professional organizations in the orthopedic community 

established “as a means of supporting research and education toward building the scientific base 

of clinical practice.” OREF, About OREF, http://www.oref.org/site/PageServer?pagename= 

oref_about (last visited Aug. 27, 2013). Having raised nearly $ 95 million since its founding in 

1955, OREF has a strong track record of fulfilling its charitable purpose. Id.

Here, there is a sufficient nexus between OREF’s mission and the interests of the class. 

Contrary to Easton’s suggestion, the law does not require a perfect connection between the class 

members’ interests and OREF’s mission. See, e.g., In re Mexico Money, 164 F. Supp. 2d at 1031

(an organization devoted to “funding charitable and public interest projects that serve the 

Mexican and Mexican-American communities in the United States” was an appropriate cy pres

recipient in case alleging that defendant money transfer services failed to disclose their exchange 

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rate mark-up to consumers); In re KFC, 280 F.R.D. at 387 (stating that an objection to a 

consumer fraud settlement “improperly and incorrectly ascribe[d] a ‘self-serving’ motivation for 

the cy pres by counsel and the Defendants” where the cy pres recipients were “the nation’s 

leading domestic hunger-relief charity” and local bar foundations that provide assistance to 

indigent litigants); In re LivingSocial Mktg. & Sales Prac. Litig., No. 11-CV-0745, 2013 WL 

1181489, at *11 (D.D.C. Mar. 22, 2013) (“[I]t is appropriate for the residual funds to go to two 

non-profit organizations that are dedicated to the public interest, particularly where the 

alternatives would be to return the funds to defendant, thereby reducing the deterrent effect of the 

suit, or to escheat to the state.”). But here, the connection between the mission of OREF and the 

class members is almost perfect: Plaintiffs allege that all class members took the glucosamine 

dietary supplements at issue to improve their joint health in some manner. All of the label claims 

at issue relate to joint health. Because OREF’s mission is to support orthopedic research and 

education, which would include joint health research and education, it is an apt cy pres recipient.

Moreover, contrary to Objector Easton’s unfounded implications, there is no current –

and no previous – relationship between OREF and Rexall. See Declaration of Michael Collins 

(Ex. J). Rexall has not contributed to OREF in the past, OREF has never provided any monetary 

or other support to Rexall, and Rexall and OREF have no “professional ties.” Id. ¶¶ 3–5. As in 

In re KFC, Easton’s insinuation that there is something “particularly chilling” in the decision to 

designate OREF as the cy pres recipient (Easton Obj. at 8), “could [not] be further from the 

truth.” 280 F.R.D. at 387.

In conclusion, Easton’s objections provide no reason to rewrite the settlement’s cy pres

clause. While she has asked the Court to deny cy pres relief “and order that such funds be 

distributed to the class members who file claims” (Easton Obj. at 8), all valid claims – with no 

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cap – are already being paid and possibly will be doubled and tripled before being paid. See 

Mexico Money, 164 F. Supp. 2d at 1032 (“Given the size of the class, distribution of the total cy 

pres distribution to individuals would not significantly enhance the value of the settlement for 

any class member, and could have substantially increased administrative expenses.”).

C. The Cy Pres Amount Is of Value to the Class.

Objector Frank takes no issue with the use of cy pres or the chosen cy pres recipient, but 

contends in a footnote that the value of any cy pres distribution should be reduced because “[a] 

dollar to the cy pres is not worth a dollar to the class” (Frank Obj. at 12 n.9). However, the cases 

on which Frank relies to disparage cy pres distributions are distinguishable. For instance, Frank 

quotes Judge Posner’s statement in Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 784 (7th Cir. 

2004), that “[t]here is no indirect benefit to the class from the defendant’s giving the money to 

someone else” (Frank. Obj. at 12 n.9). Frank neglects to mention that what drew Judge Posner’s 

criticism in Mirfasihi was the fact that the designated cy pres recipient was not a charity, but 

rather a subclass of the putative class. See Mirfasihi, 356 F.3d at 784. In other words, the rest of 

the class was not benefitting in any way from the payment of money to certain other class 

members. It was this highly unusual feature of the Mirfasihi settlement – which is not present 

here – that prompted Judge Posner’s rebuke.

