IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA___________________________________ )IN RE FORD MOTOR CO. BRONCO II ) MDL DOCKET NO. 991PRODUCTS LIABILITY LITIGATION ) No. 94-MD-991___________________________________) BENNETT OBJECTORS' BRIEF IN RESPONSE TO RECENT SUBMISSIONS BY CLASS PLAINTIFFS Class members Suzanne F. Bennett, Al Causey, Michael E. Roberts, andRobert Hooker, and the Center for Auto Safety ("Bennett Objectors")filethis Brief in response to submissions made by the class plaintiffs regardingtwo separate issues: (1) attorney's fees and expenses and (2)the information that class counsel maintain they relied upon in formulatingtheir complaints. I. Introduction. On October 13, 1994, the Bennett Objectors served discovery on theclass plaintiffs which sought, among other things, information aboutcustomary hourly rates and copies of all time and expense records thatsupported class counsel's claim for $4 million in fees and expenses thathad been filed in the Circuit Court for Greene County, Alabama. Overplaintiffs' objection, this Court directed the class counsel to answerthat discovery, but, on the eve of the November 8, 1994 fairness hearing,class counsel objected on the grounds that the material was irrelevant andthat it constituted privileged work product. The Bennett Objectorsimmediately filed a motion to compel. At the fairness hearing, this Court ordered plaintiffs to producethe time records of counsel and evidence of their hourly rates as well asall documents that supported the allegations in their complaints. Thereafter, the Court granted the Bennett Objectors' motion to compel theexpense records, copies of which were received by the Bennett Objectors onDecember 20, 1994. The production of this information has provided the Bennett Objectorswith important information which will, we believe, assist thisCourt in evaluating not only the propriety of the $4 million fee petition,but also the fairness of the settlement and whether class counsel hasprovided adequate representation under Rule 23(a)(4). In Part II. below,we review the time records and hourly rate information submitted by classcounsel and show that they do not support the huge $4 million request madeby the plaintiffs in the Alabama action. In Part III., we review theexpense records, which confirm our prior misgivings about the requestedexpense reimbursements. Finally, in Part IV., we show that the variousdocuments submitted by class counsel provide further evidence that thesettlement is unfair and that class counsel has not provided adequaterepresentation to the class. II. Class Counsel's Time Records. As class counsel has steadfastly refused to file a fee applicationto this Court, the Bennett Objectors have filed copies of the Alabama feepetition and a supplement thereto so that this Court can evaluate classcounsel's fee request. We reiterate our position that this Court may notapprove the settlement unless and until class counsel files a proper feeapplication with this Court accompanied by time and expense records, anexplanation of counsel's hourly rates, and a brief fully justifying whythey are entitled to the fees and expenses sought. Nevertheless, in the pages that follow, we review the time recordssubmitted pursuant to this Court's orders as if they had been properlyfiled in support of a fee application. As we now show, class counsel'stime records are wholly inadequate and cannot support the huge fee requestmade in the Alabama action. A. The Hours Requested are Inflated and Represent Work that is Not Compensable, and the Tasks Are Not Adequately Described. A fee applicant may not simply pluck a figure out of thin air --whether it be $4 million or some other amount -- and proclaim that it isreasonable. Rather, in this Circuit, the Court must determine a"lodestar" -- a reasonable hourly rate multiplied by the number ofhoursreasonably expended on the litigation. *See* *Graves v. Barnes, 700 F.2d200 (5th Cir. 1983)*. The resulting figure is then adjusted, in certaincircumstances, by the factors set out in *Johnson v. Georgia HighwayExpress, Inc., 488 F.2d 714 (5th Cir. 1974)*, recognizing that some ofthose factors usually are subsumed in the lodestar. *Major v. Treen, 700F. Supp. 1422, 1429 (E.D. La. 1988). At this juncture, the Bennett Objectorswill not assess the *Johnson factors because class counsel hasnot filed a fee application. We reserve the right to comment on the*Johnson factors if and when counsel files a fee application. However, aswe now show, the time records submitted by class counsel show that a largeproportion of the hours for which fees are sought are not properly includedin the lodestar and, therefore, are not compensable*. 1. TheApparent Overstatement of Hours in the Alabama Fee Petition. As far as the record shows, class counsel has overstated the amountof time that they have worked on these cases. After the one-page feepetition in the Alabama action was challenged, class counsel filed a shortbrief and some additional affidavits in that action. *See* Bennett Ex.No. 17 (supplemental brief in support of fee application, filed in the*Rice* case on October 31, 1994). In that submission, Mr. Freese claimedthat time spent by the lawyers in his firm on this litigation "hasexceeded 3000 hours" as of October 31. *See* Affidavit of RichardFreese, 3 (Oct. 30, 1994), attached hereto as Exhibit 1. But according to Burr& Forman's own printout submitted to this Court on December 8, *throughNovember 30*, the total number of attorney hours was 1927.8. Given thevery large number of hours spent in November 1994, themore-than-3000-hour assertion in Mr. Freese's October 30 affidavit appearsto be about double the actual amount spent by Burr & Forman lawyers as ofthe date of Mr. Freese's affidavit. This discrepancy is very troublingsince it was made in support of a fee petition in the Alabama action inwhich class counsel has not seen the need to file time records or abreakdown of any kind showing how the attorneys spent their time on thislitigation. Thus, the Alabama court would not have had, and still doesnot have, any way of knowing whether the 3000-hour allegation was correct. This Court should not approve the settlement or award a fee unless this areasonable explanation is offered for this discrepancy. 