594509.1 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

EDWARD SCHWARTZ, on behalf of 

himself and others similarly situated, 

 Plaintiff, 

 vs. 

AVIS RENT A CAR SYSTEM, LLC, and 

AVIS BUDGET GROUP, INC., 

 Defendants. 

Civil Action No. 11-4052 (JLL) (JAD) 

DANIEL KLEIN and STEPHANIE 

KLEIN, on behalf of themselves and others 

similarly situated, 

 Plaintiffs, 

 vs. 

BUDGET RENT A CAR SYSTEM, INC. 

and AVIS BUDGET GROUP, INC., 

 Defendants. 

Civil Action No. 12-7300 (JLL) (JAD)

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR 

FINAL APPROVAL OF CLASS ACTION SETTLEMENT, FOR INCENTIVE 

AWARDS TO NAMED PLAINTIFFS, AND FOR AN AWARD OF ATTORNEYS’ 

FEES AND REIMBURSEMENT OF EXPENSES 

LITE DEPALMA GREENBERG, LLC 

Bruce D. Greenberg 

570 Broad Street, Suite 1201 

Newark, New Jersey 07102 

Telephone: (973) 623-3000 

Facsimile: (973) 623-0858 

bgreenberg@litedepalma.com

Attorneys for Plaintiffs and the Classes 

[Additional Counsel on Signature Page]

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TABLE OF CONTENTS 

Page 

I. INTRODUCTION ............................................................................................. 1 

II. Factual and procedural background ..................................................................... 2 

 A. Litigation history of the cases dates back five years ................................ 2 

B. The Settlement Agreement resolves all claims with a substantial 

 benefit to the nationwide classes .............................................................. 3 

 

 C. Defendants are paying for the best notice practicable .............................. 5 

III. ARGUMENT ....................................................................................................... 6 

A. This Court should finally certify the Settlement Classes ......................... 6 

 

 1. Rule 23(a)(1): Numerosity is satisfied ........................................... 6 

 

 2. Rule 23(a)(2): Common questions of law and fact abound ........... 7 

 3. Rule 23(a)(3): Plaintiffs’ claims are typical of the Classes’ 

 claims 7 

 4. Rule 23(a)(4): Plaintiffs and Class Counsel fairly and 

 adequately represent the interests of the Settlement Classes ......... 7 

 

 5. The proposed Settlement Class satisfies Rule 23(b)(3) ................. 8 

 a. Common questions of law and fact predominate based 

 on Defendants’ frequent-flyer-miles conduct.................... 10 

 

 b. A class action is superior to other methods of 

 adjudication ....................................................................... 10 

B. Notice was appropriate since it complied with this Court’s Order, and 

 the distribution plan should be approved ................................................ 11 

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C. The Court should grant final approval of the settlements, as they are 

 fair, reasonable, and adequate ................................................................. 12 

 1. Girsh #1: The significant complexity, expense, and duration 

 of the litigation weigh in favor of approving settlement .............. 14 

 2. Girsh #2: The Settlement Class’s reaction favors settlement ...... 15 

 a. The parties’ settlement release concerns solely FTP 

 Surcharge-related claims, which are the precise claims 

 that Plaintiff pleaded in his complaint and that Mrs. 

 Payne pleads in hers .......................................................... 15 

 b. The law does not require the parties’ Notice to describe 

 Mrs. Payne’s later-filed, undeveloped, and overlapping 

 complaint ........................................................................... 16 

 c. Subclassing is necessary only where divergent interests 

 exist among class members ............................................... 22 

 

 3. Girsh #3: At settlement, the case was advanced through fact 

 and expert discovery .................................................................... 27 

 4. Girsh #4, #5, and #6: There was difficulty and risk to 

 establishing liability and damages and to maintaining the 

 class action through trial .............................................................. 28 

 5. Girsh #7: Defendants do not lack the ability to withstand a 

 greater judgment ........................................................................... 29 

 

 6. Girsh #8 and #9: The settlement’s range was reasonable in 

 light of the best possible recovery and attendant risks of 

 litigation ....................................................................................... 30 

 7. The settlement satisfies the Prudential factors ............................. 30 

IV. CONCLUSION ................................................................................................. 34 

 

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TABLE OF AUTHORITIES 

Cases Page(s) 

Amchem Prods., Inc. v. Windsor, 

 521 U.S. 591 (1997) .......................................................................................... 10 

Bell Atl. Corp. v. Bolger, 

2 F.3d 1304, aff’d, 148 F.3d 283 (3d Cir. 1998) ............................................... 22 

Danvers Motor Co., Inc. v. Ford Motor Co., 

 543 F.3d 141 (3d Cir. 2008) ............................................................................. 7-8 

Davis v. J.P. Morgan Chase & Co., 

775 F. Supp. 2d 601 (W.D.N.Y. 2011) .............................................................. 25 

Fradette v. American Services Corp., 

No. 76-6373-Civ-CA, 1979 WL 1756 (S.D. Fla. Aug. 29, 1979) ..................... 26 

Girsh v. Jepson, 

 521 F.2d 153 (3d Cir. 1975) ....................................................................... passim 

Glauberzon v. Pella Corp., 

 No. 10–5929, 2011 WL 1337509 (D.N.J. April 7, 2011) ................................. 27 

Graff v. United Collection Bureau, Inc., 

 No. 12–CV–2402, 2016 WL 74092 (E.D.N.Y. Jan. 6, 2016) ............... 19, 20, 21 

In re AT&T Corp. Sec. Litig., 

 455 F.3d 160 (3d Cir. 2006) .............................................................................. 31 

In re Cendant Corp. Litig., 

 264 F.3d 201 (3d Cir. 2001) .................................................................. 14, 15, 28 

In re Corrugated Container Antitrust Litig.,

 643 F.2d 195 (5th Cir.1981) .............................................................................. 22 

In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 

 55 F.3d 768 (3d Cir. 1995) ............................................................................... 8-9 

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In re Ins. Brokerage Antitrust Litig., 

 579 F.3d 241 (3d Cir. 2009) .................................................................. 10, 27, 28 

In re National Football League Players Concussion Injury Litig., 

No. 15–2206, 2016 WL 1552205, (3d Cir. Apr. 18, 2016) ........................ passim

In re Prudential Ins. Co. Am. Sales Practice Litig., 

 148 F.3d 283 (3d Cir. 1998) ....................................................................... passim

In re Prudential Ins. Co. of Am. Sales Practices Litig.,

 261 F.3d 355 (3d Cir. 2001) .............................................................................. 16 

In re Prudential Ins. Co. of Am. Sales Practices Litig., 

 962 F. Supp. 450 (D.N.J. 1997) ............................................................. 22, 23, 29 

In re Subway Footlong Sandwich Mktg. and Sales Practices Litig., 

 MDL No. 13-02439, 2016 WL 755640 (E.D. Wisc. Feb. 25, 2016) ................ 32 

In re Warfarin Sodium Antitrust Litig., 

 391 F.3d 516 (3d Cir. 2004) ....................................................................... passim

Johnston v. HBO Film Mgmt., Inc., 

 265 F.3d 178 (3d Cir. 2001) ................................................................................ 8 

Kanter v. Casey, 

 43 F.3d 48 (3d Cir. 1994) .................................................................................... 8 

Mullane v. Cent. Hanover Bank & Trust Co., 

 339 U.S. 306 (1950) .................................................................................... 12, 26 

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 

 259 F.3d 154 (3d Cir. 2001) ................................................................................ 8 

Rodriguez v. National City Bank, 

 726 F.3d 372 (3d Cir. 2013) ................................................................................ 7 

Rossi v. Proctor & Gamble Co., 

 No. 11-723, 2013 WL 5523098 (D.N.J. Oct. 03, 2013) ............................. passim

