Case 2:12-md-02311-SFC-RSW ECF No. 2125-9, PageID.38601 Filed 03/10/21 Page 1 of 15
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`EXHIBIT 3
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`WESTERN DIVISION
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`______________________________________________
`IN RE: POLYURETHANE FOAM ANTITRUST
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`LITIGATION
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`______________________________________________
`THIS DOCUMENT RELATES TO:
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`INDIRECT PURCHASER CLASS
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`______________________________________________
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`
`) MDL Docket No. 2196
`) Index No. 10-MD-2196 (JZ)
`)
`)
`) Hon. Jack Zouhary
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`)
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`INDIRECT PURCHASER PLAINTIFF CLASS
`MOTION FOR AN ORDER APPROVING CLAIMS, AUTHORIZING DISTRIBUTION
`OF NET SETTLEMENT FUNDS, INITIAL PAYMENT OF CLAIMS
`ADMINISTRATOR FEES AND EXPENSES, AND FOR ATTORNEYS’ FEES AND
`REIMBURSEMENT OF EXPENSES INCURRED AFTER JANUARY 27, 2016
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`Indirect Purchaser Plaintiff Class (“IPPC”) moves this Court For An Order Approving
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`Claims, Authorizing Distribution Of Net Settlement Funds, Initial Payment Of Claims
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`Administrator Fees And Expenses, And For Attorneys’ Fees And Reimbursement Of Expenses
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`Incurred After January 27, 2016, and in support states:
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`OVERVIEW
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`On January 27, 2016, this Court entered its Memorandum Opinion and
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`1.
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`Order re: Settlement Motions [Doc. #2020] and the Final Order and Judgment [Doc. #
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`2021].
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`2.
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`Subsequent to entry of the Final Order and Judgment, the Claims
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`Administrator, working closely with Class Counsel, has methodically received and
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`processed 96,246 Claim Forms valued at $52,298,774,060.72, audited claims which
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`resulted in the rejection of numerous claims and recommended allocation for this Court’s
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`consideration and approval for distribution.
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`3.
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`Class Counsel also engaged in extensive appellate practice in the Sixth
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`Circuit Court of Appeals and motion practice in this Court to protect and preserve the
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`$151,250,000 all cash settlement achieved for the benefit of the Class.
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`4.
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`In support of this motion, IPPs rely on the Declarations of Eric J. Miller,
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`Marvin A. Miller, Richard M. Kerger, Jay B. Shapiro, and Martin D. Holmes.
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`CLAIMS ADMINISTRATION
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`In support of the request to approve distribution of the Settlement Funds to
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`5.
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`eligible members of the Class, Plaintiffs rely on the Declaration of Eric J. Miller, attached
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`as Exhibit A.
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`6.
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`As shown in Eric Miller’s Declaration, A. B. Data provided an extensive
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`notice program which included an initial direct mail of 81,607 notice packets, a dedicated
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`website (www.polyfoamclassaction.com) which contained all relevant documents,
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`including the Notice, the Claim Form, the Summary Notice, and downloadable copies of
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`other court documents.
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`7.
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`A. B. Data established a case-specific toll-free number, 866-302-7323, with
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`an interactive voice response (IVR) system and live operators to accommodate Class
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`Members.
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`8.
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`A.B. Data has received and processed a total of 96,246 Claim Forms with
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`total purchases of $52,298,774,060.72. A.B. Data has processed all Claim Forms in
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`accordance with the Settlement Agreements, the Notice, and the Court-approved Plan of
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`Allocation. See Eric Miller Declaration ¶¶ 10-14.
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`9.
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`A. B. Data also engaged in an extensive audit procedure. See Eric Miller
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`Declaration¶¶ 15-24.
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`2 
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`10.
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`As a result of the lengthy and extensive audits, A.B. Data has rejected
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`53,594 claims with total claimed purchases of $9,455,983,605.71. The 53,594 rejected
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`claims include 42,466 claims from one particular third-party filer with an aggregate claim
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`purchase total of $1,962,393,458.89. In conjunction with Class Counsel, A.B. Data also
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`adjusted 210 large corporate claims submitted by a law firm third-party filer. As a result
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`of that process, there was a downward adjustment and a reduction of the claims of
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`approximately $10 billion. Together with the rejected claims and reduction of the
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`corporate claims, Class Counsel benefitted the eligible claimants.
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`11.
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`Those
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`rejected
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`claims
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`reduced
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`from
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`$52,298,774,060.72
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`to
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`$22,142,198,343.96, and thereby increased by $30,156,575,716.76 the allocable payments
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`to Eligible Claimants.       Following the Plan of Allocation, all Qualifying Claims total
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`$17,179,917,790.27.
