Jockers, et al v. Chiquita Brands Intl, et al

RESPONSE in Opposition re MOTION for Leave to Proceed in forma pauperis on appeal

S.D. Fla.February 26, 2008

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JOE SOLO, et al., Plaintiffs, v. CHIQUITA BRANDS INTERNATIONAL, INC., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION 05-61335-CIV JORDAN/TORRES Opposition to Owen F. Silvious’ Motion to Proceed In Forma Pauperis The Plaintiffs, Joe Solo, Tim McGraw, Jeannie Staman, and Dennis Coughlin (the “Plaintiffs”), by their Court approved class counsel, object to the motion of Owen F. Silvious’ (“Silvious”) to proceed in forma pauperis in Appeal No. 07-15894-D, pending in the United States Court of Appeals for the Eleventh Circuit. Silvious opted out of the class and is not even part of the class settlement to which he now purports to object. Thus, Silvious lacks any standing (or need) to appeal this Court’s approval of the class settlement. Silvious’ in forma pauperis motion is deficient; his planned appeal is frivolous and without merit as a matter of law, and his appeal is not filed in “good faith,” as evidenced by Silvious’ contemporaneous and self- serving settlement demands. See Fed. R. App. P. 24(a)(3) and 28 U.S.C. § 1915(a)(3). There is ample authority for this Court to deny Silvious’ motion. Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 1 of 63 STATEMENT OF FACTS 1. On July 24, 2007, the Court entered an Order preliminarily approving the settlement of this action with the settlement class defined in paragraph two of the Order. The settlement class included persons and entities that purchased bananas in 46 states and the District of Columbia, all of which may have in some form or other recognized the potential for “indirect” purchaser claims by ultimate consumers and others. The named Plaintiffs are residents of California, Kansas, Nebraska, and Tennessee, four of the 46 states included in the settlement class. The Court set the matter for a fairness hearing on November 16, 2007. [D.E. 96] 2. Plaintiffs, pursuant to the July 24 Order, notified the class of the settlement, including the time for filing objections or opting out of the class. According to the class notice, a notice of opt-out or objection had to be received by September 14, 2007. See D.E. 96, at ¶ 4 (approving form of notice to the class). 3. The parties, as required by the “Class Action Fairness Act,” (“CAFA”) 28 U.S.C. § 1715, notified the attorneys general of each of the 46 states included in the class and the Attorney General of the United States of the proposed settlement agreement. None of them objected to the settlement, as they were obligated to do by CAFA, if they had concerns for their respective citizens. 4. Owen F. Silvious, an inmate at the federal correction facility in Butner, North Carolina, sent a “notice” dated August 15, 2007, to the Clerk of the Court for the Southern District of Florida, opting-out of the settlement on “behalf of himself” and purporting to opt out 2 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 2 of 63 on behalf of “other individuals in the states of Virginia, West Virginia and North Carolina.” Exhibit 1, at 3-4 (Silvious’ opening brief in Appeal No. 07-15894-D). 1 5. On August 31, 2007, the Court entered an Order directing the clerk to file Silvious’ notice. The Court further stated in the Order that “Mr. Silvious … is advised that he cannot opt-out on behalf of any other individuals in the states of Virginia, West Virginia, and North Carolina. He may only opt out on his own behalf.” [D.E. 98] No Silvioous did not request reconsideration or appeal was made by Silvious to that Order. 6. Silvious claims, without any docket entry or other evidentiary support, that he sent to the Clerk of the Court for the Southern District of Florida, a September 11, 2007 letter “canceling” his earlier opt-out notice. Exhibit 1, at 3-2. Significantly, on September 19. 2007, Silvious filed a “Motion for Court to Disapprove Settlement Agreement as to Certain Class States Mentioned in Settlement Agreement,” [D.E. 101], referring specifically to his August 15, 2007 opt-out notice and the Court’s August 31, 2007 Order, but — notably —no where referring to his now claimed “cancellation” of his opt-out notice. 2 7. Contemporaneously, on September 25, 2007, Silvious sent a letter to counsel for the three Defendants threatening to file a class action on behalf of indirect purchasers in Virginia or West Virginia. [D.E. 104, ex. 1, 2, 3] Silvious closed his letter as follows: However, if you want to settle this matter without further court actions, I will agree to settle the matter if each of the named defendants will donate $100,000.00 to American Helping Hand Foundation through its Agent and mailed to the Agent to help 1 Silvious served his brief in the Eleventh Circuit on February 8, 2008. At that time, he had not paid the required filing fee of $455 and this Court has not granted any motion to proceed in forma pauperis. 2 Silvious’ September 11 letter was not sent to counsel of record and does not appear on the docket sheet for this action. 3 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 3 of 63 indigent persons, elderly persona (sic) and homeless persons. that (sic) would be a total of $600,000.00 and would be tax deductible. Defendants immediately notified the Court of this apparently self-serving settlement demand, filing a copy with the Court on October 11, 2007. 3 8. On November 9, 2007, pursuant to the Court’s July 20, 2007, Order, the Plaintiffs filed a “List of Objectors and Opt-outs,” identifying Silvious as an opt-out but also noting for the Court the objections he had made to the settlement. [D.E. 113]. 9. The Court held a fairness hearing on November 16, 2007. At the hearing, counsel for both the Plaintiffs and the Defendants identified Silvious as an opt-out, noting that he did also state an objection. See, e.g., Exhibit 2, at 16-20 (transcript of the fairness hearing). 10. On November 21, 2007, the Court entered an Order approving the class settlement. The Court also found that Silvious was an opt-out. [D.E. 119, at ¶ 12] 11. On November 28, 2007, Silvious sent another self-serving settlement demand letter, this time to all defense and class counsel, threatening to appeal the Court’s November 21 Order approving the settlement, unless payments by each of “Twenty Thousand Dollars [$160,000]” were made to a designee of Silvious’ choice. Because the appeal will cause all of you to expend additional fees and expenses, I am will tosettle (sic) this matter and withdraw the appeal once it is filed in exchange that each of the listed andm (sic) named attorneys and law firms pay Twenty Thousand Dollars [$160,000] tax free to an organization or person designated by me that will be used mostly to help indigent persons, elderly persons and homeless persons. I am even considering filing an action under the RICO Act against all the attorneys because of the massive fraud and misrepresentation .... Exhibit 3, at 2 (Letter to Susan L. Dolan from Owen F. Silvious, dated November 28, 2007). 3 The parties have not been able to identify this organization, and internet searches for any mention of this entity have been unsuccessful. 4 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 4 of 63 12. Silvious served his notice of appeal of the Court’s November 21 Order on or about December 10, 2007, but he did not pay the docket and filing fee of $455. [D.E. 121] On January 16, 2008, the Court of Appeals issued a DIS-1 (Dismissal notice, 14 days to correct default). 