Sullivan v. DB Invs., Inc., 

667 F.3d 273 (3d Cir. 2011) ........................................................................ 16, 30 

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Varacallo v. Mass. Mut. Life Ins. Co., 

 226 F.R.D. 207 (D.N.J. 2005) ........................................................................... 17

Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 

396 F.3d 96 (2d Cir. 2005) ................................................................................ 25 

Weber v. Government Empl. Ins. Co., 

 262 F.R.D. 431 (D.N.J. 2009) ........................................................................... 30 

Zimmerman v. Zwicker & Associates, P.C., 

 No. 09–3905, 2011 WL 65912 (D.N.J. Jan. 10, 2011) ................................ 19, 21 

Zimmer Paper Prods., Inc. v. Berger & Montague, P.C., 

 758 F.2d 86 (3d Cir. 1985) ................................................................................ 26 

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I. INTRODUCTION 

This Court has preliminarily approved settlements with defendants in Schwartz 

v. Avis and Klein v. Budget that offer a choice of cash or discounts on future rentals. 

In Schwartz, the settlement (if everyone chooses discounts) has a value of 

$10,924,556, and if every class member opts for cash, a value of $4,126,135. In 

Klein, if everyone selects discounts, the settlement value is $2,853,525, while the cash 

value is $1,195,782. This settlement’s injunctive relief component increases the value 

because Defendants will cease the practices that Plaintiffs challenged by changing 

their websites to disclose the frequent-flyer mile charges. 

The settlements resulted from protracted arm’s-length negotiations by 

experienced counsel committed to the interests of their respective clients after many 

years of hotly contested litigation (since 2011 for Schwartz and 2012 for Klein). The 

settlements occurred after counsel fully understood the strengths and weaknesses of 

the case from their independent investigations, collective experience litigating similar 

class actions, various briefings, and this Court’s multiple decisions, which include 

partial denials of motions to dismiss in Schwartz and Klein, denial of defense motions 

for summary judgment and to exclude plaintiff’s expert in Schwartz , the certification 

of a nationwide class in Schwartz, and the Third Circuit’s denial of a Rule 23(f) 

petition as to that class certification. 

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The settlements provide immediate and significant benefits to Settlement Class 

Members and remove the risks associated with continued litigation. Further, the 

proposed Settlement Classes satisfy the requirements of Rule 23, as this Court 

previously concluded when it preliminarily approved them. 

Finally, the parties have issued notice according to this Court’s January 22, 

2016 Order. The form and method to issue notice satisfy Rule 23, due process, and 

provide the best notice practicable under the circumstances. 

Plaintiffs respectfully ask this Court to 1) grant final approval of the 

settlements, 2) certify the Settlement Classes as final, 3) approve the distribution plan, 

and 4) find that the notice meets the requirements of Rule 23 and due process. 

II. FACTUAL AND PROCEDURAL BACKGROUND 

A. Litigation history of the cases dates back five years. 

In July 2011, Mr. Schwartz filed his case, alleging that Avis misrepresented 

and intentionally concealed charges from its customers who rented vehicles online 

through Avis’s website and accepted Avis’s offer of frequent-flyer miles in 

connection with those rentals. Plaintiff claimed Avis breached its contract with its 

renters nationwide and that Avis violated New Jersey’s Consumer Fraud Act. 

In August 2014, this Court denied Avis’s motion for summary judgment. ECF 

Nos. 151, 152. After this Court certified a nationwide class on all claims, ECF Nos. 

157, 158, the Third Circuit denied Defendants’ Rule 23(f) petition. 

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Multiple depositions occurred. Plaintiff subpoenaed every major U.S. airline 

and Defendant’s web-tracking data company. The Court conducted multiple 

conferences regarding discovery disputes. The matter included extensive expert 

discovery, involving behavioral sciences. 

In November 2012, the Kleins sought a nationwide class of renters against 

Budget for breach of contract and violation of New Jersey’s Consumer Fraud Act. 

After this Court denied Defendant’s motion to dismiss in part, and the parties did 

some paper discovery, they agreed to stay the case until this Court resolved class 

certification in Schwartz. ECF No. 49. The Court ordered an administrative dismissal 

in January 2015. ECF No. 50. 

B. The Settlement Agreement resolves all claims with a substantial 

benefit to the nationwide classes. 

In February 2016, this Court preliminarily approved the settlement and notice 

program, ECF No. 180, and preliminarily certified two Settlement Classes: 

Schwartz: All Persons who, at any time from July 14, 2005 

through June 14, 2012, were members of the Avis Preferred 

Service Program, rented a vehicle in the United States 

through www.avis.com, and paid a Frequent Traveler 

Program Surcharge (an “FTP Surcharge”) for receiving 

frequent-flyer miles from any of Avis’s travel partners. 

Settlement Agreement at 3, ¶ 2(f). 

Klein: All Persons who, at any time from November 27, 

2006 through February 17, 2013, were members of the 

Budget Rapid Rez with Fastbreak Program, rented a 

vehicle in this Court United States through 

www.budget.com, and paid an FTP Surcharge for receiving 

frequent-flyer miles from any of Budget’s travel partners. 

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Id. at 3–4, ¶ 2(g).1

The settlement provides substantial benefits to nationwide classes. It offers all 

Class Members a choice of cash or discounts on vehicle renters, and it ends 

Defendants’ allegedly deceptive practices. 

If all Schwartz Class Members chose the discounts, the settlement’s total worth, 

according to Defendants’ calculations, would be $10,924,556. That sum is more than 

what Defendants asserted would be the Class’s maximum single damages. If every 

Class Member chose cash, Defendants peg the value of this settlement at $4,126,135, 

an extraordinary 50% recovery. 

If all Klein Class Members chose the discounts, the total value is $2,853,525; if 

everyone opted for cash, the settlement value is $1,195,782. The parties negotiated 

and arrived at these amounts after thoroughly weighing the strengths and weaknesses 

of their positions, evaluating the economic harm allegedly inflicted, and Defendants’ 

financial condition. 

The settlements also include injunctive relief, requiring Defendants to cease the 

challenged practices changing their websites to disclose any charge for frequent-flyer 

miles to their customers more thoroughly and completely. 

 

1

 The Schwartz and Klein Classes exclude “(i) the Released Parties (as defined in 

the Settlement Agreement), and their respective officers, directors, employees, and 

counsel, (ii) Plaintiffs’ counsel, and (iii) any federal judges or members of their 

families within the first degree of consanguinity.” 

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Finally, Defendants have agreed to pay, and do not object to, Class Counsels’ 

attorneys’ fees and expenses of no more than $3,050,000. Settlement Agreement at § 

12. Defendants will pay those fees and expenses separate from the class relief, id. at § 

12(e), so those payments will not reduce the Class’s recovery by one cent. 

In exchange for these benefits, the Agreement resolves all claims against 

Defendants. The Agreement’s release does not include any conduct or right of action 

unrelated to the released claims or any claims outside the Class Periods. 

The Court has set the Fairness Hearing for May 25, 2016. 

C. Defendants are paying for the best notice practicable. 

Defendants—not the Class—will pay for a robust notice and administration 

plan. Settlement Agreement at § 3. This Court found the proposed notice program to 

be “the best notice practicable to the Settlement Classes under the circumstances.” 

