Blackman v. Gascho - 144 Response To Objection

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 1 of 29 PAGEID #: 2922
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION (COLUMBUS)
AMBER GASCHO, et al.,
Plaintiffs,
v.
GLOBAL FITNESS HOLDINGS, LLC,
Defendants.
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Case No. 2:11-cv-436

Judge Smith
Magistrate Judge King
PLAINTIFFS RESPONSE TO THE OBJECTIONS OF JOSHUA BLACKMAN

AND ZIK/HEARON TO THE REPORT AND RECOMMENDATION
s/ Thomas N. McCormick
William G. Porter (0017296)
wgporter@vorys.com
Thomas N. McCormick (0075496)
tnmccormick@vorys.com
Kenneth J. Rubin (0077819)
kjrubin@vorys.com
VORYS, SATER, SEYMOUR AND
PEASE LLP
52 East Gay Street, P.O. Box 1008
Columbus, Ohio 43216-1008
Telephone: (614) 464-6400
Facsimile: (614) 464-6350
s/ Mark H. Troutman
Mark Landes (0027227)
mlandes@isaacwiles.com
Gregory M. Travalio (0000855)
gtravalio@isaacwiles.com
Mark H. Troutman (0076390)
mtroutman@isaacwiles.com
ISAAC, WILES, BURKHOLDER &
TEETOR, LLC
Two Miranova Place, Suite 700
Columbus, Ohio 43215
(614) 221-2121
Facsimile: (614) 365-9516
James B. Lind (0083310)

jblind@vorys.com
PEASE LLP
301 East Fourth Street, Suite 3500
Great American Tower
Cincinnati, OH 45202
Telephone: (513) 723-4000
Facsimile: (513) 852-7835
Attorneys for Plaintiffs
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .............................................................................................. iii
I.
PRELIMINARY STATEMENT............................................................................... 1
II.
PRIOR ARGUMENT AND THE COURTS R&R................................................... 1

A.
III.
The R&Rs Relevant Findings .................................................................... 2

1.
The Settlement provides great monetary value to the Class ........... 2
2.
The claims process was easy and user friendly .............................. 3
3.
The Settlement eliminated all risk of an adverse judgment ............. 3
4.
Class Counsel independently negotiated attorneys fees and

costs................................................................................................ 4
B.
The Objectors Interests are adverse to the Class ..................................... 4
C.
The Objectors rely on easily distinguishable case law and

inapplicable factual arguments .................................................................. 5
THE CCAF AND ZIK/HEARON OBJECTIONS ARE WITHOUT MERIT

AND SHOULD BE OVERRULED ......................................................................... 6
A.
Zik/Hearon Objection II and CCAF Objection 7 fail because the

claims process was fair, reasonable, and appropriate ............................... 6
B.
Zik/Hearon Objection V has no support because the Release is

limited and appropriate .............................................................................. 8
C.
Zik/Hearon Objection III fails because the adequacy, commonality,

and predominance requirements of Rule 23 are easily satisfied ................ 8
D.
Zik/Hearon Objections IV and VI(A) fail because the value of this

Settlement and the Seeger settlement are not comparable ..................... 10
E.
Zik/Hearon Objection VI(B) should be denied because the opinions

of Class Counsel and the Class Representatives were properly
considered ............................................................................................... 12
F.
Zik/Hearon Objection VI(C) fails because success on the merits

was uncertain ........................................................................................... 12
IV.
G.
Zik/Hearon Objection VI(D) and CCAF Objection 1 are without merit

because the R&R properly considered the reaction of the class.............. 13
H.
Zik/Hearon Objection VII and CCAF Objection 3, 9, and 10, which

allege preferential treatment and oppose the award of Class
Counsels attorneys fees misstate the law, are factually inaccurate,
and have been waived ............................................................................. 15
1.
The R&Rs use of the Lodestar methodology was

appropriate .................................................................................... 15
2.
While unnecessary, the R&R properly applied the

percentage of the fund cross-check .............................................. 16
3.
Class Counsels Lodestar award was adequately

documented and supported .......................................................... 17
4.
Allegations of preferential treatment are unfounded and

without support .............................................................................. 19
I.
CCAF Objection 4 (clear sailing clause) and Objection 5 (kicker

provision) lack merit ................................................................................. 20
J.
Zik/Hearon Objection VIII should be denied because Zik/Hearon is

not entitled to attorneys fees ................................................................... 21
K.
CCAF Objection 2 has no merit because the public interest favors

approval ................................................................................................... 21
L.
CCAF Objection 6 is without merit because the Class

