UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
RAMONA TROMBLEY, et al.,
on behalf of herself and all others similarly
NATIONAL CITY BANK, et al.,
Case No. 1:10-CV-00232
The Honorable John D. Bates
PLAINTIFFS’ REPLY IN RESPONSE TO OBJECTIONS TO MOTION
FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FEE PETITION
Plaintiffs Ramona Trombley, Jeff Doehner and Brian Wells respectfully submit the following
response to the objections to final approval of this Settlement.
I. INTRODUCTION AND BACKGROUND
The reaction of the settlement class is an important consideration in evaluating the fairness,
adequacy, and reasonableness of a class action settlement.1 In this case, notice was provided to over
2.4 million Settlement Class Members. Dkt. No. 41-4, ¶ 26. As of July 9, 2011, only 74 Settlement
Class Members excluded themselves from the Settlement, and only ten objections were submitted.2
Three of these objections were filed by lawyers with agendas that do not coincide with the interests of
the class, and must, therefore, be considered in that light.3 The objections of the Plaintiffs’ Executive
1 See, e.g., Osher v. SCA Realty I, Inc., 945 F. Supp. 298, 305 (D.D.C. 1996) (“In evaluating the Class’ own reaction to the
settlement’s terms, courts look to the number and vociferousness of the objectors”); Luevano v. Campbell, 93 F.R.D. 68,
91 (D.D.C. 1981) (low number of objections “is an important indication of [settlement’s] fairness and adequacy”).
2 See Second Declaration of Hassan A. Zavareei in Support of Final Approval of Class Action Settlement (“Second
Zavareei Declaration”), ¶¶ 2-3, filed concurrently herewith as Exhibit 1.
3 See In re Initial Pub. Offering Sec. Litig., 728 F. Supp. 2d 289, 295 (S.D.N.Y. 2010) ( “I concur with the numerous courts
that have recognized that professional objectors undermine the administration of justice by disrupting settlement in the
hopes of extorting a greater share of the settlement for themselves and their clients.”); O’Keefe v. Mercedes-Benz USA,
LLC, 214 F.R.D. 266, 295 (E.D. Pa. 2003) (“Federal courts are increasingly weary of professional objectors”); Torrisi v.
Tucson Elec. Power Co., 8 F.3d 1370, 1378 (9th Cir. 1993) (noting that where only twenty objections were made from
group of 113,000 class members, the objectors who appealed but did not opt out could be viewed as “spoilers”); In re
Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197, 218 (D. Me. 2003) judgment entered, MDL
1361, 2003 WL 21685581 (D. Me. July 18, 2003) (“What is less frequently observed is that the [class action settlement]
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Committee (“PEC”) in the multi-district litigation (“MDL”) pending in Florida are brought to protect
the PEC’s interests in a separate lawsuit against PNC Bank (which was amended to include National
City customers after the Settlement) and the PEC’s later-filed lawsuit against National City.4
Objector Ana Rosen is represented by Theodore Frank, a recognized professional objector5 who has
repeatedly sought fee awards as compensation for his objections.6 Frank recently labeled plaintiffs’
class action lawyers as “parasites,” and is motivated by his political interests in stymieing class action
litigation.7 Finally, Sam Cannata is an attorney who has filed virtually identical objections in
numerous other cases. Cannata’s objections also contain arguments lifted word-for-word from the
PEC’s objections in this case and another overdraft fee settlement.
Excluding these three lawyer-driven objections, only seven Settlement Class Members
submitted documents that might be considered objections. Of those seven class member objections,
only three contain complaints about the substance of the Settlement. In light of the fact that over 2.4
million notices were mailed, and that over 172,000 claims have been submitted, this minuscule rate of
objection evinces broad support for the Settlement.
Substantively, the objections are insufficient to derail this excellent Settlement, which provides
significant and immediate compensation to those Settlement Class Members who elect to participate.
The pro se class member objections amount to contentions that they are entitled to a refund of all of
their overdraft fees together with related damages. As discussed below, complaints that a class
process provokes into action an interesting group of professional objectors, who seem to have a variety of agendas, some
not always apparent.”).
4 See, e.g., Rhonda Wasserman, Dueling Class Actions, 80 B.U. L. Rev. 461, 482 (2000) (“it is likely that class counsel in a
dueling class action, appearing on behalf of objectors, are also operating out of self-interest”).
5 See Dewey v. Volkswagen of Am., 728 F. Supp. 2d 546, 575 n.18 (D.N.J. 2010) (including Frank in list of lawyers
“described as ‘professional objectors’”).
6 See, e.g., In re: Apple Inc. Securities Litigation, 2011 WL 1877988, *4-6 (N.D. Cal. May 17, 2011); Lonardo v. Travelers
Indem. Co., 706 F.Supp.2d 766, 803-817 (N.D. Ohio 2010).
7Lonardo, 706 F. Supp. 2d at 785 (N.D. Ohio 2010) (“Class Counsel correctly point out that Mr. Greenberg’s brief [filed
by Frank] is ‘long on ideology and short on law’”); Brendan Kearney, The Deal Breakers: A look at professional class
action objectors in MD, The Daily Record, May 23, 2010 (Frank describing plaintiffs’ class action attorneys as
“parasites”); Karen Lee Torre, Challenging Cy Pres Scams, Connecticut Law Tribune, November 22, 2010 (“CCAF is a
non-profit, public interest law firm dedicated to bringing to light and challenging in court the misdoings of an unholy
trinity—the class action bar, special interest groups, and collaborationist jurists”).
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settlement does not provide enough compensation are not valid objections. The lawyer-driven
arguments are also without merit. The class definition properly represents the allegations in this case
that all overdraft fees associated with debit card transactions were unlawful. And the damages
calculation—based on the impact of high-to-low reordering—is appropriate because that is the
measure of damages that is most likely attainable in this case. The objections to the allocation plan
have already been rejected. In any event, the plan was well-devised, awarding greater reimbursement
to Settlement Class Members who were damaged by high-to-low reordering, the key unlawful
practice alleged in the Complaint. Although Frank argues that the fees should not be based on a
percentage of the fund (and alternatively that 22-25% is too high), that argument is counter to the law.
It is also counter to arguments Frank has made in other cases where he sought a percentage of his
purported improvement to settlements as a fee. The remaining objections are also meritless.
A. Settlement Class Member Objections
Seven Settlement Class Members who were not represented by attorneys submitted objections
to the Settlement. Most of these objections did not raise any substantive complaints about the
Settlement. And the other objections are insufficient to derail a settlement that has received such an
overwhelmingly positive response from the Settlement Class writ large.
1. Rochelle Williams condemned National City’s overdraft fee policies and then stated
that she does not believe the Court should approve the Settlement. She does not make any specific
complaints about the Settlement, and then concludes her objection by stating, “I give my rights for
Hassan A. Zavareei and Jonathan K. Tycko [Settlement Class Counsel] to represent me in this case.”
