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___________________________________)                        IN THE CIRCUIT COURT                  OF GREENE COUNTY, ALABAMA___________________________________                                   )MARY RICE, BRENT PUCKETT, and      )RANDALL HALLMARK, individually and ) on behalf of all others similarly  )situated,                          )                                   )     Plaintiffs,                   )                                   )v.                                 )    Civil Action No.                                   )    CV-93-065FORD MOTOR COMPANY,                )                                   )     Defendant.                    )___________________________________)             PARTIAL RESPONSE OF THE BENNETT, ET AL.              OBJECTORS TO THE SETTLING PARTIES              SUBMISSIONS OF OCTOBER 31, 1994     Class members Suzanne F. Bennett, Al Causey, Michael E.Roberts, and Robert Hooker, and the Center for Auto Safety, anational automotive safety organization, hereby respond to thesubmissions of the settling parties filed on October 31, 1994. (See Footnote 1)  As we had noted in support of our discoveryrequests, many of the assertions made by the settling parties,and some of the proposed settlement's terms, had not beenexplained in the settling parties' September 30 memoranda.  Asexpected, the October 31 filings are far more voluminous thanwhat the settling parties had previously filed on September 30and tread a great deal of new ground.     This memorandum is a *partial* response to those filingsbecause we are simply unable to garner our responsiveaffidavits, and to present argument on wholly new issues(*e.g.*, class counsel's marketing survey which was not evencommissioned until several days *after* we filed ourObjections), in just a couple of days.  The issues that wewill address in a future filing -- as soon as is possible --include the following: the strength of plaintiffs' case, thediminution in value of the Bronco II vis a vis itscompetitors, the marketing survey conducted by Dr. ItamarSimonson, the cellular phone offer, the settling parties' newmaterials on the validity of the proposed consumer warnings,and the viability of retrofit.     Nevertheless, we are filing this memorandum on threecritical issues that we were able to respond now, in the hopethat the Court and the parties will be able to review them inadvance of the fairness hearing.  Those issues are: notice tothe class; the "reaction of the class;" and attorney's fees(including notice with respect to attorney's fees).     In particular, the information presented by the classcounsel as to the efficacy of the notice in this case veryseriously undermines the settling parties' claims that theclass notice comported with Rule 23 and due process. Moreover, as we show below, the settling parties have not evenresponded to the information we had previously presented thatstrongly suggested that the first-class mail notice was notnearly as effective as the settling parties promised it wouldbe.  Because this is a threshold issue, we wanted our views toreach the Court in advance of the fairness hearing.*A.  The Notice Did Not Meet the Requirements of Rule 23 or     Due  Process.*     The settling parties' responses to our claims that thenotice was not the "best notice practicable under thecircumstances" is unavailing.  *See* Fed. R. Civ. P. 23(c)(2). First, a remarkable 39,959 of the 691,373 notices sent to theclass were returned as undeliverable.  Freese Aff. Par. 1(Oct. 30, 1994).  While 6,602 were resent to presumablycorrect addresses, *id.*, that left 33,357, or almost 5% thatwere simply undelivered.  Obviously, for this 5% of the class,only a widespread publication campaign such as that undertakenin *In re Domestic Air Transportation Antitrust Litigation*,148 F.R.D. 297, 311 (N.D. Ga. 1992), and in *In re AgentOrange Product Liability Litigation*, 818 F.2d 145, 167-68,175 (2d Cir. 1987), would have provided proper notice.     Based solely on the information concerning undeliverednotices, Ford makes the rather bizarre leap of faith that "itappears that individual mailed notice was received by as muchas *95 percent* of the Settlement Class."  Ford Reply, at 44(emphasis in original).  But the 5% of the notices that werenot delivered -- as serious as that is in light of the veryscant publication notice -- appears to be only the tip oficeberg.  As we noted previously, the only study of which weare aware indicates that almost 30% of car owners are notnotified of recalls and 24% of the owners of cars more thantwo years old who receive recall notices are *not* the currentowners of the vehicles.  Bennett Obj., Ex. 4, Ditlow Decl.Par. 9; Ex. 16, Ditlow Supp. Decl., Par. 2 & Attachment 1thereto.  