NORMA R. BROIN, et al.,
  Plaintiffs,                                                                                      Case No.: 91-49738 CA(22)


  Class members Angela Williams, Robert Eric Levine, and Jean E. Golem (the "Williams Objectors") hereby object to the proposed class action settlement and gives notice of their intent to appear through counsel (Alan B. Morrison) at the fairness hearing scheduled for January 26, 1998.
  As we explain further below, the Williams Objectors oppose the settlement for two basic reasons. First, the settlement violates fundamental tenets of fairness and adequate representation because the principal benefit obtained by the named representatives--$300 million in cash--is paid not to the class members, but to a medical research foundation named in honor of the lead plaintiff Norma Broin. Second, class counsel have signalled their intention to seek $46 million in fees. Although those fees appear grossly excessive, at this juncture the main problem is that class counsel have yet to submit their fee application so that the Court and the class members can evaluate the reasonableness of the request. See Kuhnlein v. Department of Revenue, 662 So.2d 309 (Fla. 1995).
  Indeed, the problem in responding to the $46 million feerequest permeates this entire proceeding. Despite specific requests, class counsel have refused to provide copies of pleadings and other case documents, even at objectors' expense. In addition, although the burden of establishing the fairness of the settlement rests squarely on its proponents, Newberg on Class Actions, ¶ 11.42 (3d ed. 1992), the settling parties have chosen to await the filing of objections before putting forth their evidentiary and other support for the settlement, which they will file just four business days prior to the fairness hearing. Assuming that objectors are served promptly, they will be hard pressed to digest, let alone respond to, the settling parties' arguments, as well as to prepare for the fairness hearing. Thus, we reserve the right to supplement these objections and to take any necessary discovery after we have reviewed the settling parties' submissions in support of the settlement.
  In the pages that follow, we begin with a brief introduction and then explain in greater detail why the settlement should be rejected. Finally, we make suggestions for amendments to the settlement that would cure its current crippling deficiencies.


  Because the Court is aware of the lengthy history of this case, we set forth here only those facts necessary to understand the settlement and its deficiencies. This settlement arises out of a class action filed by Norma R. Broin and other named plaintiffs on behalf of a class of non-smoking flight attendants who have worked or are working for U.S.-based airlines. Second AmendedComplaint, ¶ 48. The defendants are the major tobacco companies and affiliated trade groups. The class includes only flight attendants who are currently suffering from a tobacco-related illness and specifically excludes flight attendants who may contract such illnesses in the future. Settlement Agreement, ¶ 1.
  The plaintiffs assert that, as a result of breathing second- hand smoke as flight attendants, they suffer from many diseases, ranging from cancer to heart disease to infertility to general respiratory ailments. Second Amended Complaint, ¶ 82(b). The plaintiffs seek recovery under Florida law on theories of strict liability, breach of implied warranty, negligence, fraud and misrepresentation, and conspiracy to misrepresent and commit fraud. Id. ¶ 142. The second amended complaint--under which the settlement occurred--seeks only traditional damages relief. Thus, on behalf of the class, the class representatives sought compensatory damages for bodily injury, pain and suffering, disability, disfigurement, loss of life's enjoyment, medical expenses, loss of earnings, and mental anguish. Id. The plaintiffs also demanded punitive damages on account of the defendants' "outrageous conduct." Id. ¶ 144.
  This Court certified the class on December 12, 1994, Thereafter, a notice was sent to the class members in January, 1997, pursuant to Rule 1.220(c)(2). The notice explained, among other things, that this case was a class action for damages against the tobacco companies, and that the class members had the right to exclude themselves from the class on or before May 1, 1997. To thebest of our knowledge, the notice did not indicate that the case might settle for relief not sought in the complaint, let alone for hundreds of millions of dollars payable to a research foundation rather than to the plaintiff class.
  After the opt-out period ended, a "Stage I" trial began, focusing on general causation and other common issues regarding the defendants' conduct. On October 10, 1997, during the defendants' case-in-chief, the parties informed the Court that they had reached a settlement.