Second Zavareei Decl., Ex. B. This objection does not in any way indicate any flaws with the
Settlement. Indeed, it appears to be supportive of the Settlement.
2. Linda Bryan submitted a claim form together with a copy of a complaint she
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apparently filed against the Commonwealth of Pennsylvania having nothing to do with banking
issues. See Dkt. No. 41-1, at 24-78. She did not address the Settlement in any way, and did not state
any substantive objections to the Settlement. Id.
3. Elizabeth Garaux objected to the Settlement because she did not believe National
City’s conduct was improper: “I in NO WAY ever felt they were being dishonest about the way they
handled their overdraft fees. They at NO TIME moved our transaction times to benefit themselves.
That is why I would like to object to this settlement.” Dkt. No. 41-1, at 22. This sentiment may be
representative of the views of the Settlement Class Members who opted out or chose not to make
claims. It is not, however, an objection to the substance of the Settlement. As such, it does not
suggest that the Settlement should not be finally approved.
4. Kurt Vierling submitted a single hand-written letter stating, “I never bank at PNC,
their claims are true.” Dkt. No. 41-1, at 20-21. Mr. Vierling did not pose any substantive objections
to the Settlement.
5. Wayne Harris objected to “the way overdraft fees are being reimbursed.” Dkt. No.
41-1, at 23. Specifically, he complained that one overdraft fee can lead to returned checks, which also
leads to other “hidden expenses,” including the costs of buying money orders, travel costs, and harm
to his reputation. Id. Settlement Class Counsel are sympathetic to Mr. Harris’ complaints. Yet the
harm he complains of is very individualized, and was never the subject of this class action. To the
extent that Mr. Harris, or any other Settlement Class Member, suffered severe individualized damages
that were not capable of resolution through this Settlement, they were entitled to opt out and pursue
those claims individually. The failure to include such individualized damages in a class action
settlement does not render the Settlement unworthy of final approval.
6. Carlton and Mary Niemann explained in detail the manner in which National City’s
overdraft policies caused them serious financial difficulties, including emotional distress and harm to
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their credit ratings. Dkt. No. 41-1, at 79-80. They did not complain specifically about high-to-low
reordering. Instead, they complained that National City failed to credit their deposits to their account
(sometimes for “ENTIRE MONTHS”), which caused severe overdrafts. Id. They concluded their
letter by asking for “$9000 for pain and suffering.” Id. (emphasis in original). Again, Settlement
Class Counsel are sympathetic to the plight of the Niemanns. But their complaints relate to
individualized issues outside the scope of attainable class relief.
7. Julie and Tom Williams explained how National City’s failure to credit deposits
immediately caused them to incur numerous overdraft fees. See Second Zavareei Decl., Ex. C. They
stated that the purpose of the letter was to “thank you and request the full amount of overdraft fees
occurred [sic] from October 2009 to April 2011.” Id. They stated that because “there will be several
claimants that will not submit valid claims,” they “would like to submit more than just my two highest
months to make up for the amount that would be paid out to other class members.” They then listed
out the total number of overdraft fees they incurred in several months from 2009-2011, and requested
a “Total Refund” of $3,032. Id. To the extent that this is viewed as a complaint about the Settlement
(and it does not appear to be), it is “tantamount to complaining that the settlement should be ‘better,’
which is not a valid objection.” Browning v. Yahoo! Inc., 2007 WL 4105971 (N.D. Cal. Nov. 16,
2007), at *5. A settlement is necessarily a compromise, and a full reimbursement of all overdraft fees
is not a realistic settlement objective.
The most remarkable thing about these objections submitted by pro se Settlement Class
Members is that they do not raise any of the objections that the lawyer-driven objectors raise. They
do not complain about the plan of allocation. They do not complain about the breadth of the class
definition. They do not complain about the early resolution of this matter. And they do not complain
about the fee petition. All of these purported issues were readily ascertainable from the notices that
were sent to over 2.4 million Settlement Class Members. Yet they were not raised by any of the few
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pro se objectors. Settlement Class Counsel submits that the rank and file Settlement Class Members
did not raise these lawyer-driven objections because they are meritless.
B. Attorney-Driven Objections
1. Continuing Objections by the PEC
The objections of Robert Matos and Fernando Hernandez are the latest in a series of attempts
to derail this Settlement by the PEC. At the outset, it is important to note that these lawyers have
interests beyond those of the Settlement Class Members at stake. They represent tens of millions of
consumers in related litigation against dozens of other banks. They have settled one case—the
settlement with the Bank of America (“BofA”) which they tout here. See Dkt. No. 43-6. And it
appears to be important to their broader agenda to ensure that any settlements with other banks are
made under their aegis and under their terms. The PEC objected to two other overdraft settlements.8
Recently, the PEC moved the MDL court to enjoin a bank that was sued first in federal court from
settling a later-filed state class action.9 As a result, the settling parties agreed to have the MDL court
preside over that settlement.10 Settlement Class Counsel trusts that the PEC’s motives are based on its
belief that it has a responsibility—as the leader of the plaintiffs’ attorneys in the MDL—to exercise a
degree of control over other class action settlements because those settlements might impact the way
it is able to resolve the cases it has been appointed to litigate.
These may very well be noble motives. But they are not aligned with the best interests of the
Settlement Class. Thus, the PEC’s objections must be viewed in that light—especially since no pro se
Settlement Class Members (out of the 2.4 million given notice) made similar objections. See, e.g., In
re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 318 (3d Cir. 1998)
(holding district court did not abuse discretion by discounting “vociferous” objections of “litigants
8 Petrus, et al. v. Closson, et al., and Bank of America, N.A., 2009 WL 5191158 (Cal.App. 1 Dist.) (Appellate Brief);
Schulte, et al. v. Fifth Third Bank, Case No. 09-cv-06655 (N.D. Ill.), Dkt. No. 39.
9 See Case No. 09-md-2036 (S.D. Fla.), Dkt. No. 1608.
10 See Case No. 09-md-2036 (S.D. Fla.), Dkt. No. 1703.
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represented by counsel in cases that compete with or overlap the claims asserted in the Second
Amended Complaint”); In re Currency Conversion Fee Antitrust Litig., 263 F.R.D. 110, 132
(S.D.N.Y. 2009) aff’d sub nom. Priceline.com, Inc. v. Silberman, 405 F. App’x. 532 (2d Cir. 2010)
(holding objections of counsel in competing class action were “motivated entirely by self-interest and
of no utility to the Class”); Bruce D. Greenberg, Keeping The Flies Out Of The Ointment: Restricting
Objectors To Class Action Settlements, 84 St. John’s L. Rev. 949, 965 n.65 (2010) (discussing
authority regarding self-interested nature of objections by counsel with competing class actions).
a. The Class Definition Is Not Unduly Broad
The PEC objects that the Settlement Class definition is “overbroad.” The PEC only raised
this class definition issue now, after two series of written objections, after extensive oral argument,
and after notice has been mailed to over 2.4 million Settlement Class Members. Yet, the Settlement
Class definition has been clear from the beginning, and the supposedly “over-inclusive” nature of the
class definition was squarely addressed by the Court in its ruling granting preliminary approval. See
Dkt. No. 37, at 11-12. If the PEC took issue with this definition, it could have, and should have,
raised it before preliminary approval. In any event, this belated objection has no merit.