2. The Unwarranted Filing of Identical Litigation. Along with their time records, class counsel have submitted a chartentitled "History of the Bronco II Class ActionLitigation." That chartlists seven separate class actions, four of which were filed in federalcourt and three of which were filed in state court. Ford removed all ofthe state court cases to federal court, but, in two of those cases,plaintiffs successfully remanded the case to state court. Thus, of theseven cases, five were pending in federal court at the time of the MDLconsolidation order. One of the remaining state court actions -- *Jordan* -- is not apart of the MDL and was prosecuted by attorneys other than class counsel. Four of the five cases that now comprising the MDL -- *Lewis*, *Armistead*,*Vitrano*, *Luis* -- and the *Rice* action pending in GreeneCounty, Alabama, are part of a very peculiar pattern which, at best,involves hundreds of hours of work on duplicate litigation that are notcompensable because that work could have been done much more efficientlyin one action. These five class actions were filed in rapid succession and involvedone of class counsel -- Mr. Frazer -- as a principal lawyer for the class. To recount: On July 23, 1993, Mr. Frazer filed *Lewis*, anationwideclass action in district court in Mississippi. (See Footnote #1) Justseven days later, on July 30, Mr. Freese filed *Armistead*, an identicalnationwide class action in district court in North Carolina. (See Footnote#2) Then, only two business days later, on August 3, 1993, Mr.Freese filed a federal court Louisiana-only class action --*Vitrano* --based on the same causes of action and for plaintiffs already covered bythe prior two cases. Just three days later, on August 6, 1993, class counsel filed *Puckettv. Ford Motor Co.*, No. CV-93-G-1592-5 -- an Alabama case whichdoes *not* appear on class counsel's chart, but is anotheridenticalfederal court class action. On August 24, before Ford could answer, Mr.Freese voluntarily dismissed the case, and the district court entered anorder of dismissal on the same day. (See Footnote #3) The very next day, August 25, Mr. Frazer filed *Luis*, a classaction in state court for Florida Bronco II owners -- again, Mr. Frazer's*clients* in the Mississippi and North Carolina actions and the recentlydismissed Alabama federal court action. And then, just one day after theinstitution of the Florida state-court action, on August 26, Mr. Frazer,joined by class counsel Freese, filed the nationwide class action inGreene County, Alabama, on behalf of clients for whom there were alreadytwo other nationwide class actions pending. Class counsel describe thisaction as a continuation of the identical action that they had filed infederal court in Alabama, but had been mysteriously dismissed two daysearlier. In our view, this Court should not consider approving the proposedsettlement until it gets a satisfactory explanation of this peculiarfiling pattern. But putting aside, for the purposes of this Brief, questionsas to the propriety of filing this many cases indifferentcourts on behalf of the same clients over a very short period of time, itis clear that there is much double and triple billing that must be rootedout. If and when class counsel file a proper fee application, we urge theCourt to disallow much, if not all, of the work done by Mr. Frazer's lawfirm -- Langston, Frazer & Sweet -- since that firm engaged in thiswasteful course of action for no apparent legitimate reason. Langston,Frazer & Sweet claims to have worked 2082.7 hours on this litigation,including 262.2 paralegal hours.* See* Chart Accompanying Counsel's TimeRecords. Much of that time was plainly unnecessary as it involved thepreparation of duplicate pleadings, (See Footnote #4) dozens of phonecalls with co-counsel in the various duplicative law suits, (See Footnote#5) and similar repetitive tasks involving many lawyers simply becausecounsel chose to litigate the same case in numerous fora, rather than one. Surely, Ford has not argued -- nor could it -- that it was forced tohand over warning stickers, videos, flashlights, and maps, and to promoteits cellular phone service, as a direct result of Mr. Frazer's legaltactic of suing the company six times in six different courts for the samecauses of action for essentially the same clients. It may be that Mr.Frazer is eligible for compensation for minimal hours of core work in oneof the cases, but, if that is so, it is up to class counsel to identifythe work with specificity, and explain why it was necessary to thelitigation. The same is true for Mr. Frazer's co-counsel in *Vitrano* and *Luis*,Messrs. Bowling and Shuminer. They, too, need to explain whytheir work was necessary to the litigation, given the fact that Mr. Frazeralready had filed two virtually identical class actions on July 23 andJuly 30, 1993 in federal court in Mississippi (*Lewis*) and North Carolina(*Armistead*) which covered their clients. Therefore, the 68.9 hours forwhich compensation is sought by Mr. Shuminer's law firm and the 45.6 hoursfor Mr. Bowling's law firm is presumptively noncompensable. 3. Duplication of Effort on Particular Tasks. Where one attorney's workappears to be duplicative of the work ofhis or her colleagues, that work should not be compensated. *Gulf FederalSavings and Loan v. Mulderig*, 742 F.Supp. 358, 363-64 (E.D. La.1989)(disallowing bulk of hours for attorney conferences); *Major v.Treen*, 700 F. Supp. 1422, 1433 (E.D. La. 1988)(allowing fees for only twolawyers on particular task, and disallowing hours for other attorneys). In this case, a review of the time records show hundreds of hours inconferences among the attorneys, both between counsel in different lawfirms and within the same law firm. As noted above, the fact that counselfiled a half dozen virtually identical cases cannot justify such billingpractices. Other examples of duplication abound. For example, at leasta half dozen plaintiffs' attorneys attended a settlement meeting inWashington, (See Footnote #6) and a review of the entries for November 6-8, 1994 show that at least seven of the plaintiffs' attorneys and twoparalegals attended the fairness hearing in New Orleans (at which only onecounsel spoke very briefly in behalf of the plaintiffs, and another respondedto questions from the Court). 4. Travel Time. Plaintiffs' counsel have billed their travel time at the standardhourly rate, even though travel time is compensated at most at 50% ofnormal rates, depending on whether the time is spent productively. *See*,*e.g.*, *Major v. Treen*, 700 F. Supp. 1422, 1432 (E.D. La. 1988). (SeeFootnote #7) Appropriate reductions must be made when and if class counselfile a fee application with this Court. 5. Tasks Not Adequately Described. To receive an award of attorney's fees, the applicant has the burdenof proving the reasonableness of the number of hours allegedly spent onthe litigation. *Hensley v. Eckerhart*, 461 U.S. 424, 437 (1983); *Leroyv. City of Houston*, 831 F.2d 576, 586 (5th Cir. 1987). To meet thisburden, the applicant must maintain and submit billing records in a mannerthat enables the court to conduct a meaningful review of the documentationto sort out which hours are compensable and which are not. *Von Clark v.Butler*, 916 F.2d 925 (5th Cir. 1990). Here, in many instances, counsel's time records are simply notadequate. Many entries are so vague and general that they give the Courtno idea of what the attorney was working on, except that it involved thiscase. Because the Court has a copy of the time records, and because thenumber of instances during which this has occurred is so great, we giveonly a few examples. For instance, on numerous occasions lawyers for Burr& Forman indicate simply that they have performed"research" on the BroncoII case, (See Footnote #8) or that they have "handled settlementmatters." (See Footnote #9) These are precisely the type of timerecords"lacking in explanatory detail" that do not pass muster in thisCircuit. *Id.