Objector Frank’s reliance on Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468 (5th Cir. 

2011) (Frank Obj. at 12 n.9), is also misplaced. In Klier, the district court was faced with 

distributing approximately $830,000 that went unused during the administration of a medical 

monitoring program created for the benefit of a subclass of plaintiffs who were not required to 

establish physical injury (the “monitoring subclass”). See id. at 472. The settlement separately 

awarded compensation to a subclass of plaintiffs who were able to demonstrate physical injury 

(the “demonstrated injury” subclass). Id. When it was no longer “feasible and equitable” for the 

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district court to distribute funds to the monitoring subclass, id. at 477, it ordered the unused 

funds disbursed to three charities proposed by the defendants and one selected by the court, id. at 

471. After a member of the demonstrated injury subclass appealed, the Fifth Circuit reversed, 

ruling that the “district court abused its discretion by ordering a cy pres distribution” and 

instructing it to reallocate the unused funds to the demonstrated injury subclass. Id. at 480. Klier

is thus factually distinguishable because it was both feasible and equitable to reallocate the funds 

earmarked for medical monitoring to the readily identifiable subclass of plaintiffs who had 

already demonstrated injury. Like Mirfasihi, Klier provides no basis for denigrating the cy pres

relief afforded by the Settlement Agreement. Pursuant to the Settlement Agreement, all claims 

will be paid – and possibly doubled (for undocumented purchases) or tripled (for documented 

purchases) – before any money is paid to the cy pres recipient. As discussed above, money paid 

to OREF is of real benefit to the class and should be valued as such.

VI. MANY OF THE OBJECTORS ARE SERIAL OBJECTORS WITH A HISTORY 

OF INTERFERENCE WITH CLASS ACTION SETTLEMENTS FOR 

PERSONAL GAIN.

Absent class members have a right to object. Fed. R. Civ. P. 23(e)(5). Bona fide

objectors play a valuable role in ensuring that fair and adequate settlements are approved, and 

bringing to the parties’ and the court’s attention any previously unseen flaws in the settlement. 

See generally MANUAL FOR COMPLEX LITIGATION (FOURTH) § 21.643 (2004).

Nonetheless, the right to object is susceptible to abuse. For some time now, there has 

been a cottage industry of professional objectors who seek to hold up class action settlements for 

their own financial gain. In so doing, they impose an unnecessary tax on the system, prevent 

parties to litigation from resolving their claims reasonably and in good faith, and hinder the fair 

and efficient administration of justice. See, e.g., id. (“Some objections . . . are made for improper 

purposes, and benefit only the objectors and their attorneys (e.g., by seeking additional 

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compensation to withdraw even ill-founded objections). An objection, even of little merit, can 

be costly and significantly delay implementation of a class settlement.”); ALBA CONTE &

HERBERT B. NEWBERG, 5 NEWBERG ON CLASS ACTIONS § 15:37 (4th ed. 2002) (“meritless 

objections tend to delay providing benefits to bona fide and deserving class members”); 

BARBARA J. ROTHSTEIN & THOMAS E. WILLGING, MANAGING CLASS ACTION LITIGATION: A

POCKET GUIDE FOR JUDGES 15 (Fed. Judicial Ctr., 2d ed. 2009) (advising courts to “watch out 

. . . for canned objections from professional objectors who seek out class actions to extract a fee 

by lodging generic, unhelpful protests”).18

For years, courts and commentators have condemned what they term “objector 

blackmail,” a tactic by which purported class members “file wholly frivolous objections and 

appeals for no other reason than to induce these side payments from class counsel.” Brian T. 

Fitzpatrick, The End of Objector Blackmail?, 62 VAND. L. REV. 1623, 1624 (2009); see also, 

e.g., In re Checking Acct. Overdraft, 830 F. Supp. 2d at 1361 n.30 (discussing the problem of 

objector blackmail). Most of the objections filed in this case were filed by professional objectors 

or, at the very least, objectors with an agenda other than protection of the class members, and, 

therefore, raise these same concerns.19

 

18 See also, e.g., Barnes v. Fleetboston Fin. Corp., No. 01-10395, 2006 WL 6916834, at *1 (D. 

Mass. Aug. 22, 2006) (“[P]rofessional objectors can levy what is effectively a tax on class action 

settlements, a tax that has no benefit to anyone other than to the objectors. Literally nothing is 

gained from the cost: Settlements are not restructured and the class, on whose benefit the appeal 

is purportedly raised, gains nothing.”); In re UnitedHealth Grp. Inc. PSLRA Litig., 643 F. Supp. 