ECF No. 180 at 8, ¶ 10. 

As stated in the accompanying Declaration of Lori L. Castaneda of Garden City 

Group, LLC, the Court-appointed Claims Administrator, the Administrator provided 

notice to the classes by e-mail, or, if no e-mail address was available, by U.S firstclass mail. Settlement Agreement at § 3(c). The Administrator also created a website 

and a toll-free line providing Class Members with case and Settlement information. 

Id. at § 3(a). 

Class Members can claim cash or discounts through a simplified claim form 

that can be completed and submitted electronically to the Administrator. Class 

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Members can also file a claim by regular mail. Avis will pay all notice costs, which is 

in addition to—not deducted from—the settlement. Id. at § 3(d). Consistent with 

Rules 23(c) and (e), all Class Members were provided a reasonable opportunity to 

object to or to exclude themselves from the Settlement. Id. at §§ 8, 10. In exchange, 

Defendants receive a release for claims that relate to the subject matter of these 

lawsuits by Plaintiffs and Class Members who do not opt out. Id. at § 13. 

III. ARGUMENT 

A. This Court should finally certify the Settlement Classes.2

1. Rule 23(a)(1): Numerosity is satisfied. 

Rule 23(a)(1) “requires that a class be so numerous that joinder of all members 

is impracticable.” In the Third Circuit, “[t]here is no magic number of class members 

needed for a suit to proceed as a class action.” In re National Football League Players 

Concussion Injury Litig., No. 15–2206, 2016 WL 1552205, *7 (3d Cir. Apr. 18, 

2016). A “rough guidepost” is anything “more than 40 class members.” Id. (other 

citations omitted). Nearly 11.9 million rental transactions involved a frequent-flyer 

surcharge, ECF No. 157 at 14, and, to date, the Administrator has received over 

51,000 claims. 

 

2

 The Parties agree that certification of the Settlement Class in Klein pursuant to 

this motion is for purposes of settlement only, and not for purposes of liability. 

Specifically, Defendants do not agree that Klein would be appropriate for 

certification of a liability class if for any reason the Settlement is not approved. 

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2. Rule 23(a)(2): Common questions of law and fact abound. 

Both Classes share common questions of fact and law. “A putative class 

satisfies Rule 23(a)’s commonality requirement if the named plaintiffs share at least 

one question of fact or law with the grievances of the prospective class.” NFL, 2016 

WL 1552205 at *7 (quoting Rodriguez v. National City Bank, 726 F.3d 372, 382 (3d 

Cir. 2013)). 

Here, critical factual and legal questions common to the Class members exist, 

such as whether Defendants breached their contracts with renters, whether Defendants 

violated New Jersey’s Consumer Fraud Act, and whether Plaintiffs and Class 

Members are entitled to injunctive relief. Even when opposing certification of the 

litigation class, Defendants did not contest commonality. ECF No. 157 at 15. Just as 

when this Court certified a litigation class in Schwartz, commonality is satisfied for 

these final Settlement Classes. 

3. Rule 23(a)(3): Plaintiffs’ claims are typical of the Classes’ 

claims. 

“Rule 23(a)(3) requires that the class representatives’ claims be ‘typical of the 

claims . . . of the class.’” NFL, 2016 WL 1552205 at *8 (quoting Fed. R. Civ. P. 

23(a)(3)). This “inquiry ‘assesses whether the named plaintiffs have incentives that 

align with those of absent class members so that the absentees’ interest will be fairly 

represented.’” Rossi v. Proctor & Gamble Co., No. 11-723, 2013 WL 5523098, *2 

(D.N.J. Oct. 03, 2013) (quoting Danvers Motor Co., Inc. v. Ford Motor Co., 543 F.3d 

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141, 149–50 (3d Cir. 2008). It “ensure[s] that the interests of the class representatives 

do not diverge from those of the class as a whole.” Id. at *2 (quoting Baby Neal ex 

rel. Kanter v. Casey, 43 F.3d 48, 57–58 (3d Cir. 1994)). Because “[t]ypicality does 

not . . . require that all class members share identical claims[,]” Rossi, 2013 WL 

5523098 at *2 (citing Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 184 (3d Cir. 

2001)), the Third Circuit has “set a ‘low threshold’ for typicality.” NFL, 2016 WL 

1552205 at *8 (citing Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 

F.3d 154, 183 (3d Cir. 2001)). 

Plaintiffs seek recovery under the same legal theories as Class members. Both 

cases arise out of the same alleged conduct of charging for frequent-flyer miles 

without revealing them to their customers. The Court found that Schwartz satisfied 

this requirement, ECF No. 157 at 26-27, and Plaintiffs would make the same 

argument as to Klein. 

4. Rule 23(a)(4): Plaintiffs and Class Counsel fairly and 

adequately represent the interests of the Settlement Classes. 

This requirement “tests the qualifications of class counsel and the class 

representatives.” NFL, 2016 WL 1552205 at *9. This inquiry basically “has two 

components intended to assure that the absentees’ interests are fully pursued: it 

considers whether the named plaintiffs’ interests are sufficiently aligned with the 

absentees’, and it tests the qualifications of the counsel to represent the class.’” Rossi, 

2013 WL 5523098 at *2 (quoting In re General Motors Corp. Pick-Up Truck Fuel 

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Tank Prods. Liab. Litig., 55 F.3d 768, 800 (3d Cir. 1995)). This test “aims to root out 

conflicts of interest within the class to ensure that all class members are fairly 

represented in the negotiations.” NFL, 2016 WL 1552205 at *9. 

Plaintiffs’ interests are not antagonistic to those of Class Members. Like all 

Class Members, Plaintiffs’ claims arise out of Defendants’ alleged actions to conceal 

the frequent-flyer surcharges from them. In certifying Schwartz, this Court found, 

over Defendants’ objection, Schwartz to be adequate, as he rented from Avis and 

sustained injury from Avis’s alleged CFA violations and breach of contract. ECF No. 

157 at 27. The same is true for the Kleins against Budget, as they rented from Budget 

and were charged for frequent-flyer miles. Plaintiffs have ample incentive to 

represent their respective classes, and they have the same claims based on the same 

facts as the Class members. 

At class certification and preliminary approval, this Court also concluded that 

Class Counsel were adequate. ECF No. 157 at 27.3

 No objection has been made 

concerning the qualifications and capabilities of Class Counsel. 

Class Counsel have invested considerable time and resources in this case, 

including investigation, researching, and drafting the complaints; responding to 

multiple motions to dismiss; taking and defending significant discovery (including 

depositions and experts); defending Defendants’ summary judgment and Daubert 

 

3

 Plaintiffs attached firm resumes to their unopposed Motion for Preliminary 

Approval of Class Action Settlement. See ECF 179-2, Greenberg Declaration. 

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motions; winning certification of a nationwide class; defeating Defendants’ Rule 23(f) 

petition; and engaging in difficult settlement negotiations, including preparing a 

Settlement Agreement and notice-and-claims program. 

5. The proposed Settlement Class satisfies Rule 23(b)(3). 

 a. Common questions of law and fact predominate based 

 on Defendants’ frequent-flyer-miles conduct. 

“[T]he class may be maintained if ‘the court finds that the questions of law or 

fact common to class members predominate over any questions affecting only 

individual members.’” NFL, 2016 WL 1552205 at *14 (quoting Fed. R. Civ .P. 

