Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 1 of 34

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1 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 1 of 34 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION ROBERT A. SCHREIBER, individually and on behalf of all others similarly situated, v. Plaintiff, Civil Action No. 1:14-cv ALLY FINANCIAL INC., Defendant. PLAINTIFF S MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS, AND APPLICATION FOR CLASS REPRESENTATIVE SERVICE AWARD AND CLASS COUNSEL S ATTORNEYS FEES, AND INCORPORATED MEMORANDUM OF LAW

2 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 2 of 34 TABLE OF CONTENTS PAGE INTRODUCTION... 1 BACKGROUND... 2 A. Factual Background B. Procedural History C. Settlement Negotiations TERMS OF THE SETTLEMENT... 4 A. The Settlement Class... 5 B. Settlement Relief C. Release D. Notice Program E. Settlement Administration F. Attorneys Fees and Incentive Award for Class Representative MEMORANDUM OF LAW... 8 I. The Court Should Grant Final Approval To The Settlement A. The Approved Notice Program Gave the Best Practicable Notice to Class Members and Satisfied Rule 23 and Due Process B. The Settlement is Fair, Reasonable, and Adequate i. The Settlement is the product of good-faith, informed, and arm s-length negotiations, not collusion ii. The Settlement will avert more than a year of complex and expensive litigation iii. The factual record is sufficiently developed to enable Plaintiff and Class Counsel to make a reasoned judgment concerning the Settlement iv. Plaintiff would have faced significant obstacles to obtaining relief i

3 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 3 of 34 v. The benefits provided by the Settlement are fair, adequate, and reasonable when compared to the range of possible recovery vi. The opinions of Class Counsel, the Class Representative, and absent Class Members strongly favor approval of the Settlement II. The Court Should Grant Final Certification Of The Settlement Class III. Application For Class Representative Service Award IV. Class Counsel s Fee Application A. The Law Awards Class Counsel Fees From Common Funds Created By Their Efforts B. The Camden I Factors Support Class Counsel s Requested Fee i. The claims against Ally required substantial time and labor ii. The issues involved were novel and difficult and required exceptional skill iii. The claims against Ally entailed considerable risk iv. Class Counsel pursued this action on a pure contingency basis, and were precluded from other employment as a result v. Class Counsel achieved an excellent result vi. The requested fee comports with customary fees awarded in similar cases CONCLUSION ii

4 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 4 of 34 Class Counsel and Class Representative respectfully move, under Rule 23 of the Federal Rules of Civil Procedure, for Final Approval of the Settlement with Ally Financial, Inc., certification of the Class defined in the Settlement, a service award for the Class Representative, and an award of attorneys fees to Class Counsel. 1 INTRODUCTION This class action centers on a standardized automotive lease contract created and copyrighted by Ally called the SmartLease. Each SmartLease provided the lessee with an option to purchase the subject vehicle at the end of the lease term for a set price. When Class Representative Robert Schreiber and Class Members attempted to exercise this purchase option, however, dealerships that processed the transactions charged Mr. Schreiber and Class Members additional fees beyond the set price disclosed in their SmartLease agreements. Mr. Schreiber brought this action on behalf of himself and a nationwide class to recover these improper fees, claiming that Ally breached the SmartLease and violated the federal Consumer Leasing Act ( CLA ), 15 U.S.C. 1667, et seq. After years of litigation and extensive discovery, Ally agreed to resolve the claims asserted in this action through a nationwide, class Settlement with a value of almost $20 million. The Settlement offers Class Members up to 100% of the fees they were charged beyond the set price listed in their SmartLease agreements. The Parties have estimated that the average amount of such fees paid by each Class Member was approximately $ By any measure, this is an outstanding result for the Class. In the face of numerous litigation obstacles and legal risks, the Settlement offers Class Members benefits approaching or equivalent to a complete trial victory without the risks, costs, and delay of continued litigation, a trial, and possibly an appeal. Under Fed. R. Civ. P. 23(e) and prevailing jurisprudence, the Settlement is fair, reasonable, and adequate, and the Class satisfies the requirements of Fed. R. Civ. P. 23(a) and 23(b)(3). Class Counsel therefore request that the Court grant final approval of the Settlement and certify the Settlement Class. In addition, Class Counsel request that the Court approve a service award to the Class Representative, whose willingness to represent the Class and active 1 The Settlement Agreement has been filed with the Court. (ECF No ) Capitalized terms not defined herein shall have the same definitions and meanings ascribed to them in the Settlement Agreement. 1

5 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 5 of 34 participation in the action made this result possible. Finally, Class Counsel respectfully request that the Court award attorneys fees in accordance with prevailing Eleventh Circuit precedent and customary fees in similar cases, to compensate Class Counsel for their work in achieving this excellent result for the benefit of the Class. BACKGROUND A. Factual Background. Ally is one of the nation s largest automobile financing companies, originating billions of dollars in automobile leases every year through its standardized lease contract, the SmartLease. Ally has made its SmartLease agreement available to thousands of dealerships nationwide. Generally, these dealerships independently negotiate and enter into lease agreements for new vehicles with consumers, using Ally s SmartLease to memorialize the agreement. Ally then purchases these leases and the leased vehicles from the dealerships, who check a box on each SmartLease indicating that they are assigning the lease and selling the vehicle to Ally. These routine steps were taken with respect to the lease of the vehicle that gave rise to this action. In February 2012, Miami Lakes CJ LLC entered into a two-year SmartLease with non-party Wesley Reid for a new Dodge Challenger, and Miami Lakes CJ checked the box indicating that it will assign this lease and sell the vehicle to Ally Bank. A few months later, in November 2012, Mr. Reid chose to assign the SmartLease of the vehicle to Mr. Schreiber. To carry out the assignment, Mr. Reid and Mr. Schreiber executed a Transfer of Lease Obligation document, which required Ally s consent to become effective. On November 19, 2012, Ally approved the assignment by signing the Transfer of Lease Obligation and sending Mr. Schreiber a letter stating that the lease transfer is now complete. Thus, as of November 19, 2012, Ally and Mr. Schreiber were the only two parties bound by the SmartLease for the Dodge Challenger. Section 9 of the SmartLease provided Mr. Schreiber with an option to buy the vehicle at the end of the lease term for $25,889.70, plus official fees and taxes. The agreement defined official fees and taxes to include all government license, title, registration, testing, and inspection fees for the vehicle and all taxes on the lease or the vehicle that the government levies. In February 2014, as his SmartLease was nearing expiration, Mr. Schreiber communicated to Ally that he wished to exercise his option under Section 9 to purchase the car 2

6 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 6 of 34 for $25,889.70, plus official fees and taxes. Ally, however, claimed that it was unable to sell the vehicle to Mr. Schreiber under Florida law because it does not hold a dealer s license in Florida. Ally, therefore, directed Mr. Schreiber to purchase the car through a dealership, and recommended that he do so through Miami Lakes AM, LLC, a non-party dealership that originated the SmartLease for his vehicle. On March 23, 2014, Mr. Schreiber entered into a Retail Buyer s Order with Miami Lakes AM to purchase the car, under which Miami Lakes AM charged him $25, as the cash price for the vehicle, a $ pre-delivery service fee, and a $100 documentation fee, in addition to various governmental fees and taxes. Thus, Mr. Schreiber was required to pay $26,289.69, plus official taxes and fees, which was $ more than the purchase option price listed in the SmartLease agreement Mr. Schreiber had with Ally. Neither the pre-delivery service fee nor the documentation fee was disclosed on the SmartLease agreement. Evidence collected through discovery shows that this was not an isolated incident. Tens of thousands of lessees who purchased vehicles when their SmartLease agreements expired were charged improper fees, such as documentation and pre-delivery service fees, by dealerships executing the transactions. The amount of such fees varied, ranging from less than $50 to more than $1,000, with an estimated average of $ Evidence produced in discovery also revealed that Ally could not programmatically query its database to determine whether most lessees were charged dealership fees or the amount of fees charged. Rather, for most lessees, it is necessary to individually examine transactional records transmitted to and stored by Ally to determine whether such fees were charged and their amount. B. Procedural History. On June 4, 2014, Mr. Schreiber filed a two-count action against Ally, on behalf of himself and a putative class of similarly situated automobile purchasers. His first claim asserted that Ally violated the federal Consumer Leasing Act ( CLA ), 15 U.S.C. 1667, et seq., by failing to disclose that he would be required to purchase the vehicle from a dealer and that he would be required to pay additional fees to the dealer. Mr. Schreiber s second claim asserted that Ally breached its SmartLease with him by refusing to sell the vehicle to him at the price stated in the contract. 3

7 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 7 of 34 On July 21, 2014, Ally filed a Motion to Compel Arbitration and Dismiss or, Alternatively, Stay Litigation. Ally argued that, under Florida s equitable estoppel doctrine, it was entitled to compel Mr. Schreiber to arbitrate his claims against it based on an arbitration provision in the Miami Lakes AM Buyer s Order, to which Ally was not a party. After hearing oral argument, the Court granted Ally s motion. Mr. Schreiber then appealed the Court s decision to the Eleventh Circuit, which reversed the order compelling arbitration and remanded the case for further proceedings. Following the Eleventh Circuit s decision, Ally answered the complaint and the Parties engaged in extensive discovery. Over the past two years, Ally has produced hundreds of thousands of pages of documents, including massive spreadsheets with lease data for more than 125,000 lessees. See Ex. A (Weinshall Decl.), 8. To analyze the data produced by Ally, Plaintiff s Counsel retained a data expert, developed a unique data and document review platform, and dedicated a team of several attorneys to the laborious work of reviewing these documents and data. Id. Plaintiff s Counsel also deposed eleven fact witnesses, and Ally deposed Plaintiff. Id. C. Settlement Negotiations. In parallel with this hard-fought litigation, preliminary settlement discussions began in the spring of 2017, between Plaintiff s Counsel and Ally s counsel. Id., 9. After several preliminary discussions, the Parties met for an in-person mediation conducted by former Circuit Court Judge Ellen L. Leesfield in July Id. Although the Parties made significant progress during the in-person mediation, they were not able to reach a resolution. Id. The Parties continued to negotiate a potential resolution over the next several months. Id. During the negotiations, the Parties discussed their views of the law and facts and potential relief for the proposed Class and exchanged a series of counter-proposals for key conceptual aspects of a potential settlement. Id., 10. The Parties ultimately reached an agreement in principle in early December Id. During the next several months, the Parties drafted and negotiated the precise terms of the attached Settlement Agreement and exhibits, and Ally completed an extended analysis of dealership fees paid by lessees to finalize the value of the Settlement. Id., 11. At all times, negotiations were adversarial, non-collusive, and at arm s length. Id., 12. TERMS OF THE SETTLEMENT The terms of the Settlement are detailed in the Agreement, which has been filed with the 4