* at 259 & n.6. The time records for Langston, Frazer & Sweet are inadequate withrespect to large segments of time. For instance, the entries ranging fromApril 4 through April 9, 1993, in which 40 hours were spent"research[ing]legal issues," give the Court no idea what the research was for and,therefore, whether the time was reasonably incurred. Similarly, thefirm's time records include "conferences" with various otherlawyerswithout any description of the subject matter. (See Footnote #10) Theseinadequate entries are too numerous to mention, involving hundreds ofhours for which compensation must be denied. A few other examples ofimproperly documented work are described in the footnote. (See Footnote#11) The time documentation for the Crowley, Marks, & Douglas -- whichseeks payment for 929.6 hours of work -- is similarly insufficient in somerespects. Large chunks of time are described simply as"review casedocumentation, issues" (*e.g.*, 8/3/93 entry), "research caseissues"(*e.g.*, 8/11/93), "Legal Research" (several entries), and thelike. (SeeFootnote #12) B. The Improper and Unseemly Billing of Staff Time. Burr &Forman has included as billable time 2013.3 hours of workperformed by clerical personnel. These individuals are listed as"projectassistants" on Burr & Forman's chart submitted to the Court onDecember 8,1994. The time of each of these clerical personnel is billed at $40 perhour, with the unexplained exception of one staff member, Angela McGee,whose 85.5 hours of clerical tasks were billed at $35 per hour. Thebilling for these individuals on an hourly basis is involves, atbest, double dipping and probably triple dipping. To explain: as ageneral matter, courts do not award separate fees for clerical personnel;rather, they are part of the overhead, included in the lawyers' hourlybillings. *See*, *e.g.*, *Mississippi State Chapter, Operation PUSH v.Mabus*, 788 F. Supp. 1406, 1420 (N.D. Miss. 1992); *Martin v. Mabus*, 734F. Supp. 1216, 1226 (S.D. Miss. 1990)(also holding that clerical tasks arenever separately compensable, even at a minimal rate and even if performedby a lawyer). Lawyers do not charge their clients for their time on anhourly basis and then charge an hourly rate for their secretary's time inanswering the phone, typing a brief, or organizing the client's file. Thus, to allow additional compensation for clerical work -- which the Burr& Forman time records clearly show -- would provide double compensation,once as they are included in the lawyer's overhead and another time as theseparately billed $40 per hour clerical charge. (See Footnote #13) Butthat is not all. These very same entries have also been included as"expenses" of Burr & Forman. *See* Affidavit of RichardFreese, 3 (Oct. 30, 1994), attached hereto as Exhibit 1. (See Footnote#14) If, as appears to be the case, Burr & Forman treats the staff workas "expenses" *and* as tasks compensable at $40 per hour, thisconstitutestriple dipping, *i.e.* recovery for overhead in the attorney's billing,hourly billing of the staff work itself, and as expenses to the firm, *allfor the exact same work*. We take up the issue of how Burr & Forman hasmiscalculated the *amount* of the staff expenses in Part III.A. below. Finally, in arguing to the Alabama Court that their $4 millionrequest was justified, Mr. Freese has overstated the clerical work done byhis staff. In his October 30 affidavit filed in the Alabama action, Mr.Freese claimed that, through the end of October, his clerical staff worked2367.7 hours. Freese Aff., 3 (Ex. 1 hereto). But that is incorrectaccording to class counsel's most recent submission. Burr & Forman's owncomputerized print-out of all lawyer, paralegal, and staff time spent onthese cases through *November 30, 1994*, the clerical staff time is 2013.3hours. C. The Hourly Rates Sought Appear Excessive. The hourly rates claimed by many of the plaintiffs' counsel are outof line under applicable case law from the jurisdictions in which classcounsel practice. Mr. Freese, a nine-year lawyer, claims a rate of $205per hour for 805.9 hours of work (the same rate claimed by his partner,William C. Knight, who has practiced for 27 years, and more than two otherpartners, F.A. Flowers, III, and Robert A. Rutherford, who have practiced11 and 15 years respectively). As we explained in our October 17, 1994Objections Brief, these rates are higher than the prevailing market ratesin Birmingham and, therefore, should not be awarded unless class counselcan explain why they are entitled to above-market rates. *See*, *e.g.*,**Martin v. Univ. of S. Ala.*, 911 F.2d 604 (11th Cir. 1990)(fees rangedfrom $135-$150 per hour for senior counsel, and $105-$115 per hour forjunior counsel); *Knight v. Alabama*, 824 F. Supp. 1022, 1031, 1033 (N.D.Ala. 1993)("the Court finds that the general range of market rates forattorneys with *15 years* of experience practicing complexlitigation inBirmingham is from approximately $150.00 to $300.00 per hour, with thegreat majority of rates from 150.00 to $225.00 per hour"; awarding $140per hour to lawyer out of law school for one year *more* than MessrsFreese and Frazer because of special circumstances, but noting that herhourly rate was only $110 per hour)(emphasis added); ***see* *also* *Hidlev. Geneva County Bd. of Educ.*, 681 F. Supp. 752, 756 (M.D. Ala. 1988)($75-$125 per hour). The rates for many of Mr. Freese's associates,*e.g.*, $150 per hour for a lawyer three years out of law school, $100 perhour for a lawyer one year out of law school, appear to besimilarlyexcessive. The charges requested by Mr. Freese and his partner, Shane Langston,$225 per hour for 1600.2 and 65 hours, respectively, have even less supportin the case law. *See*, *e.g.*, *Shirley v. Chrysler First,Inc.*, 763 F. Supp. 856 (N.D. Miss. 1991)($90-$125 for work on merits andlesser awards for non-merits work and noting that "customary billingratein this area ranges from $65 to $150 per hour"), *aff'd*, 970 F.2d 39(5thCir. 1992); *In re Waldoff's, Inc.*, 132 Bankr. 329 (Bankr. S.D. Miss.1991)($100-$125 per hour). Mr. Frazer has made no attempt, either in hisaffidavits submitted to the Alabama court on September 30 and October 31,1994, or in his submission to this Court on December 8, to justify hisclaimed hourly rate or even to say how it was derived. Again, perhaps Mr.Frazer can explain why he is entitled to $250 per hour, but he has notprovided an explanation and it is his burden to do so. Similarly, Timothy Crowley, an 11-year Houston lawyer, has made noattempt to justify his $350 rate for 642 hours of work. As we have notedpreviously, in Washington, D.C., standard rates for court awarded attorney'sfees range do not exceed $305 per hour for lawyers with 20 ormore years of experience, *Brown v. Pro Football, Inc.