Representative Enhancement Payments are fair and reasonable ........... 21
M.
CCAF Objection 8 alleging a failure to disclose Class Counsels fee

division is without legal support and entirely frivolous .............................. 22
CONCLUSION.................................................................................................... 23
CERTIFICATE OF SERVICE ........................................................................................ 24
ii
TABLE OF AUTHORITIES
PAGE
CASES
Bessey v. Packerland Plainwell, Inc., No. 4:06-cv-95, 2007 WL 3173972
(W.D. Mich. Oct. 26, 2007) ........................................................................................ 22
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .......................................................... 16
Borden v. Sec'y of Health and Human Servs., 836 F.2d 4 (1st Cir.1987) ...................... 17
Clark Equipment Co. v. Intl Union, Allied Indus. Workers, 803 F.2d 878 (6th
Cir. 1986) ..................................................................................................................... 2
Cobell v. Salazar, 679 F.3d 909 (D.C. Cir. 2012) ............................................................ 9
Connectivity Sys., Inc. v. Natl City Bank, No. 2:08-cv-1119, 2011 WL 292008
(S.D. Ohio Jan. 26, 2011) .......................................................................................... 19
Dennis v. Kellog Co., 697 F.3d 858 (9th Cir. 2012) ....................................................... 19
Greenhow v. United States, 863 F.2d 633 (9th Cir. 1988)............................................. 17
Howell v. Jbi, Inc., 2014 U.S. Dist. LEXIS 44632 (D. Nev. 2014) .................................. 19
In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935 (9th Cir.
2001) ..................................................................................................................... 5, 19
In re Dry Max Pampers Litigation, 724 F.3d 713 (6th Cir. 2013) ................... 5, 14, 19, 21
In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768 (3d Cir.
Pa. 1995) ......................................................................................................... 5, 12, 14
In re Porsche Cars North American Inc., Case No. 2:11-md-2233................................ 14
Jesselson v. Outlet Assoc. of Williamsburg, 784 F.Supp. 1223, 1228 (E.D.
Va. 1991) ................................................................................................................... 17
JonesBey v. Caruso, No. 1:07cv392, 2009 WL 3644801 (W.D. Mich.
Oct. 30, 2009) ............................................................................................................ 17
Lonardo v. Travelers Indem. Co., 706 F.Supp. 2d 766 (N.D. Ohio 2010).................. 4, 20
Lonardo v. Travelers Indemnity Co., 206 F.Supp. 2d 766 (S.D. Ohio 2010) ........... 16, 18
Marr v. Foy, No. 1:07cv908, 2010 WL 3061297 (W.D. Mich. Aug.3, 2010) ................. 17
iii
Murr v. United States, 200 F.3d 895 (6th Cir. 2000) ...................................................... 17
Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d
985 (1st Cir.1988) ...................................................................................................... 17
Rawlings v. Prudential-Bache Props., Inc., 9 F.3d 513 (6th cir. 1993) .......................... 15
Robins v. Global Fitness Holdings, LLC, 838 F.Supp. 2d 631 (N.D. Ohio
2012) ................................................................................................................. 3, 4, 13
Thompson v. Midwest Found. Independent Phys. Assn, 124 F.R.D. 154
(S.D. Ohio 1988) ........................................................................................................ 18
United States v. Hardesty, 977 F.2d 1347 (9th Cir.1992) .............................................. 17
United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998) .......................................... 17
Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F. Appx 496 (6th Cir.
2011) ..................................................................................................................... 4, 15
Van Horn, 2010 U.S. Dist. LEXIS 42357 (S.D. Ohio) .................................................... 16
STATUTES
28 U.S.C. 631 ............................................................................................................. 17
RULES
Fed. R. Civ. P. 12(b)(6) ................................................................................................... 3
Fed. R. Civ. P. 72(a)...................................................................................................... 17
Rule 23 .................................................................................................................. 7, 8, 22
iv
I.
PRELIMINARY STATEMENT
After extensive briefing that included more than 200 pages of argument, and after
presiding over a Final Fairness Hearing on February 13, 2014, that included both
argument and live testimony, Magistrate Judge King issued a seventy-nine page Report
and Recommendation on April 4, 2014 (Docket No. 141) (the R&R). The R&R is
comprehensive, well-reasoned, and legally sound. It thoroughly considers, analyzes,
and rejects every Objection to, and argument against, this Settlement.
Despite the Magistrate Judges thoughtful analysis, the Center for Class Action
Fairness (CCAF), filed Objections to Report and Recommendation on April 17, 2014,
(Docket No. 142) (CCAF Objection). Zik/Hearon filed its Objections to Report and
Recommendation on April 21, 2014, (Docket No. 143) (Zik/Hearon Objection). These
Objections rehash the same unsupported arguments and rely on the same
distinguishable cases that were already rejected in the R&R and rebutted in the Motions
and Responses filed by Class Counsel. Moreover, the objectors completely ignore the
relevant facts and pertinent cases cited to, and relied on, in the R&R. As discussed
below, the CCAF and Zik/Hearon Objections are without merit and should be overruled.
II.
PRIOR ARGUMENT AND THE COURTS R&R