8 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 8 of 34 Court. (ECF No ) The following is a summary of the material terms. A. The Settlement Class. The Class is an opt-out class under Rule 23(b)(3) of the Federal Rules of Civil Procedure. The Class is defined as: all persons nationwide who leased a motor vehicle pursuant to a SmartLease Agreement that was assigned to Ally Financial Inc. (or a predecessor in interest or affiliated company, including General Motors Acceptance Corporation, GMAC LLC, GMAC Inc., GMAC Automotive Bank, Ally Bank, Ally Bank Lease Trust or Ally Financial Lease Trust), and who subsequently purchased the leased vehicle between June 4, 2009 and the Preliminary Approval Date pursuant to the purchase option provision in the SmartLease Agreement and were required to pay a Documentary or Dealer Fee not disclosed in the SmartLease Agreement when purchasing the vehicle. (ECF No. 89-1, 2.bb.) B. Settlement Relief. Each Settlement Class member will be given an opportunity to submit a claim for repayment of 100% of the Documentary or Dealer Fee that was charged in connection with a lease-end transaction pursuant to the purchase-option in his or her SmartLease. (ECF No. 89-1, 12, 18.) A Documentary or Dealer Fee is broadly defined to include any unofficial documentary, dealer, or similar fee not disclosed in the SmartLease Agreement that was charged and not refunded to a Settlement Class Member in connection with the purchase of a leased vehicle by the Settlement Class Member pursuant to the purchase option price set forth in the SmartLease Agreement. (ECF No. 89-1, 2.m.) The process for submitting a claim is exceedingly simple and straightforward. The claim form, which can be submitted online or by mail, is just a page-and-a-half long. (ECF No. 89-1, 14; Exhibit B to Settlement.) It requires Class Members to provide basic biographical information (i.e., name, telephone number, address, and ), and either submit a document showing that the Class member was charged a Documentary or Dealer Fee, or check a box stating that the Class member believes he or she was charged such a fee, which then requires the Claims Administrator to conduct a reasonable search of records provided by Ally and Plaintiff s Counsel for documents showing that the Class member was charged a Documentary or Dealer Fee. (ECF No. 89-1, 14, 15; Exhibit B to Settlement.) To assist the Claims Administrator in conducting such a search for records and increase the likelihood of identifying supportive 5

9 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 9 of 34 documentation, Plaintiff s Counsel will provide the Claims Administrator with access to the review platform that Plaintiff s Counsel developed in discovery and a computerized search tool, which will enable the Claims Administrator to locate transactional records for a Class Member simply by entering the Class Member s name. Because of the manner in which Ally maintains its records and because Ally does not possess transactional records relating to every single sale of a leased vehicle during the Class Period, it was not possible for the Parties to calculate the precise, total value of Documentary and Dealership Fees paid by the Class, without individually reviewing hundreds of thousands of documents and obtaining additional documents from thousands of dealerships, if such documents are even available. Ex. A (Weinshall Decl.), 17. Fortunately, a more practical and efficient solution was available: developing a reliable estimate of the total value of Documentary and Dealership Fees paid by Class Members, based on a review of the records that Ally did possess. Id., 18. To that end, Plaintiff s Counsel and Ally independently analyzed the transactional records that dealerships had sent Ally in connection with the sale of leased vehicles. Id. After reviewing thousands of such records, which represented a statistically significant sample, the Parties agreed that $19,717,222 constituted a reliable estimate of the total value of Documentary and Dealership Fees paid by the Class. Id., 19. Accordingly, consistent with the objective of repaying 100% of such fees to Class Members, Ally agreed to make $19,717,222 available to Class Members, inclusive of an incentive award for Plaintiff and attorneys fees and costs awarded by the Court, but exclusive of administration and notice costs. (ECF No. 89-1, 19.) If the total amount due to Class Members, together with the incentive award and attorneys fees and costs awarded by the Court, exceeds $19,717,222, Class Members will be compensated on a pro rata basis. (ECF No. 89-1, 18.) C. Release. Upon entry of a Final Approval Order, Class Members agree to give a standard, broad release to the Released Parties, defined essentially as Ally and all related entities and persons, of all claims arising from Documentary or Dealer Fees charged to Class Members in connection with a Class Member s exercise of the purchase option set forth in his or her SmartLease Agreement during the Class Period... based upon the allegations set forth in the Complaint. (ECF No. 89-1, 2.z, 2.aa.) In addition, the Settlement assigns to Ally any claims against dealerships for charging impermissible fees on behalf of Class Members who receive a 6

10 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 10 of 34 Settlement Payment. This assignment will enable Ally to seek indemnification from the dealerships that received and often kept the improper fees, if Ally so chooses. (ECF No. 89-1, 53.) At the same time, Ally agrees to indemnify Settlement Class Members from claims asserted by dealerships that may arise out of Ally pursuing such indemnification rights. (ECF No. 89-1, 53.) D. Notice Program. The Settlement proposed, and the Court approved in its Preliminary Approval Order, a robust Notice Program designed to satisfy all applicable laws, including Rule 23 and constitutional due process. Notifying Class Members of the Settlement is being accomplished primarily through direct mail notices, substantially in the form attached as Exhibit A to the Settlement. (ECF No. 89-1, 30; Exhibit A to Settlement.) The direct mail notice informs potential Class Members of the Class definition; material terms of the Settlement; the claims process; the scope of the Release; Class Members rights to opt out of or object to the Settlement; the date of the Final Approval Hearing; and the various ways they can obtain additional information regarding the Settlement. Id. Ally provided the Claims Administrator with an updated database containing the last known contact information for all Settlement Class Members. See Ex. B (Rapazzini Decl.), 6. Ally possesses this information from servicing Class Members SmartLease agreements. The Claims Administrator mailed the notices, via first class mail, within thirty (30) days of the Court s Preliminary Approval Order. Id., 12. The Claims Administrator has also r ed any notices returned by the U.S. Postal Service with a forwarding address and, for returned mail without a forwarding address, has researched better addresses and promptly r ed copies of the applicable notice to any better addresses. Id., 13. The Claims Administrator also established a Settlement website (dealerfeesettlement.com), which makes available for download relevant documents and forms, including the operative Complaint, the Class Notice, the Settlement Agreement, and the Claim Form. Id., The Settlement website also allows Class Members to submit questions regarding the Settlement and to submit Claim Forms online or complete an online version of the form. Id. In addition, the Claims Administrator has established a toll-free interactive voice response telephone system with script recordings of information about the Settlement. Id., 8. 7

11 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 11 of 34 To comply with the Class Action Fairness Act, the Claims Administrator also sent to each appropriate State and Federal official the materials specified in 28 U.S.C and otherwise complied with its terms. Id., 5. E. Settlement Administration. The Claims Administrator is charged with administering the Settlement, including the Claims Process and the Notice Program. (ECF No. 89-1, 2.f.) In accordance with the Parties agreement, the Court appointed Heffler Claims Group to serve as the Claims Administrator. (ECF No. 90.) F. Attorneys Fees and Incentive Award for Class Representative. The Parties did not begin to negotiate attorneys fees and expenses until after agreeing to the principal terms set forth in the Settlement Agreement. Ex. A (Weinshall Decl.), 33. The Settlement Agreement provides that Class Counsel agree to limit their request to the Court for attorneys fees and expenses to no more than $2.95 million. (ECF No. 89-1, 27.) Likewise, Ally agrees not to oppose such a request. Id., 27. Attorneys fees and expenses awarded to Class Counsel will be paid by Ally. Id., 27. The Parties agreed that the Court s resolution of the issue of attorneys fees and expenses shall have no bearing on the Settlement Agreement. Id., 27. In particular, an Order relating to attorneys fees or expenses shall not operate to terminate or cancel the Settlement Agreement or affect or delay its Effective Date. Id., 27. Finally, Class Counsel may petition the Court for an incentive award of up to $5,000 for the Class Representative, Robert Schreiber, in order to compensate Plaintiff for his efforts on behalf of the Class. Id., 28. MEMORANDUM OF LAW I. The Court Should Grant Final Approval To The Settlement. Rule 23(e) requires judicial approval for the compromise of claims brought on a class basis. Fed. R. Civ. P. 23(e). [S]uch approval is committed to the sound discretion of the district court. In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992). In exercising that discretion, courts are guided by the strong judicial policy favoring settlement as well as by the realization that compromise is the essence of settlement. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984). The policy favoring settlement is especially relevant in class actions and other complex matters, where the inherent costs, delays, and risks of continued litigation 8

12 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 12 of 34 might otherwise overwhelm any potential benefit the class could hope to obtain. See, e.g., Ass n for Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 466 (S.D. Fla. 2002) ( There is an overriding public interest in favor of settlement, particularly in class actions that have the well-deserved reputation as being most complex. ) (citing Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977)); see also 4 NEWBERG ON CLASS ACTIONS (4th ed. 2002) (citing cases). Under Rule 23(e), the following procedures govern the consideration and approval of a proposed class settlement: (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. (4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. (5) Any class member may object to the proposal if it requires court approval under the subdivision (e); the objection may be withdrawn only with the court's approval. Saccoccio v. JP Morgan Chase Bank, N.A., 297 F.R.D. 683, 690 (S.D. Fla. 2014) (citing Fed. R. Civ. P. 23(e)). All five requirements of Rule 23(e) are satisfied here. The Parties have filed the Settlement Agreement; the Final Approval Hearing is scheduled for October 11, 2018; Class Members have until August 31, 2018 to object to or opt out of the Settlement; and as explained below, notice to the Class was reasonable and the Settlement is fair, reasonable, and adequate. Id. 2 A. The Approved Notice Program Gave the Best Practicable Notice to Class Members and Satisfied Rule 23 and Due Process. For a court to exercise jurisdiction over the claims of absent Class members, there must be minimal procedural due process protection. Perez v. Asurion Corp., 501 F. Supp. 2d 1360, 2 Any objections to the Settlement will be addressed in Plaintiff s response, which is due fourteen days before the Final Approval Hearing. (ECF No. 90, 28.) 9

13 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 13 of (S.D. Fla. 2007). In actions certified under 23(b)(3), class members should receive the best notice that is practicable under the circumstances. Saccoccio, 297 F.R.D. at 691 (quoting Fed. R. Civ. P. 23(c)(2)(B)). The notice should 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 Phillips Petroleum Co. v. Shutts, 472 U.S. 797, (1985)). As the Court properly determined in its Preliminary Approval Order, the Settlement s Notice Program is reasonably calculated under the circumstances to apprise the Class of the pendency of the Action, class certification for settlement purposes only, the terms of the Settlement, Class Members rights to opt-out of the Class and object, and thus satisf[ies] all applicable requirements of law, including, but not limited to, Rule 23 and the constitutional requirement of due process. (ECF No. 90, 10.) Each Settlement s Notice Program has been, and continues to be, implemented in accordance with the Court s Order. Ex. B (Rapazzini Decl.), As detailed in the declaration of the Claims Administrator, notices were mailed to 237,039 potential Class Members, as identified from information provided by Ally. Id., 6, 12. The Claims Administrator also utilized address updating services (both prior to mailing and on undeliverable pieces) and r ing protocols to maximize the number of Class Members reached by the notices. Id., This comprehensive Notice Program provides the Court with personal jurisdiction over all members of the Class, because they have received the notice and due process required by the United States Supreme Court. See Shutts, 472 U.S. at ; In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 306 (3d Cir. 1998) ( [T]he district court obtains personal jurisdiction over the absentee class members by providing proper notice of the impending class action and providing the absentees with the opportunity to be heard or the opportunity to exclude themselves from the class. ). Moreover, the Court-approved notice provided to Class Members was sufficient to satisfy the requirements of due process because it described the substantive claims... [and] contained information reasonably necessary to make a decision to remain a class member and be bound by the final judgment. In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, (5th Cir. 1977). Each notice sent to Class Members, among other things, described the Class, the release, 10

