Case3:07-md SI Document7164 Filed11/15/12 Page1 of 10

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1 Case:0-md-0-SI Document Filed// Page of Francis O. Scarpulla (0) Craig C. Corbitt () Judith A. Zahid () Patrick B. Clayton (0) Qianwei Fu () Heather T. Rankie (00) ZELLE HOFMANN VOELBEL & MASON LLP Montgomery Street, Suite 00 San Francisco, CA 0 Telephone: () -000 Facsimile: () -00 fscarpulla@zelle.com ccorbitt@zelle.com Joseph M Alioto (0) Theresa D. Moore () THE ALIOTO FIRM Bush Street, th Floor San Francisco, CA Telephone: () -00 Facsimile: () -00 jmalioto@aliotolaw.com Co-Lead Class Counsel for Indirect-Purchaser Plaintiffs IN RE TFT-LCD (FLAT PANEL) ANTITRUST LITIGATION This Document Relates to: Indirect-Purchaser Class Action UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No. :0-md- SI CLASS ACTION INDIRECT-PURCHASER PLAINTIFFS OPPOSITION TO MOTION FOR PROVISIONAL AWARD OF ATTORNEYS FEES TO COUNSEL FOR OBJECTORS GERI MAXWELL, AND MARIA, WAYNE AND Hearing Date: November, 0 Time: :0 p.m. Courtoom: 0, th Floor The Honorable Susan Illston MDL :0-md- SI

2 Case:0-md-0-SI Document Filed// Page of 0 0 I. INTRODUCTION George W. Cochran, counsel for objector Geri Maxwell asks the Court to grant provisional approval of attorney s fees representing a reasonable multiplier of his final lodestar, as determined by the aggregate awards paid to class members in excess of their claim value, for deduction from the common fund prior to final distribution of claims. Dkt. 0. He also requests that the Court reimburse his total costs incurred and give incentive awards for each Maxwell Objector in the amount of $00. Id. As a threshold matter, Cochran s sole remaining objector, Geri Maxwell, lacks standing to object the one product she improperly bases her standing on is a plasma television received as a gift. Even assuming arguendo that Maxwell has standing to object, Cochran s motion for fees is without merit. Cochran correctly recognizes that any award of attorney s fees to counsel for an objector, and by extension any incentive award to the objector, requires a finding by the court that the objection result[ed] in a tangible benefit to the class. Id. at. Cochran claims that he is responsible for increasing awards to class members up to three times their actual damages. Id. at (emphasis in original). To reach this conclusion, Cochran requests this Court to make the following factual findings:. That Plaintiffs entered into settlement agreements that capped class members pro rata recoveries from the settlement funds at their estimated single damages: That initial awards [to class members] would not exceed actual damages is evident from the [settlement] agreements. Id. at. 0 Cochran previously represented former objectors Maria Marshall, Wayne Marshall, and Gerri Marshall, but those objectors have subsequently withdrawn their objections. Dkt.. On November th, at the proverbial th hour before this filing, Cochran advised the IPPs that Ms. Maxwell now wants to make a claim based on a laptop computer purchase that she has never previously disclosed during the course of Court-ordered discovery. The IPPs have been provided no evidence, and the sworn testimony of Ms. Maxwell at her deposition stating that she is claiming class membership based solely on a plasma-display television purchased by her son has not been controverted by declaration or any other evidence. Regardless of this desperate attempt to salvage Ms. Maxwell s standing as a class member, the substance of her objections remains meritless, and the Cochran fee motion should be denied. MDL :0-md- SI

3 Case:0-md-0-SI Document Filed// Page of That the settlement notice approved by the Court on January, 0 (DN ) provided that [c]learly the maximum award payable could not exceed the claim s actual value. Id. at.. That after the Maxwell Objectors registered a timely objection to any cy pres distribution of excess funds without trebling damages to successful claimants... Plaintiffs motion for final approval perpetuated the status quo (DN 00 at ). Id. at 0.. That [d]ays before the [May, 0] hearing, Joseph Alioto, co-lead counsel for the IPP class, called Cochran to concede the legitimacy of the trebling argument and that during this call, Alioto showed a clear change of heart about fully compensating the class. Id. at 0; emphasis added.. That until [Mr. Alioto] read [Cochran s] objections, he did not change his position. Id.. That the concession to trebl[e] the class awards was a dramatic aboutface on Alioto s part in which Cochran played a pivotal role. Id. There is simply no evidence in the record to support any of Cochran s factual assertions. Indeed, the evidence supports the contrary finding that there was never a settlement agreement or plan of distribution that capped claimants recoveries at single damages. II. BACKGROUND FACTS Cochran s only remaining objector, Geri Maxwell, lacks standing to object. Last week, she testified that the only product she bases her standing on is a plasma television received as a gift: Q. Well, let's turn to page of the document production. This appears to be a screen shot from a Best Buy customer account... * * * Q. There is a reference here to a Maxent monitor. Are you familiar with this monitor? A. Yes. Q. Whose monitor is it? A. It's my monitor. Q. Okay. And is this the product that you are basing your claim in LCD upon? A. Yes. Q. Are there any other products that you purchased that you're basing your claim on? A. No. Q. This is the only one? MDL :0-md- SI