  The basic provisions of the settlement are straightforward. The defendants will provide $300 million, payable in three equal installments, to establish a non-profit research foundation, whose purpose will be to improve early detection of, and find cures for, tobacco-related diseases. Settlement Agreement, ¶ ¶ 7-8. The foundation will be named in honor of the lead plaintiff, Norma Broin, and will be directed by a board of trustees, including flight attendants, nominated by class counsel. Id. ¶ 8. The defendants also agree to support the enactment of "appropriate federal legislation" to prohibit smoking on regularly scheduled international flights (or segments of international flights) originating or terminating in the United States. Id. ¶ 11.
  Under the settlement, class members retain the right to sue the tobacco companies individually to collect damages for their smoking-related injuries, and the defendants agree to waive, for one year after final approval of the settlement, any applicable statute of limitation or repose. In those individual suits, thedefendants would have the burden of proof regarding general causation, i.e. that second-hand smoke causes tobacco-related illness, but only with respect to some of the smoking-related diseases alleged in the complaint. Id. ¶ 12(d). Class members have the right to use evidence submitted in the Stage I trial before this Court, "subject to all objections by any party," and the defendants shall provide individual claimants a copy of the video testimony from the Stage I trial. Id. ¶ 12(e).
  Finally, the settlement provides that class members bringing individual suits may sue in the Eleventh Judicial District of Florida (where Florida substantive law will apply), as well as in any other forum where venue is proper. Id. ¶ 12(c). The class notice, but not the settlement agreement, indicates that "Class Counsel and other independent counsel will be available to represent Class Members" in individual cases, but the notice does not state who those lawyers will be and what they will charge for their services. See Notice of Proposed Class-Action Settlement and Final Settlement Hearing, Part V (Oct. 31, 1997).
  In exchange, the defendants retain certain rights and obtain certain benefits. First, the defendants obtain a release from all class members concerning any matters relating to the causes of action set forth in the second amended complaint. Settlement Agreement, ¶¶ 14-15.
  Second, although plaintiffs retain the right to bring individual litigation as described above, that litigation is circumscribed in several important respects: (a) no class membermay seek punitive damages (or any other type of non-compensatory damages); (b) no class member may seek recovery on any fraud, misrepresentation, RICO, suppression, or concealment theory, or any theory based on defendants' willful or intentional conduct; and (c) no class member may seek joinder with any other plaintiff in a suit against the defendants, and thus is barred from participating in any form of aggregated litigation. Id. ¶¶ 12(a), 12(g).
  Third, the defendants are not obligated to pay any money to any class member in settlement of the class members' claims, nor do they admit liability concerning any of the conduct alleged in the second amended complaint.
  Fourth, although the defendants have the burden of proof on general causation, the individual plaintiffs retain the burden of proof on all other issues, including specific causation, i.e., that second-hand tobacco smoke caused their particular diseases. Id. ¶ 12(d).
  Finally, the settlement provides that class counsel Stanley Rosenblatt and Susan Rosenblatt will seek an attorney's fee of $46 million and that the defendants will not oppose that request. Id. ¶ 10; Notice of Proposed Class-Action Settlement and Final Settlement Hearing, Part IV(l). The defendants also will pay the Rosenblatts' expenses, estimated at $3 million. Id.


   A. The Payment of $300 Million to a Research Foundation, Rather Than to the Class Members, Demonstrates, As a Matter of Law, That the Settlement is Unfair and That the Class Representatives Have Not Adequately Represented the Class.

  This case involves a settlement in which the defendants have agreed to a limited set of arguable procedural advantages to members of the plaintiff class who wish to bring individual suits against the tobacco industry, in exchange for the surrender of the most potent tools in tobacco litigation. Eliminating the class members' rights to seek punitive damages and to sue for any fraud- related and intentional torts, and abrogating all future class or aggregated litigation, has been, for years, the ultimate litigation wish-list of the tobacco industry. Class counsel obviously believes that this trade-off alone would not provide sufficient consideration for their clients since they bargained for and obtained defendants' payment of $300 million. Even with that payment, there is, in our view, serious doubt as to the adequacy of the total settlement package, in large part because the non- monetary components of the settlement may only benefit a few class members.