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`12.
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`A.B. Data received Claim Forms postmarked after the February 29, 2016
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`deadline established by this Court. As reflected in Eric Miller’s Declaration, those Late
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`Claims did not cause any delay in the claims administration proceedings and have a
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`minimal impact on the distribution of the Settlement Funds to eligible members of the
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`Class. A.B. Data recommends that the Late Claims received not later than June 22, 2017,
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`and the corrected claims not later than June 27, 2017, be approved for participation and for
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`distribution.
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`CLAIMS ADMINISTRATOR’S FEES AND EXPENSES
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`13.
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`During the course of the claims administration procedure, the Claims
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`Administrator incurred fees and expenses in the sum of $2,421,320.22. Those fees and
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`expenses are itemized in the Declaration of Eric Miller, ¶¶ 31 -33.
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`3 
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`CLASS COUNSELS’ REQUEST FOR AWARD OF ATTORNEYS’ FEES AND
`REIMBURSEMENT OF REASONABLE AND NECESSARY EXPENSES
`INCURRED TO DEFEND THE SETTLEMENTS FOR THE CLASS
`SUBSEQUENT TO THIS COURT’S ENTRY OF THE FINAL ORDER AND
`JUDGMENT AND DURING THE ADMINISTRATION
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`In support of Class Counsel’s request for attorneys’ fees for the services
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`14.
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`provided and reimbursement of expenses incurred to preserve the substantial benefits to
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`the Class, Class Counsel submit the Declarations of Marvin A. Miller (attached as Exhibit
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`B), Richard M. Kerger (attached as Exhibit C), Jay Shapiro (attached as Exhibit D), and
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`Martin D. Holmes (attached as Exhibit E).
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`15.
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`Since this Court entered the Final Order and Judgment on January 27, 2016,
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`Class Counsel has provided substantial professional services for the benefit of the Class.
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`Those services can be separated into two parts: 1-those directly related to the claims
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`administration process and procedures and 2-those services related to zealously and
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`vigorously protecting the $151,250,000 all cash settlement amount achieved for the Class
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`through numerous motions in this Court and at the Sixth Circuit Court of Appeals and the
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`United States Supreme Court.
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`16.
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`Consistent with this Court’s earlier application of a 20% reduction to Class
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`Counsel’s request for attorneys’ fees, and at the direction of Lead Counsel, the four law
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`firms which seek an award of attorneys’ fees at this time have voluntarily reduced their
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`lodestars by 20%.
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`CLASS COUNSEL FEES AND EXPENSES IN CONNECTION
`WITH CLAIMS ADMINISTRATION
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`As stated in ¶14 Class Counsel has provided substantial services relating to
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`17.
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`the claims administration process. In that regard, Class Counsel supervised the process and
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`4 
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`worked closely with the Claims Administrator to insure that claims were properly
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`processed, reviewed and audited.
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`18.
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`In consultation with the Claims Administrator, it was detected that
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`numerous claims were not accurate because they did not contain the requisite information
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`or appeared dubious.
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`19.
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`As to the claims that lacked proper information, letters were sent to the
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`claimants and they were given an opportunity to cure the deficiency. Many of those which
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`were individual claimants promptly returned the missing information.
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`20.
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`There were several claims filed by large corporate claimants. A review and
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`audit of those claims required extensive investigation and consultation with the
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`representatives in order to understand the basis of their claims. That process took several
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`months because a methodology needed to be developed to satisfy Class Counsel and the
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`Claims Administrator. Even then, once the data was received and reviewed, downward
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`adjustments were made to those claims and accepted by the claimants.
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`21.
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`Forty Two Thousand Four Hundred Sixty Six (42,466) claims with an
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`aggregate purchase total of $1,962,393,458.89 from one particular third-party filer fell into
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`a distinct pattern appeared suspicious and necessitated extensive discussions between
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`Class Counsel and the Claims Administrator. Almost all of the claims showed purchases
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`in the $35,000-$65,000 range, whereas the average purchase total submitted by other
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`individuals was approximately $28 to $107,307. It appeared to be an attempt to stay under
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`the radar and avoid the $100,000 threshold which would then require the claimant to
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`provide documentation to support the claim. Therefore, we implemented a procedure to
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`challenge those claims and requested complete information to support each of those claims.
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`5 
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`Ultimately, each of the claims was rejected. We also consulted with the Claims
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`Administrator and implemented further audit procedures for which letters were sent
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`requesting additional substantiation for the basis of the claim. When the information was
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`not provided, Class Counsel and the Claims Administrator conferred and agreed that those
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`claims should be rejected.