The settling parties do not respond at all to thisstudy, and present *no* evidence whatsoever to support Ford'swild suggestion that 95% of the class received first-classmail notice.     Moreover, buried in the class plaintiffs' newly presentedevidence is the Affidavit of Dr. Itamar Simonson, whoconducted a survey of Bronco II owners based on "[t]wo randomsamples of 1,000 names each of Bronco II owners *generated byFord from the complete list of Bronco II owners*, using arandom number generator."  *See* Simonson Aff., Par. 13 (Oct.28, 1994), Exhibit B.7. to Class Counsel ("CC") Reply(emphasis added).  The research firm that conducted the surveyattempted to obtain telephone numbers for 1,300 of theserandomly chosen purported Bronco II owners, and 731 numberswere obtained.  Of those 731, 69 were invalid telephonelistings, 257 did not answer their phones after four attempts,another 54 refused to participate in the survey, and one otherperson could not respond because of a language barrier,leaving 350 others to respond to the survey.  Of these 350potential respondents, however, *an incredible 150, *or nearly43%*, indicated that they did not own a Bronco II*.  *Id.* If, as appears to be the case with this randomly chosen set ofalleged Bronco II owners, taken, as Dr. Simonson said, "fromthe complete list of Bronco II owners," it is obvious that thefirst-class mail notice was seriously -- and unlawfully --deficient.     But that is not all.  The answers to Dr. Simonson'ssurvey make absolutely clear that, because there was virtuallyno notice by publication, most of the class was left in thedark.  Of the 200 actual Bronco II owners who responded to thesurvey, *only 59% had even heard of the settlement at all.* *Id.* Par. 16 & Ex. C thereto at Table 6-1.  Because thissurvey was performed from October 21-25, 1994, shortly afterthe notice campaign had been completed, it is very likely thatthe 59% figure is accurate.  Put another way, it is highlyunlikely that the 41% who said they had never heard of thesettlement has simply forgotten that they had been notified byfirst-class mail a few weeks earlier.     The bottom line is this: nearly 43% of people whom Fordtold Dr. Simonson were Bronco II owners were *not*, in fact,Bronco II owners.  And, of those who were Bronco II owners,41% stated that they had no notice of the settlement, byfirst-class mail or otherwise.  Thus, under the swornaffidavit of class counsel's own witness, the first-class mailnotice did not reach a clear majority of the class, a far cryfrom Ford's unsubstantiated claim that the notice reached 95%of the class by first-class mail.     That said, the case law plainly requires full-scalepublication notice, like that which occurred in the casescited in our Objections Brief, *see* Bennett Obj. Br. at 30-33.  In short, because a very significant segment of the classdid not get first-class mail notice, one summary notice in*USA Today* is plainly not the "best notice practicable underthe circumstances" under Rule 23(c)(2), nor does it comportwith due process.     We will not repeat the authorities described in ourObjections, but several of the assertions on the issue ofnotice made by the settling parties warrant a brief response. *First*, Ford's main objection to the cases upon which we relyis that they involved situations in which "the settlementclass members could not be individually notified."  Ford 45 n.23.  Actually, in those cases, some, but not all, ofthe class could not be individually notified (recall that in*Domestic Air*, 10 million potential class members were sentfirst-class mail notice) and, therefore, a sweepingnotification campaign by publication and other media wasrequired.  As we have shown, this *is* such a case in whichmany class members were not individually notified, and,therefore, the cases we cite are directly on point.  (SeeFootnote 2)     *Second*, despite Ford's protestations to the contrary,*Taylor v. Liberty Nat'l Life Ins. Co.*, 462 So. 2d 907 (Ala.1984), is on point.  Here, as in *Taylor*, certain classmembers were not given personal notice, and due process wasfound lacking with respect to those who did not get suchnotice in the absence of a formal publication campaign.  Forddistinguishes *Taylor* on the ground that the first-classnotice here was "designed to reach all class members ... ." Ford Rep., at 46 n.23.  Of course, we do not know Ford'spurpose in doing the notice campaign as it did, but that isirrelevant; the fact is that all available evidence suggeststhat the first-class mail notice was woefully inadequate,regardless of how Ford "designed" the program.     *Third*, Ford maintains that our notice arguments are offthe mark because we have "completely ignore[d]" the fact thatthe settlement received mention in a handful of newspaperarticles.  