23(b)(3)). It “‘tests whether proposed classes are sufficiently cohesive to warrant 

adjudication by representation.’” Id. (quoting Amchem Prods., Inc. v. Windsor, 521 

U.S. 591, 623 (1997)). The predominance requirement, albeit a bit more demanding, 

“incorporates the Rule 23(a) commonality requirement.” Id. (quoting In re Warfarin 

Sodium Antitrust Litig., 391 F.3d 516, 528 (3d Cir. 2004)). Where “‘Rule 23(a)(2)’s 

commonality element requires that the proposed class members share at least one 

question of fact or law in common with each other, the Rule 23(b)(3) predominance 

element requires that common issues predominate over issues affecting only 

individual class members.’” Rossi, 2013 WL 5523098 at *3 (quoting In re Ins. 

Brokerage Antitrust Litig., 579 F.3d 241, 266 (3d Cir. 2009)). 

“‘Predominance is a test readily met in certain cases alleging consumer or 

securities fraud.’” Id. (quoting In re Prudential Ins. Co. Am. Sales Practice Litig., 148 

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F.3d 283, 314 (3d Cir. 1998)). The Third Circuit finds that this requirement is 

“satisfied where ‘all plaintiffs’ claims arise from the same alleged fraudulent scheme.” 

Id. (quoting In re Community Bank of N. Va., 418 F.3d 277, 309 (3d Cir. 2005)). 

The common questions of fact and law identified previously predominate over 

any individual issues that may exist. The Court already concluded this in Schwartz, 

ECF No. 157 at 14–26, over Defendants’ objection, and Plaintiffs maintain that Klein

is no different. Avis and Budget have allegedly injured Class Members with the same 

wrongful course of conduct. The central common question that predominates is 

whether Defendants breached their contracts and fraudulently misled reasonable 

consumers, under New Jersey law, related to frequent-flyer surcharges. The 

availability of injunctive relief also presents a predominant factual question. 

 b. A class action is superior to other methods of 

 adjudication. 

“Rule 23(b)(3)’s superiority requirement ‘asks the court to balance, in terms of 

fairness and efficiency, the merits of a class action against those of alternative 

available methods of adjudication.’” NFL, 2016 WL 1552205 at *15 (quoting 

Warfarin, 391 F.3d at 533-34). Superiority is satisfied when the settlement avoids 

thousands of duplicative lawsuits and enables fast processing of a multitude of claims. 

Id.

In certifying a litigation class in Schwartz, the Court found, over Defendants’ 

objection, that since Defendants’ surcharges were small, few, if any Class Members, 

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have interest in pursuing separate actions for relief, as demonstrated by the negligible 

opt-outs. See ECF No. 157 at 26 (“it would be very difficult for each plaintiff to 

litigate his or her dispute with Avis individually because the recoverable amount of 

damages are likely marginal.”). The Settlement Agreement permits Class Members to 

exclude themselves. For those with no objection, the Agreement provides a prompt, 

predictable, and certain relief with well-defined administrative procedures to assure 

due process. The Settlement avoids thousands of individualized trials. 

B. Notice was appropriate since it complied with this Court’s Order, 

and the distribution plan should be approved. 

“For a class certified under Rule 23(b)(3), ‘the court must direct to class 

members the best notice that is practicable under the circumstances, including 

individual notice to all members who can be identified through reasonable effort.’” 

NFL, 2016 WL 1552205 at *16 (quoting Fed. R. Civ. P. 23(c)(2)(B)). “[D]ue process 

further requires that notice be ‘reasonably calculated, under all the circumstances, to 

apprise interested parties of the pendency of the action and afford them an opportunity 

to present their objections.’” Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 

339 U.S. 306, 314 (1950)). 

“‘[T]he district court obtains personal jurisdiction over the absentee class 

members by providing proper notice of impending class action and providing the 

absentees with the opportunity to be heard or the opportunity to exclude themselves 

from the class.’” Rossi, 2013 WL 5523098 at *4 (quoting Prudential, 148 F.3d at 

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305). Notice must meet the requirements of Rules 23(c)(2)(B) and (e), id., by 

informing class members of 1) the nature of the action; 2) the definition of the class 

certified; 3) the class claims, issues, or defenses; 4) the class members’ rights to retain 

an attorney; 5) the class member’s right to exclusion; 6) the time and manner for 

requesting exclusion; and 7) the binding effect of a class judgment on class members 

under Rule 23(c)(3).” Id. (citing Fed. R. Civ. P. 23(c)(2)(B)(i)–(vii). “Rule 23(e) 

notice must contain a summary of the litigation sufficient ‘to apprise interested parties 

of the pendency of the settlement proposed and to afford them an opportunity to 

present their objections.’” Id. (citation omitted). 

First, this Court already found the Notice Program to “provide the best notice 

practicable to the Settlement Classes under the circumstances.” ECF No. 180 at 8, ¶ 

10. Next, there are no objections to the Notice Program. As outlined by the Claims 

Administrator’s accompanying Declaration, the Notice Program consisted of the 

following components: Settlement Notice was published through a settlement website; 

notification was emailed to Class Members whose e-mail addresses Defendants had; 

where e-mails were lacking, notification was directly mailed to the Class Members; 

and summary notice was published in the Marketplace section of USA Today. 

Declaration of Lori Castenada, dated April 28, 2016; see ECF No. 180 at 9-10, ¶ 13. 

The Notice Program has fully informed the Class of their rights and benefits 

under the Settlement. See Rossi, 2013 WL 5523098 at *5. The Program does not cost 

this the Settlement Class anything; Defendants are paying for it. 

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C. The Court should grant final approval of the settlements, as they are 

fair, reasonable, and adequate. 

Settlements are favored “especially in the class action setting,” as a settlement 

conserves substantial judicial resources. Rossi, 2013 WL 5523098 at *6 (citing GM, 

55 F.3d at 784, Warfarin, 391 F.3d at 535 (noting the “overriding public interest in 

settling class action litigation”)). “A class action cannot be settled without court 

approval based on a determination that the proposed settlement is fair, reasonable, and 

adequate.” NFL, 2016 WL 1552205 at *16. The decision to approve a proposed 

settlement “is left to the sound discretion of the district court.” Id. (quoting 

Prudential, 148 F.3d at 299). 

Courts in this Circuit “apply an initial presumption of fairness in reviewing a 

class settlement when 1) the negotiations occurred at arm’s length; 2) there was 

sufficient discovery; 3) the proponents of the settlement are experienced in similar 

litigation; and 4) only a small fraction of the class objected.” Id. at *17 (quoting In re 

Cendant Corp. Litig., 264 F.3d 201, 231 (3d Cir. 2001)); Rossi, 2013 WL 5523098 at 

*6 (citing Warfarin, 391 F.3d at 535). 

 From there, the Third Circuit has enumerated nine factors, the Girsh factors, to 

determine whether a settlement is “fair, reasonable, and adequate.” Rossi, 2013 WL 

5523098 at *5 (quoting Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975)). The 

Third Circuit, in Prudential, has also offered prudential factors that are permissive. 

NFL, 2016 WL 1552205 at *18 (citing Prudential, 148 F.3d at 323). 

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1. Girsh #1: The significant complexity, expense, and duration of 

the litigation weigh in favor of approving settlement. 

The first Girsh factor, “whether the settlement avoids a lengthy, complex, and 

expensive continuation of litigation,” Rossi, 2013 WL 5523098 at *6, “‘captures the 

probable costs, in both time and money, of continued litigation.’” Id. (quoting 

Cendant, 264 F.3d at 201, 233-34). 

