United States District Court, W.D. Oklahoma
IN RE SAMSUNG TOP-LOAD WASHING MACHINE MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO ALL CASES
TIMOTHY D. DeGIUSTI Chief United States District Judge
matter comes before the Court on Objector John Douglas
Morgan's Motion to Strike Plaintiffs' Untimely Expert
Declaration [Doc. No. 191]. Plaintiffs have filed a brief in
opposition [Doc. No. 192].
a consolidated multidistrict class action lawsuit where
Plaintiffs filed suit in various jurisdictions against
Defendants and in some cases also against retailers (the
“Consolidated MDL Lawsuit”). Plaintiffs alleged
that certain Samsung top-load washing machines had
experienced detachment of their tops from the washing machine
chassis and drain-pump failure during operation. The facts
and procedural history of this case have been more thoroughly
set out in the Court's recent order, issued following a
fairness hearing held on October 7, 2019 [Doc. No. 194].
to that hearing, Objector Morgan filed the Motion to Strike
arguing that (1) Plaintiffs' introduction of the
valuation of future benefits covered by Ms. Lucy P.
Allen's Declaration [Doc. No. 186, Ex.7] (the
“Allen Declaration”) is violative of Rule 23(h);
or in the alternative, (2) the Allen Declaration is
inadmissible under Daubert.
The Allen Declaration is consistent with Rule 23(h) as it was
filed in response to Morgan's objections.
Morgan urges the Court to disregard the Allen Declaration
when determining the fairness of the settlement and fee
requests. Motion at 4. Through the introduction of the Allen
Declaration, Objector Morgan argues, class counsel has
changed the basis of their motion for final approval,
violating the rights of absent class members under Rule
23(h). Id. Plaintiffs respond that the Allen
Declaration was submitted in response to Morgan's
objections. Opposition, Doc. No. 192 at 1. Morgan objected to
the proposed settlement by claiming that the warranties are
valueless. The Allen Declaration responded with a formal
valuation. Id. Further, Plaintiffs respond, neither
the plain language of the rule nor caselaw lend support to
the proposition that the Allen Declaration is improper
because it was submitted on reply.
Federal Rules of Civil Procedure require that any motion for
attorneys' fees be “directed to class members in a
reasonable manner.” Fed.R.Civ.P. 23(h)(1)-(2). Class
members may object to the motion. Id. Rule 54(d)(2)
governs motions for attorneys' fees and provides that a
fee petition must: (1) “specify the judgment and the
statute, rule, or other grounds, entitling the movant to the
award”; (2) “state the amount sought or provide a
fair estimate of it;” and, (3) “disclose, if the
court so orders, the terms of any agreement about fees for
the services for which the claim is made.” Fed.R.Civ.P.
the Court can locate no Tenth Circuit precedent on point, and
the parties cite to none, sister circuits have held that
setting the objector deadline before a fee motion is due
under Rule 23(h) is an abuse of discretion and an error as a
matter of law. See Redman v. RadioShack Corp., 768
F.3d 622, 637 (7th Cir. 2014) (“Class counsel did not
file the attorneys' fee motion until after the deadline
set by the court for objections to the settlement had
expired. That violated [Rule 23(h)].”); In re
Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 994
(9th Cir. 2010) (“In this case . . . class members were
deprived of an adequate opportunity to object to the motion
itself because, by the time they were served with the motion,
the time within which they were required to file their
objections had already expired.”).
was simply not the case, here. Class counsel met the
requirements of Rule 23(h). They filed their motion for
attorneys' fees nearly eight weeks before the deadline to
object. See Doc. No. 142. The motion for
attorneys' fees disclosed the amount requested.
Id. at 1. The motion explained and defended the
lodestar basis for the request and conceded the Court's
broad discretion in evaluating the matter. Id. at
11-13. Finally, the motion included data supporting the
request, namely, class counsel's hours and rates.
Id. at 14-20. This is plainly unlike
Mercury and Redman, relied on by Morgan, in
that in those cases, class members were furnished with
no information about what counsel's “work
was, how much time it consumed, and whether and how it
contributed to the benefit of the class.”
Mercury, 618 F.3d at 994; see Redman, 768
F.3d 638. Here, class notice plainly informed the class that
the settlement included extended warranty relief and
effectively detailed such relief. See In re Ferrero
Litig., 583 Fed.Appx. 665, 668 (9th Cir. 2014)
(“This is in stark contrast to In re Mercury
Interactive, where the motion for attorneys' fees
was filed two weeks after the deadline for filing objections
to the settlement agreement.”). Objectors had eight
weeks to respond to class counsel's motion for fees.
Morgan, as did others, filed their detailed objections. The
Allen Declaration was then submitted to address the value of
the warranties, plainly because Morgan-in his
objection-placed the value in issue. Objection, Doc. No. 163 at
12. After class counsel replied to Morgan's objection
with the Allen Declaration, they did not submit a
reimbursement request for Ms. Allen's fee.
this followed the requirements of Rule 23(h). To hold
otherwise would be to hold that class counsel is barred from
substantively replying to objections, necessarily requiring
class counsel to anticipate all possible objections in their
fee request. There is no precedent, binding or otherwise,
that requires the Court to reach such a conclusion.
The Daubert evidentiary standard is not the proper
standard to apply when considering the fairness of a class
Morgan also argues that the Allen Declaration should be
stricken as it is neither relevant nor reliable under
Daubert v. Merrell Dow Pharmaceuticals, Inc. 509
U.S. 579, 589 (1993). The parties dispute the applicability
of Daubert in the Court's final fairness
evaluation of a class action settlement.
least at the class certification stage, the degree of
scrutiny to which expert testimony should be subjected
remains unsettled after Wal-Mart Stores, Inc., v.
Dukes, where the Supreme Court pointedly suggested that
a full “Daubert-style evaluation is
required.” 564 U.S. 338, 354 (2011). Persuasive
authority from the courts of appeals explains that where an
expert's opinion is critical to class certification-that
is, when expert testimony is offered to prove satisfaction of
one of Rule 23's certification requirements-a
Daubert-style inquiry is appropriate. See,
e.g., In re Blood Reagents Antitrust Litig.,
783 F.3d 183, 187 (3d Cir. 2015) (“We join . . . our
sister courts to hold that a plaintiff cannot rely on
challenged expert testimony, when critical to class
certification, to demonstrate conformity with Rule 23 unless
the plaintiff also demonstrates, and the trial court finds,
that the expert testimony satisfies the standard set out in
Daubert.”); In re Zurn Pex Plumbing Prods.
Liab. Litig., 644 F.3d 604, 614 (8th Cir. 2011)
(approving “a focused Daubert analysis which
scrutinized the reliability of the expert testimony in light
of the criteria for class certification and the current state
of the evidence”); Ellis v. Costco Wholesale
Corp., 657 F.3d 970, 982 (9th Cir. 2011) (“In its
analysis of Costco's motions to strike [expert testimony
at the class certification stage], ...