Case 2:12-md-02311-SFC-RSW ECF No. 2125-10, PageID.38616 Filed 03/10/21 Page 1 of 10
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`EXHIBIT 4
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`Case 2:12-md-02311-SFC-RSW ECF No. 2125-10, PageID.38617 Filed 03/10/21 Page 2 of 10
`Case: 1:10-md-02196-JZ Doc #: 2184 Filed: 10/30/17 1 of 9. PageID #: 100383
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`In re Polyurethane Foam Antitrust
` Litigation
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`This document relates to:
`ALL INDIRECT PURCHASER CLASS
`ACTIONS
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`Case No. 1:10 MD 2196
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`DISTRIBUTION ORDER
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`JUDGE JACK ZOUHARY
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`INTRODUCTION
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`In January 2016, this Court granted the Indirect Purchaser Plaintiffs’ (IPP) Motions for Final
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`Approval of nine class action Settlement Agreements (Doc. 2020). The Order approved a total
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`Settlement Fund of $151,250,000, as well as a plan for the proportional weighting and allocation of
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`settlement proceeds among claims based on bedding, carpet padding, and furniture purchases (id. at
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`4–5). This Court also authorized incentive awards for the Class Representatives, attorney fees equal
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`to 24% of the Settlement Fund, and over $5 million in costs and expenses (id. at 18, 42).
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`The Claims Administrator has received 96,246 Claim Forms representing total purchases of
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`more than $52 billion (Doc. 2172-1 at ¶ 10). Following extensive investigation and audits, the Claims
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`Administrator accepted 42,652 claims representing over $22 billion in eligible products, or over $17
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`billion in Qualifying Claims (id. at ¶ 27; Doc. 2181 at ¶ 7). The Claims Administrator rejected 53,594
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`claims as ineligible for a variety of reasons (id. at ¶ 29). As of last month, the balance of the
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`Settlement Fund totaled over $103 million, with an additional $6.25 million yet to be deposited (Doc.
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`2182 at ¶ 3).
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`The IPP Class now moves for approval of claims, authorization to distribute the Settlement
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`Fund, payment of the Claims Administrator’s fees and expenses, and supplemental attorney fees and
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`costs (Doc. 2172). By Order of this Court (Doc. 2173), IPP counsel filed a supplemental brief
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`addressing how an additional attorney fee award would impact distribution to the Class (Doc. 2174).
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`Objectors Melissa Holyoak and John Tabin, by their counsel the Center for Class Action Fairness,
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`opposed the request for supplemental attorney fees (Doc. 2176). By further Order of this Court (Doc.
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`2178), IPP counsel filed a reply (Docs. 2179–80, 2182). The Motion is fully briefed.
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`DISCUSSION
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`Most of the requests detailed in the Motion are uncontroversial. For example, the Declarations
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`of Eric Miller (Docs. 2172-1, 2179, 2181) and Marvin Miller (Doc. 2172-2) describe the Claims
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`Administrator’s efforts in processing and evaluating claims in compliance with the Plan of Allocation,
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`including auditing and investigating suspicious, deficient, or otherwise ineligible claims. This
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`information was published on the class action website (www.polyfoamclassaction.com), and this
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`Court provided an opportunity for interested parties to be heard (Doc. 2175). This Court received no
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`objections to the implementation of the claims administration process or the recommended
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`allocations. Further, this Court finds that the Claims Administrator’s efforts were reasonable and
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`appropriate, and complied with the requirements previously set forth in the Settlement Agreements
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`and this Court’s Orders. Accordingly, this Court will adopt the Claims Administrator’s recommended
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`allocations as set forth in the Eligible Claims Summary (Docs. 2172-1, Ex. B; Doc. 2181, Ex. A).
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`The Claims Administrator’s request for fees and expenses is also unopposed. The Claims
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`Administrator states it has incurred fees and expenses of $2,321,491.91 to date, of which $321,491.91
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`remains outstanding. It also seeks estimated future fees and expenses of $99,828.31 for distribution
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`of the Settlement Fund. This Court has reviewed the relevant invoices and finds the request
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`2
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`reasonable and appropriately documented (see Doc. 2172-1, Exs. E & F; Doc. 2183). Thus, this Court
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`grants the request for $421,320.22 in outstanding and estimated future fees. Once distribution of the
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`Settlement Fund is finalized, the Claims Administrator shall notify this Court whether the fees and
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`expenses incurred total less than the estimated amount. Any remaining funds will be included in a
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`re-distribution to eligible Class Members or will become part of a Court-approved cy pres award.