13. On January 11, 2008, Silvious sent to the Clerk of the Court for the Southern District of Florida, a letter enclosing four documents: (i) Application to Proceed Without Payment of Fees and Affidavit; (ii) Consent to Collection of Fees from Trust Account; (iii) Prisoner Trust Account Report; and (iv) Draft of Proposed Order for Judge to sign. Silvious asked the Clerk to place these documents under seal, which the Clerk did. [D.E. 127; see also D.E. 124] 14. The Court entered an Order on February 4, 2008, instructing the Clerk of the Court to unseal Silvious’ filing of January 11, 2008. [D.E. 126] 15. Silvious’ Consent to Collection of Fees from Trust Account, dated January 10, 2008, indicates that he is already involved in, and owes funds for another civil litigation in the United States District Court for the Northern District of West Virginia. [D.E. 127, see also D.E. 124] 4 16. On February 21, 2008, Silvious sent a third self-serving settlement demand threatening to file a brief in the United States Court of Appeals for the Eleventh Circuit within the next thirty to forty days, stating that he would be “willing to settle for the statutory damages stated in [his] brief,” and threatening litigation against counsel for “gross misrepresentations and 4 The United States District Court for the Northern District of West Virginia is currently deducting funds from Silvious’ account for payment of filing fees in the matter Silvious v. Midland Credit Management, Inc., et. al., Case No. 5:07-cv-00145. Silvious has filed suit against numerous debt collection agencies for violations of the Fair Debt Collection Practices Act. 5 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 5 of 63 fraud upon more than 100 million persons”. Exhibit 4 (Letter to Stuart Singer and Paul Kunz from Owen Silvious dated February 21, 2008). ARGUMENT 1. The Court Should Deny the Motion Because Silvious Lacks Standing Silvious’ motion to proceed in forma pauperis and without prepayment of fees should be denied because Silvious has opted out of the settlement and, therefore, has no standing to appeal this Court’s decision. Individuals who elect to opt out of a class action settlement are no longer parties to the settlement. An individual who chooses to exclude himself from a class action settlement loses standing to object to, or maintain an appeal of the approval of that settlement. See In re Brand Name Prescription Drugs Antitrust Litig., 115 F.3d 456, 457 (7th Cir. 1997) (“Having opted out of the class action, [opt outs] were no longer members of the class and so in no sense were parties. A nonparty has no right to appeal.”); see also In re Vitamins Antitrust Class Actions, 215 F.3d 26 (D.C. Cir. 2000) (holding opt out plaintiffs not entitled to challenge class settlement), In re Integra Realty Resources, Inc., 262 F.3d 1089, 1103 (10th Cir. 2001) (holding that “…[a]ppellants who opted out of the settlement lack standing to appeal”). Silvious opted out of this settlement in a letter dated August 15, 2007. [Ex. 1, at 3-4]. The Court acknowledged the opt out notice and filed it on behalf of Silvious on August 31, 2007. [D.E. 98]. Moreover, the Court listed Silvious as an opt out in its Final Approval of the settlement on November 21, 2007. [D.E. 119, at 4-5]. Silvious’ desire to opt out of the class settlement is clear from the record. In his capacity as an opt out, he cannot even claim to be injured by the settlement approval because he is not prejudiced by the Court’s action. Having chosen to exclude himself from the settlement, Silvious lost any standing to maintain this appeal. 6 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 6 of 63 Silvious claims that he sent a letter “canceling” his opt out notice on September 11, 2007. [Ex. 1, at 3-2]. There is no evidence of any such claimed cancellation. Indeed, the evidence is inconsistent with Silvious’ assertion. No such letter was docketed by the Court; no such letter was received by any of the parties, despite Silvious having sent other communications to the parties. Silvious did not file any motion or paper asking the Court to rehear its August 31, 2007 Order designating him as an opt out. The Court properly and rightfully designated Silvious as an opt out in its Order approving the settlement. 2. The Court Can Deny Silvious’ Motion if the Appeal is not in Good Faith or is Frivolous Even if treated as an objector, Silvious’ motion to proceed in forma pauperis was not filed in good faith, and is a frivolous attack on the settlement between the class of indirect purchasers and the Defendants in this case. “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). This same requirement is embodied in Fed. R. App. P. 24(a)(3), which states that a district court may deny a motion to proceed in forma pauperis if it “certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis...”5 The Prison Litigation Reform Act (“PLRA”) of 1995, Pub. L. No. 104-134, added language to 28 U.S.C. §1915, stating “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that … the action or appeal is frivolous or malicious.” 28 U.S.C. § 1915(e)(2). Childs v. Ortiz, 2007 WL 4455759 (10th Cir. 2007) (PLRA provisions in 28 U.S.C. § 1915 were enacted to “reduce 5 This section of Rule 24 deals with appellants who had prior approval in the District Court trial to proceed in forma pauperis. It is, however, in accord with the principles stated throughout the rule. See, e.g., Fed. R. App. P. 24(a)(4). 7 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 7 of 63 frivolous prisoner litigation.”). Silvious’ attempted appeal falls into the category of frivolous litigation that the PLRA was specifically designed to prevent. Even if the Court finds Silvious’ allegations of poverty to be true, it should deny his in forma pauperis application based on the frivolous and bad faith nature of his appeal. Silvious has demonstrated his lack of good faith from his first filing. At the time he objected to the certification of this settlement class, he sent an extortion letter to counsel for the Defendants, ransoming the settlement approval in exchange for a donation ($600,000) to an organization that does not appear to exist. (Facts ¶ 7) Then in his notice of “intent” to appeal, he accused counsel of fraud and misrepresentation, but also offered to drop his appeal for $160,000 stating “my appeal that will cause a delay in the action ….” (Exhibit 3) Most recently, Silvious wrote counsel on February 21, 2008, threatening to file a brief in the United States Court of Appeals for the Eleventh Circuit within the next thirty to forty days; stating that he would be “willing to settle for the statutory damages stated in [his] brief,” which he claims amount to seven thousand dollars; and threatening litigation against counsel for “gross misrepresentations and fraud upon more than 100 million persons” if his demands are not met. (Exhibit 4) In his attempt to further delay the settlement, Silvious did not serve the instant motion on counsel and asked that his motion be filed under seal, without submitting any motion requesting permission to file under seal and without stating any justification for his request. See Local Rule 5.4. As an opt-out, Silvious is in no way prejudiced by the Order Approving Final Judgment. [D.E. 119] His appeal is no more than an attempt to use frivolous grounds to hold up an arms’ length negotiated and unobjectionable class settlement on behalf of indirect banana purchasers unless a personal benefit is conveyed upon him. The terms of the settlement were published in USA Today, circulated in all fifty states, and read by millions of subscribers. Additionally, in 8 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 8 of 63 accord with the Class Action Fairness Act, counsel notified the United States Attorney General and the Attorney Generals of all 46 states of the settlement and its terms. (Facts ¶¶ 2-3) The Court received only two responses to the Notices of Settlement in addition to Silvious’ initial opt-out. (Facts ¶ 10-12) Silvious’ filing cited no case law in support of his stated complaints about the scope of the settlement. Silvious did, however, tell counsel in this case — privately — that the only way to avoid his bad faith interference was to pay his desired “charity” immediately. Silvious’ attempt to delay this class-wide settlement, his attempts to extort funds from the Defendants and now class counsel, and his deceptive filing methods all underscore the bad faith behind this appeal. Additionally, as demonstrated below, Silvious’ “objection” is frivolous as a matter of established class action law and policy as reflected in the Class Action Fairness Act. When an appeal is “frivolous and malicious” on its face, a court can (and should) dismiss an in forma pauperis application, regardless of its conclusions about the allegations of an applicants poverty. 