Case :-md-0-jm-jma Document Filed // PageID. Page of Joseph Darrell Palmer (SBN Email: darrell.palmer@palmerlegalteam.com Law Offices of Darrell Palmer PC 0 North Highway 0, Ste A Solana Beach, California 0 Telephone: ( -00 Facsimile: ( - Attorneys for Objectors Dallas Stephens and Trent Manbeck 0 0 In re JIFFY LUBE INTERNATIONAL, INC. TEXT SPAM LITIGATION This filing relates to: ALL CASES UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA Case No. :-md-0-jm-jma OBJECTIONS OF DALLAS STEPHENS AND TRENT MANBECK TO PROPOSED SETTLEMENT AND NOTICE OF INTENT TO APPEAR Date: February, 0 Time: 0:00 a.m. Court Room: Judge: Hon. Jeffrey T. Miller COME NOW, DALLAS STEPHENS and TRENT MANBECK ("Objectors" Class Members to this action, by and through their undersigned counsel, and hereby file these Objections to the Proposed Class Action Settlement, give notice of their counsel's intent to appear at the February, 0, settlement hearing, and request awards of an incentive fee for serving as unnamed class member objectors. Objector, DALLAS STEPHENS, represents to the court that he is a Class Member, qualified to make a claim for the proposed relief as set forth in the NOTICE OF CLASS ACTION SETTLMENT. The Certificate Number provided on the postcard notice is. CASE NO. -MD-0-JM-JMA
Case :-md-0-jm-jma Document Filed // PageID.0 Page of 0 0 Objector, TRENT MANBECK, represents to the court that he is a Class Member, qualified to make a claim for the proposed relief as set forth in the NOTICE OF CLASS ACTION SETTLMENT. The mobile number to which the text was sent is (last four digits only for purposes of personal security. I. THE COUPON PORTION OF THE SETTLEMENT IS FLAWED A coupon settlement is one where the relief is a discount on another product or service offered by the defendant in the lawsuit. True v. American Honda Motor Co., F. Supp. d 0, 0 (C.D. Cal. 00. This settlement is a coupon settlement. Although arguably there is a future value, it s only redeemable after months and requires the coupon to be submitted during a far off 0 day window that most people will forget. Coupon settlements, like these, are generally disfavored due to the three common problems they pose: they often do not provide meaningful compensation to class members; they often fail to disgorge ill-gotten gains from the defendant; and they often require class members to do future business with the defendant in order to receive compensation. American Honda Motor Co., F. Supp. d at 0 (citing Figueroa v. Sharper Image Corp., F. Supp. d, 0 (S.D. Fla. 00. For this reason, when a coupon settlement is proposed to the court, it must discern if the value of a specific coupon settlement is reasonable in relation to the value of the claims surrendered. Id at 00. All of these problems exist here; the non-cash benefit offered is a coupon for goods or services from any Heartland-owned Jiffy Lube store. This is not meaningful compensation because the coupon may not supply any value or benefit to many class members. Congress mandated either a $00 or $00 civil penalty payment for each violation of the TCPA the Act simply does not mention free oil changes. Neither class counsel nor defendant has submitted any evidence pertaining to customer loyalty or predicted the redemption rate. In addition, many of the class members may no longer live or work in the vicinity of a Jiffy Lube. This delay is obviously designed to reduce the number of cash redemptions and it will. Very few, if any, Class Members will determine it to be worthwhile to save this coupon on the hopes that they will remember to redeem it a year and a half later. For less than $ each, the Class Members will likely conclude they have better things to keep track of. CASE NO. -MD-0-JM-JMA
Case :-md-0-jm-jma Document Filed // PageID. Page of 0 These coupons also require Class Members to conduct business with Jiffy Lube, which ultimately benefits Jiffy Lube. Many companies offering oil changes frequently issue coupons discounting their services. The court should demand evidence of Jiffy Lube coupon offers and loyalty programs and expert testimony at the final approval hearing regarding the true value of these coupons. They cannot be combined with any Jiffy Lube offer, promotion, or discount The Class Action Fairness Act of 00 ( CAFA echoes these concerns about coupon settlements and instills a limitation on attorney fee awards in these cases: If a proposed settlement in a class action provides for a recovery of coupons to a class member, the portion of any attorney's fee award to class counsel that is attributable to the award of the coupons shall be based on the value to class members of the coupons that are redeemed. U.S.C.. But section p of the settlement agreement has no pro rata adjustment to the fees based on actual coupon redemption by the class. The court should require redemption rate expert testimony regarding redemption rates, or require such a provision in the settlement, which in approximately two years will determine the actual amount of fees. To date there is no evidence to support economic value of this settlement. II. A CY PRES PROVISION IS NEEDED In order to prevent the unjust enrichment of defendant, this settlement should include a cy pres 0 provision. Otherwise defendant is betting on a low redemption rate to relieve them of the true and proper measure of civil penalty the law demands. Defendant s economic condition should not influence the statute or the wrong committed, and a coupon scheme should not provide illusory damages. At least some portion of the unclaimed coupons should be distributed to or sold for the benefit of an appropriate cy pres recipient who in turn could provide indirect benefits to the class. III. THE FEE AWARD IS EXCESSIVE. In the Ninth Circuit when a common fund is created for the class, the court has the discretion whether to use a lodestar method or the percentage of the fund approach. In re Bluetooth Headset Prods. Liability Litig., F.d, ( th Cir. 0. Whichever option the court chooses, however, discretion must be used to arrive at a reasonable result. Id. Because of the nature of this settlement and its nebulous value, the lodestar approach should be adopted in this case. CASE NO. -MD-0-JM-JMA
