Andrews does not make any serious argument that the lodestar method is not appropriate in this case, and, indeed he could not do so. See Shames, 2012 WL 5392159 at 17 (finding the lodestar method appropriate in class actions brought under fee shifting statutes.) Case 3:10-cv-00326-LRH-WGC Document 138 Filed 04/27/15 Page 17 of 22 Robertson, Johnson, Miller & Williamson 50 West Liberty Street Suite 600 Reno, Nevada 89501 _______________________________________________________________________________________________________ PLAINTIFFS’ REPLY TO OBJECTIONS PAGE 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (arguing the attorneys’ fee request must be measured against (1) the number of redeemed vouchers (see 28 U.S.C. 1712(a)), and (2) the actual amount of cash claims). The relevant number here, however, is not the number of redeemed vouchers plus the actual amount of cash claimed, but, rather, it is the total value of the cash claimed, plus the value of the vouchers claimed, plus notice and administrative costs .

6” was arrived at by working backward from class counsel’s desired percentage of what he perceives to be the value of the class recovery—a contingency fee. See 28 U.S.C. § 1712(a) (titled “Contingent fees in coupon settlements”). Class counsel also argues that one of the justifications for a seven-figure fee award is the “risk of nonpayment.”

CONCLUSION For all these reasons, the Court should grant in part and deny in part Class Counsel’s Motion, use the percentage-of-recovery method, and award a fee of between $1,758,424 and $2,834,408, plus costs up to $477,663, for a total award of between $2,236,087 and $3,312,071. If the Court chooses to apply the lodestar method without reference to 28 U.S.C. § 1712, however, the Court should award a fee no greater than $3,170,247, plus costs of $477,663, for a total award of $3,647,910. The Court also should grant the requested service awards to named Plaintiffs.

Cases abound in which few class members claim or redeem their coupons.11 Because the credits are CAFA coupons, fees attributable to the credits can only be awarded as a percentage of those redeemed. 28 U.S.C. § 1712(a)12; Inkjet. For purposes of the 11 See, e.g., True v. Am. Honda Motor Co., 749 F. Supp. 2d.

Class notice was actually confusing, and constitutionally deficient unless the parties correct the problem by filing with the court the hundreds of objections from class members actually confused by the notice’s ambiguities. If the settlement is nevertheless approved, any fee award must comply with 28 U.S.C. § 1712(a), and be based on the actual redemption rate of coupons; as such, the $2.9 million fee request is exorbitantly excessive.

. Indeed, in reversing the District Court’s decision to award fees based on the claims made, in Masters, the Second Circuit examined the District Court’s improper treatment of the case as a coupon voucher settlement under 28 U.S.C. §1712 and found that 28 U.S.C. §1712 does not apply outside of the coupon voucher context. Masters, 473 F.3d at 438.

Again, the statute expressly provides that a coupon settlement may, as here, provide for a fee award “based upon the amount of time class counsel reasonably expended working on the action” and that “[n]othing in this subsection shall be construed to prohibit application of a lodestar with a multiplier method of determining attorney’s fees.” 28 U.S.C. § 1712(b). Indeed, this construction is explicitly acknowledged in the federal practice guide: “Where the attorney’s fee is not determined by a percentage of coupons . . . [t]he fee shall be based on time reasonably expended . . . [a]n appropriate lodestar with a multiplier may be applied in determining the fee award.”

3 Andrews also suggests that the Settlement here must be regarded as a “coupon settlement” if 28 U.S.C. § 1712(c) is to be properly understood. But 28 U.S.C. § 1712(c) has no application here, because, even if the Settlement provided for an award of “coupons” (and it does not), it does not provide for any equitable relief, which is a prerequisite for application of 28 U.S.C. § 1712(c). Cf

He also approved a class settlement providing class members with drink vouchers for Southwest Airlines flights. In In re Trans Union Corp. Privacy Litigation, no. 00 C 4729, 2009 WL 4799954, at *14 (N.D. Ill. Dec. 9, 2009), Judge Gettleman (by way of adopting the Report and Recommendation of a Special Master), stated that “[v]aluing a coupon recovery based on redeemed value is now required for percentage fee awards under the Class Action Fairness Act (‘CAFA’), 28 U.S.C. § 1712(a).” However, Trans Union was not decided under CAFA and is otherwise irrelevant here because Plaintiffs do not seek a percentage fee award.

Title 28, U.S.C. §§ 1712(a)-(c) regulate the calculation and award of attorneys’ fees to class counsel in coupon settlements by providing (1) that the portion of any attorney’s fee award attributable to the award of the coupons be based on the value to class members of the coupons that are actually redeemed, and (2) that any portion of such award that is not based on the recovery of coupons be calculated with reference to the amount of time class counsel reasonably expended working on the action, including, if appropriate, the application of a “lodestar” and multiplier. 28 U.S.C. § 1712(b). It is not clear that the approach adopted in this case accords with these requirements, and as such this objector contends there is a high probability that the court will at the very least remand the settlement to the district court for the additional proceedings required by CAFA.