Despite Schwartz’s advanced posture, the parties would still have needed 

engage in months of merits-based discovery, involving significant written and 

document discovery, many fact and expert depositions, likely resulting in a second 

motion for summary judgment. Klein would have required even more work, including 

additional interrogatories and requests for production and depositions (none of which 

had yet been taken at the time of the settlement) on class discovery. As in Schwartz, a 

behavioral economist’s opinion would have been required. And class certification and 

summary judgment would have required extensive briefing and evidence. Both cases 

would have required extensive trial preparation. The lengthy trial would have 

involved pretrial motions concerning complex legal and factual questions. And if 

Plaintiffs won, Defendants would likely have appealed. 

Conversely, “settlement also provides the Class with immediate and definite 

relief.” Id. It provides substantial benefits for Settlement Class Members with none 

of the delay, risk, and uncertainty of continued litigation. 

2. Girsh #2: The Settlement Class’s reaction favors settlement. 

The second “factor gauges whether members of the class generally support or 

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object to the settlement.” Id.; NFL, 2016 WL 1552205 at *19 (quoting Warfarin, 391 

F.3d at 536 ). “‘[T]he number and vociferousness of the objectors must be 

examined.’” Rossi, 2013 WL 5523098 at *6 (quoting GM, 55 F.3d at 812). Along 

those lines, “‘silence constitutes tacit consent to the agreement.’” Id. 

The notice program is ongoing. Although the opt-out and objection deadline 

was April 6, 2016, of the over one million Class Members, only four unmeritorious 

objections occurred and, as the Castaneda Declaration states, only eight persons 

excluded themselves. The three fee-based objections will be addressed in Class 

Counsels’ fee application, while the other objection, by Todd Payne, is discussed now. 

 a. The parties’ settlement release concerns solely FTP 

 Surcharge-related claims, which are the precise 

 claims that Plaintiff pleaded in his complaint and that 

 Mrs. Payne pleads in hers. 

One of the most important characteristics of a settlement release is its scope. 

And although the parties’ settlement release is not overbroad, the Third Circuit 

recognizes that releases can be very broad and can even include future claims. See 

e.g., Sullivan v. DB Invs., Inc., 667 F.3d 273, 317 (3d Cir. 2011) (“[I]t is well 

established that parties to a suit have the right to agree to anything they please in 

reference to the subject matter of their litigation, and the court, when applied to, will 

ordinarily give effect to their agreement, if it comes within the general scope of the 

case made by the pleadings.”) (internal quotation marks omitted); In re Prudential Ins. 

Co. of Am. Sales Practices Litig., 261 F.3d 355, 367 (3d Cir. 2001) (affirming 

settlement where settlement agreement released claims “arising out of, or related to, in 

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whole or in part, the Released Transactions and servicing relating to the Released 

Transactions”); Varacallo v. Mass. Mut. Life Ins. Co., 226 F.R.D. 207, 244 (D.N.J. 

2005) (released claims must “arise out of the same course of conduct alleged in the 

Complaint [and must be] based on the same factual predicate as those claims in [the] 

action”). 

So where a complaint alleges (or even lists) defendant’s allegedly deceptive 

conduct, yet the complaint’s other allegations address conduct that, while supporting 

the complaint’s allegedly deceptive conduct, does not neatly fall within the 

complaint’s enumerated alleged misconduct, the other claims are properly subject to 

the parties’ settlement release. See, e.g., Prudential, 148 F.3d at 326 (“The crux of the 

plaintiffs’ complaint was that Prudential engaged in a common scheme of deceptive 

sales practices. Although the [c]omplaint specifically list[ed] three types of deceptive 

sales claims—the churning, vanishing premium and investment plan claims—other 

allegations address conduct which supports the common scheme theory and which 

does not fall neatly within the three enumerated categories. Therefore, we agree with 

the district court the ‘other claims’ were properly released.” (internal citation 

omitted)). 

But despite the Third Circuit’s liberal approach, the parties’ settlement release 

is not overbroad in the first place. Understanding this requires understanding Payne’s 

situation. Plaintiffs’ certified class, of which Payne is a member, includes Avis 

customers (1) who were Preferred Service members; (2) who, as Preferred Service 

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members, rented a car between July 14, 2005 and June 14, 2012 through 

www.avis.com, and (3) who paid an FTP Surcharge at any time, including through 

present. Importantly, this class does not cover Preferred Service members who did 

not rent online between June 14, 2005 and June 14, 2012. Therefore, any FTP 

Surcharge-related claims alleged by Preferred Service members who did not rent 

between June 14, 2005 and June 14, 2012—call them, new Preferred Service 

renters—are outside the settlement class, and any claims they have remain available to 

pursue. 

Payne refuses to recognize that Plaintiffs’ settlement resolved his claims (since 

Payne admittedly rented between June 14, 2005 and June 14, 2013), and Payne fails to 

acknowledge the viability of FTP-Surcharge-related claims for new Preferred Service 

renters. Instead, Payne claims overbreadth, insisting that the parties’ settlement 

release somehow “bars the American/Delta [supposed] sub-class members[, which 

group does not even include Payne] from joining [Payne’s wife’s] class and 

recovering for surcharges paid to Avis for American Airline and/or Delta Airline 

frequent-flyer miles beyond the Avis Settlement Class’s present end date of June 14, 

2012.” Payne Objection at 6. 

But the parties’ settlement release does no such thing. Rather, the settlement 

release allows renters’ claims to proceed, so long as these renters did not also rent 

from Avis between June 14, 2005 and June 14, 2012, as Payne did. In the event 

customers rented between these dates, the rentals “beyond the Avis Settlement Class’s 

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present end date of June 14, 2012,” id., are properly covered. 

All of Payne’s FTP Surcharge-related claims—whether Avis’s $0.75/day FTP 

Surcharge, the imposition of the FTP Surcharge for miles earned on American/Delta, 

or anything else, as well as whether occurring between June 14, 2005 and June 14, 

2012 or afterwards—are, subject to this Court’s certification order. That Payne lacks 

standing to pursue new Preferred Service renters’ alleged American/Delta-related FTP 

Surcharge claims is no basis for scuttling a perfectly good settlement for those renters 

who appreciate it. 

A proper example of overbreadth would be if the parties had agreed to settle 

not only Preferred Service members’ FTP Surcharge-related claims but all these 

members’ Avis-related claims, including personal-injury claims related to accidents 

suffered walking through the Avis parking lot or fraud claims related to charges for 

GPS units, car seats, or other options that Preferred Service members never selected. 

Payne’s citations, Zimmerman v. Zwicker & Associates, P.C., No. 09–3905, 2011 WL 

65912 (D.N.J. Jan. 10, 2011), and Graff v. United Collection Bureau, Inc., No. 12–

CV–2402, 2016 WL 74092 (E.D.N.Y. Jan. 6, 2016), exemplify this point. 

Zimmerman involved the parties’ efforts to release not just FDCPA claims 

related to a collection letter that defendant had sent to plaintiff and class members, but 

all claims “as a result of alleged violations of the Fair Debt Collection Practices Act 

or any state law providing substantially similar protections.” Zimmerman, 2011 WL 

65912 at *2. The court considered this release language overbroad for multiple 

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reasons. To start, although the release included anyone to whom defendant had 

mailed a “collection letter,” the release never bothered defining collection letter. Id. at 

*4. 