14 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 14 of 34 and the proposed distribution of the Settlement proceeds, and informed Class Members of their right to opt-out and object, the procedures for doing so, and the time and place of the Final Approval Hearing. Ex. B (Rapazzini Decl.), 11. Each notice also alerted Class Members that a class judgment would bind them unless they opted out, informed them that Class Counsel would be seeking attorneys fees of up to $2.95 million, and told them where they could obtain more information, such as the Settlement website, where copies of the Agreement were made and remain available for download. Id.; Ex. 2 to Ex. B (copy of Notice and Claim Form). In short, Class Members were provided with the best practicable notice reasonably calculated, under [the] circumstances, to apprise them of the pendency of the action and afford them an opportunity to present their objections. Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950). B. The Settlement is Fair, Reasonable, and Adequate. The Court should approve a proposed class action settlement where it is fair, adequate and reasonable and is not the product of collusion between the parties. Saccoccio, 297 F.R.D at 691 (quoting Bennett, 737 F.2d at 986)). A settlement is fair, reasonable, and adequate when the interests of the class as a whole are better served if the litigation is resolved by the settlement rather than pursued. In re Lorazepam & Clorazepate Antitrust Litig., MDL No. 1290, 2003 WL , at *2 (D.D.C. June 16, 2003) (quoting Manual for Complex Litigation (Third) (1995)). Importantly, the Court is not called upon to determine whether the settlement reached by the parties is the best possible deal, nor whether class members will receive as much from a settlement as they might have recovered from victory at trial. In re Mexico Money Transfer Litig., 164 F. Supp. 2d 1002, 1014 (N.D. Ill. 2000) (citations omitted). Instead, [i]n considering the settlement, the district court may rely upon the judgment of experienced counsel for the parties. Nelson v. Mead Johnson & Johnson Co., 484 F. App x 429, 434 (11th Cir. 2012) (citing Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). Absent fraud, collusion, or the like, the district court should be hesitant to substitute its own judgment for that of counsel. Id. (quoting Cotton, 559 F.2d at 1330). Thus, in determining whether a settlement is fair, reasonable, and adequate, the Eleventh Circuit has instructed courts to consider the following six factors: (1) the existence of fraud or collusion among the parties in reaching the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery 11

15 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 15 of 34 completed; (4) the probability of the plaintiffs success on the merits; (5) the range of possible recovery; and (6) the opinions of the class counsel, class representatives, and the substance and amount of opposition to the settlement. Bennett, 737 F.2d at 986; accord Montoya v. PNC Bank, N.A., No. 14-cv-20474, 2016 WL , at *8 (S.D. Fla. Apr. 13, 2016). As explained below, an analysis of these factors shows the Settlement to be fair, reasonable, and adequate. i. The Settlement is the product of good-faith, informed, and arm s-length negotiations, not collusion. The course of this litigation exhibits how hard and zealously the Parties and their counsel litigated for almost four years, prior to reaching the Settlement. Ex. A (Weinshall Decl.), 20. The sharply contested nature of the proceedings involving vigorous motion practice, voluminous discovery, and a fully briefed appeal to the Eleventh Circuit readily shows the lack of fraud or collusion behind the Settlement. See, e.g., In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323, 1329 n.3 (S.D. Fla. 2001); Ingram v. Coca-Cola Co., 200 F.R.D. 685, 693 (N.D. Ga. 2001) (court had no doubt that this case has been adversarial, featuring a high level of contention between the parties ); In re Motorsports Merch. Antitrust Litig., 112 F. Supp. 2d 1329, 1338 (N.D. Ga. 2000) ( [t]his was not a quick settlement, and there is no suggestion of collusion ); Warren v. City of Tampa, 693 F. Supp. 1051, 1055 (M.D. Fla. 1988) (record showed no evidence of collusion, but to the contrary showed that the parties conducted discovery and negotiated the terms of settlement for an extended period of time ), aff d, 893 F.2d 347 (11th Cir. 1989). In addition, the Settlement negotiations were assisted by an experienced mediator, further establishing the absence of collusion. See D Amato v. Deutsche Bank, 236 F. 3d 78, 85 (2d Cir. 2001) (a mediator s involvement in... settlement negotiations helps to ensure that the proceedings were free of collusion and undue pressure ). Class Counsel, moreover, negotiated the Settlement vigorously. Ex. A (Weinshall Decl.), Plaintiff was represented by experienced counsel at these arms-length negotiations. Id. These lawyers and law firms have extensive experience in complex commercial and class action litigation. Id. During the adversarial negotiations for several months, the Parties exchanged numerous proposals while the litigation continued on a parallel track. Id. The Settlement is clearly free of collusion. Id. 12

16 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 16 of 34 ii. The Settlement will avert more than a year of complex and expensive litigation. This case involves tens of thousands of Class Members and alleged damages of almost $20 million. Litigating Plaintiff s claims and Ally s defenses is and has been difficult and time consuming. Id., 23. The traditional case-by-case means for handling claims like those at issue here would unduly tax the court system, require a massive expenditure of public and private resources, and ultimately would be impracticable. The Settlement is the best vehicle for Class Members to receive the relief to which they are entitled in a prompt and efficient manner. Ongoing litigation would involve substantial, expensive fact and expert discovery, lengthy additional pretrial proceedings in this Court and the appellate courts and, ultimately, a trial and appeal. Absent the Settlement, litigation against Ally would likely continue for more than a year. See United States v. Glens Falls Newspapers, Inc., 160 F. 3d 853, 856 (2d Cir. 1998) (noting that a principal function of a trial judge is to foster an atmosphere of open discussion among the parties attorneys and representatives so that litigation may be settled promptly and fairly so as to avoid the uncertainty, expense and delay inherent in a trial ); In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 317, & n.32 (N.D. Ga. 1993) (noting that adjudication of the claims of two million claimants could last half a millennium ). In contrast, the Settlement will offer immediate and substantial benefits to tens of thousands of consumers. As stated in In re Shell Oil Refinery, 155 F.R.D. 552 (E.D. La. 1993): The Court should consider the vagaries of litigation and compare the significance of immediate recovery by way of the compromise to the mere possibility of relief in the future, after protracted and expensive litigation. In this respect, [i]t has been held proper to take the bird in the hand instead of a prospective flock in the bush. Id. at 560 (alterations in original) (quoting Oppenlander v. Standard Oil Co., 64 F.R.D. 597, 624 (D. Colo. 1974)); see also In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir. 1992) (noting that complex litigation can occupy a court s docket for years on end, depleting the resources of the parties and taxpayers while rendering meaningful relief increasingly elusive ). Especially because the demand for time on the existing judicial system must be evaluated in determining the reasonableness of the settlement, Ressler v. Jacobson, 822 F. Supp. 1551, 1554 (M.D. Fla. 1992) (citation omitted), there can be no reasonable doubt as to the adequacy of this Settlement, which offers immediate, tangible, and significant benefits to the Class. 13

17 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 17 of 34 iii. The factual record is sufficiently developed to enable Plaintiff and Class Counsel to make a reasoned judgment concerning the Settlement. Courts also consider the degree of case development that class counsel have accomplished prior to settlement to ensure that counsel had an adequate appreciation of the merits of the case before negotiating. In re General Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 813 (3d Cir. 1995). At the same time, [t]he law is clear that early settlements are to be encouraged, and accordingly, only some reasonable amount of discovery should be required to make these determinations. Ressler, 822 F. Supp. at Plaintiff reached the Settlement with the benefit of extensive discovery. Ex. A (Weinshall Decl.), 24. Hundreds of thousands of pages of documents have been produced thus far in discovery, eleven depositions of fact witnesses have been conducted, and Class Counsel have worked extensively with a data expert to analyze voluminous data provided by Ally. Id., 25. This well-developed discovery positioned Class Counsel to evaluate with confidence the strengths and weaknesses of Plaintiff s claims and the prospects for success at class certification, summary judgment, and trial. See id.; Francisco v. Numismatic Guar. Corp. of Am., No Civ, 2008 WL , at *5 (S.D. Fla. Jan. 31, 2008) ( Class Counsel had substantial information to adequately evaluate the merits of the case and weigh the benefits against further litigation. ). Before settling, therefore, Class Counsel had already developed ample information and performed extensive analyses from which to determine the probability of their success on the merits, the possible range of recovery, and the likely expense and duration of the litigation. Mashburn v. Nat l Healthcare, Inc., 684 F. Supp. 660, 669 (M.D. Ala. 1988). iv. Plaintiff would have faced significant obstacles to obtaining relief. While Plaintiff and Class Counsel are confident in the strength of their case, they are also pragmatic, as well as aware of the various defenses available to Ally and the risks inherent in any litigation. Ex. A (Weinshall Decl.), For example, Ally claimed that it was not liable for the misconduct of dealerships and challenged this Court s personal jurisdiction with respect to the claims of non-florida Class members. Id. Class certification presented another risk. Based on discovery that has been conducted to date, Class Counsel believed that Plaintiff could prevail in a litigated class certification battle. Id. Yet Ally would assert numerous arguments against certification of all or parts of the Class. And even if Plaintiff was 14

18 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 18 of 34 successful, Ally would inevitably seek interlocutory review of a class certification ruling via Rule 23(f) in the Eleventh Circuit, delaying the progress towards trial for months, if not years. Given the myriad risks attending these claims, the Settlement cannot be seen as anything but a fair compromise. See, e.g., Bennett v. Behring Corp., 96 F.R.D. 343, (S.D. Fla. 1982) (plaintiffs faced a myriad of factual and legal problems that led to great uncertainty as to the fact and amount of damage, which made it unwise [for plaintiffs] to risk the substantial benefits which the settlement confers... to the vagaries of a trial ), aff d, 737 F.2d 982 (11th Cir. 1984); Enter. Energy Corp. v. Columbia Gas Transmission Corp., 137 F.R.D. 240, 248 (S.D. Ohio 1991) (citing the very real potential that the [c]lass could come away from a long expensive trial with nothing, the court rejected the argument that the Class should get more ). The Settlement offers substantial, immediate relief to Class Members approaching a complete trial victory. Under the circumstances, Plaintiff and Class Counsel appropriately determined that the Settlement reached with Ally was fair and reasonable and outweighed the risks of continued litigation. v. The benefits provided by the Settlement are fair, adequate, and reasonable when compared to the range of possible recovery. In determining whether a settlement is fair in light of the potential range of recovery, this Court should be guided by the important maxim[] that the fact that a proposed settlement amounts to only a fraction of the potential recovery does not mean the settlement is unfair or inadequate. Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 542 (S.D. Fla. 1988), aff d, 899 F.2d 21 (11th Cir. 1990). Indeed, [a] settlement can be satisfying even if it amounts to a hundredth or even a thousandth of a single percent of the potential recovery. Id. This is because a settlement must be evaluated in light of the attendant risks with litigation. Thompson v. Metrop. Life Ins. Co., 216 F.R.D. 55, 64 (S.D.N.Y. 2003); see Bennett, 737 F.2d at 986 ( [C]ompromise is the essence of settlement. ). Thus, courts regularly find settlements to be fair where [p]laintiffs have not received the optimal relief. Warren, 693 F. Supp. at 1059; see, e.g., Great Neck Capital Appreciation Inves. P ship, L.P. v. PriceWaterHouseCoopers, L.L.P., 212 F.R.D. 400, (E.D. Wis. 2002) ( The mere possibility that the class might receive more if the case were fully litigated is not a good reason for disapproving the settlement. ). 15