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`Supplemental Attorney Fees and Costs
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`The request of IPP counsel for additional fees requires greater scrutiny. This Court is charged
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`with ensuring that IPP counsel are “fairly compensated for the amount of work done as well as for the
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`results achieved” on behalf of the Class. Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513, 516
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`(6th Cir. 1993). At the same time, this Court recognizes that “[t]he interest of class counsel in
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`obtaining fees is adverse to the interest of the class in obtaining recovery.” Id. This Court assumes
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`a fiduciary responsibility to the Class to “act with ‘a jealous regard to the rights of those who are
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`interested in the fund’ in determining what a proper fee award is.” In re Mercury Interactive Corp.
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`Sec. Litig., 618 F.3d 988, 994 (9th Cir. 2010) (citation omitted). This obligation includes ensuring
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`a sufficient legal and evidentiary basis for the fee award and providing Class Members an adequate
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`opportunity to be heard. Id.
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`Federal Civil Rule 23 neither authorizes nor prohibits supplemental, post-Final Approval
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`attorney fee awards, but courts regularly grant requests for fees incurred defending a class action
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`settlement or implementing a final judgment. See, e.g., In re BankAmerica Corp. Sec. Litig., 775 F.3d
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`1060, 1068 (8th Cir. 2015) (“In general, post-settlement monitoring is a compensable activity for
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`which counsel is entitled to a reasonable fee.”); Olick v. Parker & Parsley Petroleum Co., 145 F.3d
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`513, 515 (2d Cir. 1998). However, some courts have also held that attorney fee awards based on a
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`percentage of a common fund already compensate counsel for “incidental work” required to
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`3
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`“implement the settlement and distribute the proceeds.” Goldenberg v. Marriott PLP Corp., 33 F.
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`Supp. 2d 434, 440–41 (D. Md. 1998) (quoting Pray v. Lockheed Aircraft Corp., 1987 WL 9757, at
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`*1 (D.D.C. 1987)); see also Briggs v. United States, 2012 WL 476348, at *2–3 (N.D. Cal. 2012)
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`(denying request for supplemental fees because original fee award fairly compensated counsel for
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`additional work). As it did with the original fee award, this Court considers a variety of factors in
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`assessing the reasonableness of the requested supplemental award -- namely, “(1) the value of the
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`benefit rendered to the plaintiff class; (2) the value of the services on a hourly basis; (3) whether the
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`services were undertaken on a contingent fee basis; (4) society’s stake in rewarding attorneys who
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`produce such benefits in order to maintain an incentive to others; (5) the complexity of the litigation;
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`and (6) the professional skill and standing of counsel involved on both sides.” Moulton v. U.S. Steel
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`Corp., 581 F.3d 344, 352 (6th Cir. 2009).
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`Claims Administration. IPP counsel seek $33,986 in supplemental attorney fees for time spent
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`supervising the claims administration process, including auditing and investigating certain suspicious
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`claims and responding to inquiries from Class Members (Doc. 2172 at ¶¶ 17–25; Doc. 2172-2 at
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`¶¶ 4–12). IPP counsel incurred $42,482 in fees related to this work (Doc. 2172-2 at ¶ 12), but
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`voluntarily reduced this request by 20% -- consistent with this Court’s prior Order awarding attorney
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`fees -- for a requested award of $33,986 (id. at ¶¶ 44–45).
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`In Briggs, the district court found that the original fee award already “contemplated a
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`reasonable amount of continuing and additional work without further awards” because counsel’s
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`submissions discussed the future work to be performed on behalf of the class. Briggs, 2012 WL
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`476348, at *2 (“Class counsel’s original motion for attorney’s fees was thoroughly considered. That
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`motion stated: ‘Class counsel expected to take extensive steps to locate class members whose
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`addresses are outdated.’”). That was not the case here; IPP counsel’s original fee petition made no
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`such direct references, though it was apparent additional work would be required to implement the
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`Settlement Agreements. At the same time, the original fee petition also included no request for
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`estimated future fees and no suggestion that IPP counsel intended to seek supplemental fees for
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`administrative work performed post-Final Approval. See Goldenberg, 33 F. Supp. 2d at 441 (“[T]he
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`fee petition is devoid of any mention of the possibility that Class Counsel might seek further
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`compensation for those services.”).