But worse, class members received nothing “[i]n exchange for releasing 

hundreds of thousands of potential FDCPA claims.” Id. As a result, the court 

explained, “if a class member received defendant’s letter and defendant later 

threatened the consumer with violence if he or she did not pay, the claim would be 

barred because the settlement require[d] that every class member release his or her 

FDCPA claims.” Id. The court continued: “The same would be true if defendant 

mailed a class member a different threatening letter every day for over two years 

starting from the beginning of the class period.” Id. Further, the settlement release 

would have snuffed out any claims related to third-party collectors acting on 

defendant’s behalf, as well as any threats of arrest made by defendant to class 

members. Id. 

But perhaps worst, the settlement release would have applied to state-law 

claims that were not even part of plaintiff’s FDCPA lawsuit. Id. It was because the 

parties’ settlement release went far beyond the claim that plaintiff had alleged—

exceeding claims arising out of the same course of conduct alleged in plaintiff’s 

complaint—that the court properly refused to approve the parties’ settlement.

Graff, another FDCPA case, involved a “proposed settlement provid[ing] for 

the class members to receive no money—zero,” Graff, 2016 WL 74092 at *7. For this 

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benefit, class members released “any and all claims for damages, including unknown 

claims for such relief arising out of or related to the factual allegations and legal 

claims asserted in the action arising out of federal or state law, including but not 

limited to any and all such claims relating to defendant’s use of messages on 

telephone answering devices[, including] all claims or causes of action under state or 

federal law.” Id. 

To this far-reaching release language, the court expressed concern that “the 

sweeping release [would] bar[] claims for telephone abuse or harassment under the 

FDCPA, 15 U.S.C. § 1692f, and even claims arising under the Telephone Consumer 

Protection Act, 47 U.S.C. § 227, for improper calls to a consumer’s cellphone.” Id. 

Citing Zimmerman, the court rightly denied plaintiff’s final-approval motion, 

explaining that “where, as here, the parties predicate the settlement of an FDCPA 

class action upon the limitations of liability contained in that statute, the release issued 

in connection with that settlement should not encompass claims other than those under 

the FDCPA.” Id. at *8. 

Zimmerman and Graff resemble Plaintiffs’ example where the parties’ 

settlement release would include Avis’s liability for personal-injury or non-FTP 

Surcharge-related fraud claims. But the parties’ settlement covers FTP Surchargerelated claims—period—and not, as Payne insists, claims “that are even related just in 

part to the facts surrounding the cause of action set forth in the litigation.” Payne 

Objection at 9. 

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 b. The law does not require the parties’ Notice to 

 describe Mrs. Payne’s later-filed, undeveloped, and 

 overlapping complaint. 

“In a world in which junk mail and spam can easily drown out important 

messages, . . . Rule 23(c)(2)(B) commands that notices ‘clearly and concisely state in 

plain, easily understood language’ the elements of class action notices.” Managing 

Class Action Litigation: A Pocket Guide for Judges at 28, Federal Judicial Center 

(2010). See also Judges’ Class Action Notice and Claims Process Checklist and Plain 

Language Guide (“Notices should carry all of the information required by Rule 23 

and should be written in clear, concise, easily understood language.”). 

With this directive in mind, the “Third Circuit and others have repeatedly ruled 

that notice of a proposed settlement need not include information about parallel state 

court proceedings.” In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. 

Supp. 450, 529 (D.N.J. 1997) (quoting Bell Atl. Corp. v. Bolger, 2 F.3d 1304, 1317–

18 (notice need not describe objector’s parallel state court litigation or its relative 

merit)), aff’d, 148 F.3d 283 (3d Cir. 1998); In re Corrugated Container Antitrust 

Litig., 643 F.2d 195, 224 (5th Cir.1981) (same), cert. denied, 456 U.S. 998 (1982). 

Yet Payne insists that the parties’ Notice should have referenced his wife’s 

overlapping complaint. He also suggests that, to the extent his wife is not a class 

member (because she may not have even rented between June 14, 2005 and June 14, 

2012) her complaint’s possible (but uncertain) relation to new Preferred Service 

rentals should have been mentioned. But Prudential instructs that notices need not 

reference parallel claims or claims that are unrelated to the settling case. 

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So when considering Mrs. Payne’s complaint, her claims fall into one of two 

categories—either she is part of Plaintiffs’ class, in which case her claims are settled, 

or she is not part of Plaintiffs’ class, in which case the parties’ settlement release does 

not apply to her. Neither situation, according to the Third Circuit, requires the parties’ 

Notice to have described her settled or unrelated complaint. See, e.g., Prudential, 962 

F. Supp. at 529 (“Johnson complains also that the Class Notice should have identified 

each state class action currently pending. Similarly, Krell contends that the Class 

Notice should have apprised class members of alleged state law violations that are not 

even asserted in the Second Amended Complaint. Both objections misinterpret the 

law.”) (internal citations omitted). 

What is more, if Payne’s wife did fall entirely within the parties’ settlement 

class—and when she filed her complaint, she certainly knew about Plaintiffs’ certified 

class, as evidenced by the required certification under N.J. Ct. R. 4:5-1, where she 

listed Plaintiff’s case as a “related pending judicial proceeding”—she had no reason 

even to file her complaint. Or if she was outside the class—meaning she did not have 

a Preferred Service rental between June 14, 2005 and June 14, 2012—then Plaintiffs’ 

class has nothing to do with her. And when considering that Payne falls squarely 

within Plaintiffs’ settlement class and does not have claims outside it (as his wife 

might), again, there is no reason for Payne even to be objecting, except perhaps due to 

his misunderstanding that he is losing new Preferred Service member rental-related 

claims that he does not even have. 

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Despite all this, Payne also insists that the parties’ Notice required reference to 

his wife’s lawsuit because Plaintiff’s case “impacted” certain renters and “released 

their rights,” Payne Objection at 4. But that is not the rule. Plaintiffs’ lawsuit merely 

settled Mrs. Payne’s claims, to the extent they overlap with Plaintiff’s. 

With respect to any parts of Mrs. Payne’s complaint that do not overlap with 

Plaintiffs’, Plaintiffs’ settlement release is not “related” to or “parallel” with her case. 

Id. at 4, 5. So because Plaintiff’s settlement did not cause Mrs. Payne’s class 

members to “lose the opportunity to secure,” id. at 4, or to “giv[e] up” anything, id. at 

5, qualifying Preferred Service members, like Payne, are getting precisely what they 

deserve, while non-qualifying Preferred Service members, like perhaps Mrs. Payne 

(we are not sure), remain free to pursue their claims. In both instances, no notice 

problem exists. 

Payne also maintains that by not listing his wife’s complaint, the parties failed 

to disclose “the potential adverse effect [that] their settlement may have on class 

members who were surcharged for Frequent-flyer miles relating to American Airlines’ 

‘AAdvantage’ program or Delta Air Lines’ ‘Sky Miles’ program.” Payne Objection at 

2. But he never explains how these renters were adversely affected. “Potentially 

higher damage amounts,” id. at 4, which Mrs. Payne’s new complaint may never 

generate, do not constitute “adverse effect.” 

Payne cites no case where a notice was found invalid because it did not disclose 

another pending case. Rather, he cites cases where the fact of parallel litigation was 

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merely discussed. For instance, in Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 

96 (2d Cir. 2005), the court was concerned with ensuring that class members received 

all facts necessary for making an informed decision about whether to stay in or to opt 

out of the class. For this reason, the court found it meaningful that the “settlement 

notice quoted verbatim the Settlement’s release,” id. at 115, not unlike how the instant 

parties’ settlement website made their entire settlement release (and more) available to 

class members. In keeping with this theme, the Wal-Mart court, suggesting that 

mentioning other pending litigation might be helpful, id. at 116 n.22, ruled that 

describing the release (and not mentioning other pending litigation) “[wa]s all that 

was required.” Id. at 116. 