The PEC’s breadth objection is based on the false premise that “[t]his litigation does not
challenge the right of banks to charge overdraft fees to their customers.” (emphasis in original). Dkt.
No. 43, at 2. According to the PEC, this case is only about high-to-low reordering. Id. Thus, the
PEC concludes that, “the settlement class [which includes all customers who incurred one or more
debit-card related overdrafts] is defined so broadly as to have no relation to the claims pled by
Plaintiffs.” Id., at 6 (emphasis added). This is absolutely wrong. Plaintiffs alleged that Defendant
should not have permitted any debit card overdrafts without first notifying customers that they would
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overdraft their accounts if they completed the transaction. Dkt. No. 1, at 4-5.11 Because Plaintiffs
alleged that all debit card overdrafts are unlawful, the class definition is appropriate.
The PEC also complains that it is improper to analyze damages based on one claim (high-to-
low reordering) when the class definition covers many other claims. In fact, this approach is
perfectly appropriate. As the Court stated in its preliminary approval ruling, the pertinent inquiry is
the comparison of the Settlement amount to the “likely recovery that plaintiffs would realize if they
were successful at trial.” Dkt. No. 37, at 6 (citing Blackman v. District of Columbia, 454 F. Supp. 2d
1, 8 (D.D.C. 2006)). Although Settlement Class Counsel had asserted other claims, they believed that
they were more likely to prevail on the claims relating to high-to-low reordering—a belief
subsequently bolstered by the court’s ruling in Gutierrez v. Wells Fargo Bank, N.A., 730 F. Supp. 2d
1080 (N.D. Cal. 2010)12 and, as discussed immediately below, a recent overdraft fee settlement
entered into by the PEC in Tornes v. Bank of America, N.A., S.D. Fla. Case No. 08-cv-23323-JK
Valuing and settling a class action based on the class’ strongest claims is completely
appropriate, as evidenced by the Tornes Settlement. In that settlement, the PEC settled a large class
based on a damages analysis that only applied to small fraction of that class. In the Tornes case, the
PEC was confronted what it described as an “existential risk[.]” Dkt. No. 43-5, at 30. The risk related
to BofA’s earlier settlement of a class action brought by Rhonda Closson that covered any BofA
customer who incurred “at least one” overdraft fee related to a debit card transaction from December
11 This is consistent with the PEC’s posture in the MDL, where it has repeatedly argued that the debit card overdraft
litigation is not only about high-to-low reordering. See, e.g., PEC Opposition to Omnibus Motion to Dismiss, 1:09-md-
02036-JLK, Dkt. No. 265, at 64 (“While the Banks seek to cast the plaintiffs’ claims as relating only to the reordering of
transactions, that is only one element of the Banks’ abusive scheme to impose overdraft fees ‘not reasonably avoidable’ by
12 Compare Gutierrez Class Action Complaint, Case No. 07-cv-05923-WHA (N.D. Cal.), Dkt. No. 1 (plaintiffs seeking
class damages for all overdraft fees incurred when sufficient funds existed), with Gutierrez v. Wells Fargo Bank, N.A., 730
F. Supp. 2d 1080 (N.D. Cal. 2010) (post-trial order awarding damages based only on high-to-low reordering).
13 The PEC submitted the Tornes settlement agreement (Dkt. No. 43-6) and its motion for preliminary approval of the
Tornes Settlement (Dkt. No. 43-5) to its objections.
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6, 2000 to December 31, 2007 (“Closson Settlement”).14 The PEC objected to the $35 million
settlement, and appealed the final approval order. Id. at 13. The Tornes Settlement has an
overlapping class period of January 1, 2001 through the date of preliminary approval (May 24, 2011).
Dkt. No. 43-6, at 15. If the final approval of the Closson Settlement was upheld, it would “almost
eliminate” the damages of the class members in Tornes. Dkt. No. 43-5, at 29. The PEC therefore
settled Tornes based on a valuation of the damages for the post-Closson Settlement—even though the
Tornes Class definition included millions of customers from 2001-2007.
On that basis, the PEC argued that the $410 million fund in the Tornes Settlement represented
62% of what the PEC could have attained for those Tornes class members who were not within the
Closson class period—even though the Tornes Settlement actually includes all of the members of the
Closson class. Dkt. No. 43-5, at 30. To be clear, the PEC’s 62% figure is not based on the total
damages incurred by the entire class settled by the Tornes Settlement. Rather, it is based on the
purported damages of only a small segment of the class (those class members whose claims are not
settled by the Closson Settlement). Id. When the $410 million Tornes Settlement is applied to the
entire class covered by that settlement, it represents 12.4% of the damages caused by high-to-low
reordering (assuming the validity of the unsupported damages estimates in the PEC’s preliminary
The PEC explicitly declares that the reason for applying this 62% figure (when the Tornes
Settlement actually provides 12.4% of the class’ estimated damages) is that as a practical matter, that
is the measure of damages that the PEC believed were actually attainable. Thus, the PEC asked the
MDL court to evaluate the Tornes Settlement not on the full measure of damages it could have
14 See Petrus, et al. v. Closson, et al., and Bank of America, N.A., 2009 WL 5191158 (Cal.App. 1 Dist.).
15 According to the PEC’s motion for preliminary approval, the damages for the three-year non-Closson class period is
$660 million. Dkt. No. 43-4, at 26. The brief also claims that $660 million is approximately 20% of the damages for the
total ten-year class period. As such, the total damages for the entire class period are $3,300,000,000, and the $410 million
settlement is approximately 12.4% of the damages for the full class period covered by the Closson Settlement.
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attained in a perfect world, but upon a realistic assessment of the damages for those claims on which it
believed it was most likely to prevail. Settlement Class Counsel agrees with that approach, and
respectfully asks the Court to reject the PEC’s insistence on a different standard here.