2d 1107, 1108–09 (D. Minn. 2009) (comparing professional objectors to “remoras” (a species of 

parasitic suckerfish) and stating that their goal was “to hijack as many dollars for themselves as 

they can wrest from a negotiated settlement”). 

19 One method to curb objector blackmail is to require objectors to post bonds under Federal 

Rule of Appellate Procedure 7 before taking an appeal. See, e.g., Barnes, 2006 WL 6916834, at 

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A. McNeal’s and Paul’s Counsel – Attorney Palmer – Is a Professional 

Objector, Whom Previous Courts Have Recognized as Interested Only In 

Financial Gain.

Objectors McNeal and Paul are represented by Joseph Darrell Palmer (McNeal/Paul Obj. 

at 9). A PACER search quickly shows that Mr. Palmer is one of the most active professional 

objectors currently in operation. See Exhibit X hereto (collecting 24 federal case objections 

involving Mr. Palmer since 2007).20 For example, in a span of just three days last October, Mr. 

Palmer filed nearly verbatim objections in two cases attacking (as he does here) the terms of the 

cy pres designation and the fees requested by class counsel.21 Numerous examples of cases in 

which Mr. Palmer has filed objections and subsequently dismissed, abandoned, or withdrawn the 

objections or appeals without attaining any settlement changes or additional benefits for the class 

are collected in Exhibit X.22

 

*1-3. If the Court overrules the objections and the objectors appeal, the Parties may move to 

require the objectors to post a bond under Rule 7.

20 It appears Palmer is also a frequent objector in California state court. See In re TFT-LCD 

(Flat Panel) Antitrust Litig., No. 3:07-md-01827, Indirect-Purchaser Plaintiffs’ and Settling 

States’ Joint Response to Objections to Combined Class, Parens Patriae, and Government Entity 

Settlements with AUO, LG Display, and Toshiba Defendants App. A [D.E. 7162 at 28–37] (N.D. 

Cal. Nov. 15, 2012) (collecting 18 California class actions in which Palmer has filed an objection 

since 2006).

21 Compare In re TFT-LCD (Flat Panel) Antitrust Litig., No. 3:07-MD-1827, Objections of 

Leveta Chesser and Johnny Kessel [D.E. 6991] (N.D. Cal. Oct. 15, 2012) (Ex. K), with Ruwe v. 

Cellco P’ship, No. 07-cv-03679, Objections of James J. Poindexter, Cery Perle, and Jeffrey 

Palmer [D.E. 128] (N.D. Cal. Oct. 13, 2012) (Ex. L).

22 At least two courts have denied or revoked Palmer’s pro hac vice status due to unethical 

conduct. See Herfert v. Crayola, LLC, No. 2:11-cv-01301, Order [D.E. 74] (W.D. Wash. Aug. 

17, 2012) (denying pro hac vice application because Palmer “falsely declared under penalty of 

perjury that he had not been disbarred or formally censured by a court of record or by a state bar 

association” when in fact he had been “temporarily suspended from the Colorado Bar 

Association, the State Bar of Arizona, and the State Bar of California as a result of a Colorado 

felony conviction”) (Ex. M); Arthur v. Sallie Mae, Inc., No. 10-cv-00198, 9/14/2012 Motion 

Hearing Tr. at 9–10 [D.E. 268] (W.D. Wash. Sept. 21, 2012) (stating that Palmer’s failure to 

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As would be expected, such frivolous filings have caused some courts to treat Mr. Palmer 

harshly. See, e.g., In re Oil Spill by Oil Rig Deepwater Horizon, No. MDL 2179, 2013 WL 

144042, at *48 n.40 (E.D. La. Jan. 11, 2013) (noting that “Mr. Palmer has been deemed a ‘serial 

objector’ by several courts” and citing a transcript in which “Mr. Palmer admit[ed] . . . he had 

been found to have engaged in ‘bad faith and vexatious conduct’”); In re Uponor, Inc., F1807 

Plumbing Fittings Prods. Liab. Litig., No. 11-MD-2247, 2012 WL 3984542, at *3 (D. Minn. 