Ford Mem. at 46 n. 24.  That is incorrect forseveral reasons.  *Taylor* demonstrates that the mention of acase in a newspaper (or TV story) is not the type of noticecontemplated by due process.  462 So. 2d at 914 (rejectingnotion that such media stories provide proper notice). Moreover, missing from Ford's Reply is any explanation of whatthese newspaper stories told the class; we doubt if all (oreven any) of these stories explained the terms of thesettlement, how to opt out, where to write for furtherinformation, the right to object and retain one's own counsel,and other items that would be included in a court-approvednotice or a formal publication notice.  In any event, Dr.Simonson's survey is conclusive on this point.  Plainly, thesenewspaper stories in a few cities were not the type ofeffective notice that the courts approved in *Domestic Air*,*In re Agent Orange*, and other cases, since a largepercentage of the class has never even heard of thesettlement.  Simonson Aff. Par. 16.     *Fourth*, class counsel asserts, without *any* authority,that "it is axiomatic that Rule 23 only requires such noticeas the court directs."  CC Reply, at 18.  (See Footnote 3)  Tobe sure, this Court has latitude in applying Rule 23(c)(2),but the Court is not bound to approve a notice that was notreceived by a large segment, or, it appears, by a majority ofthe class.  If this Court approved the notice program becauseit was assured that the lists used by Ford were going to reachall, or virtually all, current Bronco II owners, it surelyneed not reaffirm the propriety of that notice program when itis informed that the factual predicate for such an assuranceis simply not there.  (See Footnote 4)     In light of the foregoing, the proposed settlement maynot go forward until such time as the class is given noticethat comports with Rule 23 and the Due Process Clause.*B.  The "Reaction of the Class" Does Not Aid the Settling     Parties.*     The settling parties argue that, because only a smallpercentage of the class has opted out of the settlement, andan even smaller percentage of the class has objected, thissomehow shows that the settlement is a good deal and should beapproved.  We respectfully disagree.  To be sure, there arestatements in the case law that "silence *may* be construed asconstituting tacit consent to the settlement agreement andstrongly favors approval of the settlement."  *Bell AtlanticCo. v. Bolger*, 2 F.3d 1304, 1313 (3d Cir. 1993)(emphasisadded).  But even the case that said that recognized that suchassumptions can be quite unrealistic.  *Bell Atlantic*recognized that class response rates are low even when classmembers are informed that they are entitled to money and needmerely fill out a short form to obtain it.  *Id.* at 1313n.15.  And, this Court recognized as much in its October 28,1994 discovery order, when it rejected the settling parties'arguments that discovery should be denied simply because onlya small number objectors wanted discovery.      This Court in *In re Prudential-Bache Energy SecuritiesLitig.*, 815 F. Supp. 177, 182 (E.D. La. 1993), had it exactlyright:     The Court does not feel that mere silence is     acquiescence.  It has a responsibility to those     silent voices who will be affected by this     litigation.  Should the Court not undertake this     responsibility, some parties, and there is no     intention to implicate the parties hereto, would be     free to enter into any type of settlement and bind     those too timid to object or opt-out so long as an     opt-out provision is present.     Moreover, equating silence with approval of thesettlement overlooks the fact that, in mass consumer lawsuits,objections are usually sparse because many class members maynot understand, or have the time or resources to furtherexplore, the issues in the notice.  In short, for manyconsumers, the cost of monitoring a class action is too greatto justify becoming involved.  Thus, "[i]n sophisticatedsettlements where the majority of absent class members areusually unrepresented by counsel and possess insufficientknowledge to evaluate the fairness of the settlement, [thelack of objectors] should not be controlling."  Newberg onClass Actions* Sec. 11.27, at 11-53 to 11-54 (3d ed. 1992). As this Court put it in its October 28, 1994 Order ondiscovery (at 12):     The vast majority of the class members have no     ability to evaluate the fairness of the proposed     settlement.  The court must rely upon its     investigation and the input of the few objecting     class members who do have the resources to provide     the court with pertinent information.     Response rates are likely to be especially low where, ashere, (1) class members are presented with a combined noticeof the class action and the settlement -- or, as Judge Posnerhas put it, "a fait accompli," *Mars Steel Corp. v. Conti-nental Ill. Nat'l Bank & Trust Co.