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`22.
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`There were approximately 400 large corporate claims filed by a third-party
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`filer. A review and audit of those claims required extensive investigation and consultation
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`with the representatives in order to understand the basis of their claims. That process took
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`several months because a methodology needed to be developed to satisfy me and the
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`Claims Administrator. Even then, once the data was received and reviewed, downward
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`adjustments were made to those claims and accepted by the claimants. Such process
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`resulted in a reduction of almost $10 billion in claimed purchases from the original filing,
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`thereby increasing the overall distributed amount to eligible claimants.
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`23.
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`As a result of the audit procedures, and as set forth in ¶¶ 10-11 above,
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`Eligible Claimants have benefitted substantially from our efforts.
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`24.
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`In addition to the claims procedures, Class Counsel oversaw and directed
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`the investment of the Settlement Funds. In that regard, Class Counsel remained in constant
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`contact with the Escrow Agents and monitored the financial markets to be assured that the
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`Settlement Funds earned the appropriate income while remaining invested at minimal risk,
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`all in accordance with the Settlement Agreements and Escrow Agreements entered into
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`with the Settling Defendants and approved by this Court.
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`6 
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`25.
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`Attorneys’ fees and expenses incurred solely in connection with the Claims
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`Administration process and for which Class Counsel seek an award is $42,482.00. See
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`Declaration of Marvin A. Miller, ¶12.
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`CLASS COUNSELS’ EFFORTS PROTECTED AND PRESERVED THE
`SETTLEMENTS FOR THE BENEFIT OF THE CLASS
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`The events and proceedings since the entry of the Final Order and Judgment
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`26.
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`have been extraordinary in class action jurisprudence. At the Court’s request, we
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`researched and identified potential cy pres recipients whose purposes are closely aligned
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`with the interests of the Class in deterring price-fixing antitrust violations. We also
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`opposed the Center for Class Action Fairness proposal. Ultimately, the Court identified a
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`cy pres recipient. Based on the total purchases claimed, the amount of the settlement and
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`the Plan of Allocation, it appears unlikely that any of the settlement funds will be
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`distributed to a cy pres beneficiary.
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`27.
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`Steadfast that the settlements achieved were in the best interest of the Class,
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`Class Counsel remained resolute in our early announced position that we would not pay
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`any objectors. In that regard, we also opposed and prevailed on the fee application of the
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`Center for Class Action Fairness. Our vigorous and zealous advocacy to protect the Class
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`settlements required substantial commitment of resources and dedication but Class Counsel
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`took seriously their obligation and endured the onslaught of motions and appeals filed by
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`Andrews. We prevailed at every stage and the substantial $151,250,000 cash settlements
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`remain intact. They can only be characterized as an exhaustive marathon of appeals and a
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`barrage of motions by Christopher Andrews which required Class Counsel to devote
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`substantial efforts, time, and resources to respond. Indeed, this Court acknowledged the
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`extensive nature of the numerous proceedings which required the Court’s efforts when it
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`7 
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`denied Andrews’ motion for reconsideration of the sanctions award, and said, “Andrews
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`has exhausted his remedies with this Court, and in the process has exhausted this Court.”
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`[Doc. # 2123].
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`28.
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`So that the record is clear and as this Court is aware, we chronicle in detail
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`here and in the accompanying Declarations of Class Counsel (Exhibits B, C, D, and E)
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`those proceedings and our efforts to protect the Class’ interest.
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`29.
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`Andrews was an objector (one of several objectors) to a $151,250,000 all
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`cash settlement achieved for the benefit of a Class of Indirect Purchasers of Polyurethane
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`Foam products.
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`30.
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`As a condition of appealing, this Court required Appellants to post jointly
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`an appeal bond in the sum of $145,000. Objectors Cochrane, Cannata and Sweeney
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`voluntarily dismissed their appeals. After briefing, the Sixth Circuit dismissed the Hinojosa
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`appeal. That left Andrews as the sole objector who persisted with his appeal but did not
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`post the requisite appeal bond.
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`31.
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`IPPs moved in the Sixth Circuit to dismiss the appeal on the basis that
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`Andrews did not comply with the requirement to post the appeal bond. In addition, because
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`Andrews’ response to that motion included arguments on the merits of approving the
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`settlement, IPPs addressed those issues in reply.
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`32.