Sept. 11, 2012) (finding that “the Palmer Objectors have evidenced bad faith and vexatious 

conduct” and noting “the Palmer Objectors appear to be represented by an attorney who has not 

entered an appearance in this case and who is believed to be a serial objector to other class-action 

settlements”); Embry v. ACER Am. Corp., No. C09-01808, 2012 WL 3777163, at *2 (N.D. Cal. 

Aug. 29, 2012) (holding objector represented by Palmer in contempt and striking his objection 

for failure to comply with two court orders requiring him to post an appellate bond or dismiss his 

appeal).23

 

timely amend his pro hac vice application did “not demonstrate candor with the court or that he 

took seriously the fact that he made a false statement under oath” and stating that Palmer “has 

apparently submitted false pro hac vice applications in at least three other cases”) (Ex. N).

23 Palmer’s bad faith is also evident in his attempt to adopt wholesale “all other objections filed 

by other class members in this case” (McNeal/Paul Obj. at 8), even, apparently, those that 

contradict his own. For instance, Objectors Easton and Frank challenge the cy pres provision 

(Easton Obj. at 5–8; Frank Obj. at 12 n.9), but Palmer’s clients “do not find any fault with” it 

(McNeal/Paul Obj. at 5). Blindly incorporating others objections is part of Palmer’s modus 

operandi. See Saltzman v. Pella Corp., No. 1:06-cv-04481, Objections of Dave Thomas [D.E. 

323 at PageID # 5525] at 10 (N.D. Ill. Jan. 29, 2013) (objection filed by Palmer that “adopts and 

joins all other well pled, bona fide objections filed by other class members in this case, and 

incorporates them by reference as if he appeared in full herein”) (Ex. O).

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B. Easton’s Counsel Are Professional Objectors Whom Courts Have Found To 

Be Not Motivated by a Concern for the Welfare of the Settlement Class.

Objector Easton is represented by a cohort of professional objectors who routinely 

challenge class action settlements by filing canned, unhelpful objections. Steve A. Miller is a 

prolific objector who often works with two of Ms. Easton’s other attorneys, Jonathan Fortman 

and John C. Kress. The Parties were able to uncover 18 recent cases in which these three 

lawyers appeared, either individually or jointly, on behalf of a class action objector. See Exhibit 

Y. Although Miller, Fortman, and Kress are apparently not as notorious as Palmer, they too have 

drawn criticism from various courts. See, e.g., In re Checking Acct. Overdraft, 830 F. Supp. 2d 

at 1361 n.30 (discussing objections, including one filed by Fortman and Kress: “[M]ost if not all 

of the Objections are motivated by things other than a concern for the welfare of the Settlement 

Class. Instead, they have been brought by professional objectors and others whose sole purpose 

is to obtain a fee by objecting to whatever aspects of the Settlement they can latch onto.”); Hale 

v. Wal-Mart Stores, Inc., Nos. 01-CV218710 & 01-CV227774, 2009 WL 2206961 (Mo. Cir. Ct. 

June 17, 2009) (sanctioning Kress and his co-counsel $11,319.70 for advising their objector 

clients not to attend depositions). In addition, on at least one occasion, Miller has filed an 

objection that “simply join[ed] in and adopt[ed another objector’s] brief, without any reference to 

any portion of the record or citation of authority.” See In re Cellphone Fee Termination Cases, 

186 Cal. App. 4th 1380, 1388 n.15, 113 Cal. Rptr. 3d 510, 516 n.15 (2010). Such tactics expose 

Miller’s true objective – to ransack class action settlements for his own personal benefit.

The record of Easton’s fourth attorney, Maureen Connors, is harder to trace, perhaps 

because she appears new to the sport of class action objecting. Nonetheless, in May of this year, 

Connors joined Miller, Fortman, and Kress on an objection filed in In re Toyota Motor Corp. 