28 U.S.C. § 1915(e)(2). 3. The Court Should Deny the Motion Because it is Procedurally Deficient Further evidencing the bad faith motivating his frivolous appeal, Silvious’ motion, dated January 11, 2008, fails to answer properly many of the questions required on the “Application to Proceed Without Prepayment of Fees and Affidavit.” This Court may authorize the commencement of an appeal “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses…Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.” 28 U.S.C. § 1915(a); see also Fed. R. App. P. 24(a)(1), requiring appellants to file an affidavit in the district court stating inability to give security for fees and costs, claiming an entitlement to redress, and stating the issues the party plans to present upon appeal. The Court’s form additionally notes, “[a] Prisoner 9 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 9 of 63 seeking to proceed IFP shall submit an affidavit stating all assets. In addition, a prisoner must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in your institutional accounts.” [D.E. 127 (emphasis added)] Silvious did not attach the affidavit required by 28 U.S.C. § 1915, Rule 24 and the face of the application. He does not provide a statement of all assets in his possession, a statement of the nature of his appeal, or his belief that he is entitled to redress. Moreover, his motion is deficient in that his answers do not describe the nature of his employment in prison and the source of his income. For instance, Silvious does did not answer the required questions, “[a]re you employed at this institution?” and “[d]o you receive any payments from them?” [D.E. 127] He also does not answer the question requiring him to identify his last employer, salary, or wages.6 The missing information is relevant to determining Silvious’ ability to proceed in forma pauperis. Absent this information, the Court can (and should) deny the motion. 4. The Court Properly Certified the Settlement Class because the Class Meets the Criteria for Statutory and Article III Standing Silvious’ “objection” to the November 21, 2007 Order is that the Court erred in approving the settlement of the claims of indirect purchasers in 46 states and the District of Columbia because the named plaintiffs resided in only four of the states. Stated another way, he argues that the Court can approve a settlement class only as to those states for which the plaintiffs have named class representatives. Silvious’ argument ignores the importance of the Class Action Fairness Act, upon which this Court’s jurisdiction is premised in the first place. [D.E. 38, at ¶ 3 (Consolidated Amended 6 The precise language of question 3(b) is “If the answer is ‘No,’ state the date of your last employment, the amount of your take-home salary or wages and pay period and the name and address of your last employer.” Silvious answered “N/A.” [D.E. 127] 10 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 10 of 63 Class Action Complaint)] Here, the Plaintiffs have statutory standing under Fed. R. Civ. P. 23, and they also have Article III standing — injury in fact — sufficient to represent a class of all similarly situated persons, i.e. consumers in the 46 states that allow some form of indirect, consumer antitrust claims. Thus, the Court did not err in approving the settlement class. The Class Action Fairness Act of 2005 amended 28 U.S.C. § 1332 to add a new section (d). This section provides that this Court has jurisdiction over class actions when “any member of a class of plaintiffs is a citizen of a State different from any defendant” and the aggregate amount in controversy exceeds $5,000,000, exclusive of interests and costs. In passing CAFA, “Congress … envisioned that such claims — involving thousands of plaintiffs from many states — would now be litigated in a single forum.” In re OSB Antitrust Litig., 2007 WL 2253425 at *13 (E.D. Pa. 2007). The legislative history supports the notion that the Act was designed to allow nationwide resolution of otherwise individual state class actions. Just as a matter of public policy, wouldn't it be better that class action] cases be settled and handled in a Federal court, where the U.S. Supreme Court may ultimately decide an issue, as opposed to the plaintiffs being able to search 50 states and then finding the most favorable law and then find the county or circuit within that State that would be most favorable to their lawsuit and filing it there? The Class Action Fairness Act of 1999: Hearings before the S. Comm. on the Judiciary, Subcomm. on Administrative Oversight and the Courts, 106th Cong. 44 (1999) (remarks of Sen. Jeff Sessions); see also S. Rep. No. 109-14, at 5 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 6 (“Because interstate class actions typically involve more people, more money, and more interstate commerce ramifications than any other type of lawsuit, the Committee firmly believes that such cases properly belong in federal court.”); S. Rep. 109-14, at *57 (2005) (“Article III of 11 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 11 of 63 the Constitution ensures that there will be a fair, uniform, and efficient forum (a federal court) for adjudicating interstate commercial disputes, so as to nurture interstate commerce.”) To this end, CAFA added “notice requirements” to class action settlements. Thus, CAFA, codified at 28 U.S.C. § 1715, requires that each defendant participating in a proposed settlement notify the Attorney General of the United States, as well as the “appropriate state official” in every state in which a class member resides — not just the named class members — of details of the class action and the proposed settlement. See 28 U.S.C. § 1715(b)(1)-(7). The officials then have at least 90 days to decide whether they wish to take any action regarding the settlement. 28 U.S.C. § 1715(d). In this action, the Defendants sent the notices to the appropriate officials and no official objected to the proposed settlement. [D.E. 119] Even before passage of CAFA, the Supreme Court held that, in considering whether to approve a Rule 23 settlement class, the trial court should consider class certification before Article III standing. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), the Supreme Court was confronted with the question of whether “global settlement” class could be certified where some putative class members suffered no injury. Fibreboard — an asbestos manufacturer — and thousands of individual plaintiffs sought certification of a nationwide settlement class of persons who were injured from Fibreboard asbestos related products, as well as persons who had only been exposed to such asbestos-tainted products, but had yet to develop any symptoms or illnesses associated with such exposure. The district court certified the proposed settlement class and the Fifth Circuit affirmed. The Supreme Court found that “exposure-only” settlement class members were “without injury in fact and hence without standing to sue” individually. Id. at 831. The Court, however, held that, in the context of a global settlement, the “Rule 23 question [of class certification] 12 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 12 of 63 should be treated first because class certification issues are ‘logically antecedent’ to Article III concerns.” Id at 816., citing Amchem Prods. Inc. v. Windsor, 521 U.S. 591 (1997). Thus, the lower courts could — and, in that case, did — properly address the merits or propriety of (settlement) class certification before addressing the class plaintiffs’ individual standing to sue. In this regard, the Court reasoned that class certification issues “pertain to statutory standing,” not Article III standing. Id. (emphasis added). Here this Court did consider the “statutory standing” of the named