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`On June 20, 2016, the Sixth Circuit dismissed Andrews’ appeal and, in so
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`doing, commented on the merits of his appeal. See Exhibit A, App. No. 16-3168, Doc. #
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`2100 at 2-3. Specifically, the Court reviewed the allegations and found that, “Andrews’
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`objections to the settlements lack merit…” Id. at 3.
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`8 
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`33.
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`Andrews then sought en banc review which was denied without a single
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`judge of this Court voting in favor of Andrews’ request.
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`34.
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`Andrews’ course of conduct delayed finality of the settlement agreement
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`with Defendant, Carpenter Co., causing that Defendant to avoid depositing $43,500,000 of
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`its settlement obligation. That delay caused the Class to lose interest for which the Class
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`sought recovery.
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`35.
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`In Fall 2016, as a result of Andrews repeated vexatious filings which caused
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`delay, and because the delay injured the Class since Carpenter Co. did not need to deposit
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`into escrow $43.5 million as part of their settlement obligation, Class Counsel moved to
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`require Andrews to pay to the Class the amount of interest lost on the delayed Carpenter
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`Co. funding obligation.
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`36.
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`This Court granted the request and ordered Andrews to pay $15,303, being
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`the amount of interest lost to the Class from April through October, 2016. [Doc. # 2113].
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`37. When Andrews did not pay the interest, IPPs moved, pursuant to 28 U.S.C.
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`§1927, for sanctions against Andrews.
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`38.
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`Andrews did not pay any of the sanction amount and Class Counsel moved
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`to have Andrews held in contempt and for additional relief. [Doc. # 2125].
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`39.
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`By this Court’s Order [Doc. # 2127], Andrews was found in contempt and
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`the U.S. Marshal was directed to bring him before the Court.
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`40.
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`On January 6, 2017, the U.S. Marshals located Andrews at the Red Roof
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`Inn in Plymouth, Michigan and delivered him to this Court at approximately 4:00 p.m.
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`9 
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`41.
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`Undeterred by the Court’s orders, Andrews persisted with his course of
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`delaying finality of the settlement and filed with the United States Supreme Court a petition
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`for a writ of certiorari.
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`42.
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`IPPs waived briefing and the Supreme Court quickly denied his petition
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`without commentary on January 23, 2017. See Andrews v. Indirect Purchaser Class, 137
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`S.Ct. 842 (2017).
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`43.
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`Andrews asserted the exact same arguments in his petition for Rehearing,
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`which was also denied without commentary less than a month later.
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`44.
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`This Court, pursuant to its earlier Order [Doc. # 2127] and with clear notice
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`to Andrews, ordered further monetary and nonmonetary sanction. The additional relief
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`requested by Class Counsel and granted in part further protects the Class. That relief
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`provides:
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`• This Court confirms the previously imposed sanction award of $15,303 (Doc.
`2113), with the addition of interest for the months of November 2016, December
`2016, and January 2017 in the amount of $6,579 (see Doc. 2042-5), for a total
`penalty of $21,882
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`• This Court imposes an additional sanction of $500 to compensate IPC counsel for
`their fees and expenses related to the deposition scheduled for December 21, 2016,
`which Andrews failed to attend.
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` •
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` Andrews shall report to IPC counsel whenever he receives income not previously
`disclosed to IPC counsel -- including but not limited to any amounts received in
`connection with other class action settlements -- until the sanctions award in this
`case is paid in full.
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` •
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` Any distribution to which Andrews may be entitled from the settlement in this
`case must first be applied to the balance of the sanction award.
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` •
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` This Court declines to “refer” this matter to the U.S. Attorney’s Office, to the
`extent that might suggest this Court requests an investigation or otherwise takes a
`position on the merits of IPC counsel’s allegations. However, at the request of
`counsel, this Court will forward copies of the relevant filings in this
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`10 
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`case to the Criminal Division of the U.S. Attorney’s Office for the Northern
`District of Ohio. [Doc. # 2150].
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`42.
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`Andrews continued to barrage this Court with vexatious filings, including
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`his repeated but denied motion to stay. This Court denied that most recent request, finding,
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`as it did earlier, that Andrews’ position was without merit and had not satisfied the
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`requirements for issuance of a stay. [Doc. # 2166, citing Doc. #s Docs. 2113, 2123, 2127,
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`2150,2164].
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`43.
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`Class Counsel has begun enforcement proceedings to collect the amount of
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`sanctions for the benefit of the Class.
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`44.
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`Andrews moved in the 16th Judicial District Court for The City of Livonia
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`to limit collection of the sanctions. That motion was denied. A copy of the Order is
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`attached as Exhibit F.
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`45.