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`This Court does not doubt that additional work was required of IPP counsel to oversee the
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`claims administration process. But these future efforts were foreseeable at the time of Final Approval,
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`and the types of issues counsel were required to address are not unusual for class action settlements
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`of this size (see Doc. 2172-2 at 3–5). Under these circumstances, this Court concludes that counsel’s
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`original percentage fee award fairly compensates them for their work in supervising the claims
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`administration process. The request for additional fees incurred by these efforts is denied.
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`Preserving the Settlement Fund. IPP counsel separately request over $1.2 million in fees for
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`their efforts to protect and preserve the settlement for the benefit of the Class. Counsel assert that they
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`have incurred over $1.5 million in fees related to post-judgment litigation (see Doc. 2172 at 12). With
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`a voluntary 20% reduction, they request reimbursement of $1,212,337.20 (id.).
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`Since Final Approval in January 2016, IPP counsel have continued to litigate against Objectors
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`on behalf of the Class. Of the eight original Objectors, five appealed this Court’s Order (see Docs.
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`2035, 2037, 2038, 2039, 2048). Three voluntarily dismissed their appeals after this Court required
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`them to post an appeal bond (see Docs. 2097, 2098, 2099). In June 2016, the Sixth Circuit dismissed
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`the remaining two appeals (see Docs. 2100, 2101).
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`Appeals by Objectors are not unusual in class action litigation. The initial round of appeals
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`in this case was resolved quickly, within five months of Final Approval, and counsel do not identify
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`5
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`any circumstances that might be described as extraordinary or even unexpected during this phase of
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`the litigation. As with the fees for claims administration discussed above, this Court finds the original
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`fee award is sufficient to fairly compensate counsel for their settlement preservation and enforcement
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`efforts through June 2016. Counsel’s request for fees incurred between January and June 2016 (some
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`$935,000) is denied.
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`After June 2016, however, this case veered from the highly contested toward the bizarre.
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`Objector Christopher Andrews, though unsuccessful in the Sixth Circuit, remained undeterred. He
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`continued to seek reconsideration of this Court’s rulings on both the appeal bond and the merits of
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`his claims, which generally lacked factual and legal support. The tone of Andrews’ filings was
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`consistently rude and provocative, levying wild and poorly articulated accusations, conspiracy
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`theories, and occasionally threats against counsel and this Court. In light of this vexatious conduct,
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`this Court granted a Motion for Sanctions in October 2016 and penalized Andrews for the interest lost
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`to the Class ($15,303) due to his frivolous filings (Doc. 2113). After October 2016, the focus of the
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`litigation began to shift from the merits of Andrews’ objections to enforcement of the Sanctions Order
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`(see Docs. 2115, 2117, 2119, 2121, 2125). Due to Andrews’ “continued contumacious conduct”
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`(Doc. 2127 at 2), this Court held him in contempt and later increased the monetary sanction to
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`compensate the Class for additional lost interest (Doc. 2150).
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`In short, the record is clear that Andrews needlessly prolonged the post-judgment litigation
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`of this case, and IPP counsel were overall quite successful in opposing his delay tactics. On the other
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`hand, though Andrews’ filings were voluminous and often difficult to decipher, his legal arguments
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`were not complex; in fact, his submissions typically rehashed the same complaints over and over
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`again. And while recognizing counsel’s duty to advocate vigorously on behalf of the Class, this Court
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`is also mindful of its own duty as a fiduciary for the Class when it comes time to pay the bills. With
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`this in mind, this Court must consider not only the success of counsel’s efforts, but whether those
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`efforts were reasonable.
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`From November 2016 onward, counsel’s efforts increasingly focused on enforcing the
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`Sanctions Orders.1 Recovering money owed to the Class is a worthwhile endeavor. But counsel
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`incurred over $166,000 in fees during this time period -- compared to a total possible recovery of
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`$21,882 in monetary sanctions. A paying client almost certainly would not consider that reasonable,
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`and this Court is hard pressed to justify requiring the Class to pay for this litigation strategy.
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`Upon thorough review of counsel’s billing records, this Court finds a supplemental fee award
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`of $110,000 is appropriate. This figure is a rough estimate of the fees incurred by efforts related to
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`the Objector litigation -- i.e., excluding the fees for claims administration discussed above, as well
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`as other clearly administrative tasks identified during this Court’s in camera review -- from June to
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`early November 2016. Counsel’s efforts during this time were focused not on recovering the $22,000
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`sanctions award, but rather on protecting the $151 million Settlement Fund. Balancing all of the
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`relevant considerations, this Court finds the additional $110,000 in attorney fees reasonable and
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`necessary to compensate IPP counsel for the work done and the results achieved.