*, 846 F. Supp. 108,120 (D.D.C. 1994)(chart detailing rates), and we would be very surprisedif Mr. Crowley could show that 11-year lawyers in Houston are able tocharge $300 per hour. Finally, we doubt that the two lawyers from Jones,Jones & Curry, in Marshall, Texas, who have 24 and 9 years of experience,can command $300 per hour on the open market, nor have they attempted tojustify that rate. (See Footnote #15) III. The Expense Request Still Doesn't Add Up. Adiscussion of the plaintiffs' expense request cannot be understoodwithout some history of class counsel's request for $4 million in fees andalleged expense reimbursements. As noted previously, class counsel fileda one-page fee petition in the Alabama action on September 30, accompaniedby two short affidavits, in one of which Mr. Freese declared, without*any* supporting statement or documentation, that plaintiffs' out-of-pocket expenses would exceed $800,000. Bennett Ex. 11, Freese Aff. 9. The point of this assertion was to show to the Alabama Court that the feerequest was a mere $3.2 million. *Id.* (noting that the $800,000 plus"will ... be paid by the attorneys out of the fee award ..."). Despite the Bennett Objectors objection to the utter lack of prooffor the claimed $800,000 in expenses, Objections to the Proposed Settlementof Class Members Bennett, *et* *al*., at 40-41 (filed Oct. 17,1994), class counsel has *never* explained the basis for the $800,000figure. Instead, they filed another brief in support of their attorneyfee request, *in which they proclaimed that they "have advanced or willadvance by conclusion of this matter more than $500,000 inout-of-pocketexpenses in preparation of this case ... ." Bennett Ex. 17, at 6. However, as we explained subsequently, a careful review of the affidavitssubmitted by plaintiffs demonstrated that the expenses alleged were about$400,000, not more than $500,000. *See* Bennett Objectors' Explanation ofNewly-Filed Exhibits and Supplemental Memorandum, at 7-10 (filed Nov. 23,1994). As we now show, even the $400,000 figure cannot bejustified. A. The Burr & Forman "Staff Expenses" Claimed Have NotBeen Supported. We pointed out in our November 23, 1994 filing that the request forreimbursement for more than $110,321.00 in "staffexpenses" for the workof certain named clerical staff was likely improper because those expensesshould have been included, and apparently were included, in overhead. *See* discussion *supra* at __. Thus, even assuming the propriety of allthe other expenses, reimbursable expenses should be reduced from to$289,828.61, not the $500,000 claimed. *See* Bennett Objectors' Explanationof Newly-Filed Exhibits and Supplemental Memorandum, at 10. After we made that claim, this Court granted our motion to compeland directed the class plaintiffs to disclose their expense records andreceipts. Although these records appear to be incomplete -- there aresimply no records at all for some of the expenses claimed -- they arequite revealing on the "staff expenses" issue. In paragraph 1 ofMr.Freeze's October 30 affidavit (Ex. 1 hereto), Mr. Freese identifies byname the staff that performed the clerical work for which his firm isseeking reimbursement. In paragraph 2, he claims that they have workedover 2300 hours and that the staff expenses exceed $110,321.00 throughOctober 1994. As pointed out above,* the 2300 hour figure is wrong;according to Burr & Forman's own print-out, the number of hours for theseindividuals through *November 1994* was 2013.3 hours. But even more stunning is that the $110,000 figure does not add up. As noted above, there is no basis for claiming that Burr & Forman shouldcollect an hourly rate for these individuals. If they are proper expensesrather than simply overhead -- which they are not -- then at best theyshould be *expensed*, *i.e.*, Burr & Forman should bereimbursed for thewages of these individuals. Obviously, the Burr & Forman staff were notpaid $40 per hour to answer the phone and perform data entry. Indeed, theexpense records prove our point. Many of the Burr & Forman staff, at least in October 1994 (the onlymonth for which Burr & Forman provided such records), were in factsubcontracted through employment agencies. Receipts from these agencies,attached hereto as Exhibit 2, show that the cost to Burr & Forman forthese individuals averaged about $9.00 or $10.00 per hour. Assuming $10as a mid-point cost, the "staff expenses" were not the absurdlyhigh$110,000, but actually about $20,100. (See Footnote #16) Moreover, evenif the $40 hourly billing rates were used -- quite improperly -- as amethod of calculating the "staff expenses," *and* we assume thatall thehours reported by Burr & Forman through November 1994 are compensable,thetotal is $80,104.50. In short, the $110,000 plus amount for "staffexpenses," in addition to the double or triple-dipping problem, is amystery. Based on any interpretation of Burr & Forman's own records --reasonable or unreasonable -- that amount cannot be justified or evenunderstood.B.The Expert Expenses Claimed Cannot be Justified.. 1. Reimbursement Should Not Be Provided for *Post* *Hoc* Advocacy. We have reviewed the expense records disclosed after the granting ofthe Bennett Objectors' motion to compel, and they are quite revealing withregard to the expert's alleged expenses. With the exception of some ofthe work performed by Mark W. Arndt, the invoices submitted by plaintiffs'experts show, as we had suspected, that the expert assistance obtained byplaintiffs' counsel involved after-the-fact submissions designed to rebutthe objections to the proposed settlement and to attack the validity ofthe plaintiffs' case, *not* expert assistance to help plaintiffs' provetheir cases or negotiate the settlement. (See Footnote #17) We take upthis problem in more detail in Part IV. below. For present purposes,however, this Court should not award expert fee reimbursement, lest itencourage this type of improper *post* *hoc* advocacy. Obviously, thetime for the plaintiffs to obtain evidence for their case --including thevalue of the settlement itself -- was prior to the settlement, not afterthe settlement was attacked as unfair. 2. The Estimate Is Grossly Overblown. Even assuming that these expenses are reimbursable, there is yetanother, more serious, problem. Mr. Freese's October 30, 1994 affidavitincluded in the alleged $500,000 of expenses expert fees that were"anticipated to exceed $100,000." *See* Freese Aff., 5 (Ex. 1hereto). These expenses were allegedly incurred to pay the fees of Mark W. Arndt,C. David Channell, Robin T. Harrison, Wood C. Hiatt, John P. Mathews,Milton Miller, and Itamar Simonson, the individuals who provided affidavitsin rebuttal to the October 17, 1994 Objections. *Id.