  Nonetheless, we assume for the sake of these objections that the combined value of the benefits to the class ($300 million, plus various arguable future litigation advantages) roughly equal the costs to the class (various future litigation disadvantages, such as the waiver of punitive damages). We also assume, without conceding, that a $300 million cash payment to the class members themselves would be a reasonable settlement in light of the risks of litigating the class action to final judgment. The fundamental problem is not the amount of the payment, but that it is going to a research foundation, and not to the class members.
  The class representatives and class counsel have decided to trade the most significant components of the class members' claims (punitive damages, fraud-based and intentional torts, the right to aggregate) for a research foundation. If Norma Broin and the other class members want to sell their claims in that fashion, they are, of course, free to do so, but neither Florida law nor the Constitution of the United States allow them to trade the Williams Objectors' or the other absentees' claims in that manner.
  There is reason to doubt whether the Broin Foundation will be of any value to any class member. After all, tens of billions of dollars have been spent to date to treat and cure cancer, with little discernible affect on cancer rates. But even assuming that the $300 million will be put to good use, the money must be used exclusively for the benefit of the class. For example, Ms. Williams has early-onset asthma, which requires medication and has dramatically altered her life style. Williams Affidavit, ¶¶ 3-6 (attached as Exh. 1). Similarly, Mr. Levine suffers from severe sinusitis. Levine Affidavit, ¶¶ 3-5 (attached as Exh. 2). Any foundation money spent for "early detection" of tobacco-related disease simply will not assist Ms. Williams, Mr. Levine, or any other class member since, under the class definition, they already are suffering from some tobacco-related disease. Moreover, for class members who already have serious, terminal ailments, such as many of those listed in the second amended complaint (e.g., stomach cancer), a research foundation directed to cure future disease cannot conceivably benefit those class members. Indeed, the classincludes the survivors of former flight attendants who have already succumbed to tobacco-related illness and for whom a research foundation is of no possible benefit. In sum, the core component of the settlement--the $300 million research foundation--renders the settlement fundamentally unfair because the foundation will not benefit the persons on whose behalf the class action was filed. See Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1018 (2d Cir. 1973), vacated and remanded on other grounds, 417 U.S. 156 (1974) (fluid recovery that doesn't benefit class would violate due process).See footnote 1
  Nor can the settlement be justified on a cy pres theory. In some circumstances, a limited portion of a class action fund could be directed to a charity, under the close supervision of the court, whose purposes directly relate to the relief sought in the complaint. See, e.g., In re Agent Orange Prod. Liab. Litig., 818 F.2d 179, 184-86 (2d Cir. 1987). Such cy pres disbursements are permissible when there is left-over money following distribution of a cash fund and further distribution is impractical or impossible. But the settling parties here "do not claim that a cy pres settlement is appropriate because it would be impossible ordifficult to locate class members, or because each individual class member's recovery would be so small as to make an individual distribution economically impossible." In re Matzo Food Prods. Litig., 156 F.R.D. 600, 606 (D.N.J. 1994)(rejecting settlement because payment went to charity rather than to class members).
  To the contrary, most or all of the class members have already been located and notified, and the class members' recoveries, if the $300 million were paid to them, would be quite substantial. If we assume, quite generously and in the absence of proof of class size from class counsel, that 1,000 individuals meet the class definition (non-smoking flight attendants who currently suffer tobacco-related injuries), each would receive, on average, $300,000 in exchange for giving up their rights to punitive damages, etc. Some class members with life-threatening illnesses would receive far more, and those with less serious illnesses would receive less. But whatever they received, they could each then make an individual decision whether to contribute all or some of their recoveries to combat tobacco-related diseases.