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`When added to the original 24% fee, the total attorney fee award still falls below the 30%
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`maximum identified in the Class Notice (see Doc. 1988-2 at 10) (“Plaintiffs’ counsel will request
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`attorneys’ fees not to exceed thirty percent (30%) of $151,250,000, plus reimbursement of costs and
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`expenses. The Court will then decide a reasonable fee and expense award.”). See Goldenberg, 33
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`F. Supp. 2d at 441 (“Class members have frequently been notified of the maximum amount of
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`IPP counsel note that they continue to litigate against Andrews in two appeals pending before the
`Sixth Circuit. If the Class prevails on appeal, counsel may be able to seek their fees and costs under
`Federal Appellate Rules 38 and 39. In any event, that issue is not currently before this Court.
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`attorney’s fees to be awarded in a settlement.”); In re Southwest Airlines Voucher Litig., 2016 WL
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`3418565, at *5 (N.D. Ill. 2016) (requiring additional class notice where addition of supplemental fees
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`“would make the total award exceed the amount the class was told [the defendant] would not
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`oppose”). This Court therefore finds that further notice to the Class is not required -- especially since
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`it is likely the costs of sending any such notice would exceed the amount of the fee award (see Doc.
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`2180 at 4).
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`Costs. “Under the common fund doctrine, class counsel is entitled to reimbursement of all
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`reasonable out-of-pocket litigation expenses and costs.” In re Cardizem CD Antitrust Litig., 218
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`F.R.D. 508, 535 (E.D. Mich. 2003). In determining whether actual costs are reasonable, this Court
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`considers whether they are the type of expenses typically billed to paying clients in similar cases. Id.
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`Here, counsel ask for $57,275.71 in post-judgment costs. The single largest expense ($32,000)
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`consists of payments for the Special Master’s fees, which are appropriate and in fact required by prior
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`Orders of this Court (see Docs. 1313, 1429, 1471, 1528, 1600, 1729, 1797, 1871, 1984, 2024, 2061,
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`2094). The remaining expenses (around $25,000) include fees for legal research services, consultants,
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`court filings, and court reporters, as well as travel, photocopying, and postage costs. These items are
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`routinely charged to fee-paying clients and appear to be reasonable in this case. The request for post-
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`judgment costs and expenses is granted in full.
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`CONCLUSION
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`Accordingly, the IPP Motion (Doc. 2172) is granted in part and denied in part as follows:
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`1.
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`This Court approves the administrative determination by the Claims Administrator to
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`accept the eligible claims identified in Exhibit A to the September 2017 Supplemental Declaration
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`of Eric Miller (Doc. 2181), including late claims received before June 22, 2017 and corrective
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`correspondence received before June 27, 2017.
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`2.
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`This Court approves the administrative determination by the Claims Administrator to
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`reject the deficient or otherwise ineligible claims identified in Exhibit D to the July 2017 Declaration
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`of Eric Miller (Doc. 2172-1 at 367–963).
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`3.
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`This Court directs the Claims Administrator to proceed with the distribution of the Net
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`Settlement Fund as described in the Plan of Allocation (Doc. 1860 at 22–28) and the July 2017
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`Declaration of Eric Miller (Doc. 2172-1 at ¶¶ 34–37).
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`4.
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`This Court grants the Claims Administrator’s request for the outstanding balance of
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`its fees and expenses incurred in administering the claims process thus far ($321,491.91), as well as
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`its estimated future expenses ($99,828.31), for a total fee award of $421,320.22. If the fees and
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`expenses incurred in finalizing the distribution of the Net Settlement Fund total less than the estimated
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`amount, any remaining funds will be included in a re-distribution to eligible Class Members or will
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`become part of a Court-approved cy pres award.
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`5.
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`This Court grants in part IPP counsel’s request for supplemental attorney fees and costs
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`in the amount of $167,275.71.
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`6.
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`This Court retains jurisdiction to consider any further applications regarding
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`administration of the Settlement, and such other and further relief as this Court deems appropriate.
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`IT IS SO ORDERED.
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` s/ Jack Zouhary
`JACK ZOUHARY
`U. S. DISTRICT JUDGE
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`October 30, 2017
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