*, 834 F.2d 677, 681 (7thCir. 1987) -- and (2) the settlement is of such trivial valuethat it is not worth the consumer's time and expense toinvestigate it.  Moreover, the settling parties' view that theclass had silently ratified the settlement appearsparticularly dubious when contrasted with the results of asurvey conducted *after* the opt-out deadline by classcounsel's marketing expert, who reported that almost half ofthe class members did not even know about the settlement.* See* Simonson Aff., Par. 16.  Given all these obstacles, theremarkable fact is that more than 1,000 members of the classwere well enough informed to object or opt out, not that therest of the class remained silent.     Further, it should be noted that objections were filed bythe best informed members of the class, namely, individualsseparately represented by counsel with in-depth informationabout the facts of the case from other litigation, and by anautomotive safety organization with great knowledge of theunderlying problems of the Bronco II.  These objectors were ina far better position to inform themselves about the merits ofthe settlement than the many consumers who probably knewnothing about the lawsuit before receiving notice that thesuit was about to be settled.  Thus, just as widespread andvocal opposition to a settlement does not necessarily makethat settlement unreasonable, class members' resignation to abad deal does not justify its approval by the courts.  *In reGeneral Motors Corp. Engine Interchange Litig.*, 594 F.2d1106, 1137 (7th Cir.) (similar), *cert. denied*, 444 U.S. 870(1979).     In addition, the absent class members were never madeaware of the critical fact that class counsel filed anapplication for $4 million in attorney's fees and expenses,with, as it turned out, no opposition from Ford.  The classnever received any notice at all that their lawyers had filedan application for fees in this amount, a fact that, byitself, should invalidate the fee award.  *See infra* PartC.3.; *GM Engine Interchange*, 594 F.2d at 1130; *Bloyed v.General Motors Corp.*, 881 S.W.2d 422 (Tex. App. 1994).  Theclass members were notified only that class counsel reservedthe right to apply for court-awarded fees, in an unspecifiedamount.  Surely, if the class members had realized that theirattorneys were likely to receive a large amount of cash, whilethey received "relief" of trivial or no value, that would haveled to many more objections.  But, because the parties sentnotice of the proposed settlement to the class before anyapplication for attorney's fees was filed, they managed tohide that crucial piece of information from the class.  *Cf.National Super Spuds, Inc. v. New York Mercantile Exchange*,660 F.2d 9, 16, 21 (2d Cir. 1981) (lack of objection bymajority of claimants insignificant when class is not apprisedof crucial terms of settlement).     Finally, the failure to provide the class with an opt-outform was a serious error that, not only should invalidate thenotice, but  should estop the settling parties from relying onthe small number of opt outs.  (See Footnote 5)  Only Fordaddresses this issue and, with all respect, its argument isquite misleading.  It states that "many courts" have upheldclass notices with no opt-out form because they have"specifically" found that such notices would engenderconfusion and cause unwitting opt outs.  Ford Reply, at 48. However, in reality, Ford has presented only *one* case whichstands for the proposition that Ford claims is hornbook law. *Id.* (*citing Roberts v. Heim*, 130 F.R.D. 416, 423 (N.D.Cal. 1988).  But *Roberts*' analysis is conclusory; simplysaying that an opt out form will engender confusion does notmake it so, and neither *Roberts* nor Ford puts forth anyexplanation as to why an opt-out form, properly explained andlabeled, would be confusing in the least.     The second case cited by Ford, *In re Domestic AirTransp. Antitrust Litig.*, 141 F.R.D. 534, 553-54 (N.D. Ga.1992), although citing *Roberts*, does not remotely stand forthe proposition that opt out forms are inherently confusing. Rather, the court found that some confusion might beengendered under the peculiar circumstances of that case,because a claim form was being distributed at the same time;therefore, the Court was concerned, based on sworn evidenceconcerning experience in another similar case, that the classmembers mistakenly might file both forms simultaneously. Although that possibility does not seem realistic, the casehas no bearing here, where no claim form was sent to theclass, and so class members could not possibly have beenconfused.     Perhaps most misleading, however, is Ford's failure toacknowledge that the two leading authorities in the fieldindicate that an opt out form should be used.  