19 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 19 of 34 Here, there is no serious question as to whether the value provided to the Class is within the range of reasonableness. The Settlement has a value of almost $20 million. Based on the Parties analysis, this represents roughly 100% of Plaintiff s and Class Members estimated damages recovery. Ex. A (Weinshall Decl.), 29. By any reasonable measure, this recovery is a significant achievement given the obstacles that Plaintiff faced and continues to confront in the litigation, including Daubert challenges to damage experts methodologies, class certification, interlocutory Rule 23(f) appeals of class certification, motions for summary judgment, trial, and post-trial appeals. Given the substantial benefits that this Settlement offers to Class Members, the Settlement is fair and represents a reasonable and adequate recovery for the Class in light of Ally s defenses, and the challenging and unpredictable path of litigation Plaintiff would have faced absent a negotiated resolution. vi. The opinions of Class Counsel, the Class Representative, and absent Class Members strongly favor approval of the Settlement. The Court should also give great weight to the recommendations of counsel for the parties, given their considerable experience in this type of litigation. Warren, 693 F. Supp. at 1060; see also Mashburn, 684 F. Supp. at 669 ( If plaintiffs counsel did not believe these factors all pointed substantially in favor of this settlement as presently structured, this Court is certain that they would not have signed their names to the settlement agreement. ); In re Domestic Air Transp., 148 F.R.D. at ( In determining whether to approve a proposed settlement, the Court is entitled to rely upon the judgment of the parties experienced counsel. [T]he trial judge, absent fraud, collusion, or the like, should be hesitant to substitute its own judgment for that of counsel. ) (citations omitted). Class Counsel believe that the Settlement is outstanding and deserving of Final Approval. Ex. A (Weinshall Decl.), 30. Moreover, there has been no opposition to the Settlement thus far. Although the objection and opt-out deadlines have not expired yet, Class Counsel, to date, have not received any objections, and just two Class Members have opted-out. Ex. B (Rapazzini Decl.), As many courts have noted: [A] small number of objectors from a plaintiff class of many thousands is strong evidence of a settlement s fairness and reasonableness. Assn. for Disabled Americans v. Amoco Oil Co., 211 F.R.D. 457, 467 (S.D. Fla. 2002); accord Mangone, 206 F.R.D. at 227 ( In evaluating the fairness of a class action settlement, such 16

20 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 20 of 34 overwhelming support by class members is strong circumstantial evidence supporting the fairness of the Settlement. ). So too, of course, is the absence of objectors from a Class of tens of thousands. In sum, all six factors the Eleventh Circuit has identified strongly support a finding that the Settlement is fair, reasonable, and adequate. II. The Court Should Grant Final Certification Of The Settlement Class. For settlement purposes, Plaintiff respectfully requests that the Court certify the Class defined above and in the Agreement. A class may be certified solely for purposes of settlement [if] a settlement is reached before a litigated determination of the class certification issue. Borcea v. Carnival Corp., 238 F.R.D. 664, 671 (S.D. Fla. 2006) (internal quotation marks omitted). Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems... for the proposal is that there be no trial. Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 620 (1997). Class certification is appropriate where: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Certification of a class seeking monetary compensation also requires a showing that questions of law and fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). In its Preliminary Approval Order, this Court appropriately found the requirements of Rule 23(a) and 23(b)(3) to be satisfied for the Class defined in the Settlement Agreement. (ECF No. 90, 5.) As the Class definition has not changed since preliminary approval, there is no reason for this Court to depart from its previous findings that certification of the Class is warranted. In particular, as the Court previously recognized (ECF No. 90, 5), the numerosity requirement of Rule 23(a) is easily satisfied here, because the Class consists of tens of thousands of people throughout the United States, and joinder of all such persons is impracticable. See Fed. R. Civ. P. 23(a)(1); Kilgo v. Bowman Trans., 789 F.2d 859, 878 (11th Cir. 1986) (numerosity satisfied where plaintiffs identified at least 31 class members from a wide geographical area ). 17

21 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 21 of 34 The commonality requirement is satisfied as well, because there are many questions of law and fact common to the Class that center on Ally s conduct in connection with the uniform, standardized SmartLease Agreement, as alleged in the operative Complaint. See In re Checking Account Overdraft Litig., 275 F.R.D. 666, (S.D. Fla. 2011) ( [W]here a common scheme of deceptive conduct has been alleged, the commonality requirement should be satisfied. ) (internal quotation marks omitted). For similar reasons, Plaintiff s claims are reasonably coextensive with those of the absent Class Members, such that the Rule 23(a)(3) typicality requirement is satisfied. See Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (typicality satisfied where claims arise from the same event or pattern or practice and are based on the same legal theory ); Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001) (named plaintiffs are typical of the class where they possess the same interest and suffer the same injury as the class members ). Plaintiff, as a former lessee under a SmartLease who purchased the subject vehicle at the end of the lease, is typical of absent Class Members because he was subjected to the same conduct of Ally and claims to have suffered the same economic injuries, and because Plaintiff and all Class Members stand to benefit from the relief provided by the Settlement. Plaintiff also satisfies the adequacy of representation requirement. Adequacy under Rule 23(a)(4) relates to (1) whether the proposed class representatives have interests antagonistic to the class; and (2) whether the proposed class counsel has the competence to undertake this litigation. Fabricant, 202 F.R.D. at 314. The determinative factor is the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the members of the class. Lyons v. Georgia-Pacific Corp. Salaried Emp. Ret. Plan, 221 F.3d 1235, 1253 (11th Cir. 2000) (internal quotation marks omitted). Plaintiff s interests are coextensive with, and not antagonistic to, the interests of the Class, because Plaintiff and absent Class Members have an equally great interest in the relief offered by the Settlement, and absent Class Members have no diverging interests. Further, Plaintiff is represented by qualified and competent counsel with extensive experience and expertise prosecuting complex class actions, including consumer actions similar to the instant case. Class Counsel have devoted substantial time and resources to vigorous litigation of the action from inception through the date of the Settlement. With respect to predominance, Rule 23(b)(3) requires that [c]ommon issues of fact and 18

22 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 22 of 34 law... ha[ve] a direct impact on every class member s effort to establish liability that is more substantial than the impact of individualized issues in resolving the claim or claims of each class member. Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601 F.3d 1159, 1170 (11th Cir. 2010) (internal quotation marks omitted). Plaintiff satisfies the predominance requirement because liability questions common to all Class Members substantially outweigh any possible issues that are individual to each Class Member. The salient evidence necessary to establish Plaintiff s claims is common to both the Class Representative and all members of the Class they would all seek to prove that the uniform, standardized SmartLease prohibited the assessment of additional fees when a lessee attempted to purchase the subject vehicle, and that the SmartLease failed to disclose the additional fees that ultimately were charged. And the evidentiary presentation changes little if there are 100 class members or 50,000: in either instance, the same evidence of the terms of the SmartLease, as well as Ally s communications with dealerships, would be presented. Klay v. Humana, Inc., 382 F.3d 1241, 1255 (11th Cir. 2004) ( [I]f common issues truly predominate over individualized issues in a lawsuit, then the addition or subtraction of any of the plaintiffs to or from the class [should not] have a substantial effect on the substance or quantity of evidence offered. ) (quoting Alabama v. Blue Bird Body Co., 573 F.2d 309, 322 (5th Cir. 1978)). Furthermore, there can be no doubt that resolution of tens of thousands of claims in one action is far superior to individual lawsuits. See Fed. R. Civ. P. 23(b)(3). Forcing individual vehicle owners to litigate their cases, particularly where common issues predominate for the proposed class, is an inferior method of adjudication. Wolin v. Jaguar Land Rover N. Am., LLC, 617 F.3d 1168, 1176 (9th Cir. 2010). For these reasons, this Court should certify the Class defined in the Settlement. III. Application For Class Representative Service Award. In instituting litigation, representative plaintiffs act as private attorneys general seeking a remedy for what appeared to be a public wrong. Saccoccio, 297 F.R.D. at 695 (internal quotation marks omitted). Service awards compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation. Allapattah Serv., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1218 (S.D. Fla. 2006). [T]here is ample precedent for awarding incentive compensation to class representatives at the conclusion of a successful class action. David v. American Suzuki Motor Corp., No. 08 CV 22278, 2010 WL 19

23 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 23 of , at *6 (S.D. Fla. Apr. 15, 2010). Courts have consistently found service awards to be an efficient and productive way to encourage members of a class to become class representatives. See, e.g., Ingram v. The Coca-Cola Co., 200 F.R.D. 685, 694 (N.D. Ga. 2001) (awarding class representatives $300,000 each, explaining that the magnitude of the relief the Class Representatives obtained on behalf of the class warrants a substantial incentive award ); Spicer v. Chi. Bd. Options Exch., Inc., 844 F. Supp. 1226, (N.D. Ill. 1993) (collecting cases approving service awards ranging from $5,000 to $100,000, and awarding $10,000 to each named plaintiff). Factors for determining a service award include: (1) the actions the class representatives took to protect the interests of the class; (2) the degree to which the class benefited from those actions; and (3) the amount of time and effort the class representatives expended in pursuing the litigation. See, e.g., Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998). The above factors, as applied to this case, demonstrate the reasonableness of a service award of $5,000 to the Class Representative, Mr. Schreiber. Mr. Schreiber took numerous actions and provided substantial assistance to Class Counsel by, among other things, locating and forwarding responsive documents and information, engaging in conferences with Class Counsel, and preparing and sitting for a deposition. Ex. A (Weinshall Decl.), In so doing, Mr. Schreiber educated Class Counsel and helped Class Counsel form and advance the central theories of this case. Id. Mr. Schreiber not only devoted time and effort to this long-running litigation, but the end result of his efforts, and those of counsel, was a substantial benefit to the Class. Id. It is only fair that Mr. Schreiber be compensated for his service. Id. Authorizing an award of $5,000 to Mr. Schreiber for his service amounts to less than.03 percent of the approximately $20 million value of the settlement. This ratio is well within the range of reasonable service awards. See, e.g., Enter. Energy Corp. v. Columbia Gas Transmission, 137 F.R.D. 240, 251 (S.D. Ohio 1991) (approving service awards totaling $300,000, or 0.56 percent of the $56.6 million settlement fund). Accordingly, the requested service award should be approved. 20

24 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 24 of 34 IV. Class Counsel s Fee Application. As indicated in the Court-approved notice disseminated to the Class, and consistent with District and Eleventh Circuit precedent, Class Counsel respectfully request an award of fees and expenses of $2.95 million, the equivalent of approximately 15% of the Settlement value of $19,717,222, which represents the common fund created through Class Counsel s hard work and efforts. This fee request accords with indeed, it falls well below the guidelines set forth by the Eleventh Circuit in Camden I Condominium Ass n v. Dunkle, 946 F.2d 768 (11th Cir. 1991), and its progeny. For the reasons set forth below, the requested attorneys fee and expense award is appropriate, fair, and reasonable, and should be approved. A. The Law Awards Class Counsel Fees From Common Funds Created By Their Efforts. When a class settlement establishes a calculable monetary benefit for class members, attorneys fees should be awarded to class counsel, under the longstanding common benefit doctrine, based on a percentage of the monetary benefit obtained. Camden I, 946 F.2d at 771; Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980). Following from the premise that those who receive the benefit of a lawsuit without contributing to its costs are unjustly enriched, the common benefit doctrine allows a court to prevent this inequity by assessing attorney s fees against the entire fund, thus spreading fees proportionately among those benefited by the suit. Boeing, 444 U.S. at 478; Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 392 (1970). The Supreme Court, the Eleventh Circuit, and courts in this District, therefore, have all held that the law is well established that a litigant or 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. Cifuentes v. Regions Bank, No. 11-cv-23455, 2014 WL , at *7 (S.D. Fla. Mar. 20, 2014) (quoting Boeing, 444 U.S. at 478); see also Camden I, 946 F.2d at 771 ( Attorneys in a class action in which a common fund is created are entitled to compensation for their services from the common fund, but the amount is subject to court approval. ). Appropriate awards of attorneys fees in cases like these encourage redress for wrongs caused to entire classes of persons and deter future misconduct: [C]ourts... have acknowledged the economic reality that in order to encourage private attorney general class actions brought to enforce... laws on behalf of persons with small individual losses, a financial incentive is necessary to entice capable attorneys, who otherwise could be paid 21