* 4. Areview of the invoices show that counsel's statement that more than $100,000in expert fees had been incurred was grossly overblown: Expert Amount Mark W. Arndt $22,322.90 (See #18) John P. Mathews $14,418.40 Itamar Simonson $18,475.00 (See #19) Wood C. Hiatt $ 375.00 Robin T. Harrison $ 825.50 C. David Channell *$ 1,000.00* TOTAL $57,416.80 (See #20) As with the phantom "staff expenses" discussed above, classcounsel's estimate of more than $100,000 in expenses for the above-listedexperts is way off the mark. This Court should neither approve the proposedsettlement nor award expenses until the missing $40,000 or $50,000 isexplained. 3. Public Relations Costs Are Not Compensable Expenses. Finally, class counsel seeks reimbursement for the use of a Washington,D.C. public relations firm, The Kamber Group. (See Footnote#21) This includes a September 1, 1994 bill for $4,971.21, principallyfor "strategy development" and "writing of press release andop-eds, etc,"and an October 1, 1994 bill for $7,176.93 for the same services. If theKamber Group helped class counsel write the class notice or otherwisedirectly assisted the class, that type of expense might becompensable. However, it appears that the Kamber Group did no more than help classcounsel "spin" the case in the press. If class counsel wantsassistancetalking to the press or wants to approach the press through surrogates,that is their business, but the resulting costs are certainly not compensableexpenses related to the pursuit of this litigation. So, too,the Kamber Group's additional invoice for $776.90, dated November 1, 1994,which appears to reflect the Group's work assisting counsel in keeping upwith press coverage of this litigation. * * * In sum, the expense records further show that thereimbursementsrequested in the *Rice* litigation are not only excessive, but are, inmany cases, for "expenses" which do not exist.IV. The Documents Recently Submitted by Class Counsel Reaffirm That theProposed Settlement is Unfair and Is the Result of Inadequate Representation by Plaintiffs' Counsel. In the foregoing sections of this Brief, we have explained why muchof the fees and expenses requested by class counsel in the Alabama actionmay not be awarded under applicable law, even assuming that the proposedsettlement is approved as fair, adequate, and reasonable under Rule 23(e). However, it is the Bennett Objectors' position that the proposed settlementis not remotely fair -- that it provides nothing of value tothe class, while providing defendant Ford an escape from payment of anyeconomic damages arising from the Bronco II rollover problem *and* amarketing scheme under which Ford can foist its cellular phone system onhundreds of thousands of unsuspecting consumers. In the pages that follow,we supplement our prior submissions, and show thatdocumentsrecently released by the class plaintiffs further demonstrate that theproposed settlement was the product of inadequate representation. Indoing so, we address three issues relevant to the fairnessquestion:retrofit, diminution in value of the Bronco II, and the efficacy of theproposed warnings. A. Retrofit of the Bronco II. In our prior filings, we have shown that there are at least twoviable retrofits for the Bronco II, and that the settling parties have notrebutted our expert affidavits on this subject. (See Footnote #22) Onpage 15 of their September 30, 1994 memorandum in support of the settlement,the plaintiffs stated that "after consulting with technicalexperts, plaintiffs' counsel also have concluded that there is no practicalmeans of 'retrofitting' Bronco II vehicles to increase stability." Inlight of this statement -- which was wholly at odds withthe views of our experts -- we propounded interrogatory No. 5, which askedthe plaintiffs to provide all information that supported their September30 statement and the names of all the technical experts who they hadconsulted on the retrofit issue. Plaintiffs' answer to interrogatory No. 5 made very little sense. *See* Plaintiffs' Counsel Response to Objectors' Interrogatories andRequest for Production of Documents, at 10-11. It relied first on thehearsay statement of a lawyer named Edward Sanders, as to what anotherlawyer, Russell Cook, had said about whether the Bronco II could be fixed. *Id.* Class counsel also relied on an affidavit from Mark W. Arndt whodid *not* state that there was no viable retrofit, *but only that he didnot know of a retrofit that eliminated the rollover problem.* *Id.* Further, Mr. Arndt's opinion appeared to be formed after September 30 --Mr. Arndt's affidavit is dated October 25, 1994 -- and, therefore, itcould not have formed the basis for the statement in classcounsel'sSeptember 30 memorandum. Class counsel's expense records further supportour belief on this score. Mr. Arndt's invoices dated April 11, 1994 andAugust 1, 1994 are for a "critical review of Ford Bronco IIstatistics,"*i.e.*, an analysis of rollover accidents, and "caseresearch," *i.e.*,engineering analyses of rollover accidents, *see* Ex. 3 hereto, *not* forwork on the viability of a Bronco II retrofit. One invoice dated September1, 1994, for *one hour* of "consultation," even if it didconcern the retrofit issue (which is highly doubtful), hardly could supportclass counsel's allegation since it was for work that clearlypost-dated the parties' July 1994 settlement. Moreover, Mr. Arndt's work prior to his October 25 affidavit was notdone for class counsel, but for another lawyer, Timothy Crowley, in entirelyseparate Texas state-court litigation that was not part of theMDL proceedings. *See* *id.* (invoices addressed to Mr. Crowley). Thus,class counsel's statement in their September 30 memorandum that they had"consulted" experts who had concluded that there was no viableretrofitsimply does not hold water, at least on the record before this Court. Class counsel has also produced hundreds of pages ofdocuments thatthey claim support their answer to the Bennett Objectors'interrogatories,including interrogatory No. 5. We have reviewed the subject matter ofthese documents and have not found any support for class counsel's September30 statement that experts told them that there is no viableretrofit. In the main, these documents simply do not address the issue. Class counsel's answer to interrogatory No. 5 attempts to support theirSeptember 30 statement regarding retrofit by quoting various depositionsand trial testimony (included in the recent document production), taken inpersonal-injury litigation that was conducted by other counsel. *See*Plaintiffs' Counsel Response to Objectors' Interrogatories and Request forProduction of Documents, at 11-14. As we have explainedpreviously, noneof this deposition testimony remotely supports the view that there is nota viable retrofit; generally, they address a different issue, *i.e.