The Objections were thoroughly rebutted in Plaintiffs Response to the
Objections,
January
23,
2014
(Docket
No.
128),
and
the
parties
Joint
Motion/Unopposed Motion for Final Approval, February 4, 2014 (Docket No. 132).
Plaintiffs incorporate those arguments here. Moreover, the Objections are contradicted
by, and inconsistent with, the specific findings in the R&R.
Page 1 of 24
The R&Rs Relevant Findings.
A.
A courts core responsibility in granting final approval is to ensure that the

settlement, taken as a whole, is fair, reasonable and adequate to all concerned. Clark
Equipment Co. v. Intl Union, Allied Indus. Workers, 803 F.2d 878, 880 (6th Cir. 1986).
The R&Rs findings establish that, taken as a whole, this is a good settlement.
1.
The Settlement provides great monetary value to the Class.
Defendant (Global Fitness)1 pledged more than $17,000,0002 to the Class and
Subclasses in the form of cash payments - not coupons. If the Settlement is approved
49,808 Allowed Claimants will recover an aggregate amount of $1,593,240. See R&R
at 14, PAGEID 2812. The average class member will recover $31.99, and the average
Gym Cancel Subclass Member will recover $41.28.
Id. As discussed in the Joint
Motion for Final Approval, the average recovery per class member here is significantly
higher than the cash awards provided in other settlements involving similar claims
against health clubs. See Docket No. 132 at 8-10, PAGEID 2452-2454.
As stated several times in the R&R, this monetary recovery is significant and
substantial.
See, e.g., R&R at 46, PAGEID 2844 ([t]his is a significant recovery
because it exceeds the $26.76 average monthly fee of a gym membership . [t]his
recovery is also substantial considering the bases of plaintiffs claims.); R&R at 47,
PAGEID
2845 (the Settlement Agreement provides an immediate and significant
Defendant, Global Fitness Holdings, LLC, formerly operated health clubs in seven states doing
business under the name Urban Active Fitness.
2
The total available benefit to the Class is $17,000,515. This is calculated as follows: (605,725
Class Members x $5) + (300,017 FIF Subclass Members x $20) + (323,518 Gym Cancel Subclass
Members x $20) + (50,038 personal training Subclass Members x $30) = $17,000,515. Footnote 11 of
the R&R (page 75, PAGEID 2873), miscalculates the total available benefit as $15,500,430 by using a
$15 payment to the FIF Subclass rather than the $20 payment required by the Settlement Agreement.
Page 2 of 24
monetary benefit to class members.); R&R at 52, PAGEID 2850 (the settlement in this
case provides for an immediate and substantial cash payment to class members,
considering the value of the claims and the risks of protracted litigation.); R&R at 71,
PAGEID 2869 (Where, as here the results achieved are substantial, the interest in fairly
compensating counsel for the amount of work done is great.); R&R at 56-57: PAGEID
2854-2855 ([t]he Class Representatives initiative, time, and effort were essential to the
prosecution of the case and resulted in a significant recovery) (emphasis added).
2.
The claims process was easy and user friendly.
To receive a cash payment of between $5 and $75, Class Members could file a
claim online or by mail and only needed to provide basic contact information and, if
applicable, check box(es) indicating Subclass membership. R&R at 61-62, PAGEID
2859-2860.
The claim form was short, simple, easy to understand, and took only
minutes to complete. No further proof or documentation was needed.

3.
The Settlement eliminated all risk of an adverse judgment.
Similar claims brought by a class of consumers against Global Fitness were

dismissed pursuant to Defendants Fed. R. Civ. P. 12(b)(6) Motion in Robins v. Global
Fitness Holdings, LLC, 838 F.Supp. 2d 631, 654 (N.D. Ohio 2012); thus, the risk of an
adverse judgment was authentic and significant. As stated in the R&R, the viability of
the bulk of plaintiffs claims is called into question by Judge Polsters dismissal in the
Northern District of Ohio of class action claims in the Robins action. [t]hese claims are
further clouded by the pendency of the appeal in Robins which was being briefed at
the time of settlement. See R&R at 35, PAGEID 2833.
Page 3 of 24
4.
Class Counsel independently negotiated attorneys fees and