  The conclusion that a "charitable giving" theory is unacceptable here is underscored by the jarring disconnect between the damages sought in the second amended complaint and the establishment of the Broin Foundation. The second amended complaint seeks actual monetary damages, such as lost wages and medical expenses. Ms. Williams, for instance, has ongoing medical expenses relating to her adult-onset asthma. If we assume that Ms. Williams' expenses will come to $10,000 over her lifetime, it isdifficult to see how a $10,000 charitable contribution to combat tobacco-related disease will get Ms. Williams one step closer to recovering those expenses. See Jewish Guild for the Blind v. First Nat'l Bank in St. Petersburg, 226 So.2d 414 (Fla. App. 2d Dist. 1969)(where testamentary trust provided for acquisition or construction of separate building for blind children, cy pres doctrine did not permit installation of facilities in existing building, even though trust principal was inadequate for acquisition or construction of separate building); In re Ford Bronco II Prod. Liab. Litig., 1995 U.S. Dist. Lexis 3507, *19 (E.D. La. 1995)(rejecting class action settlement in part because settlement provided only a non-monetary package of benefits and none of the damages relief sought in complaint).
  The class representatives' decision to direct the settlement's benefits to a charitable foundation also demonstrates a lack of adequate representation under Rule 1.220(a)(4). As noted above, the second amended complaint seeks only compensatory and punitive money damages to pay for the class members' personal injuries. When notified of the class certification and their right to opt out in January 1997, the class members were told the same thing: that this class action sought damages for tobacco-related injuries. And later, when the plaintiffs tried their case in chief, as the notice of this settlement clearly states, the plaintiffs were attempting to establish the defendants' liability, so that the class members could come forward in "Stage II" and prove their money damages.
  Little did the absent plaintiffs know that lead plaintiffNorma Broin's chief goal in this class action was not to collect the money damages that she demanded in the complaint or proclaimed in the January 1997 notice, but to prove a point:
We have accomplished a huge amount of what we set out to do. This [lawsuit] was never about money to me. It was about exposing the lies, deception, and fraud [of the tobacco industry].

"Ex-Utahn Sought Truth, Not Money," The Salt Lake Tribune (Oct. 11, 1997)(quoting Norma Broin)(emphasis added)(attached as Exh. 3). Thus, plaintiff Broin was never seeking the money damages that the Williams Objectors have every reason to believe was the central-- indeed, the only--goal of this lawsuit.
  The inadequate representation that upended the settlement involved in Amchem Prods., Inc. v. Windsor, 117 S. Ct. 2231 (1997), pales in comparison to the inadequate representation here. In Amchem, the named plaintiffs who had been exposed to the defendants' asbestos products entered into a settlement that would provide them cash payments if and when they contracted certain asbestos-related diseases. The Court ruled that the named plaintiffs were not adequate representatives under Fed. R. Civ. P. 23(a)(4)--the federal counterpart to Rule 1.220(a)(4)--because they sought to represent both currently-injured class members and those who might be injured in the future. Amchem, 117 S. Ct. at 2250-51. As the Court pointed out, the interests of these two groups were divergent, because currently injured plaintiffs would be seeking to maximize current benefits, while those seeking insurance against future injuries might want protections against inflation, a future opt-out right, and other benefits that the settlement did notprovide. Id. at 2251.
  Although the global settlement in Amchem failed miserably to protect the absentees, at least there was some nexus between what the plaintiffs sought in the complaint and what the settlement was intended to provide. Thus, from the beginning, the class representatives in Amchem sought cash recoveries for their present or future asbestos-related injuries. And despite the settlement's crippling intra-class conflicts, the settlement did, in fact, provide cash recoveries. Here, by contrast, the complaint has Norma Broin leading the charge to collect money damages for class members such as the Williams Objectors, but she now proclaims that "[t]his [case] was never about money to me." Thus, the settlement establishes a research foundation named after Mrs. Broin, but pays no money to the Williams Objectors or any other class member. Indeed, it tells the Williams Objectors and their fellow class members that their only chance at recovering damages is in individual litigation that has not even commenced--the very type of litigation that the class action was filed to avoid.