Plaintiffs. The Court’s November 21, 2007 Order held that the “Settlement Class” should be certified under Rule 23(a)(1)-(4), 23(b)(3), and 23(e). Silvious has not challenged that holding. [D.E. 119, at ¶ ¶ 4, 7, and 9] The Plaintiffs also have Article III standing. The Plaintiffs all allege that they are indirect purchaser of bananas during the class period. [D.E. 38, ¶¶ 5, 7-9] Moreover, the Court found that their claims were typical of the claims of the absent class members. [D.E. 119, at 7(b), (c), and (e)] With these findings of fact and conclusions of law, the Court did not err in approving the settlement class agreement even though there was not a class representative from each of the 46 states and the District of Columbia. See, e.g., Payton v. County of Kane, 308 F.3d 673, 680, 682 (7th Cir. 2002) (following Ortiz, the court remanded the action for consideration of Rule 23 class certification, holding that if the two plaintiffs could represent the class against the counties in which they were jailed and bailed, then given the common nature of the legal issue, the class representatives could represent plaintiffs in the other 17 counties at issue); James v. City of Dallas, Tex., 254 F.3d 551, 562 & n.9 (5th Cir. 2001) (court affirms the holding in Ortiz in an 13 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 13 of 63 appeal of a class certification, holding that the named plaintiffs had statutory standing and Article III standing on some claims, but not others).7 No Eleventh Circuit case has specifically addressed whether a court may certify a multi- state indirect purchaser settlement class when there is not a class representative from each indirect purchaser state. In Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. 2000), and In re Terazosin Hydrochloride Antitrust Litigation, 160 F. Supp. 2d 1365 (S.D. Fla. 2001), the Court of Appeals stated that district courts must address the Article III standing of each named representative prior to reaching any decision on the merits of class certification. These cases are, however, distinguishable on their facts. Furthermore, neither case addresses the Supreme Court’s decision in Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). In Prado-Steiman v. Bush, 221 F.3d 1266 (11th Cir. 2000), the plaintiffs sought to certify a statewide — Florida — class of “[a]ll persons with developmental disabilities who are 7 The district courts are in accord. See, e.g., In re Relafen Antitrust Litigation, 221 F.R.D. 260, 268-270 (D. Mass 2004) (following Ortiz, the court rejects argument that certification was improper because there was not a class representative for each state for which plaintiffs asserted claims); In re Pharmaceutical Industry Average Wholesale Price Litig., 263 F. Supp. 2d 172, 193-94 (D. Mass. 2003) (court generally defers to Ortiz); Clark v. McDonald's Corp., 213 F.R.D. 198, 204-05 (D.N.J. 2003) (in an ADA action settlement class, following Ortiz and Payton v. County of Kane, holding that the Ortiz exception applies the court would consider the settlement class first, and then look at Article III standing; as long as one named class member has Article III standing on each issue, then there is standing in a constitutional sense); In re Buspirone Patent Litig., 185 F. Supp. 2d 363, 377 (S.D.N.Y. 2002) (following Ortiz and holding indirect purchases could bring a nationwide action although named plaintiffs represented only 15 states); Mowbray v. Waste Mmgt. Holdings, Inc., 189 F.R.D. 194 (D. Mass. 1999), aff’d, 208 F.3d 288 (1st Cir. 2000) (holding Illinois class representative could represent class members from other states when the prerequisites of Rule 23 were satisfied); see In re Remeron End-Payor Antitrust Litigation, 2005 WL 2230314 at *20-21 (D.N.J. 2005) (court approved a class-wide settlement over the objection that class members from states whose antitrust laws do not provide for the recovery of damage to indirect purchasers should not receive compensation, stating, “[a]n important part of a settlement like this one is that Defendants achieve “total peace” thus all potential plaintiffs must be compensated in order to preclude future litigation attempts and allow such a settlement to consummate.” (quoting In re Chicken Antitrust Litigation, 669 F.2d 228, 238 (5th Cir. 1982)). 14 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 14 of 63 presently receiving … or who are eligible” for various state Medicaid services. Id. at 1270. The named plaintiffs, developmentally disabled persons, alleged that they and unnamed class members were improperly denied various Medicaid services and asserted claims arising under ten different state and federal causes of action. The district court certified the proposed class. The defendants appealed, arguing that the “class d[id] not satisfy the commonality and typicality requirements because there [were] several class wide legal claims for which no named plaintiff possesse[d] Article III standing.” Id. at 1278. The Eleventh Circuit stated that standing should be addressed before considering the merits of class certification, and that “at least one named representative of each class [must have] standing for each proffered class claim.” Id. at 1280. Properly understood, however, and consistent with Ortiz, the Court was stating that the trial court must consider statutory standing under Rule 23 first, and that the proposed class did not possess the requisite typicality required by Rule 23(a). Id. at 1226. 8 Citing Prado, the district court, in In re Terazosin Hydrochloride Antitrust Litigation, 160 F. Supp. 2d 1365 (S.D. Fla. 2001), on a motion to dismiss, addressed the standing of “nominal” class representatives, in a multi-state indirect purchaser class action The court granted the defendants’ motion to dismiss the plaintiffs’ state law claims for which there was no class representative identified in the complaint; i.e., none of the named plaintiffs alleged purchases in the states under which the plaintiffs brought their claims. The situation before the 8 The court succinctly stated the issue as follows: All parties agree that some kind of class or classes should be certified, but Defendants contend that the single class certified by the district court was too broad. Defendants specifically assert that Plaintiffs have not demonstrated that the claims of the named class representatives possess the requisite typicality with the claims of the class at large as required by Fed. R. Civ. P. 23(a). We agree …. Prado-Steiman, 221 F.3d at 1267. 15 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 15 of 63 district court there is obviously distinguishable from this action where there are four indisputably qualified class representatives, particularly for a settlement class. There is no question that the named Plaintiffs have Article III standing and suffered the same type of injury that they allege on behalf of other unnamed class members. The named Plaintiffs are alleging that they were “overcharged” as a result of an illegal conspiracy and that is precisely the same injury for which they seek to represent the settlement class. 9 In sum, although the case law on Rule 23 is not always pellucid, Ortiz rests “on the long- standing rule that, once a class is properly certified, statutory and Article III standing requirements must be assessed with reference to the class as a whole, not simply with reference to the individual named plaintiffs.” Payton, 308 F.3d at 680. Stated differently, Rule 23 certification should be addressed first in those cases where it is the possibility of class certification that gives rise to the jurisdictional issue as to standing. See Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 333 n.2 (5th Cir. 2002). Applying that principle here, the Court’s November 21, 2007 Order Approving Settlement is correct. Accordingly, Silvious’ motion to proceed in forma pauperis is frivolous, without legal merit as a matter of law and can (and should) be denied. 