*, whatFord could have done, at the production stage, to avoid the rolloverproblem. The testimony of Melvin K. Richardson, for example, attached asExhibit C to plaintiffs' discovery responses, does not, asplaintiffsassert, support the no-retrofit position. However, one of Mr. Richardson's depositions, which is contained inthe documents recently produced in discovery and was also attached to theSupplemental Affidavit of T. Roe Frazer II, submitted in support of classcounsel's fee request in *Rice*, *affirmatively supports* the BennettObjectors' position on the retrofit issue. Mr. Richardson's alternativedesign -- improving suspension, widening track width, and using smallertires -- is quite similar to the design tested successfully by our expert,Robert Hooker. *See* Richardson Dep., at 60-62, 139-140, 144 (attachedhereto as Exhibit 5). (See Footnote #23) In summary, there is no support for the statement made by classcounsel in their September 30, 1994 memorandum to the effect that they hadconsulted with experts who had assured them that no viable retrofit exists. Moreover, even the deposition testimony and post-hoc "evidence"presented by class counsel do not support their position. B. Diminution of Value of the Bronco II Versus Other Vehicles in its Class. Bennett Exhibits 8 and 23, the Declarations of Clarence Ditlow andJack Gillis, show conclusively that the "Blue Book" value of theBronco IIhas dropped precipitously vis-a-vis its competitors and that there is verygood reason to believe that this drop in value is a result of the vehicle'srollover propensity. Use of the "Blue Book" estimates,published by the National Automobile Dealers Association("NADA"), is areliable industry-wide standard comparing automobile resale values. *See*Gillis Decl., 4(A) (Bennett Ex. No. 23). In mid-October, 1994, the Bennett Objectors asked class counsel, ininterrogatory No. 1, to explain a statement at page 25 of their September30 memorandum claiming that there had been no appreciable decline in BlueBook values, as well as a similar statement on page 37. Their response tothe interrogatory confirmed that they had no basis for their statement. Class counsel relied solely on the affidavits of John P. Mathews andMilton Miller, individuals who were retained by class counsel *after*September 30, indeed, it appeared, after objections were filed on October17. In reply, we noted that Dr. Mathews relied on the so-called "BlackBook," a publication which is not the industry standard and which, webelieved, may have been consulted for the first time afterobjections werefiled. (See Footnote #25) The recent submissions by class counsel strongly confirm our originalviews. First, the invoice from Dr. Mathews confirms that he wasretained to do work after objections were filed. *See* Ex. 3 hereto(October 31, 1994 invoice stating that his work was done "over the lasttwo weeks"). Second, Mr. Frazer's time records for June 26, 1993 showthat he researched the resale values and the measure of damages shortlybefore filing his complaint alleging damages on that basis. *See* Entriesfor July 22 and 23, 1993; *see* *also* May 20, 1993 Entry for Attorney DonBarrett (research on cause of action for diminution of value of BroncoII). Indeed, Mr. Frazer had extended phone conversations with variouspeople, including auto dealers, regarding "resale value of BroncoIIs". *See* Entries for June 22, 1993. It is only fair to assume that theseconversations with auto dealers supported the allegations in the soon-to-be filed complaints, and, therefore, they draw into serious question theuse of Mr. Miller, an auto dealer, who claimed in his October 26, 1994affidavit that the Bronco II has retained its full value in comparison toits competition. Given class counsel's claim with regard to the so-calledBlack Book values, Messrs. Frazer and Barrett must have been relying onBlue Book values which show, as we have noted throughout, very seriouserosion of value for the Bronco II. (See Footnote #26) Third, the response to the Bennett Objectors' document requests,which, among other things, asked for all documents supportive of classcounsel's answer to interrogatory No. 1, produced *nothing* that tended tosupport class counsel's September 30 statement that the Blue Book valueshad not declined. The only information that we could identify in thosedocuments that even concern used car values are the tables that wereattached to Dr. Mathews' October 27, 1994 affidavit. But they are non-responsive to our discovery for two reasons: they were not used by classcounsel, as far as the record shows, until Dr. Mathews was retained inmid-October 1994, and they concern the Black Book, not the Blue Book. (See Footnote #27) C. The Efficacy of the Proposed Warnings. The Bennett Objectors have demonstrated through thedeclarations ofClarence Ditlow and Dr. Paul N. Bloom that the proposed warnings will notserve the class by lowering the number of injuries and deaths caused bythe Bronco II. The settling parties have never even attempted to rebutour empirical evidence which demonstrates that warnings -- like the Fordpark-to-reverse warning, or even the much more comprehensive warningprogram conducted under the All-Terrain-Vehicle consent decree monitoredby the Consumer Product Safety Commission -- have not lowered the numbersof injuries and deaths stemming from the product defect. *See* DitlowDecl., 8 (Bennett Ex. No. 8); Supp. Ditlow Decl., 3-4(Bennett Ex.No. 19); Declaration of Dr. Paul Bloom, 4 (Bennett Ex. No. 24). Indeed,the settling parties have utterly ignored the testimony of *Ford's* expert,Lee Carr (ironically offered as a rebuttal expert by Ford in thislitigation), who opined that warnings to alter routine behavior, such asdriving habits, do not work. *See* Ditlow Decl., 8 & Attachment Dthereto (Bennett Ex. No. 8). (See Footnote #28) In interrogatory No. 4, the Bennett Objectors asked the plaintiffsto describe their evidence as to whether warnings of the type proposedhere are valuable. Although class counsel has pointed to the testimony ofa few witnesses in other Bronco II personal-injury litigation, to theeffect that more or different warnings should have been given to Bronco IIowners, the plaintiffs' answer to interrogatory No. 4 was unclear as towhether class counsel themselves had consulted a warnings expert duringthis litigation. Class counsel claimed that they had consulted a Mr.Robin T. Harrison, whose October 27, 1994 affidavit they quoted in theirinterrogatory answer; Mr. Harrison's affidavit simply said he had been"retained" by class counsel, but did not say when that hadoccurred. Ofcourse, unless he had been retained by counsel during thelitigation tohelp with the prosecution of the case or in devising the SettlementAgreement, his view would have been of little value. The expense records, produced over class counsel's objection, showthat Mr. Harrison was *not* retained until well *after* the settlement wasreached. The Settlement Agreement, signed