costs.
After reaching an agreement on Class recovery and payments, the parties

independently negotiated the separate payment of attorneys fees and costs, and Class
Counsel agreed to accept less than their current lodestar value. R&R 52-53, 73-74,
PAGEID 2850-2851, PAGEID 2871-2872. The payment of attorneys fees and costs by
Global Fitness is an additional benefit to the Class. R&R at 77, ft.12, PAGEID 2875, ft.
12. See also Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F. Appx 496, 501 (6th
Cir. 2011); Lonardo v. Travelers Indem. Co., 706 F.Supp. 2d 766, 803 (N.D. Ohio 2010).
B.
The Objectors Interests are adverse to the Class.
In addition to lacking merit, CCAFs Objections are an affront to the tens of

thousands of Class Members waiting to receive payment.
CCAFs client, Joshua
Blackman, ultimately paid Global Fitness no money, suffered no damages, yet will
recover $25 under this Settlement.3 CCAF ignores this fact and now delays what it
admits are appropriate cash payments to approximately 50,000 Class Members so that
it can make ideological arguments that are inapplicable to this Settlement. R&R at 44.
The Zik/Hearon Objections likewise undermine the Classs interests.
First,
Zik/Hearons claims mirror the Robins claims, which, as noted above, were dismissed.4
Final Approval of this Settlement will guarantee a significant recovery and eliminate the
risk of an adverse judgment. Second, even assuming the Zik/Hearon claims could
succeed on the merits, the average recovery in this Settlement exceeds the average
3
Blackman received a full refund of his initial membership fee from Urban Active because he
cancelled his contract, pursuant to the 3-day cancellation provisions.
4
For a more detailed discussion of how the Zik/Hearon claims are identical to the claims in Robins,
are subsumed by the claims of the Gym Cancel Subclass, and are less valuable than the recovery
guaranteed by this Settlement, see Plaintiffs Response to Objections, pages 11-14, PAGEID2265-2268.
Page 4 of 24
Zik/Hearon recovery.
Specifically, the average Gym Cancel Subclass Member will
immediately receive $41.28 under this Settlement, whereas, under Zik/Hearons best
case scenario, the average member would recover $36.00. ($26 monthly fee plus $10
cancellation fee). See Plaintiffs Response to Objections (Docket No. 128) at 13-14,
PAGEID 2267-2268; R&R at 17, PAGEID 2812. See also Transcript of February 13,
2014, Final Fairness Hearing (Transcript), filed on March 5, 2014, (Docket No. 139) at
13-14, PAGEID 2692-2693; and Exhibit 1, page 9.5
C.
The Objectors rely on easily distinguishable case law and

inapplicable factual arguments.
CCAFs Objections rely almost exclusively on two readily distinguishable cases:

In re Dry Max Pampers Litigation, 724 F.3d 713 (6th Cir. 2013) and In re Bluetooth
Headset Products Liability Litigation, 654 F.3d 935 (9th Cir. 2001). After a thorough
analysis, the R&R rejected application of Pampers to this Settlement. See R&R 42-43,
PAGEID 2840-2840 (This action is distinguishable from Pampers.).
Likewise, the
R&R devotes 5 pages to Bluetooth, and concludes that none of the factors in Bluetooth
exist here. R&R at 49-54; PAGEID 2847-2852.6 Pampers and Bluetooth have little or
nothing in common with this case, and therefore, this Court should reject CCAFs efforts
to cherry-pick quotes and sound bites from these cases.
Likewise, Zik/Hearons Objections are littered with citations to In re GMC Pick-Up
Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 801 (3d Cir. Pa. 1995), a case from the
Third Circuit that is easily distinguishable. In re GMC was a coupon settlement, it was
5
Exhibit 1 is the PowerPoint Presentation used by Class Counsel at the Fairness Hearing. It was
admitted as Plaintiffs Exhibit 1 at the Fairness Hearing. See Transcript at 110, PAGEID 2789.
6
At the Fairness Hearing, Class Counsel provided a side-by-side comparison distinguishing

Pampers and Bluetooth from this Settlement. See Transcript at 61-64, PAGEID 2740-2743. See also
comparison slides attached as Exhibit 1, pages 21-22.
Page 5 of 24
negotiated and agreed to less than 4 months after the consolidated complaint was filed,
and the value of the settlement to the Class was inadequate. Id. at 780, 782, 806-807.
The Third Circuit rejected the settlement because:
[T]he case was simply settled too quickly with too little
development on the merits for certificates that may well be
worth significantly less than the $1.98 to $1.18 billion
estimate accepted by the district court. The settlement
was inadequate and unreasonable, and may even have
been a marketing boon to GM.
Id. at 818-819 (emphasis added).
Here Class Counsel negotiated significant and
substantial cash awards after two and a half years of contested litigation.
III.
THE CCAF AND ZIK/HEARON OBJECTIONS ARE WITHOUT MERIT AND