9 The district court also cited Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987). There, the named plaintiff, a state correctional officer, asserted a claim of race discrimination on behalf of himself and others similarly situated based on disparate treatment in discipline and promotions. The named plaintiff, however, also asserted a claim on behalf of African American applicants for correctional department jobs, asserting that the correctional department’s “written entry-level examination” procedures were discriminatory. Id. at 1484. The district court held that the named plaintiff had standing to assert a claim on the basis of disparate treatment, but did not have standing to assert a claim, on behalf of himself or others, based on the department’s testing requirements because he was already an employee of the department. Thus, the named Plaintiff could not have suffered discrimination allegedly suffered by the class. Put another way, Griffin did not purchase a banana during the class period and therefore he could not represent a class of those who did. 16 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 16 of 63 5. At A Minimum, the Court Should Require Silvious to Post a Bond If the Court grants Silvious’ motion to proceed in forma pauperis, the Plaintiffs respectfully request, pursuant to Fed. R. App. P. 7, that Silvious post an appeal bond in the amount of $100,000, which represents anticipated expenses to be incurred as a result of (a) copying, binding and other reproduction costs on appeal ($5,000), (b) the delay in settlement administration ($5,000) and (c) prospective attorneys’ fees on appeal ($90,000). An appeal bond is appropriate in this case. This Court has granted final approval of this class action settlement that will result in the commencement of distribution of settlement benefits valued at approximately $2,500,000 to tens of thousands, if not hundreds of thousands of Settlement Class members across America. The only obstacle to getting these benefits into the hands of the Settlement Class members is the notice of appeal by Silvious, who previously opted out of the Settlement Class, purports (without any credible and indeed contrary evidence) to have opted back in and filed a subsequent objection, but has demonstrated no interest in the litigation other than to extort money from the class and defense counsel. According to statistics provided by the Federal Judicial Center, an appeal filed in the United States Court of Appeals for the Eleventh Circuit will take an average of nine and a half months from filing to disposition. To discourage unmerited appeals and to secure the parties costs on appeal, this Court is empowered by Fed. R. App. P. 7 to secure not only the parties reproduction and copying costs for the appeal, but to secure for the Plaintiffs and Settlement Class their delay damages, including re-notice and anticipated settlement administration expenses caused by a nine and half month delay, as well as projected attorneys’ fees on appeal. CONCLUSION For the foregoing reasons, Silvious motion to proceed in forma pauperis on appeal and without prepayment of fees should be denied. 17 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 17 of 63 Dated: February 26, 2008 Respectfully submitted, /s/ Susan L. Dolin Susan L. Dolin SUSAN L. DOLIN, P.A. 9000 Sheridan Street Suite 93 Pembroke Pines, FL 33024 Tel.: 954-862-2284 Fax: 954-862-2287 E-mail: sdolinlaw@aol.com Gordon Ball Ball & Scott 550 Main Avenue, Suite 601 Knoxville, TN 37902 T (865) 525-7028 F (865) 525-4679 E-Mail: gball@ballandscott.com Krishna B. Narine Law Offices of Krishna B. Narine 2600 Philmont Avenue, Suite 3400 Huntington Valley, PA 19006 T (215)782-3240 F (215) 782-3241 E-Mail: knarine@kbnlaw.com 18 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 18 of 63 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served by Electronic Mail and United States Mail on this 26th day of February, 2008 upon all parties set forth below. /s/ Krishna B. Narine Krishna B. Narine 19 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 19 of 63 Tefft W. Smith Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 T (202) 879-5212 F (202) 879-5200 E-Mail: tsmith@kirkland.com Attorneys for Defendants Chiquita Brands International, Inc. and Chiquita Fresh North America LLC Paul J. Schwiep (Florida Bar No. 823244) Coffey Burlington 2699 South Bayshore Drive, Penthouse Miami, FL 33133 T (305) 858-2900 F (305) 858-5261 E-Mail: pschwiep@coffeyburlington.com Attorneys for Defendants Chiquita Brands International, Inc. and Chiquita Fresh North America LLC Christopher T. Casamassima Kirkland & Ellis LLP 777 South Figueroa Street Los Angeles, CA 90071 Telephone: (213) 680-8353 Facsimile: (213) 680-8500 lbemis@kirkland.com Attorneys for Defendants Chiquita Brands International, Inc. and Chiquita Fresh North America LLC Owen F. Silvious 16497077 FCI-2 Butner P.O. Box 1500 Butner, NC 27509 Appellant Carlos M. Sires Paul Kunz Boies, Schiller & Flexner, LLP 401 East Las Olas Boulevard, Suite 1200 Ft. Lauderdale, FL 33301 T: (954) 356-0011 F: (954) 356-0022 E-Mail: csires@bsfllp.com Attorneys for Fresh Del Monte Produce Inc. and Del Monte Fresh Produce Company Marty Steinberg D. Bruce Hoffman Christopher N. Johnson Hunton & Williams LLP 1111 Brickell Avenue Miami, FL 33131 T: (305) 810-2500 F: (305) 810-2460 E-Mail:bhoffman@hunton.com msteinberg@hunton.com Attorneys for Dole Food Company, Inc. and Dole Fresh Fruit Company Kenneth Vianale Vianale & Vianale LLP 2499 Glades Road, Suite 112 Boca Raton, FL 33431 T (561) 392-4750 F (561) 392-4775 E-Mail: kvianale@vianalelaw.com Plaintiffs’ Co-Liaison Counsel Lawrence P. Bemis (Florida Bar No. 618349) 8850 Porter Loop Jackson, Wyoming 83001 T (307) 734-0279 E-Mail: Lawrence.Bemis@gmail.com Attorneys for Defendants Chiquita Brands International, Inc. and Chiquita Fresh North America LLC 20 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 20 of 63 EXHIBIT 1 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 21 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 22 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 23 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 24 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 25 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 26 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 27 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 28 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 29 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 30 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 31 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 32 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 33 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 34 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 35 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 36 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 37 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 38 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 39 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 40 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 41 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 42 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 43 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 44 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 45 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 46 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 47 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 48 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 49 of 63 EXHIBIT 2 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 50 of 63 f49375c7-5e2f-4fc4-97b1-053b097cb60e UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION JOE SOLO, ET AL., . Case Nos. 05-61335-CV-AJ . 05-21962-CV-MC Plaintiffs, . Miami, Florida . November 16, 2007 v. . 