Case :-md-0-jm-jma Document Filed // PageID. Page of 0 0 The court arrives at the lodestar figure by multiplying the number of hours reasonably spent on the litigation by a reasonable rate. Pennsylvania v. Delaware Valley Citizens Council for Clean Air, U.S., (. Class Counsel s lodestar is $,,0.. Next, the court may make adjustments to the lodestar figure using a multiplier if necessary to arrive at a reasonable fee. Blum v. Stenson, U.S., (. Class Counsel requests such a multiplier of.. multiplier. The Ninth Circuit is guided by several factors in deciding whether to award the requested Of the things this court must consider, the most critical factor is the degree of success obtained. Hensley v. Eckhart, U.S., (. A. The Amounts Involved and Results Achieved Class Counsel has done nothing more than given their assurance that the results they have achieved are excellent, but provided no factual evidence to support such claim. There is no evidence of what was at stake for Defendants, what value this settlement is in comparison to the value of a victorious jury verdict or the probable chances of such a verdict. Posner: One approach to evaluating the reasonableness of a fee request has been suggested by Judge [T]he judge could have insisted that the parties present evidence that would enable four possible outcomes to be estimated: call them high, medium, low, and zero. High might be in the billions of dollars, medium in the hundreds of millions, low in the tens of millions. Some approximate range of percentages, reflecting the probability of obtaining each of these outcomes in a trial (more likely a series of trials, might be estimated, and so a ballpark valuation derived. Reynolds v. Beneficial Nat. Bank, F. d, ( th Cir. 00. From these numbers, Posner suggests, the judge can translate his intuitions about the strength of the plaintiffs' case, the range of possible damages, and the likely duration of the litigation if it was not settled now into numbers that would permit a responsible evaluation of the reasonableness of the settlement. Id. ( the time and labor required, ( the novelty and difficulty of the questions involved, ( the skill requisite to perform the legal service properly, ( the preclusion of other employment by the attorney due to acceptance of the case, ( the customary fee, ( whether the fee is fixed or contingent, ( time limitations imposed by the client or the circumstances, ( the amount involved and the results obtained, ( the experience, reputation, and ability of the attorneys, (0 the "undesirability" of the case, ( the nature and length of the professional relationship with the client, and ( awards in similar cases. Kerr v. Screen Extras Guild, Inc., F.d, 0 ( th Cir.. CASE NO. -MD-0-JM-JMA
Case :-md-0-jm-jma Document Filed // PageID. Page of 0 0 Class Counsel has the burden to support their request for fees and costs. Fischer v. SJB-P.D., Inc., F. d, (th Cir. 000. A departure from the lodestar is only warranted in rare and exceptional cases. In re Bluetooth, F.d at. Here, the result is not exceptional, and Class Counsel failed to meet their burden demonstrating that it was. What has been presented to this Court is a coupon settlement with the opportunity for cash redemption if Class Members take the appropriate steps a year and a half from now to do so. This delay was surely designed to weed out most cash claims (other than attorneys fees. Further, the values of these coupons are grossly exaggerated, geographically discriminatory and utterly useless for many Class Members. No fee multiplier may be granted for at least months after final approval in order to review the redemption rate. B. Time And Labor Required. Much of the time billed to the Class was inefficient cumulative work sorting out who would be lead counsel in the MDL action. This battle provided no benefit to the Class and should not be billable to the class. The real work involved drafting the complaint, opposing the motion to dismiss and motion to compel arbitration, the minimal discovery and mediation. IV. JOINDER IN OTHER OBJECTIONS These Objectors adopt and join all other well pled, bona fide objections filed by other class members in this case, and incorporate them by reference as if they appeared in full herein. V. CONCLUSION For the foregoing reasons and all others presented at oral argument, Objectors respectfully request that the Court grant the following relief:. Upon proper hearing, sustain these Objections;. Upon proper hearing, enter such Orders as are necessary and just to adjudicate these Objections and to alleviate the inherent unfairness, inadequacies and unreasonableness of the proposed settlement and fee request; and /// CASE NO. -MD-0-JM-JMA
Case :-md-0-jm-jma Document Filed // PageID. Page of. Award an incentive fee to these Objectors for their service in improving the fairness of the settlement, and award a reasonable attorneys fee to their attorney. 0 0 Dated: December, 0 LAW OFFICES OF DARRELL PALMER PC By: /s/ Joseph Darrell Palmer Joseph Darrell Palmer Attorney for Objectors Dallas Stephens and Trent Manbeck CASE NO. -MD-0-JM-JMA