SHOULD BE OVERRULED
CCAF objects to 10 findings of the R&R. Zik/Hearon lodges 9 Objections. Each
Objection is addressed below. To the extent possible, responses to overlapping CCAF

and Zik/Hearon Objections have been combined.
A.
Zik/Hearon Objection II and CCAF Objection 7 fail because the claims

process was fair, reasonable, and appropriate.
Zik/Hearon and CCAF falsely assert that the simple and user-friendly claims
process renders this Settlement unfair. CCAF argues that direct payment would have
enabled 80% of the Class to receive a cash award whereas Zik/Hearon claims the
percentage would be 90%.
Both arguments are wrong and, as evidenced by their inconsistency, are
unsupported in the record. As noted in the R&R, these arguments misconstrue the
Dahl Declaration and Mr. Dahls testimony. See R&R at 61, PAGEID 2859. Dahl
testified that after processing and working with the Class Member data provided by
Global Fitness, 90.8 percent of the Postcard Notices were delivered, but there is no
Page 6 of 24
way of definitively saying they actually reached the class member. See R&R at
61, PAGEID 2859 (citing Transcript at 39, PAGEID 2718) (emphasis added).
Uncertainty exists because the data was outdated and unreliable. Specifically,
the data contained addresses collected over a six year period - between 2006 and
2012. R&R at 61, PAGEID 2859. Some of these addresses were also incomplete and
errors existed relative to what subclasses each member belonged. So, while Dahls
testimony proves that Notice was directed in a robust manner that exceeded the
requirements of Rule 23, Dahl did not say, and could not say, that 80% or 90% of the
notices were received by actual Class Members.
Dahl also testified that he has been involved in approximately 3,000 settlements
over his career and all have involved a claims process, except 10 to 20. R&R at 59-61,
PAGEID 2857-2859. In the rare circumstances where direct payments were made, the
data was current, not two to eight years old. Id. Thus the R&R found, given the age of
Global Fitness data and in light of Mr. Dahls testimony, the Court is satisfied that the
claims made process is appropriate in this case. See R&R at 61, PAGEID 2859.
Moreover, the Objectors argument is without legal support. The Objectors have
not cited a case from any jurisdiction in which a settlement that provides significant
and substantial value was rejected because of a simple claims process like the one
used here. In contrast, Plaintiffs Response to Objections provides a wealth of authority
from this Court, and other jurisdictions, showing that a claims process is common and
expected in consumer class actions, including those against health clubs. See Docket
128 at 26-28, PAGEID 2280-2282; and Transcript at 14-22; PAGEID 2693-2701.
Page 7 of 24
B.
Zik/Hearon Objection V has no support because the Release is

limited and appropriate.
Objection V claims that because the release does not contain the precise words
identical factual predicate it includes claims beyond those in the Complaint. This is
wrong. The R&R reviewed this argument and found that the release in question is
limited to claims that share the same factual predicate as the settled claims, and
therefore is not unfair to that extent.
See R&R at 64, PAGEID 2862.
See also
Plaintiffs Response to Objections, Docket No. 128 at 16-18, PAGEID 2270-2272.

Zik/Hearon also argues that Ziks claims are based on a different factual
predicate because his contract contained language that was different from the other
Class Members.
As discussed in the Section below, this allegation is false and it
ignores the basic premise of the Classs claims and the findings of the R&R.
C.
Zik/Hearon Objection III fails because the adequacy, commonality,

and predominance requirements of Rule 23 are easily satisfied.
Zik/Hearon alleges that Class Counsel did not adequately protect the Ziks and
that commonality and predominance do not exist. These arguments were thoroughly
briefed in Plaintiffs Response to Objections, Docket No. 128 at 10-14, 20-24, PAGEID
2264-2268, 2274-2278; and the Joint Motion for Final Approval, Docket No. 132 at 1417, PAGEID 2458-2461.
Moreover, the R&R devoted more than 15 pages to
addressing and rejecting these arguments. R&R at 19-31, 44-48. Given the R&Rs
thorough analysis, this Response will only discuss Zik/Hearons new lines of attack.
First,
Zik/Hearon
claims
that
Class
Representative
Edward
Lundberg
(Lundberg) never cancelled his contract and is not a member of the Gym Cancel
Subclass. This is false. Lundberg was required to cancel his New Albany membership
to effectuate a transfer to the Grandview location. R&R at 25, PAGEID 2823 (citing
Page 8 of 24
55-57 of the Third Amended Complaint). Thus, contrary to Zik/Hearons assertion,