25 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 25 of 34 regularly by hourly-rate clients, to devote their time to complex, timeconsuming cases for which they may never be paid. Mashburn v. Nat l Healthcare, Inc., 684 F. Supp. 679, 687 (M.D. Ala. 1988); see also Deposit Guar. Nat l Bank v. Roper, 445 U.S. 326, (1980). Given the risk, responsibility, and effort required, reasonable compensation in line with established precedent is necessary to ensure the availability of counsel for plaintiffs: If the plaintiffs bar is not adequately compensated for its risk, responsibility, and effort when it is successful, then effective representation for plaintiffs in these cases will disappear.... We as members of the judiciary must be ever watchful to avoid being isolated from the experience of those who are actively engaged in the practice of law. It is difficult to evaluate the effort it takes to successfully and ethically prosecute a large plaintiffs class action suit. It is an experience in which few of us have participated. The dimensions of the undertaking are awesome. Muehler v. Land O Lakes, Inc., 617 F. Supp. 1370, (D. Minn. 1985); see also Gevaerts v. TD Bank, No. 1:14-CV RLR, 2015 WL , at *10 (S.D. Fla. Nov. 5, 2015) (holding that the common benefit doctrine serves the goal of removing a potential financial obstacle to a plaintiff s pursuit of a claim on behalf of a class ) (internal quotation marks omitted). In the Eleventh Circuit, in particular, class counsel fee awards must be based on a percentage of the common fund generated through a class action settlement. In Camden I the controlling authority in the Eleventh Circuit dealing with the issue of attorneys fees in commonfund class-action cases the court held that the percentage of the fund approach [as opposed to the lodestar approach] is the better reasoned in a common fund case. Henceforth in this circuit, attorneys fees awarded from a common fund shall be based upon a reasonable percentage of the fund established for the benefit of the class. Camden I, 946 F.2d at 774. The well-established starting point or benchmark percentage for fee awards in the Eleventh Circuit is 25 percent, which then may be adjusted based on the circumstances of each case. See Faught v. Am. Home Shield Corp., 668 F.3d 1233, 1243 (11th Cir. 2011) (affirming fee award above the 25% benchmark ); Waters v. Int l Precious Metals Corp., 190 F.3d 1291, 1294 (11th Cir. 1999) (directing district courts to view [the 20 percent to 30 percent] range as a benchmark, which may be adjusted in accordance with the individual circumstances of each case ) (quoting Camden I, 946 F.2d at (observing that [t]he majority of common fund 22

26 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 26 of 34 fee awards fall between 20 percent to 30 percent of the fund )). Class Counsel s fee request, amounting to roughly 15 percent of the Settlement s value, falls squarely within the Eleventh Circuit s benchmark, particularly given the circumstances of this litigation. See Waters, 190 F.3d at 1294 (approving fee award where the district court determined that the benchmark should be 30 percent and then adjusted the fee award higher based on the circumstances of the case); Allapattah Servs., Inc., 454 F. Supp. 2d at 1203 (determining that the 25% benchmark should be considered a floor for a fee award in this case, and that the percentage should be adjusted upward based on the circumstances of the case). B. The Camden I Factors Support Class Counsel s Requested Fee. The Eleventh Circuit has identified a set of factors the Court should consider to determine the appropriate percentage to award class-action counsel. These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and the length of the professional relationship with the client; (12) awards in similar cases. Camden I, 946 F.2d at 772 n.3 (citing factors originally set forth in Johnson v. Ga. Hwy. Express, Inc., 488 F.2d 714, (5th Cir. 1974)). As applied here, the Camden I factors all support awarding Class Counsel the requested fee. i. The claims against Ally required substantial time and labor. Prosecuting and settling the claims against Ally have demanded significant amounts of time and labor, supporting the reasonableness of this fee request. Ex. A (Weinshall Decl.), 35. Class Counsel initiated this litigation more than four years ago, after thoroughly investigating Mr. Schreiber s claims. Id. Ally s motion to compel arbitration presented a formidable obstacle at the outset, requiring Class Counsel to undertake substantial legal research and a focused briefing process. Id., 36. After the Court held oral argument and granted Ally s motion, Class Counsel devoted the considerable time and labor necessary to mount an appeal in the Eleventh Circuit. Id. This effort demanded Class Counsel to expend significant time conducing additional 23

27 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 27 of 34 legal research, addressing the Eleventh Circuit s jurisdictional question, and composing initial and reply briefs. After the Eleventh Circuit issued its decision and remanded the case, Class Counsel invested substantial time and resources in discovery. Id., 37. To analyze the hundreds of thousands of pages of transactional documents Ally produced, Class Counsel commissioned the creation of a customized, secure data review and analysis tool. Id. Hundreds of hours were then expended combing through Ally s transactional records to populate the data review and analysis tool. Id. In addition, Class Counsel invested substantial time and resources preparing for, travelling to, and conducting eleven fact witness depositions across the country. Id. Moreover, Class Counsel devoted substantial time and resources working with a data expert to develop a damages model and expert report for class certification. Id., 38. This work required rigorous statistical analysis and substantial time. Id. In addition, based on the Supreme Court s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct (2017), Ally challenged this Court s personal jurisdiction as to the claims of non-florida Plaintiffs, requiring Class Counsel to engage in extensive, additional legal research and briefing. Ex. A (Weinshall Decl.), 38. All told, Class Counsel s steadfast and dedicated work paid great dividends for the Class. Id., 39. Each of the above-described efforts was essential to achieving the Settlement currently before the Court. Id. Taken together, the time, expertise, effort, and resources Class Counsel devoted to prosecuting and settling the action justify the fee Class Counsel are now seeking. Id. ii. The issues involved were novel and difficult and required exceptional skill. The Court, we believe, witnessed the high quality of Class Counsel s legal work, which has conferred an exceptional benefit on the Class in the face of daunting litigation obstacles and highly sophisticated defense counsel. Id., 40. It is a formidable and complicated challenge to successfully prosecute a case like this against a massive financial institution and to navigate the host of novel and difficult issues presented. Id. Indeed, the novelty and difficulty of the issues involved in this case are evident from the fact that achieving the Settlement required Plaintiff to prevail in an appeal to the Eleventh Circuit. Id. And the appeal just addressed a threshold arbitration issue. 24

28 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 28 of 34 This case raised a number of novel and difficult issues, including those concerning the automotive finance industry, class certification, and personal jurisdiction. The record before this Court establishes that Class Counsel met the wide array of complex and novel challenges at every juncture. Id., 41. Respectfully, the skill and diligence demonstrated by Class Counsel in this litigation supports the requested fee. The quality of opposing counsel with whom Class Counsel sparred also bears on an assessment of the quality of representation. See Walco, 975 F. Supp. at 1472 (explaining that [g]iven the quality of defense counsel from prominent national law firms, the Court is not confident that attorneys of lesser aptitude could have achieved similar results ); see also Camden I, 946 F.2d at 772 n.3; Johnson, 488 F.2d at 718. Ally was represented by extremely qualified, sophisticated, and diligent attorneys, and they fought hard at every turn to protect their client s interests. Id., 42. These were worthy, highly skilled adversaries. iii. The claims against Ally entailed considerable risk. This Settlement was far from a foregone conclusion, as evidenced by the preceding years of intense litigation and Plaintiff s successful appeal to the Eleventh Circuit. Ally mounted vigorous defenses to Plaintiff s claims, denying any and all liability in the action. Id., 43. The success obtained under these circumstances thus represents a genuine achievement. In considering the undesirability factor, courts consider, among other things, the expense and time involved in prosecuting [the] litigation on a contingent basis, with no guarantee or high likelihood of recovery. Waters v. Cook s Pest Control, Inc., No. 2:07-CV LSC, 2012 WL , at *18 (N.D. Ala. July 17, 2012). [T]his factor recognizes that counsel should be rewarded for taking on a case from which other law firms shrunk. In re Sunbeam, 176 F. Supp. 2d at Undesirability and relevant risks must be evaluated from the standpoint of plaintiff s counsel as of the time they commenced the suit not retroactively, with the benefit of hindsight. Lindy Bros. Builders, Inc. v. Am. Radiator & Std. Sanitary Corp., 540 F.2d 102, 112 (3d Cir. 1976); Walco, 975 F. Supp. at Prosecuting the action was risky from the outset, with numerous obstacles to overcome. Ex. A (Weinshall Decl.), 44. This fact is indisputable given the initial, dispositive ruling in favor of Ally on arbitration and Plaintiff s appeal to the Eleventh Circuit. Id. Ally, moreover, has steadfastly disputed liability, claiming that dealerships are instead at fault and liable. Id. Ally has also raised a challenge to personal jurisdiction and has foreshadowed its vigorous 25

29 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 29 of 34 opposition to class certification. Id. Although Class Counsel and Plaintiff believe that they should prevail in litigation over these issues, a successful outcome at trial still would likely entail additional appeals. Id. Each of these risks, standing alone, could have impeded Plaintiff s successful prosecution of these claims at trial and in any appeal. Id., 45. Together, they overwhelmingly show that Plaintiff s claims against Ally were far from a slam dunk and that, in light of all the circumstances, the Settlement achieved an excellent class-wide result. Id. iv. Class Counsel pursued this action on a pure contingency basis, and were precluded from other employment as a result. Class Counsel prosecuted this case entirely on a contingent fee basis. Id., 46. Meeting the significant time and expense demands of the case limited the ability of Class Counsel to work on numerous other matters, all without any guarantee that such a substantial investment of time and effort would ever be reimbursed. Id. This substantial risk of nonpayment or underpayment warrants the requested fee. Numerous cases recognize that contingent-fee risk is an important factor in determining the fee award. A contingency fee arrangement often justifies an increase in the award of attorney s fees. In re Sunbeam, 176 F. Supp. 2d at 1335 (quoting Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 548 (S.D. Fla. 1988), aff d, 899 F.2d 21 (11th Cir. 1990)); see also In re Cont. Ill. Sec. Litig., 962 F.2d 566 (7th Cir. 1992) (holding that when a common fund case has been prosecuted on a contingent basis, plaintiffs counsel must be compensated adequately for the risk of non-payment); Ressler, 149 F.R.D. at 656 ( Numerous cases recognize that the attorney s contingent fee risk is an important factor in determining the fee award. ); Walters v. Atlanta, 652 F. Supp. 755, 759 (N.D. Ga. 1985), modified, 803 F.2d 1135 (11th Cir.); York v. Ala. State Bd. of Educ., 631 F. Supp. 78, 86 (M.D. Ala. 1986). Public policy concerns especially ensuring the continued availability of experienced and capable counsel to represent classes of injured plaintiffs whose individual claims would defy vindication further justifies the requested fee award. As courts in this District have observed: Generally, the contingency retainment must be promoted to assure representation when a person could not otherwise afford the services of a lawyer.... A contingency fee arrangement often justifies an increase in the award of attorney s fees. This rule helps assure that the contingency fee arrangement endures. If this bonus methodology did not exist, very few lawyers could take on the representation of a class client given the 26