  One additional point bears mention. As the Supreme Court has said repeatedly, the requirement of adequate representation in state-court class actions has it roots in the Fourteenth Amendment's Due Process Clause. See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985); Hansberry v. Lee, 311 U.S. 32, 42-43 (1940); see also Matsushita Elec. Indus. Co. v. Epstein, 116 S. Ct. 873, 889 (1996)(Ginsburg, J., concurring). Because the causes of action held by absent class members are a form ofproperty protected by state law, see Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-29 (1982), they cannot be compromised unless the named plaintiffs have provided adequate representation. Shutts, 472 U.S. at 712. And although, the Florida Supreme Court has yet to develop a due process class action jurisprudence, we have no doubt that Article I, section 9 of the Florida Constitution--which is modeled on the Fourteenth Amendment's due process clause-- incorporates the same principles enunciated by the Supreme Court of the United States.
  Here, it is uncontested that the named representatives have drastically altered the nature of the class members' rights in their causes of action. They can no longer seek punitive damages. They can no longer bring any claim based on fraud, misrepresentation, concealment, or any other intentional tort theory, which is quite troubling since, according to Ms. Broin, the class action was principally "about exposing the lies, deception and fraud" of the tobacco industry. Absent class members like the Williams Objectors can no longer join with other plaintiffs in fighting the tobacco industry. And the $300 million extracted from the defendants in compromise of the plaintiffs' claims is going not to the injured flight attendants but to the Broin Foundation. For the reasons stated above, the settlement must be rejected on non- constitutional grounds. Moreover, given these facts, the near- complete abandonment of the interests of absent class members such as the Williams Objectors also constitutes a violation of the dueprocess clauses of the Florida and United States Constitutions.See footnote 2
     B. The $46 Million Attorney's Fees Request Should Not Be Approved.

  At this juncture, there is no basis for approving class counsel's gargantuan $46 million fee request. Not only is the amount greatly in excess of even the most generous estimates of the time and risk involved, but class counsel has yet to come forward with evidence to substantiate any fee as required by law. See Kuhnlein v. Dep't of Revenue, 662 So.2d 309 (Fla. 1995). We acknowledge that class counsel has spent many years and invested considerable resources on this litigation and, therefore, if the settlement were one that the Court could approve, a generous fee would be justified. That fee could properly take into account both the Rosenblatts' time, monetary investment, and a reasonable enhancement for the risk of non-recovery.
  More so than with respect to the settlement itself, it is fundamentally unfair for class counsel to require class members to object to the fee request before class counsel has even filed a fee application. Thus, class members will not have access to theRosenblatts' claimed lodestar, proposed fee enhancements, or any other rationales for the $46 million fee when their initial objections are due. As we understand it, the fee application need not even be filed until the close of business on January 19, 1997. And given the lack of cooperation we have encountered from class counsel in obtaining other documents, we may not see the application until just before the fairness hearing. Thus, we reserve the right make further objections and to take discovery relevant to the fee request after we have had a full opportunity to review the application. Nonetheless, there are several basic observations that we can make regarding the fee request, even on the current record.
   First, the Court should not reach the fee question at all because the settlement does not warrant approval; the following points apply only if the Court decides to approve the settlement.
   Second, class counsel may not avoid scrutiny of their fee request on the ground that the defendants have agreed to pay the fee "separate" from the $300 million payment to the Broin Foundation. Any defendant, particularly the highly sophisticated litigation-tested defendants here, are well aware that a class action settlement involves both payments (or other consideration) for the merits and payments for fees. Settlement of both elements are generated by the value of the plaintiffs' claims, and it is up to the Court, not the settling parties, to determine what portion of the entire settlement proceeds are to be paid to the plaintiffs' attorneys.