The PEC’s argument regarding the breadth of the class definition is undermined further by
another aspect of the Tornes Settlement. In response to the Closson Settlement, the PEC initially took
the position (as it does here) that that settlement should not be approved because the class definition
(which includes all customers who incurred any overdrafts related to debit card transaction) was
broader than the relief sought. See Petrus, et al. v. Closson, et al., and Bank of America, N.A., 2009
WL 5191158, *32-37 (Cal.App. 1 Dist.). Yet, later, in order to secure a settlement in Tornes, the PEC
agreed to drop its appeal of the Closson Settlement and to “endeavor to seek the same from all other
Closson appellants[.]” Dkt. No. 43-6, at 26. In effect, as part of its settlement of the Tornes class, the
PEC incorporated a class definition that is functionally identical to the class definition in this case, and
acquiesced to the termination of the claims for those within that broad class definition.
The PEC made its best judgment in Tornes as to what it was likely to recover for the entire
class, and settled on that basis. And the PEC asked the MDL Court to “rely upon the judgment of
experienced counsel for the parties” in determining whether the value of the settlement was
appropriate in relation to the “likely benefits of a successful trial.” Dkt. No. 43-5, at 29 (quoting
Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977)). The Court should do no less here.
As noted previously, the “judgment of experienced counsel” in this case was driven in part by
the data available to the settling parties. Contrary to assumptions made by the PEC, the Settling
Parties could not “have identified those class members who incurred overdrafts as a result of the
reordering, as plaintiffs’ expert Arthur Olsen did in Gutierrez.” Dkt. No. 43, at 7. In declarations of
Settlement Class Counsel, Plaintiffs explained that National City was unable to obtain and provide
data sufficient to allow Settlement Class Counsel to identify only those customers who were charged
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overdraft fees due to reordering. See Dkt. No. 20, at 3; Dkt. No. 41-1, at 10. In light of the PEC’s
refusal to accept Settlement Class Counsel’s sworn statements on this issue, Plaintiffs recently
attained a verifying declaration from a representative of Defendant. See Declaration of Anthony J.
McIntyre (“McIntyre Decl.”), filed herewith as Exhibit 2.
These data limitations are well-known obstacles in overdraft litigation, and the PEC is aware
of the reality of such limitations. In the Tornes Settlement, the PEC claimed that “for the period
January 1, 2001 through September 30, 2003, BofA lacks data that would permit Settlement Class
Counsel and their experts to identify any of the Bank customers who were affected by its Debit Re-
sequencing practices during that period.” Dkt. No. 43-5, at 16. The PEC’s solution to this data
problem is to exclude these unknown Settlement Class Members from the benefits of the settlement
fund, and to revert some portion of the fund to a cy pres program.
Here, Settlement Class Counsel was able to attain a more inclusive set of data that closely
matched the Settlement Class definition. Rather than limiting the Settlement Class to customers who
were victims of reordering, Settlement Class Counsel elected to define the Settlement Class so as to
track the claims made in the Complaint. This was a fairly negotiated aspect of the Settlement that is
fair and reasonable.
b. The Plan of Allocation and Class Definition Work Together to Fairly
Compensate Settlement Class Members
As discussed above, the Settlement Class definition is the most practicable definition possible
consistent with the Complaint and the Settling Parties’ data limitations. Further, the plan of allocation
is designed to ensure that the Settlement Class Members with the relatively stronger claims (and
greater damages) have a greater share of the Settlement. The PEC claims that the Settlement Class
definition disadvantages the customers who were victims of the high-to-low reordering because they
must share the Settlement Fund with Settlement Class Members who incurred overdrafts not caused
by reordering: “the settling parties chose . . . to expand the class to the detriment of the truly injured
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 11 of 27
members.” Dkt. No. 43, at 8. This is wrong for two reasons. First, based on one of the claims in
Plaintiffs’ case, all Settlement Class Members were “truly injured.” The PEC’s own position in the
MDL (alleging that all debit card overdraft fees are unlawful) belie its contention to the contrary here.
Second, the Settling Parties designed a plan of allocation that properly favors Settlement Class
Members who had high numbers of overdraft fees in short periods of time, and are thereby more
likely to be victims of high-to-low reordering. The allocation is based on the Settlement Class
Members’ two months of the greatest number of overdraft fees. When overdraft fees are concentrated
over such a short period of time, it is more likely that some of those fees were the result of high-to-
low reordering. The plan of allocation thus provides compensation for all Settlement Class Members
who choose to participate, with greater compensation for those more likely injured by high-to-low
c. The Inclusion in the Settlement of Overdraft Fees Incurred by National
City Accountholders After Transition to PNC Is Appropriate
The Court already addressed the PEC’s argument that the Settlement somehow “disrupts” the
litigation of their MDL case against PNC Bank, which acquired National City and began to transition
the latter’s accountholders to PNC in late 2009. Dkt. No. 37, at 15 (“[t]he Court finds that the
Settlement will not adversely impact claims pending against PNC in the MDL litigation in a manner
warranting denial of preliminary approval.”). The PEC now repackages its objection as a complaint
about the purported lack of pre-settlement discovery that Settlement Class Counsel did with specific
regard to the post-transition overdraft fees. The PEC does not support this contention, nor does it
show how such discovery could have made a difference.
It seems that the PEC’s argument rests on the fact that the Zavareei Declaration refers to
information relating to National City and not PNC Bank. See Dkt. No. 43, at 7 n.3. Consistent with
the terms of the Settlement Agreement, “National City” means both National City and PNC. See Dkt.
No. 34-1, ¶1(m). Accordingly, the Zavareei Declaration makes clear that Plaintiffs were apprised of
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 12 of 27
total overdraft fee revenue at both institutions. Further, Settlement Class Counsel rightly understood
prior to Settlement that the post-transition subset of overdraft fees was a small percentage of overall
fees at issue in the case.
Based on this purported lack of information regarding PNC, the PEC also argues more
generally that Plaintiffs have not satisfied the Court’s request that they “explain in greater detail ‘the
significant factual investigation’ made prior to negotiating a settlement.” Dkt. No. 43, at 12 (quoting
Dkt. No. 37, at 10). The PEC fails, however, to address the extensive details provided by Plaintiffs in
their motion for final approval. See Dkt. No. 41, at 24-29.
d. The PEC’s Criticisms of the Expert Report Are Unfounded
The PEC makes several criticisms of the Expert Report of Jesse David, Ph.D. and Kevin
Christensen, Ph.D. (“Expert Report”). These criticisms are based either on mischaracterizations of the
Expert Report or on a refusal to accept the data limitations that exist in this case.
For instance, the PEC criticizes the Expert Report because it “relies on a sample of PNC Bank
data to estimate damages for National City customers . . . Even though the experts received some
account data information for pre-merger National City customers, they rely solely on post-merger
PNC Bank data to determine the effects of reordering.” Dkt. No. 43, at 11. This is false. Although
the account-level data came from a post-merger sample, that was merely a starting point for the
analysis. The results of the analysis of that sample data was applied to a database of “the total number
of electronic debit transactions and overdraft fees (including those for debit cards, check cards, ATM
and ACH transactions, and checks) for accounts held by a Class Member on a monthly basis from
August 2005 through August 2010.” Dkt. 41-3, at 5. Thus, the Expert Report was fundamentally
based upon hard data relating to overdraft fees incurred during the Class Period.