30 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 30 of 34 investment of substantial time, effort, and money, especially in light of the risks of recovering nothing. Behrens, 118 F.R.D. at 548 (emphasis added). The progress of this case to date readily demonstrates the inherent risk that Class Counsel faced in prosecuting this case on a contingency fee basis. Ex. A (Weinshall Decl.), 47. To mount the ongoing effort of conducting discovery in this action and litigating before this Court for almost four years, Class Counsel have invested substantial resources, both in time and expenses, for the benefit of the Class. Id. Uncompensated expenditures like these can severely damage or even destroy some law firms. It cannot be disputed that the action entailed substantial risk of nonpayment and resulting financial hardship for Class Counsel s practice. Id. Furthermore, the time Class Counsel spent on this case was time that could not be spent on other matters. Id., 48. This factor strongly militates in favor of the requested fee. v. Class Counsel achieved an excellent result. The Settlement represents an outstanding result for the Class. Id., 49. With a value of almost $20 million, the Settlement achieved a result approaching or equivalent to a complete trial victory. Id. Instead of facing additional years of costly and uncertain litigation, tens of thousands of Class Members will be eligible to receive an immediate benefit. Id. The Settlement represents an exceptional achievement by any measure. vi. The requested fee comports with customary fees awarded in similar cases. The fee requested here equivalent to approximately 15 percent of the Settlement value easily falls within the range of fees typically awarded in similar cases, particularly in this District and Circuit. Id., 50. As countless decisions have recognized, a fee award of 30 percent of a common fund is well within the range of a customary fee or benchmark in this District and Circuit. See, e.g., In re Checking Account Overdraft Litig., 830 F. Supp. 2d at 1366; In re Sunbeam, 176 F. Supp. 2d at Numerous decisions in this District, alone, have awarded attorneys fees of and in excess of 30 percent, precedent that confirms the fairness and reasonableness of the fee requested here, which is less than half such a customary fee. See In re Checking Account Overdraft Litig., 830 F. Supp. 2d at 1366 (awarding fees of 30 percent of $410 million); Allapattah Servs., Inc., 454 F. Supp. 2d at 1210 (awarding fees equaling 31¼ percent of settlement of over $1 billion including interest); Love v. Blue Cross & Blue Shield Assoc., No. 27

31 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 31 of cv (S.D. Fla. Apr. 20, 2008) (ECF No. 1286) (38% of $130 million settlement); In re Managed Care Litig., No. 00-md-1334, 2003 WL (S.D. Fla. Oct. 24, 2003) (awarding $50 million in fees and costs in settlement involving $100 million fund and non-monetary business practice changes); Gutter v. E.I. Dupont De Nemours & Co., CIV-Gold (S.D. Fla. May 30, 2003) (33¼ percent on settlement of $77.5 million); In re Terazosin Hydrochloride Antitrust Litig., MDL-Seitz (S.D. Fla. Apr. 19, 2005) (33¼ percent on settlement of over $30 million). 3 Class Counsel s fee request, moreover, falls at the low end of the average in the private marketplace, where contingency fee arrangements often approach or equal 40 percent of any recovery. See, e.g., Kirchoff v. Flynn, 786 F.2d 320, 325 n.5 (7th Cir. 1986) (observing that 40 percent is the customary fee in tort litigation ); In re Pub. Serv. Co. of New Mexico, 1992 WL , at *7 (S.D. Cal. July 28, 1992) ( If this were a non-representative litigation, the customary fee arrangement would be contingent, on a percentage basis, and in the range of 30% to 40% of the recovery. ); see also In re Cont l Illinois Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992) ( The object in awarding a reasonable attorneys fee... is to simulate the market. ). In tort suits, an attorney might receive one-third of whatever amount the Plaintiff recovers. In those cases, therefore, the fee is directly proportional to the recovery. Blum v. Stenson, 465 U.S. 886, 904 (1984) (Brennan, J., concurring). Class Counsel s requested fee, equivalent to approximately 15 percent of the Settlement value, comports easily with customary fees awarded in similar cases. 4 3 See also In re Vitamins Antitrust Litig., No. MDL 1285, 2001 WL , at *10 (D.D.C. July 16, 2001) (34.06 percent of approximately $359 million settlement); In re Lease Oil Antitrust Litig., 186 F.R.D. 403 (S.D. Tex. 1999) (35.1 percent)); see also Gaskill v. Gordon, 942 F. Supp. 382, (N.D. Ill. 1996), aff d, 160 F.3d 361 (7th Cir. 1998) (finding that 33 percent is the norm, but awarding 38 percent of the settlement fund). 4 See also James v. JPMorgan Chase Bank, N.A., No. 15-cv-2424-T-23JSS, 2017 WL , at *2 (M.D. Fla. June 5, 2017) (30 percent); Warren v. Cook Sales, Inc., No. 15-cv-0603, 2017 WL , at *9 (S.D. Ala. Jan. 23, 2017) (30 percent); Comeens v. HM Operating, Inc., No. 14-cv-00521, 2016 WL , at *4 (N.D. Ala. Aug. 18, 2016) (33⅓ percent); Diakos v. HSS Sys., LLC, No. 14-cv-61784, 2016 WL , at *7 (S.D. Fla. Feb. 5, 2016) (33⅓ percent); Duque v. 130 NE 40th St., LLC, No. 14-cv-23965, 2016 WL , at *3 (S.D. Fla. Jan. 27, 2016) (33 percent). 28

32 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 32 of 34 CONCLUSION The Settlement, with a value of $19,717,222, constitutes an outstanding result by any measure. The Settlement easily satisfies the fairness and reasonableness standard embodied in Rule 23(e), as well as the class certification requirements of Rules 23(a) and (b)(3). Class Counsel s request for a $5,000 service award for the appointed Class Representative comports with well-established precedent as well. Likewise, Class Counsel s fee request is reasonable and falls well below the established benchmark for fees in this Circuit and District. The fee request also satisfies the guidelines of Camden I, given the outstanding result, the considerable risks of litigation, the complicated nature of the factual and legal issues, and the time, effort, and skill required to litigate claims of this nature to a satisfactory conclusion. For the foregoing reasons, Plaintiff respectfully requests that the Court enter an Order that: 1. Grants final approval to the Settlement; 2. Certifies the proposed Class defined in the Settlement pursuant to Rule 23(b)(3) and (e) for settlement purposes only, appoints as Class Counsel the attorneys and firms identified as Class Counsel in the Preliminary Approval Order, and appoints Mr. Schreiber as Class Representative; 3. Approves a $5,000 service award to the appointed Class Representative, Mr. Schreiber; 4. Awards Class Counsel $2.95 million in attorneys fees and expenses from the Settlement; and 5. Enters Final Judgment dismissing the action with prejudice, in accordance with a proposed Final Order and Final Judgment to be submitted in advance of the Final Approval Hearing. 29

33 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 33 of 34 Dated: August 16, 2018 Respectfully submitted, PODHURST ORSECK, P.A. /s/ Matthew P. Weinshall Peter Prieto (FBN ) John Gravante (FBN ) Matthew P. Weinshall (FBN 84783) Alissa Del Riego (FBN 99742) SunTrust International Center One S.E. Third Ave., Suite 2300 Miami, Florida Phone: (305) Fax: (305) BARON & BUDD, P.C. Daniel Alberstone (SBN ) Roland Tellis (SBN ) Jonas P. Mann (SBN ) Ventura Boulevard, Suite 1600 Encino, California Telephone: (818) Facsimile: (818) Counsel for Plaintiff 30

34 Case 1:14-cv DPG Document 93 Entered on FLSD Docket 08/16/2018 Page 34 of 34 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on August 16, 2018, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify the foregoing document is being served this day on all counsel of record via transmission of Notice of Electronic Filing generated by CM/ECF. By: /s/ Matthew P. Weinshall Matthew P. Weinshall 31

35 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 1 of 15 EXHIBIT A

36 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 2 of 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION ROBERT A. SCHREIBER, individually and on behalf of all others similarly situated, v. Plaintiff, Civil Action No. 1:14-cv ALLY FINANCIAL INC., Defendant. DECLARATION OF MATTHEW P. WEINSHALL IN SUPPORT OF PLAINTIFF S MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT AND CERTIFICATION OF SETTLEMENT CLASS, AND APPLICATION FOR CLASS REPRESENTATIVE SERVICE AWARD AND CLASS COUNSEL S ATTORNEYS FEES MATTHEW P. WEINSHALL declares as follows: 1. I am an attorney at Podhurst Orseck, P.A. ( Podhurst ). Podhurst and Baron & Budd, P.C. (collectively Class Counsel ) serve as counsel for Plaintiff Robert A. Schreiber and the proposed Settlement Class in this case against Ally Financial, Inc. 1 I respectfully submit this declaration in support of Plaintiff s Motion for Final Approval of Settlement and Certification of Settlement Class, and Application for Class Representative Service Award and Class Counsel s Attorneys Fees. Except as otherwise noted, I have personal knowledge of the facts set forth in this declaration, and could testify competently to them if called upon to do so. 1 Capitalized terms not defined herein shall have the same definitions and meanings ascribed to them in the Settlement Agreement. 1

37 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 3 of After almost four years of hard-fought litigation and extensive discovery, and adversarial arm s-length negotiations that spanned several months, Plaintiff and Ally executed a Settlement Agreement on June 5, The Settlement requires Ally to pay up to $19,717,222 to Class Members, inclusive of Class Counsel s attorneys fees and costs and the Class Representative s service award, but exclusive of all costs and fees of the Claims Administrator, which Ally is also required to pay. 3. Plaintiff and Class Counsel maintain that the claims asserted in the Action are meritorious, that any motion for class certification would prove successful, and that Plaintiff would prevail if this matter proceeded to trial. The Action involved sharply opposed positions on several fundamental legal and factual issues. The ultimate success of the litigation required Plaintiff to prevail, in whole or in part, on all of these issues. Continued litigation, therefore, presents significant risks to attaining a successful judgment, as well as the time and expenses associated with proceeding to trial, the time and expenses associated with appellate review, and the countless uncertainties of litigation, particularly in the context of a complex class action. 4. In light of the risks presented by continued litigation and taking into account the substantial benefits extended to the Class Members under the terms of the Settlement Agreement, the Settlement not only provides fair and adequate compensation to Class Members, but also represents a significant achievement benefitting the Settlement Class. A. Background of the Litigation. 5. This class action centers on a standardized automotive lease contract created and copyrighted by Ally called the SmartLease. Each SmartLease provided the lessee with an option to purchase the subject vehicle at the end of the lease term for a set price. When Class Representative Robert Schreiber and Class Members attempted to exercise this purchase option, 2

38 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 4 of 15 however, dealerships that processed the transactions charged Mr. Schreiber and Class Members additional fees beyond the set price disclosed in their SmartLease agreements. 6. On June 4, 2014, Mr. Schreiber, on behalf of himself and a putative class of similarly situated automobile purchasers, filed a two-count action against Ally. His first claim asserted that Ally violated the federal Consumer Leasing Act ( CLA ), 15 U.S.C. 1667, et seq., by failing to disclose that he would be required to purchase the vehicle from a dealer and that he would be required to pay additional fees to the dealer. Mr. Schreiber s second claim asserted that Ally breached its SmartLease with him by refusing to sell the vehicle to him at the price stated in the contract. 7. On July 21, 2014, Ally filed a Motion to Compel Arbitration and Dismiss or, Alternatively, Stay Litigation. Ally argued that, under Florida s equitable estoppel doctrine, it was entitled to compel Mr. Schreiber to arbitrate his claims against it based on an arbitration provision in the Miami Lakes AM Buyer s Order, to which Ally was not a party. After hearing oral argument, the Court granted Ally s motion. Mr. Schreiber then appealed the Court s decision to the Eleventh Circuit, which reversed the order compelling arbitration and remanded the case for further proceedings. 8. Following the Eleventh Circuit s decision, Ally answered the complaint and the Parties engaged in extensive discovery. Over the past two years, Ally has produced hundreds of thousands of pages of documents, including massive spreadsheets with lease data for more than 125,000 lessees. To analyze the data produced by Ally, Class Counsel retained a data expert, developed a unique data and document review platform, and dedicated a team of several attorneys to the laborious work of reviewing these documents and data. Class Counsel also deposed eleven fact witnesses, and Ally deposed Plaintiff. 3

