UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI

Transcription

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI IN RE: PRE-FILLED PROPANE TANK MARKETING & SALES PRACTICE LITIGATION To The Honorable District Judge: Case No.: :0-MD--GAF OBJECTION TO PROPOSED SETTLEMENT, OBJECTION TO ATTORNEYS FEES REQUEST, NOTICE OF INTENTION TO APPEAR, AND REQUEST TO SPEAK AT THE HEARING Comes Thomas L. Cox, Jr. ( Objector ), and files these Objections to the Proposed Settlement, Objection to Attorneys Fees, Notice of Intent to Appear and Request to Speak at the Hearing through counsel, and would show as follows: 1 1. Objector is a class members Objector declares under penalty of perjury under the laws of the United States of America and Missouri that the following statements are true and correct: (a) I am a member of the class and reside at Tremont, Dallas, Texas. (b) On at least one day during the period from June 1, 0 and October,, I purchased propane cylinders from the Kroger Store located at E. Mockingbird Lane, Dallas, Texas and at Walgreens Store located at E. Mockingbird Lane, Dallas, Texas. I no longer have the receipt for any purchase. Those locations sells Blue Rhino. (c) I have or will file a valid claim form. 1 Case :0-md-0-GAF Document Filed 01//1 Page 1 of

2 (d) I object to the Settlement IN RE: PRE-FILLED PROPANE TANK MARKETING & SALES PRACTICES LITIGATION.. Notice of Intention to Appear and Request to Speak at the Hearing Objector may appear in person or by counsel at the hearing. Objector requests that he be allowed to appear at the final approval hearing to talk about these objections and to otherwise participate in the final approval hearing either in person or through his attorney.. Objection to Class Notice The definition of the class is not adequate and does not comply with due process or Rule. Rule and due process require that the class definition be precise, objective and presently ascertainable. To determine if an individual is a class member, a court must be able to do so by reference to the class definition and without inquiry into any sort of fact-finding. The class definition is improper for the reasons set out below. Because the class definition here (1) does not provide a precise, objective and presently ascertainable way to identify class members and () requires a mini trial to determine whether a particular person is in the class, the class definition is not appropriate and the Court should not certify the class. The class here is defined as: Any and all persons who purchased or exchanged one or more of AmeriGas propane gas cylinders, not for resale in the United States between June 1, 0 and October,. Case :0-md-0-GAF Document Filed 01//1 Page of

3 Thus the determination of who is in the class requires a mini trial of the proposed class member. Thus, class determination is not presently ascertainable. Here, defining the purported class as any and all person who purchased or exchanged requires addressing the central issue of the purchase to be decided in the case. Determining a membership in the class would essentially require a mini-hearing on the merits of each case. It is the inclusion of the factual finding requirement in the definition as to whether the tank was purchased or exchanged that causes the definition to be improper. The court would need to determine whether product was purchased and when and where. The fact that this is a settlement class does not provide for a lesser standard for the class definition. Whether the class is a litigation or settlement class, the definition must be precise, objective and presently ascertainable to comply with the due process in giving fair notice to potential class members as to whether they are covered by the judgment. Settlement may eliminate problems with manageability, but it does not eliminate the due process requirement for providing a valid definition of the class. Because the class definition is deficient, the court should not certify the settlement class nor approve the settlement or the requirement that objectors must furnish proof of purchase to speak at the hearing.. Objections to the Settlement While it is possible to obtain a cash settlement of up to $ if a class member is able to submit a cash register receipt, it is unlikely that more than a handful of class members will have cash receipts for the purchase of propane tank products for a period of between and months ago. Because of the difficulty in providing adequate proof of purchase, the result is a minimum payment of $.0 to each class member. Case :0-md-0-GAF Document Filed 01//1 Page of

4 The settlement is not fair, reasonable or adequate and Objector objects to the proposed settlement for the following reasons: First, I object to Paragraph 1 of the Court s Preliminary Order Approving the Settlement Agreement which requires any objector to submit proof of purchase with the objection. I no longer have the receipt and will to attempt to obtain one from my credit card company or the store. The cylinders sold by Kroger and Walgreens are generally sold for $. plus tax. While I may still be able to file a claim, this provision purports to deny me, a class member, of my right to object to what I believe to be an unfair and unreasonable settlement. This provision denies me due process and attempts to restrict my rights as a class member to seek judicial review. Second, I object to Paragraph 1 of the Court s Preliminary Order Approving the Settlement Agreement because it attempts to restrict my right to object because it purposes to allow depositions to be taken of objectors with regard to the requirements of the Federal Rules of Civil Procedures. Third, Paragraphs 1-1 of the Preliminary Order Approving the Settlement Agreement are nothing but a poorly concealed attempt to exclude any class member from objecting to the Settlement. Fourth, because of the complex nature of the settlement, it is impossible to ascertain the amount to which the class is entitled. The Settlement Benefits And Allocation Plan. The class may receive up to $ million but it may be less. Further, depending on the amount of claims, the bulk of the initial payment, could be paid mostly in the form of Cy Pres payments to Low Income Home Energy Assistance Programs. Case :0-md-0-GAF Document Filed 01//1 Page of