So while the Notice here might not quote the entire release, it is functionally 

equivalent to Wal-Mart in that it directs class members to the full release on the 

settlement website. Perhaps even more important, the notice explains that the release 

is “from any liability or claims associated with or relating to the imposition of FTP 

Surcharges during rental transactions.” This FTP language encompasses Mrs. Payne’s 

complaint, which, identical to Plaintiff’s case, involves FTP surcharges. 

In Davis v. J.P. Morgan Chase & Co., 775 F. Supp. 2d 601 (W.D.N.Y. 2011), 

not only did the case actually not involve parallel litigation (rather, it involved class 

members striving to intervene in the settling litigation), the court recognized that 

“[t]he parties [were] correct that there is no requirement that a settlement notice 

advise class members of the pendency of parallel litigation in another forum.” Id. at 

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611 (emphasis in original). 

Finally, in Fradette v. American Services Corp., No. 76-6373-Civ-CA, 1979 

WL 1756 (S.D. Fla. Aug. 29, 1979), when defendant objected to adding reference to 

other pending litigation, plaintiff insisted since, under the facts of that case, this extra 

language encouraged clarity, as opposed to being pointless and encouraging only 

confusion, as would have happened here. Id. at *1. 

Given the supportive and remedial effect that the parties’ settlement has on 

Mrs. Payne’s complaint’s putative class members who rented between June 14, 2005 

and June 14, 2012 and who paid FTP Surcharges through present, no reason exists to 

gum up the parties’ Notice with discussions and descriptions of another lawsuit that is 

only just getting started. Despite Payne’s insistence that “several” district courts have 

required notice of similar complaints, Payne Objection at 4, there has been no such 

requirement. 

Finally, Payne is in its infancy, having been filed barely three months before 

Plaintiff filed his motion for preliminary approval. From a practical perspective, it 

makes no sense to require that settling parties’ notice describe any competing case, 

particularly a newly-minted one. It is confusing to tell class members about every 

bird in the bush instead of focusing on the bird in the hand. The form of notice is 

within this Court’s discretion, and courts should avoid making notices too complex. 

See Mullane, 339 U.S. at 314, 318 (notice “must be such as is reasonably calculated to 

reach interested parties” and “apprise [them] of the pendency of the action.”); Zimmer 

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Paper Prods., Inc. v. Berger & Montague, P.C., 758 F.2d 86, 90 (3d Cir. 1985) (“Rule 

23(d)(2) governs most notices during the pendency of a class action and confides the 

manner of notice to the district court’s discretion, subject to due process 

requirements.”). 

 c. Subclassing is necessary only where divergent 

 interests exist among class members. 

According to Rule 23(c)(5), “[w]hen appropriate, a class action may be divided 

into subclasses that are each treated as a class under this rule.” An advisory committee 

note for Rule 23(c) adds that subclasses are appropriate “[w]here a class is found to 

include subclasses divergent in interest.” See also In re Ins. Brokerage Antitrust Litig., 

579 F.3d 241, 271 (3d Cir. 2009) (citing Rule 23(c)(5) for this proposition). 

Considering this standard, in Glauberzon v. Pella Corp., No. 10–5929, 2011 

WL 1337509 (D.N.J. April 7, 2011), this Court recognized that “a class representative 

[was] necessary for each subclass,” id. at 16, where plaintiffs [had] plead[ed] various 

classes, such as “claims on behalf of California, Wisconsin, Illinois, Michigan, New 

Jersey, New York, Pennsylvania, North Carolina and Florida sub-classes.” Id. at *2. 

But here, the American and Delta-loyal Avis Preferred members (possibly) described 

in Mrs. Payne’s complaint who paid FTP Surcharges are covered by Plaintiff’s 

nationwide complaint under New Jersey law, so long as they rented between June 14, 

2005 to June 14, 2012. Payne fails to support his subclass objection with any 

authority, instead maintaining that “no class representative was a member [of] or 

sought frequent-flyer miles under Avis’s Frequent Flyer program,” Payne Objection at 

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5, when Plaintiff’s class comprises precisely these people. 

Finally, even if this Court were to somehow conclude that a subclass of some 

sort were required, whether separate representation should exist is within the district 

court’s discretion. For as the Third Circuit has instructed, “[w]hile subclasses can be 

useful in preventing conflicts of interest, they have their drawbacks[, and] because the 

decision whether to certify a subclass requires a balancing of costs and benefits that 

can best be performed by a district judge, we accord substantial deference to district 

courts with respect to their resolution of this issue.” Ins. Brokerage, 579 F.3d at 271 

(internal quotation marks and citations omitted.). So because no antagonistic interests 

exist, in that both cases involve FTP Surcharges, no basis exists for subclassing. 

Payne’s objection should be rejected. 

3. Girsh #3: At settlement, the case was advanced through fact 

and expert discovery. 

The third “‘factor ‘captures the degree of case development that class counsel 

had accomplished prior to settlement. Through this lens, courts can determine 

whether counsel had an adequate appreciation of the merits of the case before 

negotiating.’’” NFL, 2016 WL 1552205 at *19 (quoting Warfarin, 391 F.3d at 537 

(quoting Cendant, 264 F.3d at 235)). 

Counsel for both sides appreciate the merits of the case. In Schwartz and Klein, 

the parties briefed Defendants’ motions to dismiss. In Schwartz, they briefed class 

certification, Avis’s Rule 23(f) appeal, summary judgment and Daubert. The parties’ 

discovery involved initial disclosures, documentary discovery, depositions, third-party 

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subpoenas, and experts. Counsel met multiple times to conduct settlement 

negotiations, and exchanged countless demands and offers, all of which favors 

settlement approval. 

4. Girsh #4, #5, and #6: There was difficulty and risk to 

establishing liability and damages and to maintaining the class 

action through trial. 

“‘The fourth and fifth Girsh factors survey the possible risks of litigation in 

order to balance the likelihood of success and the potential damage award if the case 

were taken to trial against the benefits of an immediate settlement.’” NFL, 2016 WL 

1552205 at *20 (quoting Prudential, 148 F.3d at 319). It is well known that “[t]he 

risks of proceeding to trial in any case are always considerable.” Rossi, 2013 WL 

5523098 at *7 (citing Prudential, at 962 F. Supp. at 539). As for the sixth factor, even 

when class certification is granted, there is still the “added challenge of maintaining 

class certification through trial.” Id. at *8 (citation omitted). 

But still more risks existed. Plaintiffs fully expected Defendants to move to 

decertify the class, since, “‘[a]fter all, a favorable class determination by the court is 

not cast in stone[,]’” Id. (citation omitted), and to oppose certification in Klein. 

Plaintiffs also expected Defendants to file motions for summary judgment attacking 

Plaintiffs’ liability theories. So while Plaintiffs are confident about the merits of their 

case, stiff challenges persisted at trial and on appeal. See NFL, 2016 WL 1552205 at 

*20. 

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5. Girsh #7: Defendants do not lack the ability to withstand a 

greater judgment. 

This factor is “relevant when the defendant’s professed inability to pay is used 

to justify the amount of the settlement.” Id., at *21. But the Third Circuit has found 

that the ability to withstand a more substantial judgment “‘‘does not undermine the 

reasonableness of the . . . settlement.’’” Id. (quoting Sullivan, 667 F.3d at 323 

(quoting Weber v. Government Empl. Ins. Co., 262 F.R.D. 431, 447 (D.N.J. 2009))). 