Lundberg is a member of the Gym Cancel Subclass as established by the cancellation
form he submitted on April 6, 2011.
See Exhibit 2.
This cancellation form was
submitted by Lundberg to cancel his February 21, 2008, contract. A review of that
contract shows that it contained the same cancellation provision as the Ziks, which
further undercuts Ziks repeated argument that his claims are unique or different than
the other class members. See Exhibit 3.
Second, Zik/Hearons allegation that Class Counsel did not adequately protect
the Classs interests is incorrect because, as discussed in Section II(B) above, the
average Gym Cancel Subclass member will recover $41.28, which is $5.28 more than if
Zik/Hearons claims were 100% successful on the merits ($41.28 vs. $36.00). Thus,
Class Counsel adequately protected and secured significant compensation to the Class
given the value of the claims.
If the Ziks believe their compensation is inadequate, the ability to opt-out protects
their rights. See Cobell v. Salazar, 679 F.3d 909, 920 (D.C. Cir. 2012) (holding that
any class member who is allegedly under-compensated by the distribution formula,
could have opted out and the opt-out provision fulfilled its purpose of protecting
objecting class members). The R&R said that, although individual class members had
the opportunity to opt out of the settlement if they concluded that the value of their
individual claims exceeded the value of the immediate relief provided by the Settlement
Agreement, only 90 did so. See R&R at 47, PAGEID 2845.
Last, in stretching to make an argument, Zik/Hearon puts forth a view of their
case and this case that is both confusing and misleading.
Page 9 of 24
Specifically, Zik/Hearon
contradicts their own statements that they represent a class of all members who
cancelled between 1996 and 2012 by arguing that Ziks claims are different than
Hearons and other Class Members. Compare R&R at 21-22 to Zik/Hearon Objections
at 10-11.
These mischaracterizations aside, the R&R properly recognized that all
members of the Gym Cancel Subclass alleged a common injury: i.e. each was
improperly charged, pursuant to a common policy or practice of defendant, monthly
dues and a cancellation fee after cancellation. See R&R at 45, PAGEID 2843. Final
Approval of this Settlement guarantees that members of this Subclass, regardless of
when they signed their contract, will recover an appropriate cash award for the alleged
common conduct of Global Fitness.
D.
Zik/Hearon Objections IV and VI(A) fail because the value of this

Settlement and the Seeger settlement are not comparable.
Zik/Hearon Objection IV claims Judicial Estoppel should prevent Final Approval

because Class Counsel objected to Final Approval in Seeger. Relying on the same
mischaracterizations, Objection VI(A) then alleges collusion. These arguments have no
merit. Class Counsels position is not inconsistent because the absence of value and
the overbroad release in Seeger make it incomparable to this Settlement. Because no
inconsistency exists, Judicial Estoppel does not apply.
Seeger was a coupon settlement that provided little or no value to the Class,
Seegers counsel did little or no discovery on the claims it was releasing, and the
release was unlimited in time and scope. See R&R at 5-6. In Plaintiffs Response to
Objections, Class Counsel included the following chart to highlight the differences
between the settlements. See Docket 128 at 9, PAGEID 2263 (italicized numbers have
been updated to include final claims data).
Page 10 of 24
Seeger
Gascho
Notice
Email or Postcard
Email and Postcard
Class Member
Benefit
30 Day Coupon
Cash Refund (between $5-$75, with

an average of $31.99).
Release
General Release:
Unlimited in time or
scope.
Specific Release:
Limited to class period and alleged
claims.
Minimum payment
$0.00
$1,300,000.00
Approved Claims
1,444
49,808
Claim Rate
0.6%
8.2%
Payment to the Class
$0.00
$1,593,240.00
To not oppose the Seeger settlement would have been inconsistent with Class
Counsels fiduciary duty. In contrast, this Settlement makes available over $17,000,000
to the Class, has an average payment of $31.99; provides a greater recovery to the
average Gym Cancel Subclass member than Zik/Hearon; and provides an immediate
and substantial cash payment to class members, considering the value of the claims
and the risks of protracted litigation. See R&R at 52, PAGEID 2850 (emphasis added).
Moreover, the release here is narrowly tailored. Because these settlements are worlds
apart, Zik/Hearons efforts to tarnish Class Counsels conduct with accusations of
collusion and playing fast and loose with the Court fail miserably.
In their Objection, Zik/Hearon cite a number of alleged instances of improper
conduct by Class Counsel that were ignored by the R&R.
Not true.
The R&R
analyzed and discussed the arguments concerning the value of the claims, the potential
for success on the merits, the release, the risk of fraud or collusion, and the allegations
of unfairness related to settlement negotiations and intervention. R&R at 5, 33, 35-36,
Page 11 of 24
62-63. Like all other Objections to this Settlement, these arguments were thoroughly
reviewed and rejected.7 In addition, Class Counsel rebutted these arguments in its
Response to Objections and at the Fairness Hearing.
See Docket 128 at 10-20,
PAGEID 2264-2274; and Transcript at 66-67, PAGEID 2745-2746.