Unintended Acceleration Mktg., Sales Pracs. & Prods. Liab. Litig., No. 8:10-ml-02151 [D.E. 

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3632] (C.D. Cal. May 13, 2013) (Ex. P). True to form, the Toyota objection lodges many of the 

same boilerplate objections that Objector Easton asserts here. Compare id. at 11 (claiming that 

the cy pres recipient is “too remote”), id. at 23 (asking the court to “assess the value of the 

[injunctive relief] at zero dollars”), and id. at 31–33 (attacking a “clear sailing” provision), with

Easton Obj. at 6 (claiming that the cy pres recipient is “too remote”), id. at 4 (arguing that “this 

Court should not give [the injunctive relief] any monetary value”), and id. at 2–3 (attacking a 

“clear sailing” provision). Although it is unclear why Miller, Fortman, and Kress have recently 

added Connors to their team, one fact is evident: It makes no sense for Objector Easton to hire 

four lawyers working in three different states to prepare an objection filled with boilerplate 

allegations and arguments. As this arrangement indicates, the purpose of such objections is not 

to benefit class members or even Ms. Easton herself, but to line the pockets of professional 

objectors. See Exhibit Y (summarizing 18 federal cases in which Miller, Fortman, Kress, and/or 

Connors have objected since 2008).

Miller also appears to be in the business of serving as a class action objector so fellow 

professional objectors can ply their trade. For example, in In re IPO Secs. Litig., 728 F. Supp. 2d 

289 (S.D.N.Y. 2010), Miller and a corporate entity that he appears to have created for the 

purpose of objecting to class action settlements were objectors represented by two attorneys 

whom the court characterized as “serial objectors.” Id. at 291 n.5, 294–95. After rejecting 

Miller’s objections, the court found “evidence of bad faith and vexatious conduct” by the horde 

of professional objectors who had descended on this settlement. Id. at 294. The court sanctioned 

several of these professional objectors – including Miller’s counsel – for refusing to answer 

questions the court propounded “to determine if any of the Objectors’ counsel have a pattern or 

practice of objecting to class action settlements for the purpose of securing a settlement from 

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class counsel.” Id. at 294–95. This untoward behavior led the court to “concur with the 

numerous courts that have recognized that professional objectors undermine the administration 

of justice by disrupting settlement in the hopes of extorting a greater share of the settlement for

themselves and their clients.” Id. at 295. As this disreputable episode illustrates, Miller’s track 

record casts doubt on the authenticity of the positions advanced in the Easton objection.

C. Theodore Frank and the Center for Class Action Fairness Are Serial 

Objectors Who Repeatedly Seek Thousands of Dollars in Attorneys’ Fees for 

Filing Objections.

Theodore Frank and his Center for Class Action Fairness are both frequent objectors who 

monitor class action settlements solely for the purpose of objecting. Though there is merit in 

Frank’s attempt to distance himself from professional objectors (Frank Obj. at 2 (defining 

professional objectors as “for-profit attorneys who attempt or threaten to disrupt a settlement 

unless plaintiffs’ attorneys buy them off with a share of the attorneys’ fees”)), a review of the 

cases in which Frank has either objected or represented an objector through CCAF shows that 

one of his missions is to reduce class counsel’s award of attorney fees by any means necessary –

while he gets paid in the process.24 See, e.g., Dewey v. Volkswagen of Am., 909 F. Supp. 2d 373, 

396–97 (D.N.J. 2012) (granting CCAF’s $82,134.10 fee request); In re Apple Inc. Sec. Litig., No.

5:06-CV-05208, 2011 WL 1877988, at *5 (N.D. Cal. May 17, 2011) (awarding Frank and CCAF 

$87,000 in fees). Moreover, Frank’s objections have not always led to changes in the settlement 

 

24 In this regard, CCAF is the litigation arm of Frank’s broader tort reform mission. See, e.g., 

Theodore H. Frank, Resident Fellow, American Enterprise Institute and Director, AEI Legal 

Center for the Public Interest, Protecting Main Street from Lawsuit Abuse: Statement Presented 

to the Senate Republican Conference (March 16, 2009) at 1 (testifying that the tort system is 

“still a tremendous drag on the economy relative to other industrialized nations” and identifying 

“class-action litigation” as one feature of the American system (among many) responsible for 

“rais[ing] costs tremendously”), available at http://www.aei.org/files/2009/03/16/Frank%20 

testimony.pdf (Ex. Q).