  In In re General Motors Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir.), cert. denied, 116 S. Ct. 88 (1995), the settlement provided that class members would be awarded coupons toward the purchase of a new General Motors truck. In addition, the plaintiffs' attorneys sought, and the lower court awarded, a $9.5 million fee to be paid by the defendants. Class counsel argued that, because, under the settlement, the fee was to be paid "separately" by the defendant apart from the coupon distribution, objecting class members did not have standing to contest the fees on appeal. The Third Circuit rejected that argument as "patently meritless" because the settlement's fee component was "for all practical purposes, a constructive common fund." Id. at 820; accord General Motors Corp. v. Bloyed, 916 S.W.2d 949, 957-58 (Tex. 1996); see also Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 522-24 (1st Cir. 1991)(even where defendant agrees to pay fee, judicial scrutiny is necessary to police potential conflict between class members' interests and those of fee-seeking attorneys).
  Thus, there can be no argument here that the class members have no interest in the Rosenblatts' fee award, as a smaller fee for the Rosenblatts may well have led to a more favorable settlement for the class members. Indeed, the class members' interest in opposing the fee request is even greater here than was the class members' interest in General Motors. There, the defendant had, in the settlement agreement, reserved the right to oppose any fee request, see In re General Motors Corp. Pick-upTruck Fuel Tank Prods. Liab. Litig., 846 F. Supp. 330, 352 (E.D. Pa. 1994) (quoting attorney's fees provision of settlement), thus arguably retaining the right to minimize its fee liability by arguing that class counsel had not earned the requested fee. Here, just the opposite is true; the defendant has already agreed--in a so-called "clear sailing" provision--that $46 million is a reasonable fee and has pledged not to oppose a request for that amount. Settlement Agreement, ¶ 10. As the U.S. Court of Appeals for the First Circuit has held, "the very existence of a clear sailing provision increases the likelihood that class counsel has bargained away something of value to the class ... mak[ing] heightened judicial oversight ... highly desirable." See Great Northern Nekoosa, 925 F.2d at 525. Indeed, since the defendants have disclaimed any interest in the $46 million fee, to the extent that the fee award is less than $46 million, the "savings" should be retained by the class members.
   Third, class counsel's evidentiary burden here is considerable. Under Kuhnlein, supra, class counsel may only obtain a fee on a lodestar basis and, therefore, they must provide the Court with billing records, describing their work on a task-by-task basis. This will enable the Court and the objectors to determine whether $46 million, or some lower amount, is the proper fee.
  Fourth, the fee request appears to be grossly excessive. See Florida Bar Rule 4-1.5. Apparently, Stanley and Susan Rosenblatt are the principal, if not the only, attorneys who will share in the fee. At $250 per hour, the Rosenblatts would have had to put in184,000 hours (or 23,000 eight-hour days) on this case to earn $46 million. Even assuming a multiplier of three (i.e., $750 per hour), that would mean 7,667 eight-hour days (or more than twenty- five years of 300 days each) devoted solely to this litigation.
   Fifth, as noted earlier, assuming that the Court approves the settlement, a reasonable contingency multiplier should be added to a reasonable lodestar fee. However, any multiplier should be tempered by one factor peculiar to this settlement. In most class actions, a settlement terminates the claims of the class and thus ends all related litigation. Here, however, the Rosenblatts have structured the settlement so that the class members get no money now, but may file individual suits at a later date. Part V of the class notice states that the Rosenblatts intend to offer representation in many of those cases, which they will presumably handle under percentage retainer agreements yielding them between one-third and 40% of any recovery. Although we acknowledge that those future individual cases will bear their own risks, the Rosenblatts will stand to gain considerable additional fees. However, the size of the multiplier in a class action like this depends, in part, on the quality of the results obtained. See Kuhnlein, 662 So.2d at 315. Here, that "quality" depends largely on whether individual litigants such as Norma Broin and the Williams Objectors will be able to obtain reasonable settlements or judgments without the right to seek punitive damages or the right to recover on the basis of fraud, concealment, and other intentional misconduct perpetrated by the tobacco industry. Therefore, part of class counsel's multiplier should be deferred to the individual litigation, to be collected in the form of contingent fees if that litigation is successful.