H. Newberg & A.Conte, *Newberg on Class Actions*, Sec. 8.31, p. 8-100 (Dec.1992)("One court required absentees seeking exclusion torequest forms specifically prepared for this purpose, however,in most other cases, exclusion forms are attached to themailed or published notice itself")(footnotes omitted); Manualfor Complex Litigation 2d ("MCL") Sec. 30.231 (1985)(same). Indeed, the MCL contains an opt-out form (also reproduced inthe Newberg treatise) that is specifically recommended for usein (b)(3) class actions.  *Id.* Sec. 41.41 ("Request forExclusion").  That form is very simple and clearly would nothave confused the class.     Thus, Ford's argument that the settling parties omittedan opt-out form because it could have engendered confusiondoes not hold water.  Whatever the settling parties' motives,the natural effect on the class was to minimize the number ofopt outs.  The failure to provide a simple opt-out form is yetanother reason that the small number of opt outs is of littlehelp to the settling parties and another reason that thesettlement may not be approved.*C.  No Attorney's Fees Should Be Awarded.*     *1.  The Size of the Award Sought is Still Ludicrous.*     In response to our objections to the fee petition filedby class counsel in the above-styled Alabama action, classcounsel has now supplemented the application with a six-pagememorandum of law and numerous conclusory affidavits fromother attorneys.  Once again, *despite the fact that thenotice to the class specifically states that the federal courtwill rule on the question of fees*,  Class Notice, III, p. 2,class counsel has failed to file the memorandum of law in thefederal action.  Plainly, the federal court cannot properlyreview a fee petition that class counsel refuses to file withthat court.  Therefore, we attach a copy of class counsel'snew pleading, *see* Ex. 17, as we did with the original feepetition.  (See Footnote 6)     The recently-filed memorandum of law does virtuallynothing to explain why class counsel are entitled to $4million in fees and expenses (or even how they chose $4million over $2 million or $10 million).  It explains in verygeneral terms some Alabama case law in which fees supposedlyhave been awarded under a "common fund" theory, and describesthe various factors that a court should look to in determiningan award.  The memorandum then states, without the detailedexplanation required under applicable law, that the factorshave been met in this case because "plaintiff's counsel havegreatly benefitted the class and the public and will serve thepublic interest by preventing accidents related to the allegedBronco II rollover defect."  Ex. 17, at 6.  (See Footnote 7) This simply will not do.  In a case where class members willobtain warning information quite similar, if not identical, toinformation already mandated by federal regulation, 49 C.F.R.Sec. 575.105, and a so-called inspection to determine whetherthe vehicle meets the *defendant's* specifications -- aninspection that the settling parties have now tacitly concededcould be performed at home by anyone who can use a tapemeasure -- considerably more must be shown to support such ahuge fee request.     *2.  The "Fee Petition" is Still Not a Fee Petition.*     In our Objections, we noted that the fee petition did notresemble fee petitions that are normally filed in complexlitigation -- or even in routine social security cases.  *See*Ex. 13 to Bennett Objections filed on October 17, 1994.  Theapplication contained *no* contemporaneous time records, *no*expense records, *no* explanation of counsel's customaryhourly rate or the market rates in the relevant community,and, more generally, *no* real explanation of the work thathad been performed.  We noted that such a unsupportedapplication for such a large amount of money was, to ourknowledge, unparalleled in American jurisprudence.  Nothingabout the recent submissions has changed our views.     To be sure, the class plaintiffs have filed moreaffidavits, thereby disclosing the names of more attorneys whohave worked on the case, but those affidavits suffer from thesame flaws as class counsel's original affidavits: theycontain no serious explanation of the work performed.  *See*,*e.g.*, Affidavit of Patrick W. Pendley, Par. 5 (statingsimply that he has spent about 140 hours "in prosecuting thislitigation"); *compare* *In re Oliver North (Watson FeeApplication*), 32 F.3d 607, 608 (D.C. Cir. 1994)(denying fees"in toto" because the "attorney has not produced, nor did heeven maintain, any contemporaneous records reflecting the workhe performed ...").  The fee petition must still be rejectedin its entirety unless and until counsel furnishes thedetailed information that the law requires.  (See Footnote 8)     *3.  Notice to the Class About Fees.*     There is absolutely no excuse that the Notice did notstate the amount of the fee that class counsel would beseeking.  Class counsel's brief simply misses the point, whenit describes the general requirements for notice, *i.e.*, thenotice must "'present a fair recital of the subject matter andof the proposed terms and must give the class and opportunityto be heard.'"  CC Reply Br., at 20 (quoting *Miller v.Republic Nat. Life Ins. Co.*, 559 F.2d 426, 429 (5th Cir.1977)).  That general description of the notice requirement,in our view, encompasses the issue of fees, and, more to thepoint, it does not exclude any requirement that the amount offees sought be disclosed in the notice.     Class counsel also cites *In re Domestic Air Trans.Antitrust Litig.*, 148 F.R.D. 127 (N.D. Ga. 1993), purportingto quote a notice about fees from that case which classcounsel claims was identical to the one used in this case.  CCReply, at 19.  Class counsel is simply incorrect.  Althoughthe class notice and settlement agreement in *Domestic Air*left something to be desired, the notice did specificallystated that counsel fees would come out of a $50 million cashfund for fees, expenses, and administrative costs, which,given the settlement's allocation of these funds, left atleast $24 million for fees (which is precisely what counsel inthat case requested).  Class Notice in *Domestic Air*, at VII,p. 3; Agreement of Settlement in *Domestic Air*, at Par. 5. Thus, *Domestic Air* supports our position that notice to theclass about fees is quite practicable, and certainly does notsupport the position that no notice on the issue isappropriate.  (See Footnote 9)     While we strenuously disagree with *class counsel*, withall respect, *Ford's* use of authorities on this issue istruly unseemly.  First, Ford cites the Newberg treatise forthe proposition that the notice need only "apprise classmembers that fees will be sought ...  ."  Ford Reply, at 50. However, that very same treatise, just two pages earlier,lists items that it calls the seven "basic elements" of a Rule23(e) notice, number four of which is "[r]equested allowancesfor attorney's fees."  Newberg, *supra*, at Par. 8.32, p. 8-105.  Furthermore, Newberg provides a suggested Rule 23(e)notice *in which a specific maximum amount of fees to besought is provided.*  *See id.* Appendix 8-2, p. 8-148("Illustrative Rule 23(e) Notice and Proof of Claim")(givingactual dollar figures).  Moreover, the Manual for ComplexLitigation, at Sec. 41.42, also provides a form in which classcounsel notifies the class of the maximum amount of fees to besought.     Second, Ford attempts to distinguish *Bloyed*, *supra* --a case directly on point -- on the ground that, because it wasdecided under the Texas Rules of Civil Procedure, "it has nojurisdictional force in these proceedings."  Ford Reply, at 50n.26.  We are not sure what this means, but if this is simplya fancy way of saying that *Bloyed* is not controllingauthority, we have never suggested otherwise.  But, if Fordmeans to imply that the Texas Rules of Civil Procedure arewholly different from the Rules applicable here, that isplainly wrong, as *Bloyed* itself noted.  *Bloyed*, 881 S.W.2d 422, 1994 Tex. App. Lexis 1481, *9 n.5 (indicating that theTexas class action rule is patterned after Fed. R. Civ. P. 23and that "federal case law on this subject is persuasive").     Third, Ford states that the U.S. District Court for theEastern District of Pennsylvania, in a case concerning thesame settlement, has ruled in a manner "directly contrary tothe conclusion reached by" *Bloyed*.  Ford Reply Br., at 50n.26.  That is not true.  The reported decision in *In reGeneral Motors Corp. Pickup Truck Fuel Tank Product LiabilityLitigation*, 846 F. Supp. 330, 341 (E.D. Pa. 1993), *appeals*pending*, Nos. 94-1064, 1194, 1195, 1198, 1202, 1203, 1207,1208, 1209, 1219 (3d Cir.) -- which Ford does not even botherto mention is pending on appeal -- did not address thequestion of attorney's fees or the class notice.  Later, intwo unpublished orders, dated December 20, 1993, and February2, 1994, the district court approved the fee request, withouta hearing on the question of fees or an objection from theclass on the fee issue, principally because the objectors werenot even served with the fee application.  Some of theobjectors have raised the question of fees on appeal for thefirst time -- including the issue of notice to class withrespect to fees.  *See*, *e.g.*, Brief for Appellants Youngs*et al.* in *In re General Motors Corp. Pickup Truck Fuel TankProduct Liability Litigation*, Nos. 94-1207 and 94-1208 (Mar.21, 1994), at 48-49.     Thus, the authorities cited by the settling partiesprovide them no solace.  