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agreement. See, e.g., Dewey, 909 F. Supp. 2d at 396–97 (rejecting CCAF’s argument that “no 

value should be assigned to non-monetary terms of the settlement and that benefit to the class 

should be measured by the amount of cash class members receive”); Trombley v. Nat’l City 

Bank, 826 F. Supp. 2d 179, 205-06 (D.D.C. 2011) (rejecting Frank’s attempt to reduce attorneys’ 

fees award to 10 percent of the common fund).

Further, even though Frank tries to gain credibility by distancing himself from 

professional objectors and by offering “to stipulate to an injunction prohibiting [Frank] and his 

attorneys from accepting compensation in exchange for the settlement of this objection” (Frank 

Obj. at 3), Frank and CCAF themselves have previously sought fee awards deemed excessive. 

See In re Apple, 2011 WL 1877988, at *4–6 (noting that CCAF’s request for an award of 

$297,916 “would result in an excessive hourly rate of more than $2,800”); Lonardo v. Travelers 

Indem. Co., 706 F. Supp. 2d 766, 813–14 (N.D. Ohio 2010) (denying CCAF’s request for 

$88,000 in attorneys’ fees based on a lodestar multiplier of 2.2 and instead awarding him an 

unenhanced lodestar of $39,936); In re New Motor Vehicles Canadian Exp. Antitrust Litig., 842 

F. Supp. 2d 346, 351 (D. Me. 2012) (awarding Frank $10,000 fee despite request for 

$19,973.80). The fact that objector blackmail is not Frank’s or CCAF’s modus operandi should 

not impart any validity to Frank’s arguments. As explained further already, Frank’s objections 

are either groundless or easily resolved, and thus provide no reason to disturb this settlement.

VII. THE REMAINING “OBJECTIONS” HAVE BEEN ADDRESSED OR ARE NOT 

PROPERLY CONSIDERED OBJECTIONS.

A. Ms. Radlinski’s Objection Has Been Fully Addressed By The Parties.

Objector Radlinski [D.E. 90] raised a concern involving the Osteo Bi-Flex Ambassador’s 

Club loyalty rewards program. The parties took immediate action to moot Ms. Radlinski’s 

objection by revising the proof of purchase criteria specific to Ms. Radlinski, agreeing to review 

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current Ambassador’s Club data to address this issue for other Class members (in effect, waiving 

the proof of purchase requirement if they had previously submitted proof of purchase as part of 

the Ambassadors Club), and updating the Claim Form accordingly. See K. McCall Ltr. [D.E. 

92]; Hamer Aff. (Ex. B) ¶ 15.a.

B. Ms. Paulson’s Objection Should Be Overruled.

Objector Paulson (Ex. R) (who apparently did not file or otherwise submit her objection 

to the Court) does not present any specific concerns regarding this Settlement. While Objector 

Paulson expressed strong feelings about lawyers and class actions generally, this is not a proper 

objection and should be overruled. In re TD Ameritrade Acct. Holder Litig., Nos. C 07–2852 & 

C 09-4903, 2011 WL 4079226, at *12 (N.D. Cal. Sept. 13, 2011) (“Ms. Lamy’s apparent 

concern for Ameritrade is inapposite, since the purpose of Rule 23(e)’s final approval process is 

the protection of absent class members, and not the defendant.”).

C. The Remaining “Objections” Are Actually Claim Submissions.

The last two “objections” received are more properly considered claims submissions. 

Mr. Leardi [D.E. 91] specifically stated “I wish to stay in the class settlement,” explained that he 

believes “these products did not help,” described the multiple purchases he made during the class 

period, and even submitted proof of such purchases. Mr. Koneval [D.E. 101] simply stated “I [] 

am a member of the settlement class” and identified the products he purchased during the class 

period. Accordingly, the Leardi and Koneval filings are being treated as claims by the settlement 

administrator.