4 Case:0-md-0-SI Document Filed// Page of A. Yes. * * * Q. Does that arrow point to the line that says --00, sale, Maxent -inch HD plasma monitor? A. Yes. Q. And that is the monitor -- or we've also referred to it as a television -- that you are basing your claim in this case on; is that correct? A. Yes. Maxwell Tr. : :, : (emphasis added) (Rankie Decl. Ex. ); see also id. at : : (Maxwell s testimony that her son, Darryl Maxwell, gave her the television as a Christmas present). Additionally, Cochran s statements regarding conversations he had with co-lead class counsel Joseph M. Alioto are false and misleading. The attached declaration of Mr. Alioto clarifies the misstatements made by Cochran. III. ARGUMENT A. COCHRAN S SOLE REMAINING OBJECTOR, GERI MAXWELL, LACKS STANDING TO OBJECT OR OTHERWISE SEEK RELIEF As an initial matter, Objectors Maria, Wayne, and Gerri Marshall have withdrawn their objections pending before the Court. Dkt.. Cochran has no basis to move for relief or otherwise appear on their behalf. Moreover, Objector Maxwell lacks standing because she did not purchase an LCD product during the relevant time period. See Rule (e)() (permitting class members to make settlement objections). Maxwell testified that the only product she believes gives her standing to object is a plasma television. Maxwell Tr. : :, : (Rankie Decl. Ex. ). Plasma is a different technology than TFT-LCD and is not within the ambit of the settlements at issue. Moreover, Maxwell testified that: in 00, the plasma television was purchased on her son s credit Rankie Decl. refers to the concurrently-filed Declaration of Heather T. Rankie in Support of Indirect-Purchaser Plaintiffs Opposition to Motion for Provisional Award of Attorneys Fees to Counsel for Objectors Geri Maxwell, and Maria, Wayne, and Gerri Marshall. MDL :0-md- SI

5 Case:0-md-0-SI Document Filed// Page of 0 card as a Christmas present for her; her son indeed gave her the television; her son s account fell into arrears; and in 00, Maxwell paid off her son s balance in full to avoid repossession of the television. Id. at : :. Thus, Maxwell s receipt of a plasma television does not provide her with standing to object the television incorporates the wrong technology and was not purchased by her, but rather received as a gift. Because Maxwell lacks standing, and because the 0 0 Marshall objectors have withdrawn their objection, Cochran has no basis to appear in this action or move for any relief. B. COCHRAN S FEE MOTION IS WITHOUT MERIT. The Settlement Agreements Do Not Cap Class Members Recoveries or Dictate Any Aspect of the Distribution of the Settlement Fund to Class Members Cochran claims that upon reading Plaintiffs motion for approval of the first round of settlements in this litigation, he realized that no provision for trebling claimants award [sic] was contained in the original settlement... [and] that the initial awards would not exceed actual damages. Id. at -. Cochran asserts that this cap on claimants distributions is exemplified by paragraphs 0(e) and (f) of the Chimei agreement. Id. at. Neither paragraph 0 or any other paragraph of the Chimei Agreement contains any restriction of any sort on the amount a claimant can receive from the settlement proceeds. Rather, paragraph 0, whose heading is Escrow Account, deals with the setting up, maintenance and uses of the escrowed settlement funds, and the potential that failing final approval the majority of those funds would be returned to Chimei. Specifically, paragraph 0(e) discusses the division of the settlement fund between the governmental entities, represented by the To the extent Maxwell s payoff of her son s account might constitute a purchase, that purchase was on or after December, 00, a time well outside the class period at issue. Id. at :. The first round of settlement agreements were placed in the record as exhibits to the Declaration of Francis O. Scarpulla In Support of Indirect-Purchaser Plaintiffs and Settling States Joint Motion for Preliminary Approval of Combined Class, Parens Patriae, and Government Entity Settlements, dated December, 0, ( Scarpulla Decl. ) Dkt. -. The Settlement Agreement with Chimei Innolux Corporation is Exhibit A. The provisions discussed herein from MDL :0-md- SI