Here, there is no evidence that Defendants would be unable to withstand a greater 

judgment, Warfarin, 391 F.3d at 538 (“Although the plaintiffs do not dispute that 

DuPont’s total resources far exceed the settlement amount, the fact that DuPont could 

afford to pay more does not mean that it is obligated to pay any more than what the 

consumer and TPP class members are entitled to under the theories of liability that 

existed at the time the settlement was reached.”), so this factor is not relevant. 

6. Girsh #8 and #9: The settlement’s range was reasonable in 

light of the best possible recovery and attendant risks of 

litigation. 

“In evaluating the eighth and ninth Girsh factors, [courts] ask ‘whether 

settlement represents a good value for a weak case or a poor value for a strong case.’” 

NFL, 2016 WL 1552205 at *21 (quoting Warfarin, 391 F.3d at 538). “‘The factors 

test two sides of the same coin: reasonableness in light of the best possible recovery 

and reasonableness in light of the risks the parties would face if the case went to 

trial.’” Id. (quoting Warfarin, 391 F.3d at 538). The Third Circuit has explained, 

“‘The present value of the damages plaintiffs would likely recover if successful, 

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appropriately discounted for the risk of not prevailing, should be compared with the 

amount of the proposed settlement.’” Id. (quoting Prudential, 148 F.3d at 322). 

“‘The fact that a proposed settlement may only amount to a fraction of the 

potential recovery does not, in and of itself, mean that the proposed settlement is 

grossly inadequate and should be disapproved.’” Rossi, 2013 WL 5523098 at *8 

(quoting In re AT&T Corp. Sec. Litig., 455 F.3d 160, 170 (3d Cir. 2006)). “‘Rather, 

the percentage recovery must represent a material percentage to the plaintiff in light of 

all the risks considered under Girsh.’” Id. (quoting AT&T, 455 F.3d at 170). 

When viewed in light of the potential risks discussed above, which include the 

risk of Defendants’ winning on summary judgment, on class decertification in 

Schwartz or class certification in Klein, at trial, or on appeal, the Settlements are not 

only fair, they are excellent. On top of eliminating all of the significant risks in this 

case related to liability and damages, the Schwartz settlement secures a settlement 

with a value of nearly $11 million, more than the damages the Class could have 

obtained had they succeeded at trial. At the other extreme, if every Class Member 

chose the cash option, Defendants would pay out over $4 million, a recovery of nearly 

50%. 

Likewise, the Klein settlement provides nearly $3 million of value if all Class 

Members opted for the discounts, while if everyone chose cash, the settlement value 

would be over $1 million. Further, the Settlements provide a significant injunctive 

relief component that adds value not only to the Class Members but also to all others 

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who rent vehicles from Defendants. See, e.g., In re Subway Footlong Sandwich Mktg. 

and Sales Practices Litig., MDL No. 13-02439, 2016 WL 755640, *8 (E.D. Wisc. 

Feb. 25, 2016) (finding injunctive relief changing future practices positively impacts 

settlement value as many patrons are repeat customers). 

7. The settlement satisfies the Prudential factors. 

If this Court considers the permissive factors Prudential factors,4

 they too 

support the Settlement. Even if the Court “may want different terms or more 

compensation for a certain condition[, its] role as judge[] is to review the settlement 

reached by the parties for its fairness, adequacy, and reasonableness.” NFL, 2016 WL 

 

4

 Those factors, for this Court’s convenience, are the following “permissive and 

non-exhaustive factors: 

The maturity of the underlying substantive issues, as measured by 

experience in adjudicating individual actions, the development of scientific 

knowledge, the extent of discovery on the merits and other factors that bear 

on the ability to assess the probable outcome of a trial on the merits of 

liability and individual damages; 

The existence and probable outcome of claims by other classes and 

subclasses; 

The comparison between the results achieved by the settlement for 

individual class or subclass members and the results achieved-or likely to be 

achieved-for other claimants; 

Whether class or subclass members are accorded the right to opt out of the 

settlement; any provisions for attorneys’ fees are reasonable; and 

Whether the procedure for processing individual claims under the settlement 

is fair and reasonable. 

NFL, 2016 WL 1552205 at *18 (quoting Prudential, 148 F.3d at 323). 

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1552205 at *25. The Third Circuit continued that “when exercising that role, we must 

‘guard against demanding too large a settlement based on our view of the merits of the 

litigation; after all, a settlement is a compromise, a yielding of the highest hopes in 

exchange for certainty and resolution.’” Id. (quoting GM, 55 F.3d at 806). The court 

concluded, “[w]e must hesitate before rejecting that bargain based on an unsupported 

hope that sending the parties back to the negotiating table would lead to a better deal.” 

Id. 

The first three Prudential factors, the extent of discovery and other factors 

bearing on this Court’s ability to assess the outcome of a trial, largely overlap with the 

Girsh factors involving the stage of the proceedings, the amount of discovery 

obtained, and the risks attendant to the issues of liability, damages, and class 

certification. See id. at *22. For the reasons stated in connection with those Girsh

factors, these Prudential factors favor settlement approval. 

The fourth Prudential factor is satisfied because Class Members can opt out. 

Id. The fifth Prudential factor is met since attorneys’ fees and costs will not cost the 

Class one cent; instead, they will be paid separate from the Settlement.5

 Finally, the 

claims process is fair and reasonable. The Administrator has provided notice 

personally by e-mail or, if necessary, by first class mail, summary notice by 

publication, and by a dedicated website and toll-free phone number, all of which 

Defendants are paying for. Class Members are able to claim either cash or discount 

 

5

 This is more fully addressed in the upcoming application for attorneys’ fees and 

costs. 

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settlement benefits using a simplified claim form that they can complete electronically 

or by filing a claim by regular mail. 

Given the size of the Settlement Classes, the potential benefits available, and 

the risks in proving liability and damages and in obtaining class certification, the 

Settlements fairly and adequately reward the Classes. Not only do the Settlements 

deserve an initial presumption of fairness, they are also fair, reasonable, and adequate, 

under Girsh and Prudential. 

IV. CONCLUSION 

These Settlements were reached as a result of extensive and arduous arm’slength negotiations between experienced counsel, and, as such, are entitled to a 

presumption of fairness. The Settlements satisfies the necessary sections of Rule 23 

and, according to the Girsh and Prudential factors, are fair, reasonable, and adequate. 

The Settlements will remove the uncertainties and risks to all the parties. All counsel 

believe the Settlements are in the best interests of their respective clients and the class. 

Accordingly, Plaintiffs respectfully request that this Court convert its preliminary 

approval to final approval. 

 LITE DEPALMA GREENBERG, LLC

Dated: May 2, 2016 /s/ Bruce D. Greenberg 

Bruce D. Greenberg 

570 Broad Street, Suite 1201 

Newark, NJ 07102 

Telephone: (973) 623-3000 

Facsimile: (973) 623-0858 

brgreenberg@litedepalma.com 

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KARON LLC 

Daniel R. Karon 

700 W. St. Clair Ave., Suite 200 

Cleveland, OH 44113 

Telephone: (216) 622-1851 

Facsimile: (216) 241-8175 

karon@gskplaw.com 

MILLER GOLER FAEGES LAPINE, LLP 

Jay R. Faeges 

1301 E. 9th St., Suite 2700 

Cleveland, OH 44114-1835 

Telephone: (216) 696-3366 

Facsimile: (216) 363-5835 

faeges@mgfl-law.com 

Attorneys for Plaintiffs and the Classes

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