9:14 a.m. . CHIQUITA BRANDS . INTERNATIONAL, INC., . ET AL., . . Defendants. . . . . . . . . . . . . . . . . - - - - - Transcript of Fairness Hearing had before the Honorable Adalberto Jordan, United States District Judge. - - - - - Proceedings recorded by mechanical stenography, transcript produced by computer. FRANCINE C. SALOPEK, OFFICIAL COURT REPORTER (305)523-5568 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 51 of 63 f49375c7-5e2f-4fc4-97b1-053b097cb60e 2 (Pages 2 to 5) Page 2 APPEARANCES: For the Plaintiffs: Kevin B. Love, Esq. Joshua A. Migdal, Esq. Hanzman, Criden & Love, P.A. 7301 Southwest 57th Court, Suite 515 South Miami, Florida 33143 and Benjamin D. Brown, Esq. Cohen Milstein Hausfeld & Toll, PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 and Seth R. Gassman, Esq. Cohen Milstein Hausfeld & Toll, PLLC 150 East 52nd Street Thirteenth Floor New York, New York 10022 and Krishna B. Narine, Esq. Law Office of Krishna B. Narine 2600 Philmont Avenue, Suite 324 Huntingdon Valley, PA 19006 For the Defendants Lawrence P. Bemis, Esq. Chiquita: Laura Denton, Paralegal Kirkland & Ellis, LLP 777 South Figueroa Street Los Angeles, CA 90017 and Tefft W. Smith, Esq. Kirkland & Ellis, LLP 655 Fifteenth Street, N.W. Washington, DC 20005 and Paul J. Schwiep, Esq. Coffey Burlington 2699 South Bayshore Drive Miami, Florida 33133 FRANCINE C. SALOPEK, OFFICIAL COURT REPORTER (305)523-5568 Page 3 APPEARANCES (CONTINUED): For the Defendants Marty Steinberg, Esq. Dole: D. Bruce Hoffman, Esq. Hunton & Williams, LLP 1900 K Street, N.W. Washington, DC 20006-1109 and Christopher N. Johnson, Esq. Hunton & Williams, LLP Barclays Financial Center Suite 2500, 1111 Brickell Avenue Miami, Florida 33131-3136 For the Defendants Carlos M. Sires, Esq. Del Monte: Paul Kunz, Esq. Boies, Schiller & Flexner, LLP 401 East Las Olas Boulevard Suite 1200 Ft. Lauderdale, Florida 33301-2211 Court Reporter: Francine C. Salopek, RMR, CRR Official Court Reporter United States District Court 301 North Miami Avenue, Room 804 Miami, Florida 33128-7709 (305)523-5568 - - - - - FRANCINE C. SALOPEK, OFFICIAL COURT REPORTER (305)523-5568 Page 4 1 FRIDAY, NOVEMBER 16, 2007, 9:14 A.M. 2 THE COURT: Good morning. Please be seated. 3 MR. BEMIS: Good morning, your Honor. 4 THE COURT: This is the consolidated fairness 5 hearing for two cases. First Case Number 05-61335, Joe Solo, 6 et al., vs. Chiquita Brands International, Incorporated, 7 et al. And the second case is 05-21962, Brookshire Brothers, 8 Limited, et al., vs. Chiquita Brands International, 9 Incorporated, et al. 10 If I could please have appearances, starting with 11 counsel for plaintiffs in the two cases. 12 MR. LOVE: Good morning, your Honor. Kevin Love 13 from Hanzman, Criden & Love in Miami on behalf of the direct 14 plaintiffs. I'd like to introduce Ben Brown from Cohen, 15 Milstein in D.C. He'll be speaking on behalf of the directs 16 this morning. 17 MR. BROWN: Good morning, your Honor. 18 THE COURT: Good morning. 19 MR. LOVE: His partner, Seth Gassman, from Cohen, 20 Milstein in -- from New York. 21 MR. GASSMAN: Good morning, your Honor. 22 THE COURT: Good morning. 23 MR. LOVE: And on his side is Krishna Narine, who 24 represents the indirect plaintiffs. 25 MR. NARINE: Good morning, your Honor. Page 5 1 THE COURT: Good morning. 2 Okay. On the defense side? 3 MR. BEMIS: Good morning, your Honor. Lawrence 4 Bemis, Kirkland & Ellis. Your Honor, on behalf of Chiquita 5 Brands International and Chiquita Fresh North America, my 6 partner, Tefft Smith, who's in the seats behind us, and an 7 associate from our office, Laura Denton, as well as myself. 8 On behalf of Dole Food Company and Dole Fresh Fruit 9 Company, Marty Steinberg, sitting here at counsel's table -- 10 MR. STEINBERG: Good morning, your Honor. 11 MR. BEMIS: -- and Bruce Hoffman from Hunton & 12 Williams. 13 And on behalf of Fresh Del Monte Produce, Inc., and 14 Del Monte Fresh Produce Company, we have Carlos Sires and 15 Paul Kunz, your Honor. 16 MR. SIRES: Good morning, your Honor. 17 MR. BEMIS: Oh, and I forgot, Paul Schwiep from 18 Coffey, Burlington is also here on behalf of Chiquita, your 19 Honor. 20 THE COURT: Good morning to all of you. 21 The first thing I want to ask all of you is whether 22 or not you have received any notifications, since the time 23 that you filed all of the papers, about any other potential 24 class members opting out, objecting, or having anything else 25 to say with regards to the proposed settlements? Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 52 of 63 f49375c7-5e2f-4fc4-97b1-053b097cb60e 3 (Pages 6 to 9) Page 6 1 MR. BROWN: Your Honor, on behalf of the direct 2 plaintiffs, we're in regular contact with the claims 3 administrator here, and we have heard nothing from anybody 4 else. 5 THE COURT: Mr. Narine, how about on the indirect 6 side? 7 MR. NARINE: We've received no further notices, 8 other than what we filed. 9 THE COURT: All right. Thank you. 10 Mr. Bemis? 11 MR. BEMIS: On behalf of the defendants, 12 your Honor, I personally reviewed again all of the objections 13 against the notice of objections and opt-outs, and we have 14 nothing new that we can report. 15 THE COURT: Every once in a while things trickle in 16 even though they're after the date, so I ask just to make 17 sure. 18 All right. I have some questions -- I don't have 19 any real big issues with the settlements, but I have some 20 questions for you. 21 Let me just ask if there's anyone in the courtroom 22 who maybe hasn't filed anything, but has chosen to appear at 23 the fairness hearing to say something in support of or an 24 objection to the proposed settlements? Anyone out there? 25 (No response.) Page 7 1 THE COURT: No? 2 So, like I said, I don't have any real big issues 3 with final approval of the settlements. And after we 4 preliminarily approved the proposed settlement agreements, we 5 did some research to look into the type of settlement that 6 had been proposed in the indirect purchaser case, and there 7 is enough case law and authority out there approving that 8 sort of settlement so that I'm comfortable with it, even 9 though I don't think it's technically a cy pres settlement. 10 It differs in some significant ways from those sorts of 11 settlements. But nevertheless, I'm comfortable enough to 12 approve it, given that there have been no objections. 13 Let me talk about attorneys' fees, which is a 14 matter near and dear to all of your hearts. 15 I understand that, for example, on the direct 16 purchaser case, that the attorneys are getting a pool of 17 money, if it is approved, to then be distributed, and that 18 the amounts that have been charged and shown in filings are 19 not necessarily what are going to be compensated dollar for 20 dollar or hour for hour. Nevertheless, I have some 21 questions. 22 There are these things called "assessment 23 payments." I'd like to know what those are. 24 MR. BROWN: Yes, your Honor. 25 Assessment payments are essentially an advance on Page 8 1 litigation costs. When a leadership structure is put 2 together on the plaintiffs' side for a large and complex 3 litigation like this, the lead counsel will determine how 4 much money we need to have in the litigation fund in order to 5 pay experts, travel costs, deposition costs, et cetera, and 6 then determine, based on a series of things, including how 7 much commitment and how many resources the firms have on the 8 plaintiffs' side, how much money would be assessed to them to 9 put into a litigation fund. And then as expenses come due, 10 they're paid out of the litigation fund. Firms don't 11 always -- not all expenses go through the litigation fund, 12 but most do, and there's really no science necessarily to it. 13 At the end of the day, when a settlement is 14 reached, as we're putting forth our affidavits in support of 15 our expenses -- in this case what we had was a -- there's a 16 balance in the litigation fund. But there are more 17 outstanding bills. In other words, our -- sorry, I'm being 18 very inarticulate this morning. The expert in this case is 19 owed about $250,000 currently, and there's about a hundred 20 thousand dollars left in the litigation fund. And so, the 21 expenses that we'll receive, if your Honor grants our order, 22 will go first to pay any outstanding bills, and then to 23 reimburse every firm who along the way has incurred any 24 expenses, whether in the nature of assessments or otherwise. 