With respect to the sample of account-level data, David and Christensen specifically addressed
and controlled for the critical differences between overdraft practices prior to and after the merger:
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To estimate the fees that actually occurred we made two additional adjustments
related to the differences between the rules PNC and National City used to
determine overdraft fees. We understand that PNC instituted a limit of four
overdraft fees per day while National City had a limit of ten overdraft fees per day.
We calculated “actual” fees by predicting the number of overdraft fees in the
Sample Data under the assumption that the daily limit was ten. We also understand
that, for some customers, PNC charged $25 for the first overdraft fee in a given day
and $36 thereafter, while National City charged $36 for all transactions during the
day. In such cases in the Sample Data, we adjusted the “actual” fee from $25 to $36
in order to reflect the charges that would have been imposed during the Class
Period by National City.
Dkt. 41-3, at 8. The PEC does not address these controls.
The PEC also complains that the Expert Report does not calculate the total amount of
overdraft fees incurred by any class member “for any reason.” Dkt. No. 43, at 10 (emphasis in
original). This is simply another version of the PEC’s argument that the class definition is too broad,
which ignores both well-established class action practice and the PEC’s own settlement agreement
At bottom, the PEC’s quibbles with the Expert Report flow from the PEC’s refusal to accept
or address the data limitations in this case. This is another example of the PEC attempting to hold this
settlement to a higher standard than what it employed in the Tornes Settlement, as discussed below.
e. The PEC’s Criticism of the Claims Process Is Without Merit
The PEC again objects to the use of a claims process in this settlement, claiming that its claim-
free Tornes Settlement “demonstrates the feasibility of a direct distribution of settlement benefits to
Settlement Class Members without the requirement of self-identification.” Dkt. No. 43, at 14. This is
a vast overstatement, and the PEC’s “demonstration” came at an extremely high cost. Specifically,
because no data exists to determine and automatically distribute damages for Settlement Class
Members who incurred overdraft fees during a three-year period of the Tornes Settlement, all such
damages are essentially “off limits” to Settlement Class Members. Instead, 5-14% of the Net
Settlement Fund will purportedly be “directly distributed” to a cy pres fund. See Dkt. No. 43-6, at 30,
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 14 of 27
33. Instead of demonstrating the superiority of “direct distribution” to Settlement Class Members, the
Tornes Settlement demonstrates the harsh consequences of insisting on “direct distribution” when
perfect data does not exist.
Further, Objectors’ assertion that the claims process unduly burdens Class Members is
conclusively rebutted by applicable law. The Court recognized in its Preliminary Approval Order, the
use of a claims process to effectuate a class action settlement is common practice. Dkt. No. 37, at 12-
13. Lastly, Class Members’ excellent response to the settlement (over 172,000 claims so far)
indicates that the claims process did not discourage participation.
2. Rosen Objection by Attorney Theodore Frank
Attorney Theodore Frank claims that he is not a professional objector because he and his
Center for Class Action Fairness (“CCAF”) are not motivated by profits. Rosen Objection, at 2.16
Rather, Frank asserts, the CCAF is “focused on bringing objections to unfair class action settlements”
without engaging in “quid pro quo” arrangements. Id. The records of his prior objections (and
repeated requests for fees as a reward for his objections) tell another story.
For example, in In re Apple Inc. Securities Litigation, Frank sought a fee award amounting to
$2,800 per hour after he argued that his objections resulted in a $2.5 million addition to the total class
recovery. 2011 WL 1877988, *4. The court rejected Frank’s request, stating that it was “unclear how
drafting [Frank’s] limited submissions and making a few short court appearances would have required
so much time [104 hours]” on the part of Frank. Id., at *5. Ultimately, Frank attained an $87,000 fee
in that case by agreeing not to appeal the settlement. Id. (“Defendants’ counsel stated at the hearing
that Defendants would have no objection to utilization of these funds to pay a fee award to [Frank’s
client] Pezzati, on the condition that Pezzati waive his right to appeal the judgment, which Pezzati
16 As of the date of this filing, the Rosen Objection had not been filed with the Court. Although Settlement Class Counsel
is addressing these objections (having been served via email only), they do not waive any arguments regarding the
propriety of considering what appears to be a late-filed (or never-filed) objection.
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 15 of 27
agreed to do.”)
Whatever Frank’s motivations, his job is to object to class action settlements. And he seeks
legal fees (for CCAF, which pays his salary) for his objections.17 Accordingly, Frank is a professional
objector,18 and his objections must be viewed with appropriate skepticism. See Note 1, supra. Like
many of the other courts who have been faced with objections by Frank and/or the CCAF, this Court
should reject Frank’s boilerplate objections, which are “long on ideology and short on law.” Lonardo,
706 F. Supp. 2d at 785.
a. The Allocation Plan is Fair, Reasonable, and Aligned with the Core
Claims of the Case
Frank argues that the allocation of the Settlement Fund is objectionable because it is
“arbitrary” and “unrelated to the relative value of the individual class members’ claims[.]” Rosen
Objection, at 5. Contrary to Frank’s objection, and as this Court has already found in its
Memorandum Opinion Granting Preliminary Approval, the allocation plan is not arbitrary or
accidental. Dkt. No. 37, at 10-12. Rather, the plan is constructed to match class member recovery
with the relative strength of his or her claim.
Frank alleges that the allocation is flawed because “class members are being paid based on the
two months with the highest number of overdraft fees, not based on the first two months of overdraft
fees.” Rosen Objection, at 6. Yet, these “two highest months” capture the Settlement Class
Members’ strongest claims because the concentration of fees in a short period of time increases the
likelihood that a large portion of the fees are the result of high-to-low reordering.
Frank also argues that the allocation plan is unreasonable because some Settlement Class
17 It appears that CCAF finds its objectors by, among other things, soliciting them on its blog. See
results=7: (“If there’s a member of one of these two classes who would like to timely object to this potential rip-off, the
Center would be happy to represent them pro bono to vindicate the protections of Rule 23(h) in all class settlements.”).
18 See Greenberg, 84 St. John's L. Rev. at 950-51 (defining “professional objectors” as “attorneys who make their living by
objecting to class action settlements and extracting a part of class counsel’s hard-earned attorney fees or a payment from
the settling parties for compromising those objections”) (emphasis added).