E.
Zik/Hearon Objection VI(B) should be denied because the opinions of

Class Counsel and the Class Representatives were properly
considered.
The R&R properly considered the opinions of Class Counsel and the Class
Representatives in finding this Settlement fair, reasonable, and adequate. R&R at 3738, PAGEID 2835-2836. The Class Representatives signed the Settlement Agreement
thereby fulfilling their duty and representing to this Court that they believed the
Settlement to be fair, reasonable, and adequate.
Likewise, Mr. McCormick,
Mr. Troutman, and Mr. Travalio presented at the Fairness Hearing and were available to
answer any questions related to the fairness of this Settlement. Transcript at 4, 58, and
95, PAGEID 2683, 2737, 2774.
Finally, the Zik/Hearon Objection lacks any legal
support because it is based entirely on the already distinguished In re GMC case.

F.
Zik/Hearon Objection VI(C) fails because success on the merits was

uncertain.
The R&R properly noted the importance of the success on the merits analysis
and highlighted numerous factors which posed serious roadblocks to success of the
claims. R&R at 35-36, PAGEID 2833-2834. Chief among these roadblocks was the
This District Court originally denied Zik/Hearons attempts to intervene, (see Opinion and Order,
Docket No. 110) and the R&R specifically found that Zik/Hearon failed to persuade the Court to revisit this
prior Order and that Zik/Hearons interests are the same as every other unnamed Class member. See
R&R at 62-63, PAGEID 2860-2861.
Page 12 of 24
decision in Robins, 838 F.Supp. 2d at 6548; the pendency of Robins appeal to the
Sixth Circuit; Global Fitnesss defense to class certification; and various defenses that
presented financial risk to the Class. R&R at 35-36, PAGEID 2833-2834. Regarding
these various defenses, the R&R recognized that even assuming the Class overcame
Robins and succeeded on the merits, little judicial authority existed to support a
damages theory that would provide the Class Members a monetary award much in
excess of what has already been achieved through this Settlement.
R&R at 36,
PAGEID 2834. The R&R said:

The average Class Payment is $31.99 and the average Gym
Cancel Subclass Payment will be $41.28. This is a
significant recovery because it exceeds the $26.76 average
monthly fee of a gym membership with Global Fitness
between January 1, 2009 and July 2012. This recovery is
also substantial considering the bases of plaintiffs claims,
i.e., improperly charged dues, a $10 cancellation fee, and/or
a $15 FIF or CAF.
See R&R at 46, PAGEID 2844 (internal citations omitted).
Zik/Hearon asks the Court to set aside this significant recovery, to ignore Robins,
and to disregard all other challenges inherent in litigation by arguing that Ziks claims
are different and that this Settlement is comparable to Seeger. As discussed in Section
III(C) and III(D) above, Seeger is irrelevant and attempts to distinguish Ziks claims are
unconvincing and inaccurate.
G.
Zik/Hearon Objection VI(D) and CCAF Objection 1 are without merit