25 But there won't be any -- it's not as though we're asking for Page 9 1 reimbursement for the assessment and then the underlying 2 expense, as well, which would be double-billing as it were. 3 THE COURT: Well, the reason I ask is because at 4 least some of the billing information that I've received -- 5 and if I'm wrong, you can just correct me -- for example, 6 there's a firm called Barrack, Rodos & Bacine. Their 7 expenses are over -- just over $80,000, but those include 8 $60,000 put in the escrow account. 9 MR. BROWN: That's correct, yes. 10 THE COURT: That's not being billed as an 11 assessment. I'm concerned that I'm missing something. 12 MR. BROWN: No, that money is held in escrow. So, 13 that is -- that -- that's just, I think, that they weren't 14 using the same terminology as the other firms. 15 THE COURT: I know. That's why I'm concerned. 16 MR. BROWN: I see. 17 THE COURT: You understand? I want to make sure 18 that I know what it is you're all talking about. And I 19 thought that special assessments might be something like 20 advances -- 21 MR. BROWN: That's correct. 22 THE COURT: -- to fund litigation. But then I 23 started seeing some billing records which indicated monies 24 put into escrow accounts, which are sometimes used to fund 25 litigation and for advance payment of expenses on some sort Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 53 of 63 f49375c7-5e2f-4fc4-97b1-053b097cb60e 4 (Pages 10 to 13) Page 10 1 of pro rata distribution basis. And so, I'm not sure that I 2 understand exactly how everyone has been talking -- 3 MR. BROWN: Okay. 4 THE COURT: -- in submitting their papers here. 5 MR. BROWN: I understand. 6 When we received expense reports from all the firms 7 that did work in this case, we checked their records against 8 the litigation fund records, which our firm was charged with 9 keeping, and we confirmed that everybody who said that they 10 paid money into the litigation fund, at whatever rate their 11 assessments were, we confirmed that that was, in fact, the 12 amount that was assessed the litigation fund. And since 13 there has been -- in different cases sometimes they've used 14 different terminology. They may just refer generally to 15 escrow fund, rather than litigation fund. We knew what they 16 were talking about, and we just -- I guess -- we should have 17 gone back and told them to resubmit this and call it the 18 litigation funds so there was no confusion for the Court. 19 I'm sorry we didn't do that. 20 THE COURT: So, these expenses put in by this firm, 21 which I'm just using as an example, are the same type of 22 things -- 23 MR. BROWN: That's correct, yes. 24 THE COURT: -- as the assessments. 25 MR. BROWN: Yes. Page 11 1 THE COURT: They're just using different 2 terminology. 3 MR. BROWN: That's correct. 4 THE COURT: Is there agreement amongst all of the 5 class counsel as to distribution of the attorneys' fees 6 component? 7 MR. BROWN: Well, we haven't made any final 8 determinations. As sole class counsel, we reserve the right, 9 with all the plaintiff firms involved in this case, to make 10 the final determinations. 11 We have tentatively, at least, informed everybody 12 that we intend to, in this case, distribute attorneys' fees 13 on basically a pro rata basis, without any multipliers or 14 different percentages applied to different people's lodestar, 15 and we've heard no objections. 16 THE COURT: Okay. 17 MR. BROWN: We've heard a couple requests that 18 people get more than the percentage that other firms have 19 gotten, but -- 20 THE COURT: Really? I'm just joking. 21 (Laughter.) 22 THE COURT: Let me just say, if there are issues 23 with regards to distributions later on, obviously I'll retain 24 jurisdiction to resolve them. 25 MR. BROWN: Yes, your Honor. Page 12 1 THE COURT: But let me just put you all on notice 2 right now that some of the hourly fees that I've seen here 3 are not hourly fees that I would allow. So, if it comes to 4 that, you better be ready to justify them. 5 MR. BROWN: Yes, your Honor. 6 THE COURT: Okay? So, when I see fees, you know, 7 getting over $700 an hour, then you better be God's gift to 8 the legal profession. So, if there are any problems about 9 distribution of the total amounts, and you're all fighting 10 about what you're worth on an hourly basis, then you better 11 be ready to come in here and justify fees on that sort of a 12 scale. I'm just letting you know. I don't have to approve 13 those right now, because you're getting a lump sum. 14 MR. BROWN: Yes, your Honor. 15 THE COURT: And I'm not awarding you a lodestar or 16 an hourly rate and hours given. I'm just telling you, tell 17 the rest of your counsel that if that dispute ever comes to 18 me, and people are fighting over those sorts of hours -- I'm 19 not talking about the other hourly rates, but if there are 20 people who are seeking 700, 750 an hour, be ready. 21 MR. BROWN: Yes, your Honor. 22 THE COURT: Be ready. Okay? 23 I think those are all the questions I had with 24 regards to Brookshire. 25 MR. BROWN: Thank you, your Honor. Page 13 1 THE COURT: So, I have some questions with regards 2 to Solo. 3 Mr. Narine, you're on the hot seat. 4 MR. NARINE: Yes, sir. 5 THE COURT: Some of the -- this is a small amount, 6 but, again, I want to make sure I understand exactly what's 7 going on. 8 There is a sum of other costs totalling 9 approximately $30,000. What is that? 10 MR. NARINE: I believe -- 11 THE COURT: What are "other costs"? 12 MR. NARINE: I believe that was the notice costs, 13 your Honor. 14 THE COURT: And why didn't you just tell me that? 15 MR. NARINE: Ah, I guess we -- 16 THE COURT: It would be very simple. When you say 17 something as general as "other costs," that just throws bells 18 off in my head about not knowing what in the world that is. 19 So, these are all costs related to the 20 distribution/preparation of the notice to class members. 21 MR. NARINE: And paying the claims administrator. 22 THE COURT: Right. For doing that. 23 MR. NARINE: Yes, sir. 24 THE COURT: And receiving communications and the 25 like. Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 54 of 63 f49375c7-5e2f-4fc4-97b1-053b097cb60e 5 (Pages 14 to 17) Page 14 1 Now, where are the incentive awards for the class 2 representatives coming from? I know they're a small amount, 3 but where are those coming from? From your fees? 4 MR. NARINE: No, sir. I believe in the settlement 5 agreement, we contemplated taking those from the $75,000 set 6 aside for expenses. 7 THE COURT: Okay. 8 All right. Let me ask you the same question that I 9 asked Mr. Love (sic). Have you come to an agreement with 10 regards to distribution of the attorneys' fees once they're 11 awarded in lump sum? 12 MR. NARINE: Our plan at this point is to pay 13 everyone a pro rata share of their lodestar, based strictly 14 on -- I guess the percentage is 60 percent, in other words, 15 the fees are 60 percent of the lodestar, and everyone will 16 receive 60 percent of their lodestar. 17 THE COURT: Okay. 18 All right. Again, I'll retain jurisdiction to 19 resolve any disputes among plaintiffs' counsel with regards 20 to distribution of the amounts, but I haven't gotten the same 21 sort of detailed records that I got on the other case from 22 the lawyers on your case. And you say you didn't do it for 23 strategic reasons, because you didn't want to give anybody a 24 strategic advantage of looking at your billing rates or what 25 work you had done or the like. But if there's a dispute, I'm Page 15 1 going to require all of you to file all of those records. 2 MR. NARINE: Understood. 3 THE COURT: And they'll be in the public record if 4 that happens, because I'm not doing it under seal. 5 MR. NARINE: Okay. 6 THE COURT: Okay? 7 MR. NARINE: Yes, sir. 8 Any further questions? 