by counsel for the settlingparties on July 28, 1994, contains a fairly detailed statement of thewarning. Settlement Agreement, 14.A.3.1., p. 22. Mr.Harrison'sinvoice is dated November 15, 1994, and refers to work done for Mr. Frazeron October 11, 26, and 27, 1994. *See* Harrison Invoice, contained in Ex.3 hereto. Thus, contrary to the implication in class counsel's interrogatoryresponse and Mr. Harrison's affidavit, Mr. Harrison was notretained to provide class counsel with expertise during the litigation andnegotiation process leading up to the July 28 Settlement Agreement.Although one of the four tasks Mr. Harrison performed on October 11, 1994was to "re-write warning," that work was either very minimal or notused,since the basic warning agreement had been struck two and a half monthsearlier. (See Footnote #29) Further, with all respect, the quantity of work performed by Mr.Harrison was so small as to call into question whether it might have beenintended by counsel as mere window dressing. According to Mr. Harrison'sinvoice, he spent a grand total of 4.5 hours working on this case, 3.0hours on October 11 to "review materials sent by Mr. Frazer, research,re-write warning, [and] consult w/ Mr. Frazer," .5 hours on October 26,1994to "consult with Mr. Frazer by telephone," and 1.0 hours to"review, signand transmit affidavit." The notion that he could have been of greathelpto class counsel in devising the warnings, or could have come to thesweeping conclusions stated in his affidavit, is hard to fathom. Mr.Harrison's affidavit, attached as Exhibit 8 to the Plaintiffs'October 31, 1994 Reply Memorandum, certainly suggests that Mr. Harrisonhad the leading role in designing the warning that led to the July 28,1994 Settlement. For instance, the affidavit states (at 4): Ialso was retained by class counsel to design an adequate warning forthe sun-visor of the Bronco II. My work in this respect has resultedin a new sun-visor sticker warning to be sent to all Bronco II ownerswho do not opt-out or exclude themselves from the proposed class action settlement.The affidavit goes on to state that Mr. Harrison was retained to evaluatethe "pre-existing sun-visor sticker" on the Ford Bronco II,concludingthat the warning was inadequate. *Id.* 3. Unless Mr. Harrison did workon this case prior to July 28, 1994, the evaluation of the existing warningwas largely irrelevant. Similarly, Mr. Harrison extols the newwarning, *id.* 5, but with the exception of the insertion of the word"warning" -- replacing the word "caution" used in thefederal warning --the factors he extols all appear in the description of the proposed warningin the July 28 Settlement Agreement. Thus, unless Mr. Harrisonprovided extensive services prior to the times indicated on his invoice,his work on this case was largely irrelevant and, to put it very mildly,overblown. In any event, regardless of the value of Mr. Harrison's contribution,there remains the question of whether the proposed labelswill be of any use, given the fact that federal law already requires asimilar visor sticker and owner's manual supplement. 49 C.F.R. 575.105. Very troubling is the fact that, until the objectors raised this point,the settling parties did not acknowledge this regulation, not even tomention it in their September 30, 1994 memoranda seeking settlement approval. And, had the objectors not come forward, it is unlikely thatthe Court would have ever been apprised that a substantially similarsticker is already "permanently affixed" on the sun visor, *see* 49C.F.R. 575.105(c)(1), and the owner's manual supplement already must include awarning substantially similar language proposed here. *See* *Jamison v.Butcher & Sherrerd*, 68 F.R.D. 479, 482 (E.D. Pa.1975)(settlement may notbe approved where class members "receive nothing beyond the amount towhich they are already entitled"). As to the visor sticker, which now appears on the driver's sidevisor, *see* Ex. B to Harrison Aff., are the class members going to beinstructed to remove the "permanently affixed" federally mandatedwarningand replace it with the sticker which the private parties agreed to inthis litigation, without approval by NHTSA? Or, are drivers supposed toput the new sticker on the passenger side? As to the owner's manual supplement, will the class members beadvised to throw out the supplements containing the federal cautionaryinformation, or will they be told that both versions should be consulted? Quite plainly, class members more likely will be confused than assisted. On this issue, information recently submitted by plaintiffs' counsel inresponse to this Court's November 12, 1994 Minute Entry, further underminesthe settlement. Included in that submission are various copiesof Ford's owner's manual supplements which already contain much the sameinformation that the settling parties claim provides great value to theclass. Among this information are admonitions about the use of seat belts,child safety restraints, and careful driving of utility vehicles, as wellas statements that owners should not alter the vehicles byinstalling liftkits or oversized tires -- in other words, the precise subject matterscontained in the proposed warnings to the class. Indeed, even the word"warning" -- the word that class counsel claims is so important andlacking in prior statements to Bronco II owners -- appears in many of theBronco II manuals previously produced by Ford. We attach as Exhibit 6copies of the relevant pages of these Ford manuals. Thesedocumentsfurther undermine the settling parties' claims that the class will obtaingreat value from this settlement. Conclusion The proposed settlement should not be approved. Respectfully submitted, ____________________________ Brian Wolfman D.C. Bar No. 427491 David C. Vladeck D.C. Bar No. 945063 Public Citizen Litigation Group Suite 700, 2000 P Street, N.W. Washington, DC 20036 (202) 588-1000 Attorneys for Suzanne F. Bennett *et* *al.*January 6, 1995 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing on thefollowing attorneys of record:Mark N. Bodin & Colvin NorwoodMcGlinchy, Stafford, et al.643 Magazine StreetNew Orleans, LA 70130(by overnight mail)John BeisnerO'Melveny & Myers555 13th Street, NWWashington, DC 20004(by hand)T. Roe Frazer IILangston, Frazer & Sweet201 N. President StreetJackson, MS 39201(by overnight mail)Richard A. FreeseBurr & Forman3000 South Trust Tower420 N. 20th StreetBirmingham, AL 35203(by overnight mail)Todd E. KastetterPryor, Carney and Johnson6200 South Syracuse Way, Suite 400P.O. Box 6559Englewood, CO 80155-6559(by overnight mail)and by regular mail on all other counsel of record.Served on this ___ day of January 1995.