6 Case:0-md-0-SI Document Filed// Page of Settling States, and the IPP Damages Classes. The language quoted by Cochran is merely part of an introductory statement: The Settlement Fund shall be used for the payment of all monetary relief claims of the Settling Plaintiffs and the parties they represent in the Actions, subject first to the payment of attorneys fees and reimbursement of litigation expenses and costs in the Actions, including the costs of settlement administration. Scarpulla Decl. Ex. A at. There is nothing in this language that provides any indication of how the payment of all monetary relief claims will be accomplished. No inference that claimants recovery checks are to be capped at single damages can reasonably be drawn from this language. Similarly, paragraph (f) does not address or fix claimants maximum recoveries. Rather, it merely provides the manner in which the escrow account will be closed out if funds remain following the payment of claims: In the event any monies remain as residue in the Settlement Fund following all distribution efforts approved by the Court, the IPP Damages Classes and the Settling States shall move the Court for an order disposing of all such funds, including additional possible distributions to approved class claimants and/or cy pres distribution as approved by the Court. Id. (emphasis added). There is simply no factual basis for the conclusion that Plaintiffs bound themselves to settlement agreements that capped class members recoveries at single damages.. The Notice of the First Round of Settlements Did Not State, Provide or Infer That Claimants Recoveries Would be Capped at Single Damages On February, 0, this Court approved both the long and short forms of notice that were disseminated to members of the certified classes describing the first round of settlement agreements. At the time the Court approved these notices, no plan of distribution had been offered by Plaintiffs counsel. The only decision that had been made with regard to the distribution of the settlement funds was that it would be done on a pro rata basis. The totality of the Chimei Agreement are substantially similar if not identical to provisions in all of the settlement agreements executed in this litigation. Copies of these notices are attached to Indirect-Purchaser Plaintiffs Request for () Approval of Revised Forms of Notice; and () resetting Date for Fairness Hearing, filed February, 0, Dkt.. MDL :0-md- SI

7 Case:0-md-0-SI Document Filed// Page of the information provided in the notices on this subject was in the response, on page of the longform, to the question, How much money can I get? The notice said, Payments will be determined on a pro rata basis. This means it will be based on the number of valid claims filed as well as on the number/type of Flat Panel product(s) you purchased. Revised Long-Form Notice at, Dkt.. Nothing in this statement suggests that a class member s pro rata recovery would be subject to any cap or maximum, let alone limited to single damages. Nonetheless, Cochran asserts that this language coupled with the subsequent statement that It s possible that any money remaining after claims are paid will be distributed to charities, governmental entities, or other beneficiaries approved by the Court constitutes conclusive evidence that [t]he distribution plan failed to recognize that class members would be awarded treble damages if they prevailed at trial, and [a]s a result, hundreds of millions of settlement dollars belonging to class members would be directed to charity. Objectors Fee Motion at (all emphasis in original). That is simply not a reasonable interpretation of or inference to be drawn from the simple statement in the notice that the settlement distribution would be pro rata.. Plaintiffs Motion for Final Approval of the First Round Settlements Did Not State, Provide or Infer That Claimants Recoveries Would Be Capped at Single Damages Cochran contends that after he read the notice, he made a timely objection to the payment of any cy pres awards without trebling damages to successful claimants, which was ignored by Plaintiffs counsel. Id. at. The fact that he was ignored is demonstrated, he asserts, by the fact that Plaintiffs motion for final approval perpetuated the status quo, by which Plaintiffs presume he means continued to propose a single damages cap on class members settlement recoveries. Id. at 0. In reality, Plaintiffs motion for final approval of the first round of settlements states explicitly that there is no plan of distribution before the court, and simply reaffirms the decision to distribute the settlement proceeds pro rata: In conjunction with the approval process for the most recent agreements in principle with the AUO, LG Display, and Toshiba defendants, the IPPs and the Settling States will submit a plan of distribution for Court approval. The plan of distribution will explain how payments will be made pro rata, based upon the MDL :0-md- SI