9 THE COURT: No, that's it. That is it. 10 Those are the questions I had. If anyone else 11 wants to say anything else or bring anything else to my 12 attention, I'm happy to hear you. 13 MR. LOVE: Your Honor, each side is prepared to 14 give a brief presentation, a little summary of the 15 settlement, but we know your Honor's read all the papers. If 16 you don't believe it's necessary, then we'll sit down, and we 17 really don't have anything else. 18 THE COURT: If you want to earn your fee and do 19 that, go ahead. I have time. 20 MR. LOVE: No, we don't think it's necessary, your 21 Honor. 22 THE COURT: I mean I preliminarily approved the 23 settlements. These final settlements are essentially the 24 same as they were, except for the fees and the costs. And 25 I've done independent research, especially on the indirect Page 16 1 case, to make sure that the settlement agreement was 2 something that was not out of the norm or out of the 3 ordinary, because it's not something you normally see. And 4 I'm satisfied that I should approve these. 5 And like I said, I had some questions about some 6 attorneys' fees and cost issues, but I think you've answered 7 those questions. 8 Mr. Bemis, anything else on the defendants' side? 9 MR. BEMIS: No, your Honor. The only comment I 10 would make is although your Honor said there weren't any 11 objections filed, there are in the notices. There were, I 12 think, three pro se documents that got filed that could have 13 been treated either as a notice or an objection, and I just 14 state that for the record. I'm sure your Honor has looked at 15 them, as we have. 16 THE COURT: The way I looked at them -- and if 17 we're talking about the same ones, I treat them as opt-outs. 18 MR. BEMIS: And, indeed, the one -- I think one of 19 them, which was Mr. Silva (sic), has clearly said he was 20 opting out, and then he filed some other paper, and it's a 21 little bit confusing. But I think he would be considered an 22 opt-out. 23 THE COURT: Let me just make sure we're on the same 24 page, then. Why don't you all tell me -- let's do them 25 separately. Page 17 1 Let's start with Brookshire. So, tell me what -- 2 and I'll go back and double-check the court records to make 3 sure we haven't missed anything. So, on Brookshire, tell me 4 what opt-outs you have listed. I know you submitted a list, 5 but I want to make sure that list is current. 6 MR. BROWN: Your Honor, it is identical to the list 7 that we submitted to the Court, and it is three companies: 8 Daggett Truck Line, Incorporated -- 9 THE COURT: Hold on. I'm writing them down as you 10 say them. 11 Daggett Truck Lines? 12 MR. BROWN: Correct. 13 THE COURT: Incorporated. Okay. 14 MR. BROWN: Costco Wholesale Corporation. 15 THE COURT: Okay. 16 MR. BROWN: And G.E. Forten Transport, 17 Incorporated (phonetic). 18 THE COURT: G.E. Forten, I'm sorry? 19 MR. BROWN: Transport, Incorporated. 20 THE COURT: Your records are the same, Mr. Bemis, 21 with regard to those? 22 MR. BEMIS: Yes, on the directs, yes, your Honor. 23 THE COURT: Okay. 24 All right. Then let's go to Solo, then. 25 Mr. Narine. Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 55 of 63 f49375c7-5e2f-4fc4-97b1-053b097cb60e 6 (Pages 18 to 21) Page 18 1 MR. NARINE: The opt-outs we have are Mr. Robert 2 Goode -- 3 THE COURT: Hold on one second. 4 MR. NARINE: Mr. Owen Silvious, and Mr. Charles 5 Brown. And we also have the notices that were filed by 6 Mr. Mason James, and one notice that was filed on behalf of 7 two individuals -- Tommy Elders and Mattie Carroll. 8 THE COURT: I don't remember seeing the one for 9 Mr. James. What was that about? 10 MR. NARINE: Mr. James filed a handwritten document 11 saying that he didn't like the settlement, essentially. I 12 believe -- I may even have a copy here with me. 13 THE COURT: If you just give me -- if you have the 14 docket entry number. 15 MR. BEMIS: I do, your Honor. 16 THE COURT: Mr. Bemis. 17 MR. BEMIS: It's 103, your Honor, and I have a copy 18 if you'd like to look at it now, but I do have it. 19 THE COURT: No, that's okay. We'll find them. 20 MR. BEMIS: It's 103. 21 THE COURT: And Mr. Elders and Mr. Carroll, or 22 Ms. Carroll? 23 MR. NARINE: Ms. Carroll, yes. 24 MR. BEMIS: Would your Honor like the docket 25 entries for those? Page 19 1 THE COURT: If you have it, that would be great. 2 MR. BEMIS: I do, your Honor. 3 Tommy Elders' docket entries, they're 99 and 106. 4 THE COURT: Okay. 5 MR. BEMIS: And the Mason ones, if your Honor would 6 like those, are -- there's three of them -- 103, 110, and 7 111. 8 THE COURT: Who is that one for, I'm sorry? 9 MR. BEMIS: That was Mason P. James. 10 THE COURT: Mason James, okay. 11 MR. BEMIS: And the only other one -- there was one 12 other one -- I don't know if it was mentioned -- was 13 Silvious -- 14 MR. NARINE: Silvious, yes. 15 MR. BEMIS: -- which is docket entries 101 and 16 104-1. 17 THE COURT: I mean I -- my clerk and I were looking 18 at them as they were sent in here, although they should have 19 been sent to the claims administrator, but we looked at them 20 as they came in, and I don't recall instinctively reacting to 21 any of them as objections, but rather opt-outs. But if 22 anybody thinks that they're any different, then tell me. 23 (No response.) 24 MR. BEMIS: Well, I think, your Honor -- Larry 25 Bemis again on behalf of the defendants. I think your Honor, Page 20 1 if I'm correct, actually did enter an order with regard to 2 Silvious, and I think it's docket entry 101, where you 3 treated his objection -- initially he opted out, and you said 4 he couldn't opt out and object. And then it's a little 5 confusing how it was going to be treated after that fact. 6 THE COURT: Okay. 7 MR. BEMIS: And then he filed, as you may recall, a 8 settlement demand on the defendants. He would withdraw his 9 objection or his opt-out if we paid him some money and what 10 have you, and we filed those notices with the Court. I 11 believe we sent him copies of some of the papers in the case. 12 And so, we've heard nothing further from him. 13 THE COURT: All right. I'll take a look at those 14 two just to make sure, and address them, of course, if need 15 be. 16 The last thing I need from you, if you have it -- 17 and if you don't have it right now, I'll get it from you 18 sometime later today -- if you have disks with regard to the 19 proposed orders? 20 MR. LOVE: Your Honor, I think I e-mailed it to 21 chambers. 22 THE COURT: Do you have it, Brenda? 23 LAW CLERK: No. 24 MR. LOVE: Can I e-mail it to you when I get back 25 to the office? Page 21 1 THE COURT: I would prefer a disk. 2 MR. LOVE: Okay. 3 THE COURT: Because I'm technologically challenged. 4 So, I would just prefer that you give it to me on a Word 5 Perfect disk. 6 MR. LOVE: Do you want it in Word Perfect? And do 7 you want it on a CD, or you want it on one of those little -- 8 THE COURT: Those doesn't matter. 9 MR. LOVE: Okay. 10 THE COURT: Whatever format you want to give it to 11 me is fine. But I would prefer -- it's -- we've had issues 12 with the CM/ECF system, and then being able to sometimes 13 convert e-mail into Word Perfect or Word. It doesn't always 14 happen, but we sometimes have those processing issues. So, 15 I'd rather just get a disk, or a CD, and just plug it into 16 the computer, make any changes, and do it that way. 17 MR. LOVE: No problem, your Honor. 18 THE COURT: Okay? 19 I'll get this out to you next week. Thank you very 20 much. 21 (Proceedings concluded at 9:38 a.m.) 22 - - - - - 23 24 25 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 56 of 63 f49375c7-5e2f-4fc4-97b1-053b097cb60e 7 (Page 22) Page 22 1 C E R T I F I C A T E 2 I certify that the foregoing is a correct transcript from 3 the record of proceedings in the above-entitled matter. 4 5 _______________________________________ ______________ 6 Francine C. Salopek, RMR, CRR Date Official Court Reporter 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 57 of 63 EXHIBIT 3 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 58 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 59 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 60 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 61 of 63 EXHIBIT 4 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 62 of 63 Case 0:05-cv-61335-AJ Document 129 Entered on FLSD Docket 02/26/2008 Page 63 of 63