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 16 of 27
Members are overcompensated while others are undercompensated. Rosen Objection, at 6. No class
settlement allocation can perfectly allocate damages, but the allocation plan here appropriately ensures
that those Settlement Class Members who have likely suffered the greatest monetary damages as a
result of high-to-low reordering are awarded the largest recoveries.
b. Frank Has Not Submitted Any Valid Objections To The Fee Request
(i) The Percentage of the Fund Method Must Be Followed
Throughout the Rosen Objection, Frank attacks Settlement Class Counsel because counsel
“provide no lodestar estimate” but then also claims that counsel seeks a fee of “nearly $3,000/hour[.]”
Rosen Objection, at 1, 8, 11. Frank’s focus on a lodestar calculation is inappropriate, as he also
concedes that the “D.C. Circuit applies a percentage-of-the-fund technique in awarding attorneys’
fees.” Id., at 9. And, although Frank claims that the D.C. Circuit “does not prohibit the use of
lodestar as a cross-check to determine the reasonableness of the common-fund award[,]” he neglects
to mention the binding precedent in this Circuit that details the benefits of the percentage of the fund
method, as well as the disadvantages of the lodestar method. Id. (citing In re Dep’t of VA Data Theft
Lit., 653 F. Supp. 2d 58, 61 (D.D.C. 2009)).
For example, in Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993), the case that
mandates use of the percentage of the fund method in this Circuit, the court listed several benefits of
the method, as well as many significant problems with the alternative lodestar method. According to
the D.C. Circuit, the lodestar approach “encourages significant elements of inefficiency” because
“attorneys are given incentive to spend as many hours as possible, billable to a firm’s most expensive
attorneys” and “there is a strong incentive against early settlement since attorneys will earn more the
longer a litigation lasts.” Id., at 1268-69. Not only does it breed inefficiency and overbilling by
counsel, the lodestar method “makes considerable demands upon judicial resources since it can be
exceptionally difficult for a court to review attorney billing information over the life of a complex
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litigation and make a determination about whether the time devoted to the litigation was necessary or
reasonable.” Id. Such an exacting, and inefficient, review results in second-guessing of counsel’s
work by the court and only serves to delay distribution of the common fund to the class. Id., at 1269.
On the contrary, the percentage of the fund method is efficient, objective, and accurately
reflects the realities of modern legal practice. According to Swedish Hosp., the percentage of the fund
method tracks the “true measure of success” in a case—the monetary award—and, therefore, it is
“most efficient” approach. Id. The percentage of the fund method creates the correct incentives for
counsel because “inefficiently expended hours only serve to reduce the per hour compensation of the
attorney expending them.” Id.
In another case where he objected, Frank argued that “the percentage of the fund methodology
should be used in all cases.” Lonardo, 706 F. Supp. 2d at 789-90. During the final fairness hearing in
that case, Frank argued that policy reasons dictated that the court should disregard the lodestar method
and adhere only to the percentage of the fund method:
I certainly recognize that the Sixth Circuit currently leaves the question of the lodestar
[versus] common fund percentage up to the Judge, but I would like to argue as a public
policy matter that we should take a firm stand on the common fund percentage, and the
Second Circuit is coming around to this position, holding that the percentage method,
quote, “directly aligns the interests of the class and its counsel and provides a powerful
incentive for the efficient prosecution and early resolution of litigation. In contrast,
lodestar creates an unanticipated disincentive to early settlements, tempts lawyers to
run up their hours, and compels district courts to engage in a gimlet eyed review of line
item fee audits.”
Id. Frank further stated, accurately but in direct contravention to his purported position here, that
courts employing a lodestar approach “failed to adequately change, consider the change in the law,
and the change in direction, and think the trend is certainly toward a percentage, a common fund
percentage for these public policy reasons” and that “judicial efficiency militates against performing
the lodestar analysis.” Id. As Settlement Class Counsel detailed in its fee award motion, and as Frank
concedes, the percentage of the fund method—not lodestar—is the preferable and established method
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 18 of 27
in this Circuit and must be applied here.19
(ii) The Requested Percentage of 22% to 25% Is on the Low
End of the Reasonable Range
Frank repeatedly maligns Settlement Class Counsel for seeking a fee award of “$3,000 per
hour.” However, the fee award actually sought by Settlement Class Counsel ($3 million) represents
between 22% and 25% of the Settlement Fund and is well within—and actually on the low end—of
fee awards entered in this Circuit. See Dkt. No. 42, at 7. As he has done in other cases, Frank has
staked out a position that is counter to the law of the Circuit, and has failed to cite any authority
supporting his argument that a 22-25% fee is too high.
In short, according to the well-established percentage of the fund method, an approach that
Frank has vociferously advocated in other cases in which he has acted as a professional objector,
Settlement Class Counsel’s fee request is not only reasonable, it is low. Indeed, Frank himself argued
in favor of an attorneys’ fee award of exactly 25% of a common fund. Lonardo, 706 F. Supp. 2d at
When the costs of notice and administration are added to the Settlement Fund to create the
total class benefit, the percentage requested by Class Counsel is 22%. Despite his claim here that fees
should be based on a percentage of the fund after costs are deducted, Frank previously argued the
opposite position, recognizing that such funds inure to the benefit of class: “Mr. Frank agrees that the
Actual Payment to the Settlement Class Members and the Costs of Notice and Administration are
legitimate components of the Total Class Benefit.” Lonardo, 706 F.Supp.2d at 797.
In this District, the starting point for percentage of the fund fee awards is 20%. Fresh Kist
Produce, L.L.C. v. Choi Corp., Inc., 362 F. Supp. 2d 118, 128 (D.D.C. 2005). Upward or downward
19 See, e.g., Democratic Cent. Comm. of the District of Columbia v. Washington Metro. Area Transit Comm’n, 12 F.3d
269, 271 (D.C. Cir. 1994) (endorsing percentage of the fund method, rather than lodestar method, for common fund cases);
Radosti v. Envision EMI, LLC, 2011 WL 159662 (D.D.C. Jan. 19, 2011) (same); In re Lorazepam & Clorazepate Antitrust
Litig., 2003 WL 22037741 (D.D.C. June 16, 2003) (same); In re Vitamins Antitrust Litig., 2001 WL 34312839 (D.D.C.
July 16, 2001) (same).
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 19 of 27
adjustments may be warranted based on the seven “Lorazepam factors.” Id. As detailed in Plaintiffs’
Fee Award Motion, each of these factors weighs in favor of the award requested. Dkt. No. 42, at 18-
27. Although Frank argues that the fee request is too high, he fails to specifically address these
factors, let alone dispute Plaintiffs’ arguments regarding the same. Instead, he loosely claims that the
fee award should be reduced because the case settled early in the litigation and because, as he alleges,
the case is “part of a series of copycat lawsuits” brought by Settlement Class Counsel that are of little
risk. Rosen Objection, at 10. Frank’s arguments fail on both accounts.