     C. Renegotiation of the Settlement.
  As explained above, we believe that the settlement suffers from one fundamental defect: It trades the plaintiffs' valuable claims for a research fund named in honor of the lead plaintiff, without paying a penny to the injured class members. Our criticisms of the settlement are not an attack on the altruism exhibited by Norma Broin or by any other flight attendant who wishes to advance medical research. That altruism is highly admirable. But no one--especially class counsel or the named representatives in a class action--has the right to demand altruism of others. In short, the Williams Objectors and the other class members have been forced, through the compromise of their valuable claims, to make a charitable contribution to the Broin Foundation.
  The defendants have determined that $300 million is a reasonable purchase price for elimination of the class members' rights to punitive damages and intentional torts and to aggregate their cases. If that $300 million were placed in a fund to be divided in a reasonable manner among the class members, we would have no objection to such a settlement. We recognize that this Court is not empowered to remake the parties' agreement, Levenson v. American Laser Corp., 438 So.2d 179, 183 (Fla. App. 2d Dist. 1983); Evans v. Jeff D., 475 U.S. 717, 726-27 (1986), but it can reject the current agreement and suggest what changes would benecessary for approval. See id. at 726; Bowling v. Pfizer, 143 F.R.D. 138 (S.D. Ohio 1992)(court suggested changes later incorporated in Bowling v. Pfizer, 143 F.R.D. 141 (S.D. Ohio 1992)). We urge the Court to take that approach here.
  There is another possibility that the Court may wish to consider. Class counsel have indicated that the class members overwhelmingly support this settlement and its $300 million payment to the Broin Foundation. Perhaps the class members agree with Norma Broin that this case "hasn't been about money. It's been about education and getting the truth." Associated Press News Report (attached as Exh. 4). Perhaps many of the absentees are willing, therefore, to trade the value of their claims to promote tobacco-related medical research. That proposition could easily be tested by allowing the class members to designate in writing whether they wish to contribute their share of the $300 million settlement fund to the Broin Foundation or whether they wish to keep that amount for themselves. Of course, if the class members opt to make a donation, they would also keep the other alleged benefits of the settlement, such as the waivers of the statutes of limitations and repose, the altered burden of proof, etc. For class members who do not make such a donation, it would be reasonable to require them to sign an appropriate release. If class counsel are correct about the class members' support for the settlement, they should support our proposal, because the result would be roughly the same as it would be under the current plan, while preserving the class members' autonomy.


  For the reasons stated above, the proposed class action settlement should not be approved. We ask the Court to consider the alternative solutions proposed above.
            Respectfully submitted,

            Brian Wolfman

            Alan B. Morrison

            Richard Bennett
            Attorneys for Class Members
             Angela Williams, et al.

January 5, 1998


Footnote: 1 This settlement stands in stark contrast to Bowling v. Pfizer, 143 F.R.D. 141 (S.D. Ohio 1992), a class action involving about 50,000 patients implanted with a potentially deadly, fracture-prone heart valve. The settlement provided $90 million in immediate cash benefits, various payments to class members who suffered valve fractures or who underwent valve replacement surgery, and a $75 million research fund. Id. at 148-50. The research fund was directed toward fostering non-invasive methods for detecting fracture-prone valves and to enable class members to pay for diagnostic services, both of which would directly benefit the class members. Id. at 149. 
Footnote: 2 Under Rule 1.220(c)(2), as under its federal counterpart Fed. R. Civ. P. 23(c)(2), class members in (b)(3) class actions have a right to opt out prior to a determination of their claims. That kind of notice was sent out in this case in January 1997, and the class members were told that this class action sought money damages for tobacco-related illnesses and that they could opt out by May 1, 1997. Because that notice was sent before the class members' claims were transmogrified into a request for a research foundation, no "meaningful" right to opt out was provided in this case. The failure to provide a meaningful opt-out right violates both Rule 1.220(c)(2) and the due process clauses of the Florida and federal constitutions, see Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 813 (1986), which can only be cured if the class members are accorded a right to opt out of the settlement.