________________________ FOOTNOTES1 The case involved a request for certification of both anationwide classand a Mississippi class. The case involved a request forcertification ofboth a nationwide class and a Mississippi class.2 The case involved a request for certification of both anationwide classand a North Carolina class. Class counsel admits that *Armistead* wasidentical to *Lewis*. Plaintiff Class' Memorandum in Support of ClassAction settlement, at 11 ("Plaintiffs in *Armistead* asserted the sameclaims and sought the same relief as in the *Lewis* case"). Indeed, intheir September 30 Memorandum, class counsel made clear that each casealleged virtually identical causes of action and sought the same relief. *Id.* 11-13.3 Ford argued that dismissal was improper without judicial approval underRule 23(e), but the district court disagreed. Ford appealed thatdetermination to the Eleventh Circuit. The appeal has been stayed inlight of the proposed settlement in this action.4 *See*, *e.g.*, 8-6-93, "Work on different state complaints; varioustelephone conferences," 6.0 hours.5 *See*, *e.g.*, Entries for 87-29-93, 7-30-93, 8-4-93, 8-19-93, 9-15-93.6 *See*, *e.g.*, Burr & Forman Time Records, p. 24 (sent two lawyers to6/15/94 1994 meeting in Washington); Langston, Frazer & Sweet Entries for6/14 and 6/15/94 (Frazer in attendance); Crowley, Marks & Douglas Entriesfor 6/14/94 (one lawyer attended; two lawyers spent total of 12 hourspreparing); Jones, Jones & Curry Entries for 6/13 and 6/14/94 (one lawyerin attendance); Patrick Pendley Entry 6/14/94 (20 hours charged for samemeeting).7 *See*, *e.g.*, Burr & Forman Entries of 9/7/93, 11/12/93, 12/27/93;Crowley, Marks & Douglas Entries of 10/7/93, 10/8/93, 11/12/93, 12/3/93.8 *See*, *e.g.*, Entries for 7/9/93, 7/12/93, 9/18/93, 11/23/93.9 *See*, *e.g.*, Entries for 6/30/94, 7/5/94, and 7/6/94.10 Burr & Forman also lists conferences and meetings in this manner, andfees should be denied in those cases as well. *See*, *e.g.*, Entry of 10-6-94 (regarding meeting with Messrs. Crowley, Pendley, and Baxter).11 *See*, *e.g.*,12/8 and 12/9/93, "Work on Rice file," 12 hours;3/9through 3/20/94, "Review Bronco II documents," 40.5 hours; 9/19 -10/27/94, various entries concerning "Settlementadministration," 79.4hours; 10/30 - 11/6/94, "Prepare for fairness hearing," 74.3 hours.12 As with Burr & Forman, many of this firm's tasks, however, areadequately described.13 For instance, page 38 of Burr & Forman's time records containsnumerousentries concerning clerical tasks performed by Burr & Forman staff. Thesetasks -- all billed at $40 per hour -- involve returning phone calls fromclass members, unspecified "data entry," sorting mail, and thelike. There are dozens of other like entries throughout Burr & Forman's timerecords.14 This affidavit was filed with the Circuit Court of Greene County onOctober 31, 1994, but has never been filed with this Court.15 We note that the fee rates for Mr. Pendley ($175 per hour; 27 years'experience), Mr. Barrett ($150 per hour; 25 years' experience), and Mr.Sanders ($75 per hour; 4 years' experience) appear much more reasonablethan the rates claimed by other counsel.16 2013.3 hours X $10/hour = $20,133.00.17 The invoices from the various experts included in plaintiffs' discoveryresponses are attached hereto as Exhibit 3.18 We have not included a $31.50 finance charge contained in Mr. Arndt'sOctober 1, 1994 invoice for an alleged past-due amount.19 This includes $9,600 billed directly by Audits & Surveys, the companythat conducted the survey analyzed by Dr. Simonson. 20 This does not include expert fees, if any, charged by Milton Miller, aBirmingham, Alabama car salesman, who provided the plaintiffs a two-and-one-half page affidavit dated October 26, 1994. The documents provided inresponse to discovery do not include an invoice from Mr. Miller and perhapsMr. Miller did not charge class counsel for his work on this case. In any event, Mr. Miller's short affidavit, which recounted Mr. Miller'sprior experience but did not require Mr. Miller to do any further work,could not have added substantially to class counsel's"expert" witnesscosts.21 The Kamber Group invoices are attached as Ex. 4.22 *See* Declarations of Robert Hooker (Bennett Ex. Nos. 3, 7, 22);Declaration of Eugene Meng (Bennett Ex. No. 10); VideotapeComparison ofRetrofitted and Non-Retrofitted Vehicles (Bennett Objectors' Notice ofFiling, dated Oct. 25, 1994).23 Mr. Richardson testified that, because the vehicle in question usedtires that were smaller than the Ford-specified tires there was a decreasedrisk of rollover. *Id.* at 139-40. The smaller tires wereapparently placed on the vehicle as a retrofit, *i.e.*, by someone otherthan Ford in production. Thus, completely contrary to plaintiffs' assertion,Mr. Richardson's testimony appears to favor retrofit, at leastas to use of a smaller tire. Of course, Mr. Hooker maintains that asmaller tire will decrease the Bronco II's rollover potential. *See*Oct. 15, 1994 Letter Attached to Hooker Decl. (Bennett Ex. No. 3); Supp.Hooker Decl., 3 (Nov. 21, 1993)(Bennett Ex. No. 22). 24 If, as class counsel claimed in their September 30 filing, there was noviable retrofit, then thethe Consolidated Amended Class Action Complaint,filed on July 25, 1994, makes no sense and might well violate Rule 11. *See* Consolidated Amended Class Action Complaint, at page 20, subpart e(specifically requesting retrofit relief).25 *See* Bennett Objectors' Explanation of Newly-Filed Exhibits andSupplemental Memorandum, at 16 n.9 (filed Nov. 23, 1994). Class counselstrongly suggested in their October 31, 1994 Reply Memorandum that theyhad relied on the Black Book in their original filing, although that isnot the case. *Id.* at 15-16.26 If this were not the case, the complaints, which claimed damages fordiminution in value, would have violated Rule 11. Moreover, if, as classcounsel maintained on September 30, 1994, there has been no diminution invalue, then the Amended Consolidated Class Action Complaint, filed on July25, 1994, which claimed damages on the basis of such diminution (at 53,59), clearly violated Rule 11. 27 The time records strongly imply that the Black Book values were notconsulted prior to Dr. Mathews' involvement. The first mention of theBlack Book in the time records is an October 23, 1994 entry, in which Burr& Forman paralegal Stephanie Storm spent five hours, at a charge of$325.00, putting together the black book excerpts, apparently for use inDr. Mathews' affidavit. *See* *also* October 24, 1994 Entry for StaffAssistant Alicia Lovvorn (reviewing Black Book values foraccuracy).28 For a detailed and persuasive discussion of why warning programs --even those that are massive and extend over many years -- are not generallysuccessful, *see* *generally* Adler &Pittle,*Cajolery orCommand: Are Education Campaigns an Adequate Substitute for Regulation?*,1 Yale J. on Reg. 159 (1986).29 In their October 31, 1994 Reply Memorandum (at 11-12), class counselquote a proposed warning, that they assert will be used if the settlementis approved, which is essentially the same as the warning described in theSettlement Agreement, although it contains some modifications.