8 Case:0-md-0-SI Document Filed// Page of products purchased. The plan of distribution will also state a minimum payment cut-off for class members (i.e., the smallest check amount that will be distributed to a class member). The IPPs will seek to disburse all available proceeds to members of the statewide monetary relief classes, with any residual amount disposed of through supplemental distributions to class members and/or cy pres distributions, as approved by the Court. This language makes no mention of Plaintiffs counsel asking the Court to approve any maximum cap on the amount that a class member could recover from the settlement fund, although it does disclose Plaintiffs intention that the plan of distribution provide for a minimum payment to those class members who submit claims. Plaintiffs motion for final approval of the first round of settlements provides absolutely no support for Cochran s contention that Plaintiffs counsel intended on May, 0, to cap recoveries at single damages and give hundreds of millions of dollars to charity. In fact, only the contrary inference is supported that Plaintiffs counsel intended all along to disburse all available proceeds to members of the statewide monetary classes. Id.. Joseph Alioto Did Not Change Have a Change of Heart, Do an About- Face or Abandon a Single Damages Cap on Recoveries in Response to Cochran s Pointing Out that at Trial Successful Antitrust Plaintiffs Are Entitled to Treble Damages Cochran s motion goes on a great length describing Joseph Alioto s alleged state of mind and intentions as he was, according to Cochran, convinced by Cochran s objections to have a change of heart and abandon his plan to give millions to charity in favor of fully compensating the class. Objectors Fee Motion at 0. Of course, all of the statements in the motion are the argument of counsel and not evidence. What might be evidence, assuming that it would fall into one of the exceptions to the hearsay rule, is a small portion of the supporting Cochran declaration, specifically where Cochran states that [o]n or about May, 0, he received a call from Joseph Alioto, during which Alioto stated that not a dime of settlement funds will go to charity without first trebling class awards! Id. &. However, nothing in that statement, assuming Indirect-Purchaser Plaintiffs and Settling States Joint Notice of Motion and Motion for Final Approval of Combined Class, Parens Patriae and Governmental Entity Settlements; Memorandum of Points and Authorities, filed May, 0, Dkt. 00 at. MDL :0-md- SI

9 Case:0-md-0-SI Document Filed// Page of arguendo that it was made by Alioto, establishes that at any time, Alioto intended to offer this Court a plan of distribution that would have capped class members settlement recoveries at single damages. This is also true of the inadmissible statements in Cochran s declaration characterizing Alioto as concede[ing] the legitimacy of the trebling argument (no surprise there) or promis[ing] to incorporate a trebling mechanism into the global settlement approved by the Court. Id. &. Neither of these characterizations of whatever Alioto actually said indicate a change of heart or position by Alioto. Both the characterizations and the alleged quotation in the declaration are fully consistent with an attempt by Alioto to convince Cochran that his objection was directed to a phantom problem. The only other evidence offered by Cochran in support of his assertion that it was he who convinced Alioto to forego capping class members recoveries at single damages is the fact that Alioto did not challenge Cochran s portrayal of events leading up to his decision to treble damages at the May, 0, fairness hearing. Objectors Fee Motion at. While under some limited circumstances, silence can be construed as evidence of assent, allowing opposing counsel to have the last word in a courtroom is not one of them. Leaving aside the fact that Cochran s colloquy with the Court was neither under oath nor a proffer of evidence, it would be very bad public policy and extremely detrimental to judicial efficiency if counsel were to fear that they would be bound as a matter of law to any fact asserted in an argument left undisputed. The fact that Alioto did not jump up and prolong the fairness hearing (at which the plan of distribution was not even being considered) by contradicting Cochran is irrelevant. It can not form the evidentiary basis for a finding that Cochran, not Plaintiffs counsel, is responsible for the proposed plan of distribution allowing class members to recover three times their estimated damages. /// /// /// /// MDL :0-md- SI

10 Case:0-md-0-SI Document Filed// Page0 of 0 IV. CONCLUSION Cochran s motion for fees and incentive awards must be denied because his remaining objector-client lacks standing to object to these settlements. His motion must further be denied because he has failed to establish that his objection conferred a benefit on the classes. 0 0 DATED: November, 0 #0v Respectfully submitted, /s/ Craig C. Corbitt Craig C. Corbitt Francis O. Scarpulla (0) Craig C. Corbitt () Judith A. Zahid () Patrick B. Clayton (0) Qianwei Fu () Heather T. Rankie (00) ZELLE HOFMANN VOELBEL & MASON LLP Montgomery Street, Suite 00 San Francisco, CA 0 Telephone: () -000 Facsimile: () -00 fscarpulla@zelle.com ccorbitt@zelle.com Joseph M Alioto (0) Theresa D. Moore () THE ALIOTO FIRM Bush Street, th Floor San Francisco, CA Telephone: () -00 Facsimile: () -00 jmalioto@aliotolaw.com Co-Lead Counsel for Indirect-Purchaser Plaintiffs MDL :0-md- SI