CONCLUSION

In conclusion, and based on the foregoing reasons, Plaintiffs and Settling Defendants 

hereby request that all objections be overruled.

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Dated: September 4, 2013 By: /s/ Kara L. McCall

Kara L. McCall

Michael W. Davis

Theodore R. Scarborough, Jr.

SIDLEY AUSTIN LLP

One South Dearborn Street

Chicago, IL 60603

Telephone: (312) 853-7000

Counsel for Defendants NBTY, Inc.; Rexall 

Sundown, Inc.; and Target Corp.

Stewart M. Weltman

STEWART M. WELTMAN, LLC

53 W. Jackson, Suite 364

Chicago, Illinois 60604

Telephone: (312) 588-5033

(Of Counsel: Levin Fishbein Sedran & Berman)

Of Counsel:

Elaine A. Ryan 

Patricia N. Syverson

Lindsey M. Gomez-Gray

BONNETT, FAIRBOURN, FRIEDMAN & 

BALINT, P.C.

2325 E. Camelback Rd., Suite 300 

Phoenix, Arizona 85016

Telephone: (602) 274-1100

Attorneys for Plaintiffs Nick Pearson, Francisco 

Padilla, Cecilia Linares, Augustina Blanco, and 

Abel Gonzalez

Peter N. Freiberg (admitted pro hac vice)

Jeffrey I. Carton (admitted pro hac vice)

DENLEA & CARTON LLP

One North Broadway, Suite 509

White Plains, New York 10601

Telephone: (914) 920-7400

Attorneys for Plaintiff Richard Jennings

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CERTIFICATE OF SERVICE

I hereby certify that on September 4, 2013, a true and correct copy of the following 

document was electronically filed and served on all counsel of record in this action who are

deemed to have consented to electronic service via the Court’s CM/ECF system: Parties’ Joint 

Response to Objections.

I also certify that the foregoing document is being served by U.S. Mail this day on all 

counsel of record or pro se parties identified below who are not authorized to receive 

electronically Notices of Electronic Filing.

C. Jane Radlinski

309 E. Church Street

Jacksonville, FL 32202-2725

(904) 633-2699

Pro se Objector

John Michael Buckley

370 Canyon Spring Dr.

Rio Vista, CA 94571

(707) 374-3853

Pro se Objector

Peggy Thomas

2109 N.W. 12th Avenue

Ft. Lauderdale, FL 33311

(954) 761-1589

Pro se Objector

Simone Thomas

2109 N.W. 12th Avenue

Ft. Lauderdale, FL 33311

(305) 903-6935

Pro se Objector

Rhonda L. Paulson

13383 E. Marie Creek Road

Couer d’Alene, ID 83814

Pro se Objector

Donald Charles Koneval

8314 Manorford Drive

Parma, OH 44129-5309

(440) 842-6232

Pro se Objector

Anthony Leardi 

1813 Renwick Street

Bethlehem, PA 18017

(610) 865-7821

Pro se Objector

Joseph Darrell Palmer

Law Office of Darrell Palmer PC

603 N. Highway 101, Suite A

Solana Beach, CA 92075

(858) 792-5600

Attorney for Objectors Kathleen McNeal 

and Alison Paul

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Melissa A. Holyoak

Center for Class Action Fairness

1718 M Street NW, No. 236

Washington, DC 20036

(573) 823-5377

Attorney for Objector Ted Frank

Jonathan E. Fortman #40319

250 Saint Catherine Street

Florissant, Missouri 63031

(314) 522-2312

Attorney for Objector Pamela Easton

Steve A. Miller

Steve A. Miller, PC

1625 Larimer Street, No. 2905

Denver, CO 80202

(303) 892-9933

Attorney for Objector Pamela Easton

Maureen Connors

6625 Pearl Road

Parma Heights, OH 44130

(216) 640-9860

Attorney for Objector Pamela Easton

John C. Kress (53396MO)

The Kress Law Firm, LLC

4247 S. Grand Blvd.

St. Louis, MO 63111

(314) 631-3883

Attorney for Objector Pamela Easton

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