First, early resolution of cases is encouraged, especially class actions. See In re Lorazepam,
205 F.R.D. at 377 (“early settlement of these types of cases is encouraged.”); In re: Vitamins Antitrust
Litig., 1999 WL 1335318, *4 (D.D.C. Nov. 23, 1999) (“The pursuit of early settlement is a tactic that
merits encouragement; it is entirely appropriate to reward expeditious and efficient resolution of
disputes”). In another one of his recent objections to a class action settlement, Frank admitted that the
timing of a settlement is not determinative of its fairness or reasonableness: a “court, in reviewing a
settlement, should not give any predetermined weight either to the fact that the case was pending for a
substantial period of time before a settlement was reached or to the fact that a settlement was reached
early in the case.” Cobell, et al. v. Salazar et al., Case No. 1:96-cv-01285 (D.D.C.), Dkt. No. 3782
(filed May 31, 2011). Frank has admitted that Settlement Class Counsel should be rewarded, not
punished, for negotiating an excellent settlement in a timely and efficient manner.
Second, it is simply untrue that this case is a mere “copycat” with “no risk.” Instead, and as
explained at length in Plaintiff’s Final Approval Motion, the litigation was brought during a time of
great uncertainty as to the legal merits of the claims and that uncertainty continues. Dkt. No. 41, at
15-18. Defendant banks in similar cases continue to advance novel legal arguments based on recently
decided case law that could greatly, and adversely, impact this outcome of this case. Id. Frank fails to
address any of these risks in the Rosen Objection; instead, he simply states that there is no risk at all
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 20 of 27
because Settlement Class Counsel can recycle legal research it has done in other cases. Rosen
Objection, at 10. Not only is this argument illogical, it is factually inaccurate. Although Settlement
Class Counsel is involved in other overdraft fee litigation, each of the cases is factually unique and
presents its own set of challenges. For example, each case involves different contract language and
bank policies, and the data produced by each defendant bank varies (and, in turn, the issues created by
such data). The outgrowth of other overdraft fee litigation does not, by any means, make this
litigation (which was filed and settled before the decision in Gutierrez) zero-risk. If anything, the
large number of overdraft fee cases creates a complicated, and ever-changing, legal environment that
Class Counsel has had to closely monitor, analyze, and navigate.
(iii) The Requested Fee Award Is Fair, Reasonable, and in Line
with Awards in Similar Cases in This Circuit
Frank also argues that the very low number of objections to the Settlement is not indicative of
support of the consumer class because: (1) the requirements for objecting are too onerous; (2) the cost
of hiring an attorney are too high; and (3) the class was not put on notice of the requested attorneys’
fee award. Rosen Objection, at 14. None of these allegations have merit.
As a threshold matter, silence of the class is indeed indicative of endorsement. See, e.g., In re
Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liab. Litig., 553 F. Supp. 2d
442, 474 (E.D. Pa. 2008) (holding that relatively “few objections” [eleven objections to fee award
from four million class members] “signifies that the requested award has been viewed by interested
parties to this action as fair.”).20 Furthermore, Frank inflates the supposed impediments to objecting.
The requirements for objecting, approved by this Court, were laid out clearly and concisely and are
20 See also, Osher v. SCA Realty I, Inc., 945 F. Supp. 298, 305 (D.D.C. 1996) (low level of objections indicates support of
settlement); Luevano v. Campbell, 93 F.R.D. 68, 91 (D.D.C. 1981) (small percentage of objections “is an important
indication of [settlement’s] fairness and adequacy.”); In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148
F.3d 283, 318 (3d Cir. 1998); Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118–19 (3d Cir. 1990) (10% objection rate
indicates class favors settlement); Bell Atl. Corp. v. Bolger, 2 F.3d 1304, 1313 (3d Cir. 1993); Weiss v. Mercedes-Benz of
N. Am., Inc., 899 F. Supp. 1297, 1301 (D.N.J. 1995) aff’d, 66 F.3d 314 (3d Cir. 1995) (a small percentage of objections
allows an inference that a majority silently consents).
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 21 of 27
similar to the steps required in other cases. And, contrary to Frank’s suggestion, representation by
counsel is not a requirement of a valid objection. Finally, Frank’s claim that Settlement Class
Members did not object, but would have, had they been put on notice of the fee award requested is
simply false. The amount of the fee award requested was included in the notices, which clearly stated
that Settlement Class Counsel would apply for an award of fees of not more than 25% ($3,000,000) of
the Settlement Fund, plus reimbursement of all costs and expenses. Other than the professional
objectors (including Frank), no objections to this fee award have been received.
In short, rather than focus on the boilerplate dissents of professional objectors, the Court
should consider the response of the true beneficiaries of the Settlement. That response has been
overwhelmingly positive and supports final approval of the Settlement.
c. The Requested Incentive Awards Are Reasonable
Plaintiffs have requested incentive awards of $5,000 for each Representative Plaintiff. In
support of these awards, Plaintiffs described the meaningful contributions made by each
Representative Plaintiff. Dkt. No. 42, at 34-36. Frank does not dispute, or even address, these facts.
Instead, Frank claims that Representative Plaintiffs deserve a “modest” award of only $5,000 total
(approximately $1,666 each) because they did not face discovery or sit for deposition. Rosen
Objection, at 12. While Representative Plaintiffs were not deposed, their private and personal
banking records were analyzed and exchanged, and details regarding their financial difficulties and
history were made public. Such exposure is not without its own costs and risks.
Further, the incentive awards sought are within the low range of awards in similar cases. In
fact, courts have often awarded double (or more) the amount requested here. See, e.g., In re Ins.
Brokerage Antitrust Litig., 579 F.3d 241, 285 (3d Cir. 2009) (affirming final approval of a settlement
that included incentive awards of $10,000 each); Bogosian v. Gulf Oil Corp., 621 F. Supp. 27, 32
(E.D. Pa. 1985) (granting incentive awards of $20,000 to each class representative); Dewey v.