39 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 5 of 15 B. Settlement Negotiations. 9. In parallel with this hard-fought litigation, preliminary settlement discussions began in the spring of 2017, between Plaintiff s Counsel and Ally s counsel. After several preliminary discussions, the Parties met for an in-person mediation conducted by former Circuit Court Judge Ellen L. Leesfield in July Although the Parties made significant progress during the in-person mediation, they were not able to reach a resolution. The Parties continued to negotiate a potential resolution over the next several months. 10. During the negotiations, the Parties discussed their views of the law and facts and potential relief for the proposed Class and exchanged a series of counter-proposals for key conceptual aspects of a potential settlement. The Parties ultimately reached an agreement in principle in early December During the next several months, the Parties drafted and negotiated the precise terms of the attached Settlement Agreement and exhibits, and Ally completed an extended analysis of dealership fees paid by lessees to finalize the value of the Settlement. 12. At all times, negotiations were adversarial, non-collusive, and at arm s length. C. Settlement Recovery. 13. Each Settlement Class member will be given an opportunity to submit a claim for repayment of 100% of the Documentary or Dealer Fee that was charged in connection with a lease-end transaction pursuant to the purchase-option in his or her SmartLease. A Documentary or Dealer Fee is broadly defined to include any unofficial documentary, dealer, or similar fee not disclosed in the SmartLease Agreement that was charged and not refunded to a Settlement Class Member in connection with the purchase of a leased vehicle by the Settlement Class 4

40 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 6 of 15 Member pursuant to the purchase option price set forth in the SmartLease Agreement. (ECF No. 89-1, 2.m.) 14. The process for submitting a claim is simple and straightforward. The claim form, which can be submitted online or by mail, is just a page-and-a-half long. 15. It requires Class Members to provide basic biographical information (i.e., name, telephone number, address, and ), and either submit a document showing that the Class member was charged a Documentary or Dealer Fee, or check a box stating that the Class member believes he or she was charged such a fee, which then requires the Claims Administrator to conduct a reasonable search of records provided by Ally and Plaintiff s Counsel for documents showing that the Class member was charged a Documentary or Dealer Fee. 16. To assist the Claims Administrator in conducting such a search for records and increase the likelihood of identifying supportive documentation, Class Counsel will provide the Claims Administrator with access to the review platform that Class Counsel developed in discovery and a computerized search tool, which will enable the Claims Administrator to locate transactional records for a Class Member simply by entering the Class Member s name. 17. Because of the manner in which Ally maintains its records and because Ally does not possess transactional records relating to every single sale of a leased vehicle during the Class Period, it was not possible for the Parties to calculate the precise, total value of Documentary and Dealership Fees paid by the Class, without individually reviewing hundreds of thousands of documents and obtaining additional documents from thousands of dealerships, if such documents are even available. 18. As a result, the Parties developed a reliable estimate of the total value of Documentary and Dealership Fees paid by Class Members, based on a review of the records that 5

41 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 7 of 15 Ally did possess. Class Counsel and Ally independently analyzed the transactional records that dealerships had sent Ally in connection with the sale of leased vehicles. After reviewing thousands of such records, which represented a statistically significant sample, the Parties agreed that $19,717,222 constituted a reliable estimate of the total value of Documentary and Dealership Fees paid by the Class. 19. Consistent with the objective of repaying 100% of such fees to Class Members, Ally agreed to make $19,717,222 available to Class Members, inclusive of an incentive award for Plaintiff and attorneys fees and costs awarded by the Court, but exclusive of administration and notice costs. If the total amount due to Class Members, together with the incentive award and attorneys fees and costs awarded by the Court, exceeds $19,717,222, Class Members will be compensated on a pro rata basis. D. Considerations Supporting the Settlement. i. There was No Fraud or Collusion. 20. This Court is well aware of how hard and zealously the Parties and their counsel litigated prior to reaching the Settlement. The sharply contested nature of the proceedings in this case, including Plaintiff s appeal to the Eleventh Circuit, readily shows the lack of fraud or collusion behind the Settlement. 21. Class Counsel also negotiated the Settlement vigorously. Plaintiff and the Class were represented by experienced counsel at these arms-length negotiations, which were initially overseen by an experienced mediator. And the settlement negotiations were informed, on both sides, by counsel experienced in the litigation, certification, trial, and settlement of nationwide class action cases. 6

42 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 8 of 15 length. 22. The settlement negotiations were, at all times, adversarial and conducted at arm s ii. The Settlement Will Avert Highly Complex and Expensive Litigation. 23. This case involves tens of thousands of Class Members, with potential damages exceeding $20 million. The claims and defenses are complex; litigating them is and has been difficult and time consuming. Although the Action has been pending for roughly four years, recovery by any means other than settlement would require additional years of litigation in this Court and appellate courts. In contrast, the Settlement will offer immediate and substantial benefits to tens of thousands of consumers. iii. The Factual Record is Sufficiently Developed to Enable Plaintiff and Class Counsel to Make a Reasoned Judgment Concerning the Settlement. 24. Significant discovery occurred in this case prior to the Settlement. It afforded Class Counsel insight into the strengths and weaknesses of Plaintiff s claims against Ally. Before settling, Class Counsel had developed ample information and performed extensive analyses from which to assess the probability of success on the merits, the possible range of recovery, and the likely expense and duration of the litigation. 25. As I described above, Class Counsel conducted a thorough investigation and analysis of Plaintiff s claims and engaged in extensive formal discovery with Ally. Hundreds of thousands of pages of documents have been produced thus far in discovery, eleven depositions of fact witnesses have been conducted, and Class Counsel have worked extensively with a data expert to analyze voluminous data provided by Ally. Class Counsel s thorough review of that extensive discovery enabled us to gain an understanding of the evidence related to key questions in the case and prepared us for well-informed settlement negotiations. Thus, Class Counsel were 7

43 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 9 of 15 well-positioned to evaluate the strengths and weaknesses of Plaintiff s claims, as well as the appropriate basis upon which to settle them. iv. Plaintiff Would Have Faced Significant Obstacles to Obtaining Relief. 26. Class Counsel are quite confident in the strengths of their case, but we are also pragmatic, as well as aware of the various defenses available to Ally and the risks inherent in any litigation. While Plaintiff overcame the risk of compelled arbitration, through a successful appeal to the Eleventh Circuit, the ultimate success of Plaintiff s claims turned on questions that were certain to arise in the context of motions for summary judgment and class certification, and at trial. 27. While Class Counsel believe we have a compelling case against Ally, we also are mindful that it has advanced significant defenses that we would be required to overcome at summary judgment, at class certification, at trial, and eventually on appeal. This litigation involved several key risks, including Ally claim that it was not liable for the misconduct of dealerships; its challenge to this Court s personal jurisdiction with respect to the claims of non- Florida Plaintiffs; and its opposition to class certification. And even if Plaintiff was successful, Ally likely would seek interlocutory review of a class certification ruling via Rule 23(f) in the Eleventh Circuit, delaying the progress towards trial for months, if not years. Class Counsel appreciate that, absent a settlement, it would have taken years of additional litigation and overcoming vigorous legal and factual defenses to bring the Action to finality. Given the myriad risks attending these claims, the Settlement cannot be seen as anything other than a fair and reasonable compromise. 8

44 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 10 of Protracted litigation, as we all know, carries inherent risks and inevitable delay. Under the circumstances, Plaintiff and Class Counsel determined that the Settlement clearly outweighs the risks of continued litigation. v. The Settlement Amount Is Reasonable Given the Range of Possible Recovery. 29. The value provided to the Class is obviously within the range of reasonableness. The Settlement has a value of almost $20 million. Based on the Parties analysis, this represents roughly 100% of Plaintiff s and Class Members estimated damages recovery. vi. The Opinions of Class Counsel, Class Representatives, and Absent Class Members Strongly Favor Approval of the Settlement. 30. Class Counsel believe that the Settlement is outstsanding and clearly deserving of Final Approval. Moreover, opposition to the Settlement has been non-existent thus far. Although the objection and opt-out deadlines have not expired yet, neither Class Counsel nor the Claims Administrator has received an objection. E. Service Award. 31. Pursuant to the Settlement, Class Counsel seek, and Ally does not oppose, a Service Award of $5,000 for the Class Representative, Mr. Schreiber. If the Court approves the Service Award, it will be paid from the Settlement by Ally, and will be in addition to the relief the Class Representative will be entitled to under the terms of the Settlement. This award will compensate Mr. Schreiber for his time and effort in the Action, and for the risk he undertook in prosecuting the case against Ally. 32. Mr. Schreiber took numerous actions and provided substantial assistance to Class Counsel by locating and forwarding responsive documents and information, by engaging in conferences with Class Counsel, and by preparing and sitting for a deposition. In so doing, the 9

45 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 11 of 15 Mr. Schreiber was integral to educating Class Counsel and helping Class Counsel form the central theory of this case. Mr. Schreiber not only devoted time and effort to this long-running litigation, but the end result of his efforts, and those of counsel, generated a substantial benefit to the Class. It is only fair that Mr. Schreiber be compensated for his service. F. Class Counsel s Attorneys Fees. 33. Pursuant to the Settlement, Class Counsel are permitted to request that the Court award us attorneys fees and costs up to $2.95 million, which amounts to roughly 15% of the Settlement value, which represent the common funds created through our hard work and efforts. Ally has agreed not to oppose such a request for attorneys fees and expenses. The Parties negotiated and reached this agreement regarding attorneys fees and expenses only after reaching agreement on all other material terms of the Settlement Agreement. 34. As indicated in the Court-approved Notice disseminated to the Class, and consistent with standard class action practice and procedure, Class Counsel request an award of fees and costs of $2.95 million. That amount would include not only attorneys fees but expenses as well. i. The Claims Against Ally Required Substantial Time and Labor. 35. Prosecuting and settling the claims against Ally have demanded significant amounts of time and labor. Class Counsel initiated this litigation more than four years ago, after thoroughly investigating Mr. Schreiber s claims. 36. Ally s motion to compel arbitration presented a formidable obstacle at the outset, requiring Class Counsel to undertake substantial legal research and a focused briefing process. After the Court held oral argument and granted Ally s motion, Class Counsel devoted the considerable time and labor necessary to mount an appeal in the Eleventh Circuit. This effort 10

46 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 12 of 15 demanded Class Counsel to expend significant time conducing additional legal research, addressing the Eleventh Circuit s jurisdictional question, and composing initial and reply briefs. 37. After the Eleventh Circuit issued its decision and remanded the case, Class Counsel invested substantial time and resources in discovery. To analyze the hundreds of thousands of pages of transactional documents Ally produced, Class Counsel commissioned the creation of a customized, secure data review and analysis tool. Hundreds of hours were then expended combing through Ally s transactional records to populate the data review and analysis tool. In addition, Class Counsel invested substantial time and resources preparing for, travelling to, and conducting eleven fact witness depositions across the country. 38. Moreover, Class Counsel devoted substantial time and resources working with a data expert to develop a damages model and expert report for class certification. This work required rigorous statistical analysis and substantial time. In addition, based on the Supreme Court s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct (2017), Ally challenged this Court s personal jurisdiction as to the claims of non-florida Plaintiffs, requiring Class Counsel to engage in extensive, additional legal research and briefing. 39. Each of the above-described efforts was essential to achieving the Settlement currently before the Court. Taken together, the time, expertise, effort, and resources Class Counsel devoted to prosecuting and settling the action justify the fee Class Counsel are now seeking. ii. The Issues Involved Were Novel and Difficult and Required Exceptional Skill. 40. The Court, we believe, witnessed the high quality of Class Counsel s legal work, which has conferred an exceptional benefit on the Class in the face of daunting litigation obstacles and highly sophisticated defense counsel. It is a formidable and complicated challenge 11