And, one must ask -- regardless ofthe force of legal authorities -- why didn't class counselreveal in the notice the amount of the fees that they would beseeking?  What did the settling parties have to hide?  Thesettling parties persist in the silly notion that they hadnothing to hide, and that the whole problem was one of timing:the fee had not been requested when the notice was sent out. Ford Reply Br., at 50.  (See Footnote 10)     But this cannot be the reason for not telling the classof the fee to be sought.  It is not as if class counsel didnot know the amounts of the fees and expenses they would beseeking in August, when the notice was prepared, or in mid-September, when the notice was sent out, but that, onSeptember 30, when the fee petition was filed, all of a suddenclass counsel had a precise accounting of the fees andexpenses.  As we have noted, the request is a perfectly round$4 million based on a time and expense "guesstimate" that haschanged radically in the last month alone.  In short, there isno legitimate reason for the failure to provide notice to theclass of the fee to be sought, and no fee may be awardedunless and until the class is given proper notice.  (SeeFootnote 11)     *4.  Ford's Shocking Failure to Oppose the Fee Request.*     When the Bennett Objectors filed their originalobjections, they did not know that Ford was not going tooppose class counsel's fee request.  We take claims ofcollusion very seriously, and we have not made any in thislitigation.  Further, we agree with this Court's October 28Order that there is no direct evidence of collusion, Order at11, as there almost never is.  However, the fact that Ford hasnot opposed a plainly excessive, and procedurally inadequate,fee request, is, with all respect, circumstantial evidence ofcollusion.     Ford stands to lose $4 million if the fee petition isapproved in full.  That being so, why did not Ford object onthe ground that the $4 million award was excessive, or, at theleast, that a fee could not be awarded in the absence of *any*time records, expense records, the names of the attorneys whoworked on the case and their relevant experiences, the marketrates for attorney's fees in the relevant communities, and allthe other indicia of a proper fee application?  On the otherhand, why has Ford mounted such a vociferous defense of thefailure to disclose the amount of the fees requested in thenotice, a failure which can only harm class counsel'specuniary interests not Ford's?  We urge the Court to posethese questions to Ford before it rules on the fairness of thesettlement, not to mention the fee request, if it reaches thatissue.                          FOOTNOTES1    We received Ford's submission in the early evening of     November 1, 1994, and class counsel's submission on the     afternoon of Tuesday, November 2, 1994.2    To the extent that some cases suggest that a first-class     mail notice, standing alone, that reaches only a small     fraction of the class is the "best practicable notice     under the circumstances," they are flatly inconsistent     with the terms of Rule 23(c)(2) and the weight of     authority.3    *See also id.* ("Because this Court approved the notices     we sent, it may summarily dispose of the objectors'     meritless and unwarranted attacks on the adequacy of     notice").4    Even after the Simonson Affidavit and our prior     presentation of the 1980 study commissioned by the     Department of Transportation (which the class plaintiffs     simply ignore), class counsel persists in maintaining     that "Plaintiffs sent actual notice to over 691,373 class     members ... ."  CC Reply, at 18.  We note that class     counsel may not rely on the Settlement Agreement     provision that *Ford* need do not more than send the     notice to the list maintained by R.L. Polk and publish     the notice in *USA Today*.  *See* SA, Par. 6.b., pp. 9-     10.  Regardless of Ford's obligation, the *class     plaintiffs* are responsible, by law, for fulfilling the     notice requirements under Rule 23 and the Due Process     Clause.  *See*, *e.g.*, *Eisen v. Carlisle & Jacquelin*,     417 U.S. 156 (1974).5    The Bennett Objectors did not raise this specific issue     in its original Objections, because we were unaware that     an opt-out form had been omitted from the Notice package.      We (erroneously) assumed that an opt-out form was     included, as is standard operating procedure under the     Manual on Complex Litigation 2d.  Nevertheless, since     other objectors raised the issue, it is properly before     the Court.6    We have not, however, filed the supporting affidavits,     which we believe class counsel are obligated to file with     the federal court and which we urge the federal court to     demand, among other things, before it considers approving     the proposed settlement.  