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`Class Counsel has served garnishments on Andrews’ disclosed bank
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`account, stockbroker, and the entity for which he provides sales services.
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`46.
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`Other counsel in cases in which Andrews has filed objections have
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`monitored the proceedings in this case and have contacted Class Counsel. Those Counsel
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`have copies of this Court’s sanctions orders.
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`47.
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`Andrews appealed this Court’s sanctions orders and moved for an
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`emergency stay of the enforcement to collect on the sanctions.
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`48.
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`Class Counsel has responded to that motion. See Exhibit B to Marvin A
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`Miller Declaration.
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`49.
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`He also requested an extension of time by which to file his opening brief.
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`The Sixth Circuit granted the request and set the following schedule: Andrews’ brief due
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`11 
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`July 17, 2017; IPP Response due August 16, 2017; Andrews Reply due 17 days after the
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`IPP Response is filed.
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`50.
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`Andrews filed a second appeal from this Court’s denial of his request for a
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`stay. (Sixth Circuit Docket # 17-3548). The separate briefing schedule in that appeal
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`requires Andrews to file his opening brief on August 10, 2017.
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`51.
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`Based on the respective firm’s declarations (Exhibits B-E), the respective
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`firms report the following adjusted lodestar and unreimbursed expenses:
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`Miller Law LLC
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`The Kerger Law Firm LLC
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`Stearns Weaver et al.
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`Dickinson Wright PLLC
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`Lodestar
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`$379,888.40
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`$ 44,820.00
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`$752,316.80
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`Expenses
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`$36,633.54
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`$ 698.87
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`$17,842.62
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`$ 69,298.00
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`$ 2,100.68
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`The detailed records from which the above summary of tasks and expenses reported by each firm
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`was derived contain information protected from disclosure under the attorney-client privilege and
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`the attorney work product doctrine. Because there are ongoing sanctions collection efforts relating
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`to Andrews, as well as pending appeals by him, those records will be submitted for in
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`camera inspection by the Court, if necessary.
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`52.
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`Class Counsel request an attorneys’ fee award in the amount of $1,246,323.20 and
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`reimbursement of expenses in the amount of $57,275.71.
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`Wherefore, Class Plaintiffs request that the Court approve the claims as recommended by
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`the Claims Administrator, award A.B. Data Ltd. its fees and expenses in the sum of $421,320.22 
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`as set forth in the Declaration of Eric J. Miller, ¶ 33, award Class Counsel attorneys’ fees in the
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`sum of $1,246,323.20, award Class Counsel reimbursement of expenses in the amount of
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`12 
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`$57,275.71, and approve distribution of the net Settlement Fund as recommended by the Claims
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`Administrator, A.B. Data, Ltd..
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`Dated: July 10, 2017
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`Respectfully submitted,
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`/s/ Marvin A. Miller
`Marvin A. Miller
`MILLER LAW LLC
`115 S. LaSalle Street, Suite 2910
`Chicago, IL 60603
`Phone: 312-332-3400
`Fax: 312-676-2676
`Email: mmiller@millerlawllc.com
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`Lead Counsel for Indirect Purchaser
`Plaintiff Class
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`/s/ Richard M. Kerger
`Richard M. Kerger (0015864)
`THE KERGER LAW FIRM LLC
`33 S. Michigan Street, Suite 100
`Toledo, OH 43604
`Telephone: (419) 255-5990
`Fax: (419) 255-5997
`Email: rkerger@kergerlaw.com
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`Executive Committee for Indirect Purchaser
`Plaintiff Class
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`Jay B. Shapiro
`STEARNS WEAVER MILLER WEISSLER
`ALHADEFF & SITTERSON, P.A.
`150 West Flagler Street, Suite 2200
`Miami, Florida 33130
`Telephone: (305) 789-3200
`Fax: (305) 789-3395
`Email: jshapiro@stearnsweaver.com
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`Counsel for Indirect Purchaser Plaintiff Class
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`13 
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`Case 2:12-md-02311-SFC-RSW ECF No. 2125-9, PageID.38615 Filed 03/10/21 Page 15 of 15
`Case: 1:10-md-02196-JZ Doc #: 2172 Filed: 07/10/17 14 of 14. PageID #: 98652
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 10, 2017, a copy of the foregoing was filed electronically.
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`Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties
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`indicated on the electronic filing receipt, pursuant to Local Rule 5.1(b)-(c) and Initial Case
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`Management Conference Order dated January 20, 2011 (Dkt. No. 17). Parties may access this
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`filing through the Court’s system.
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`/s/ Marvin A. Miller
`Marvin A. Miller 
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`14 
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