47 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 13 of 15 to successfully prosecute a case like this against a massive financial institution and to navigate the host of novel and difficult issues presented. Indeed, the novelty and difficulty of the issues involved in this case are evident from the fact that achieving the Settlement required Plaintiff to prevail in an appeal to the Eleventh Circuit. And the appeal just addressed a threshold arbitration issue. 41. This case raised a number of novel and difficult issues, including those concerning the automotive finance industry, class certification, and personal jurisdiction. The record before this Court establishes that Class Counsel met the wide array of complex and novel challenges at every juncture. 42. In addition, Ally was represented by extremely qualified, sophisticated, and diligent attorneys, and they fought hard at every turn to protect their client s interests. iii. The Claims Against Ally Entailed Considerable Risk. 43. Ally mounted vigorous defenses to Plaintiff s claims, denying any and all liability in the action. The time, work, and expense demands on us limited our ability to work on other matters. Our success under these circumstances represents a genuine achievement. 44. Prosecuting the action was risky from the outset, with numerous obstacles to overcome. This fact is evident from the initial, dispositive ruling in favor of Ally on arbitration and Plaintiff s appeal to the Eleventh Circuit. Ally, moreover, has steadfastly disputed liability, claiming that dealerships are instead at fault and liable. Ally has also raised a challenge to personal jurisdiction and has foreshadowed its vigorous opposition to class certification. Although Class Counsel and Plaintiff believe that they should prevail in litigation over these issues, a successful outcome at trial still would likely entail additional appeals. 12

48 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 14 of Each of these risks, standing alone, could have impeded Plaintiff s successful prosecution of these claims at trial and in any appeal. Together, they overwhelmingly show that Plaintiff s claims against Ally were far from a slam dunk and that, in light of all the circumstances, the Settlement achieved an excellent class-wide result. iv. Class Counsel Assumed Substantial Risk to Pursue the Action on a Pure Contingency Basis and Were Precluded from Other Employment as a Result. 46. Class Counsel prosecuted this case entirely on a contingent fee basis. Meeting the significant time and expense demands of the case limited the ability of Class Counsel to work on numerous other matters, all without any guarantee that such a substantial investment of time and effort would ever be reimbursed. 47. The progress of this case to date readily demonstrates the inherent risk that Class Counsel faced in prosecuting this case on a contingency fee basis. To mount the ongoing effort of conducting discovery in this action and litigating before this Court for almost four years, Class Counsel have invested substantial resources, both in time and expenses, for the benefit of the Class. Uncompensated expenditures like these can severely damage or even destroy some law firms. It cannot be disputed that the action entailed substantial risk of nonpayment and resulting financial hardship for Class Counsel s practice. 48. Furthermore, the time Class Counsel spent on this case was time that could not be spent on other matters. v. Class Counsel Achieved an Excellent Result. 49. The Settlement represents an outstanding result for the Class. With a value of almost $20 million, the Settlement achieved a result approaching or equivalent to a complete trial victory. Instead of facing additional years of costly and uncertain litigation, tens of thousands of 13

49 Case 1:14-cv DPG Document 93-1 Entered on FLSD Docket 08/16/2018 Page 15 of 15 Class Members will be eligible to receive an immediate benefit. The Settlement represents an exceptional achievement by any measure. vi. The Requested Fee Comports with Customary Fees Awarded in Similar Cases. 50. The fee requested here is not out of the ordinary. In fact, it is well below the fee typically awarded in similar cases. As numerous decisions have recognized, a fee award of 30 percent of a common fund is well within the range of a customary fee in this District and in this Circuit. Our fee request also falls below the low end of the average negotiated in the private marketplace, where contingency fee arrangements often approach or equal 40 percent of any recovery. I declare under penalty of perjury of the laws of Florida and the United States that the foregoing is true and correct, and that this declaration was executed on August 16, /s/ Matthew P. Weinshall Matthew P. Weinshall 14

50 Case 1:14-cv DPG Document 93-2 Entered on FLSD Docket 08/16/2018 Page 1 of 20 EXHIBIT B

51 Case 1:14-cv DPG Document 93-2 Entered on FLSD Docket 08/16/2018 Page 2 of 20 UI\IITED STATES DISTRICT COURT SOUTIIERN I}ISTRICT OF T'LORIDA MIAII{I DTWSION ROBERT A. SCHREIBE& individually and on behalf of all others similarly situated Plaintiff(s), Civil Action No. I : 14-cv DECLARATION OF MARK RAPAZZINI IN SI]PPORT OF TINAL APPROVA.L v. ALLY FINAIICIAL INC., et al,, Defendant. I, I\,{ark Rapazzini, hereby declare as follows: 1. I make this Declaration of my own personal knowledge, and if called upou to testiff, I could and would testit/ competently to the matters sta:ted herein. 2. I am an attorney, admitted to practice in California in 1983, and am a parher at the Heffler Claims Group (*Heffter"), a compaoy that handles the adminiseation of class action setrlements, class action notices, claims administration, and other significant data management processes related to class actions, collective actions, and government enforcement actions. I was a practicing attorney in the class action and mass torts arena from Heffler has provided class action adminisnation services in over 1,000 settlements of varying sizes and complexity over the past 50 yetrs. Over the past 50 years, Heffler has distributed hundreds of millions of notices and billions of dollars in settlement funds and judgment proceeds to class membrs and claimants. For example, in one case, Heffler administered a settlement of over $3 billion in futrds, and processed more than l0 million claim forms with mailings to almost 40 million potential class members DECLARATION OF MARK RAPAZZINI Roben A Schreiber v. Ally Finarcial lrc. - Civcl Action No. ltl4*v-22ffi9

52 Case 1:14-cv DPG Document 93-2 Entered on FLSD Docket 08/16/2018 Page 3 of Heffler was appointed as the Claims Adminishator to provide notification and other services in the Robert A Schreiber v Ally Finailoial Inc, Settlement (the "settlement'). Heffler's duties in this actioa include (a) Maiting the CAFA Notice; (b) receiving and anatyzing the Class List; (c) establishing a post office box for receipt ofmail; (d) establishing a toll free number; (e) establishing a website with online claim filing capability; (f) formatting and sending Notice and Claim Forst ('T.[otice") via U.S. Mail; (g) receiving and processing mail from the United States Postat Service ('USPS') marked as undeliverable or with forwarding addresses; (h) receivins and processing Claim Forms; (t) receiving and processing requests for exclusion, objections and general mail correspondence; (i) responding to any other tasks that Counsel mutually agree or the Court orders Hefiler to perform. 5. OnJune25,2018, Hefflermailed 108 CAFANotices. The 108 notices coasisted of State and Federal Attorneys General in addition to State and Federal Banking, Financial and Deparhent of Transportation Regulators. 6. On June 28,2A18, Heffler received the data in ore (1) Mcrosoft Excel database from the Defendaut containing 224,981records forpotential metnbers of Settlemeut's Customer Class. The data contained records by vehicle financed through the defendant wi& several vehicles having multiple borrowers for the same vehicle/record- Heffler performod al analysis of the Class data and determined there were 237,039 records appropriately allocated to the class definition as defined in the Settlement Agreement. 7. On June 18, 2018, Heffler obtained a Post Office box with the mailiug address of Schreiber v. Ally Financial, Inc., clo Claims Administrator, P0 Box 7528, Philadelphi4 PA This PO Box is used to receive Claim forrrs, exclusions, objections, and other communications about the Settlement from Class Members. 8. On June 27,2A18, Heffler established a toll-free rurmber, l-8m-702a?84, for Class Members to call and receive Settlement information 24n &rough an Interactive Voice Response (M) system and leave Voic s for a return phone call. As of August 13, 2018, Heffier has received 2,554 calls. DECLARATION OF MARK RAPAZZIM Robert A Scbeiber v. Ally Finmciol Inc. - Civil ActionNo. l:14-cv-22069

53 Case 1:14-cv DPG Document 93-2 Entered on FLSD Docket 08/16/2018 Page 4 of On July 17,2018, Heffler created and is currently hosting a dedicated website entitled Attached hereto as Exhibit 1 is a true and correct copy of the homepage of the Settlement Website. The website consists of a homepage with a $rnmary of the case, a &equently asked questions pag, a claim fonn page for Class Members to file a claim, a coatact page for individuals to request information and important dates. Heffier has posted to the website *re followiag documents: o Summons and Complaint o lstamended Complaint r Settlement Agreement r Preliminary Approval Order o LonB FormNotice o Claim form 10. As of August 13,2018, the website has received23,l69 visits. 11. On May 16, 2018, Heffler was provided the text for the Notice. The Notice explained the terms of the Settlement and that Settlement Class Members can zubmit a Claim online or by mail, ask to be excluded from the Settlement via mail, or sign and mail a written objection to the Settlement. Drafts of the Notices and Claim Form were prepared by Heff,ler and later approved by Counsel. A true and correct copy of the papernotice and Claim Forrn are attached hereto as E&@. 12. In order to provide the best notice practicable, Heffler ran the data through the USPS National Change of Address ("NICOA") darabase and updated the data with the address changes received from NCOA. On July 17, 2018, Heffler caused the Notice and Claim Fom to be mailed to the 237,039 Settlement Class Members. 13. As of August 13, 2018, Heffler has received l2,624notices returned by the USPS as undeliverable. Heffler has skip-traced 12,623 and obtained new addresses for 10,021 records. Heffler has updated the addresses in its database and r ed7,90{ Notices; Heffler has another mailing scheduled on August 20,2A18 for the mailing of the 2,117 Notices; Heffler continues to receive and will continue to process and r Notices received from the USPS as undeliverable. DECLARATION OF MARK RAPAZZINI Roben A Schreiber v AIly Finoncial lrc. - Civil ActionNo. l:14*v-22ffi9

54 Case 1:14-cv DPG Document 93-2 Entered on FLSD Docket 08/16/2018 Page 5 of As of August 13, 2018, Heftler has received 399}.{otices returned by the USPS with forwarding addresses. Heffler updated the addresses iu its database and r ed 396 of the Notices to the updated addresses provided by. the USPS; Heffler continues to receive and will continue to process and r Notices received from the USPS marked with a forwarding address. 15. As of August 13,2018, Heffler has received 5,579 online Claim forms and 430 images ofpaperclaimformsuploadedthroughthewebsite. AsofAugust13,2018,Hefflerhasreceivedl,801 Paper Claim forms through the USPS. Heffler continues to receive Claim Forms and continues to review claims for validity and provides claims to Counsel for review as required urder the Settlement. 15. As of August 13,2018, Heffler has received 2 timety requests for exclusion. 17. As of August 13, 2018, Heffler has not received any objections to the Settlement. 18. As of August 13,2018, Heffler has received l3 pieces of general mail correspondence. DECLARATION OF MARK RAPAZZIM Roben A khreiber v. Ally Financial Inc. - Civil ActionNo. l:i4-cv-?2069

55 Case 1:14-cv DPG Document 93-2 Entered on FLSD Docket 08/16/2018 Page 6 of 20 EXHIBIT 1

56 Case 1:14-cv DPG Document 93-2 Entered on FLSD Docket 08/16/2018 Page 7 of 20