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 22 of 27
Volkswagen of America, 728 F. Supp. 2d 546, 577-78 (D.N.J. 2010) (awarding incentive awards of
3. Cannata Objection
Mr. Cannata is an attorney and a “professional objector,” having objected in at least seven
other class action settlements, including the Fifth Third overdraft fees settlement.21 As graphically
demonstrated by Exhibit D of the Second Zavareei Declaration, the great bulk of the Cannata
objection was copied from previous objections by the PEC (in this case and another) and (to a lesser
degree) Cannata’s own earlier objection in an unrelated case. These “canned” and copied objections
are entitled to little weight.22
a. Plaintiffs Have Already Presented Evidence of Potential Value of Class
Cannata states that “[t]he parties should present evidence that would enable the Court to
determine the potential value of Class Members’ claims.” Cannata Objection, at 1. Plaintiffs have
provided this evidence, having submitted an Expert Report doing precisely that three full weeks
before Cannata submitted his objections. Cannata makes no reference to this evidence.
b. The Plan of Allocation
Cannata states that “[t]he Settlement Agreement does not offer any rationale or justification
for failing to allocate the settlement proceeds in proportion to the damages sustained by Class
21 See Hartless v. Clorox Co., No. 06-CV-02705-CAB (S.D. Cal.), Objections, Dkt. No. 102; In re Vytorin/Zetia Mktg.
Sales Practices and Prods. Liab. Litig., No. 00285 (D.N.J.), Objections, Dkt. Nos. 203, 205); Marskyyan v.Mercedes-Benz
USA, LLC, No. 08-cv-04876-AHM (C.D. Cal.),Objections to Class Action Settlement, Dkt. No. 102; Gemalas v. The
Dannon Co., Inc., No. 1:08-cv-00236 (N.D.Ohio), Objection to Class Action Settlement and Request for Attorneys’ Fees,
and Notice of Intent to Appear, Dkt. No. 60); In re Lawnmower, No. 2:08-md-01999 (E.D. Wis.), Objections (E.D.Wis.),
Dkt. No. 315; Smith v.Wm. Wrigley, Jr. Co., No. 09-60646 (S.D. Fla.), Dkt. Nos. 95, 96); Schulte v. Fifth Third Bank, No.
09-cv-06655 (N.D. Ill.), Objections (Dkt. No. 103-14).
22 See, e.g., In re Holocaust Victim Assets Litig., 311 F. Supp. 2d 363, 372, 381-82 (E.D.N.Y. 2004) (objector’s counsel
simply retooled research done by his client for another case), aff’d, 424 F.3d 150, 154 (2d Cir. 2005); In re AOL Time
Warner, Inc., Sec. & ERISA Litig., 2006 WL 903236, *17 n.22 (S.D.N.Y. Apr. 6, 2006) (noting that criticism of objector’s
counsel as submitting “canned objections” might be correct, since he had copied whole sentences from prior judicial
opinion without attribution); Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 973 (E.D. Tex. 2000) (criticizing
objector counsel for filing “canned” objections); see also Varacallo v. Massachusetts Mut. Life Ins. Co., 226 F.R.D. 207,
241 n.22 (D.N.J. 2005) (recognizing that “many of the objections that have been raised by the so-called ‘professional
objectors’ have been raised in other courts in other class actions”).
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Members[.]” Cannata Objection, at 4. This issue has been briefed extensively as well, and is
discussed more fully above.
c. The Amount of Discovery Engaged in at the Time of Settlement
Cannata asserts that no discovery was conducted prior to settlement. But as discussed at
length in Plaintiffs’ final approval motion and fee petition (Dkt. No. 41, at 28-30 and Dkt. No. 42, at
6-7), Settlement Class Counsel engaged in substantial informal discovery, limited formal discovery,
and were well-apprised of the facts and law relating to this litigation when they entered into the
Settlement Agreement. Additionally, Settlement Class Counsel engaged in substantial confirmatory
discovery, which established that the settlement is fair, reasonable, and adequate.
d. The Scheduling of the Final Fairness Hearing Comports With Common
Class Action Practice
Cannata argues that the final fairness hearing should be scheduled after the claims submission
deadline. This would supposedly allow the Court to learn the actual number of claims prior to making
its final approval decision. However, Cannata’s request that the Court delay the Final Fairness
Hearing ignores the fact that no unclaimed Settlement Funds (due to the robust response) will revert to
Defendant. Further, delaying the Final Fairness Hearing is contrary to the interests of the Settlement
Class and established class action practice and procedure. The approved schedule ensures Settlement
Class Members will receive the benefits of the settlement as soon as possible. In proposing the
approved schedule, Settlement Class Counsel acted in furtherance of their duty to the Settlement Class
and in accordance with established class action procedure.
Plaintiffs note that an identical objection was made in the Fifth Third Bank overdraft
settlement by the PEC and the court there refused to make any changes to the schedule of the final
fairness hearing. Schulte v. Fifth Third Bank, 1:09-cv-06655 (N.D. Ill.), Dkt. No. 68. Cannata
provides no basis to change the schedule which has already been approved by this Court—and about
which 2.4 million Settlement Class Members have already been notified.
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 24 of 27
e. The Claims Process Does Not Create a “Paperwork Nightmare”
The claims process has been designed specifically to avoid the sort of “paperwork nightmare”
Cannata predicts. Indeed, a claimant can choose to have the settlement administrator determine the
number of eligible overdraft fees. There is no need for a class member to “unearth nearly six years of
account statements.” Cannata Objection, at 6. This objection is unfounded.
f. The Settlement Is Structured to Benefit Settlement Class Members Prior to Any
Cy Pres Distribution
Cannata complains that unclaimed funds should go to Settlement Class Members before any
cy pres distribution. Yet, this Objection is premised on the incorrect factual assumption that
Settlement Class Members’ claims will not exhaust the Settlement Fund. As noted above, Settlement
Class Members’ reaction to the Settlement has been overwhelmingly positive, and it is almost certain
that the claims will exhaust the Settlement Fund.
g. There Is No “Clear Sailing” Provision
Cannata complains about a “clear sailing” provision that does not exist in this case. The
amount of attorneys’ fees, costs, and expenses, along with incentive awards, were not discussed
between the Settling Parties until after the settlement terms were agreed upon. See Second Zavareei
Declaration, ¶ 1. Only after the common fund was agreed upon (together with all other material terms
of the Settlement) did the Settling Parties even discuss attorneys’ fees. Additionally, the issues of
attorneys’ fees, costs, and expenses, and incentive awards, are intended to be considered by the Court
separately from the Court’s consideration of the approval of the Settlement. Dkt. No. 34-1, at ¶10(b).
Thus, this is not a clear-sailing agreement.
WHEREFORE, based on foregoing, Plaintiffs respectfully request that the Court overrule all
the objections and enter the proposed Final Approval Order.
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 25 of 27
Dated: July 11, 2011 Settlement Class Counsel,
Hassan A. Zavareei
Jonathan K. Tycko
Jeffrey D. Kaliel
Tycko & Zavareei LLP
2000 L Street, N.W.
Washington, D.C. 20036
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 26 of 27
Certificate of Service by Electronic Means
I, Hassan A. Zavareei, one of the attorneys for Plaintiffs, hereby certify that the proceeding
document was caused to be served electronically this 11th of July 2011, pursuant to ECF as to Filing
users, and that I shall comply with LR 5.5 as to any party who is not a filing user or represented by a
/s/ Hassan Zavareei
Case 1:10-cv-00232-JDB Document 44 Filed 07/11/11 Page 27 of 27