We cannot, of course, be     certain that the fee petition has not been filed in the     federal action, but the style of the federal case appears     nowhere on the fee memorandum and the memorandum deals     almost exclusively with propositions of Alabama law. 7    In addition, class counsel presents the affidavit of     another lawyer from Birmingham, Alabama, who baldly     proclaims that the proposed settlement "was the best     result obtainable."  Affidavit of Andrew P. Campbell.      How does Mr. Campbell know that and why is his opinion on     that question relevant?  Mr. Campbell may, if he desires,     seek to file an amicus brief (to which we would not     object), to argue that the fee requested is appropriate,     but Mr. Campbell's sworn affidavit does not magically     transform a matter of opinion or argument into one of     fact.  Interestingly, Mr. Campbell says nothing about how     class counsel's fee request compares with market rates in     Birmingham.8    Class counsel's original estimate of about 3,300 to 3,500     hours of work performed, and to be performed, on the     case, has now burgeoned to "in excess of 5752 hours," Ex.     17, at 6, again without the benefit of time records.      Much more troubling is class counsel's statement that     they "have advanced or will advance by conclusion of this     matter more than $500,000 in out-of-pocket expenses in     preparation of this case," *id.*, because of their prior     statement that expenses would be at least $800,000.      *See* Bennett Obj., Ex. 11 (Affidavit of Richard Freese,     Par. 4).  It is troubling because, if not for the     opposition to this gargantuan fee request, class counsel     would have sought to collect the $4 million, in part     premised on the apparently inaccurate claim that their     expenses were in the neighborhood of $800,000.9    Class counsel claim that the notice was appropriate     because class members could have found out about the fee     application since it is on file at the courthouse and is     "available for inspection and copying."  CC Reply, at 20.      But the whole point of the Notice is to sent to the class     the pertinent facts relating to the proposed settlement.      If class counsel were correct, all that would be     necessary would be for the Notice explain the pendency of     the case and tell the 700,000 class members to travel to     the courthouse to find out about the settlement terms.      Class counsel's argument is particularly ironic here,     since they did *not* file the fee application in New     Orleans, so that a class member who traveled there would     have come up empty handed (but, hopefully, with an     explanation to push on toward Eutaw, Alabama).10   *See also* Milo Geyelin, "Critics Call Bronco II     Settlement a Lemon," *Wall St. Journal*, p. B1 (Oct. 18,     1994)("The amount [of the fee request], which works out     to $1,140 an hour, wasn't disclosed to Bronco II class     members in notices alerting them to the proposed     agreement.  The two lawyers [*i.e.*, class counsel]     explain that they didn't file the request until after the     mailings").11   Ford's argument, at page 50 of its Reply Brief, that the     notice need not contain information on fees because the     amount has not yet been awarded makes no sense.  None of     the terms of a proposed class action settlement are final     when a notice is sent out -- they are frequently subject     to renegotiation by the parties and all must be approved     by the court.  Obviously, that is no reason to deprive     the class of what one or both of the parties are seeking     in the settlement, including the amount of the fees or     some reasonable estimate thereof.                        *Conclusion*          For the additional foregoing reasons, the proposedsettlement should not be approved.  The Bennett Objectorsreserve the right to present further evidence and argument inresponse to the settling parties' voluminous October 31, 1994filings.                    Respectfully submitted,                    ____________________________                    Brian Wolfman                    D.C. Bar No.427491                    Alan Morrison                    D.C. Bar No. 073114                    Public Citizen Litigation Group                    Suite 700, 2000 P Street, N.W.                    Washington, DC  20036                    (202) 588-1000                    _______________________                    Robert Graham                    Kentucky Bar No. 85112                    Center for Auto Safety                    Suite 410, 2001 S Street, N.W.                    Washington, DC  20009                    Attorneys for Suzanne F. Bennett                    *et al.*November 4, 1994