5 Fifth, while Cy Pres payments are preferable to returning the unclaimed funds to Defendants, a result which provides limited payments to class members (most likely the $.0 payment) with the bulk of the settlement funds to Cy Pres. This is unfair to the remaining class members. Sixth, the amount of the proposed fees in relation to the alleged benefits to the class renders the settlement amount unfair and unreasonable. The amount of the proposed attorneys fees is an integral element in determining whether the settlement is fair, reasonable and adequate. Seventh, the proposed settlement is unfair, in that settlement fund of Million Dollars is illusory, and is a misrepresentation of the relief provided to the class members when the settlement agreement only requires Defendant to make a smaller payment to establish the Settlement Fund (Settlement Agreement, Paragraph..1 and the Defendant has only agreed to pay up to Twenty-five Million Dollars (Par.1 Settlement Consideration ). Defendant has no obligation to pay more than Million, and will do so if and only if, and only the extent that, the Settlement Fund is not sufficient to make the Settlement Payments described in paragraph...1. This Court should heed the Managing Class Litigation: A Pocket Guide for Judges admonition in Appraisal of Settlement that cautions: Your appraisal of the settlement should focus on the value actually distributed to the class- based on the number and percentage of class members who have filed a claim. As discussed below in Section IV. C., strict eligibility requirements and claims procedures often discourage class claims and might reduce the total amount paid to class members, making the stated value of the settlement fund illusory. Case :0-md-0-GAF Document Filed 01//1 Page of

6 Pocket Guide, at p.1. The stated value of this settlement fund is illusory, as Defendant is only obligated to pay claims up to Million dollars, and if the claims rate exceeds such amount, then only enough to pay claims up to Million Dollars.. Objections to the Fee Petition First; The proposed settlement is unfair, because it makes an award of attorney s fees in the amount of. Million Dollars excessive and improper when the value of the settlement is only Million Dollars, awarding a fee approximately 0% of the value of the settlement fund, where fees should be commensurate with the value or benefit given to the class. Second; The proposed settlement is unfair, because it awards Class Counsel Attorney s Fees without any regard to the actual number of claims filed. This Court should require the parties to disclose the claims data at or before the Fairness Hearing. Third; The Court should defer ruling on an award of attorney s fees until after the Fairness Hearing, and after the claims data is filed with this Court. This Court can easily make the calculation of the amount of attorney s fees to award once it review the claims data, which turn will show the true value provided to the class members, which will result in a fair award to Class Counsel. Objector objects to the request for fees to Class Counsel. As of the date of the filing of this objection, the fee petition is not on the settlement administrator s website. Attempting to restrict objections to the fee petition without allowing the time necessary to review it violates due process. Case :0-md-0-GAF Document Filed 01//1 Page of

7 While this is not a coupon settlement, the fees should be reasonably related to the payments to the class and not based on the Cy Pres funds which will probably constitute the bulk of the settlement funds. The Court should substantially reduce the requested attorneys fees and the fees should be linked to the actual payments to class members.. Joinder in Other Objections This Objector adopts and joins in all other well taken bona fide objections filed by other Class Members in this case, and incorporates them by reference as if they appeared in full herein. Relief Wherefore, Objector prays that the Court deny the proposed settlement, deny certification of the settlement class, deny the requested fees to Class Counsel and grant Objector such other and further relief as to which Objector may be entitled. /S/ Thomas L. Cox Thomas L. Cox Pro Hac Vice Texas Bar Card 000 Tremont Dallas, Texas (Fax) tcox00@yahoo.com /S/ John T. Davis John T. Davis Texas Bard Card 0 Tremont Dallas, Texas -0- johntdavis@johntdavis.info Case :0-md-0-GAF Document Filed 01//1 Page of

8 /S/ John Boyd John Boyd Missouri Bar Card Boyd & Kenter 1 Grand Boulevard, #00 Kansas City, Missouri (Fax) jbboyd@boydkenterlaw.com Case :0-md-0-GAF Document Filed 01//1 Page of

9 Certificate of Service I hereby certify that a copy of the above and foregoing document has been served by ECF filing on January, 1: Elizabeth A. Fegan Hagens Berman Sobol Shapiro LLP W. Lake Street, Suite 00 Oak Park, IL Peter W. Herzog III Bryan Cave LLP 1 North Broadway, Suite 00 St Luis, MO /S/ Thomas L. Cox Thomas L. Cox Pro Hac Vice Texas Bar Card 000 Tremont Dallas, Texas (Fax) tcox00@yahoo.com /S/ John T. Davis John T. Davis Texas Bard Card 0 Tremont Dallas, Texas -0- johntdavis@johntdavis.info /S/ John Boyd John Boyd Missouri Bar Card Boyd & Kenter 1 Grand Boulevard, #00 Kansas City, Missouri (Fax) jbboyd@boydkenterlaw.com Case :0-md-0-GAF Document Filed 01//1 Page of