because the R&R properly considered the reaction of the class.
As one of many factors, this Court must consider the reaction of the absent class
members. See R&R at 38, PAGEID 2836. In complying with this requirement, the R&R
The Robins decision is particularly significant because it dismissed both Ohio Prepaid
Entertainment Contract Act (PECA) claims and Kentucky Health Spa Act (KHSA) claims.
Page 13 of 24
concluded that the number of objectors and opt-outs in relation to the size of the class
supports a finding that the Settlement Agreement is fair, reasonable, and adequate.
See R&R at 39, PAGEID 2837.
This finding was firmly supported by Sixth Circuit
precedent and numerous district cases from within the Sixth Circuit. R&R at 38-39,
PAGE ID 2836-2837. In fact, less than 45 days ago, this Court again reaffirmed this
legal principle. See In re Porsche Cars North American Inc., Case No. 2:11-md-2233,
Final Approval Order, Docket No. 152 at 8(f), PAGEID 3930, (March 19, 2014, Judge
Frost) (Of 167,544 class notices sent, only 4 opts-out and 12 objections were received
resulting in the Courts finding that the minimal number of objectors/Opt-Outs suggests
that the settlement if fair, reasonable, adequate).
CCAF ignores these cases and misstates the law by citing to Pampers.
In
addition to being entirely distinguishable, Pampers never once says that the R&Rs
conclusion would constitute legal error.
Zik/Hearons argument is also unavailing
because it relies on In re GMC, another ill-fitting case that does not support the
overbroad conclusion that reliance on a small number of objections and opt-outs in
approving a settlement is legal error. Last, as discussed in Section II(B) above, all
objections in this case were filed by Class Members with ulterior motives; no objections
came from Class Members who truly believe that the Settlement is inadequate. This,
combined with only 90 opt-outs from over 600,000 Class Members evidences strong
support for Final Approval.
Page 14 of 24
H.
Zik/Hearon Objection VII and CCAF Objection 3, 9, and 10, which

allege preferential treatment and oppose the award of Class
Counsels attorneys fees misstate the law, are factually inaccurate,
and have been waived.
CCAF Objection 9 alleges error because the R&R relied on the lodestar method
to calculate Class Counsels fee award as opposed to the percentage of the fund
methodology. Zik/Hearon Objection VII and CCAF Objection 10 then claim additional
error because the R&R cross-checked the lodestar award using a percentage of the
fund calculation that took into consideration the total available to the Class as opposed
to just the amount actually recovered.
Finally, CCAF Objection 3 and Zik/Hearon
Objection VII alleged preferential treatment in the award of Class Counsels fees.
Each of these Objections is without merit.
In determining the appropriateness of a fee petition, District Courts have broad
discretion and are permitted to select the best methodology given the unique facts and
circumstances of each particular case. See R&R at 68, PAGEID 2866 (citing Van Horn
v. Nationwide Prop. & Cas. Ins. Co., 436 F. Appx 496, 498 (6th Cir. 2011 and Rawlings
v. Prudential-Bache Props., Inc., 9 F.3d 513, 516 (6th Cir. 1993)). Courts are perfectly
justified in awarding a fee based on the lodestar analysis alone. R&R at 74, PAGEID
2872 (citing Van Horn, 436 F. Appx at 501).
1.
The R&Rs use of the Lodestar methodology was appropriate.
The R&R explains in detail why the lodestar method was appropriate. It cites a
number of specific factors such as the contingent fee, the fee shifting statutes, the
absence of a common fund, and the substantial public interest in compensating counsel
for the amount of work done. R&R at 70-71, PAGEID 2869-2870. The R&R also
states, where, as here, the results achieved are substantial, the interest in fairly
Page 15 of 24
compensating counsel for the amount of work done is great. R&R at 71, PAGEID
2869.
CCAF Objection 9 ignores these factors and cites no credible authority to
suggest that the R&Rs application of the lodestar methodology was incorrect.
2.
While unnecessary, the R&R properly applied the percentage

of the fund cross-check.
CCAF Objection 10 and Zik Hearon Objection VII allege that the R&R misapplied
the percentage of the fund cross-check by using the mid-point of the total available
benefits and the actual benefit claimed by the Class. See e.g. R&R at 75-76, PAGEID
2873-2874. Without credible support, the Objectors argue that Class Counsel should
only be compensated based on the actual amount claimed by the Class.
The Objectors position has been rejected by the Sixth Circuit. See Van Horn,
2010 U.S. Dist. LEXIS 42357 (S.D. Ohio), affd 436 F. Appx (6th Cir. 2011). Such an
argument also conflicts with the Boeing principle;9 it has been found to constitute an
abuse of discretion by both the Second and Ninth Circuits; and it was previously
rejected by this Court in Lonardo, 206 F.Supp. 2d at 796. See R&R at 75-77, PAGEID
2873-2875.
The R&Rs application of the Lonardo mid-point analysis was legally
sound and entirely appropriate.10 Id.
In Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), the United States Supreme Court upheld a
fee award that was based on the total fund available to the class rather than the amount actually
recovered. Id. at 480 (Their right to share the harvest of the lawsuit upon proof of their identity, whether
or not they exercise it, is a benefit in the fund created by the efforts of the class representatives and their
counsel.).
10
As noted in footnote No. 2 herein, the R&R slightly miscalculated the total available benefit to the
Class by using a $15 award to all members of the FIF Subclass rather than the $20 award agreed to in
the Settlement. This correction does not fundamentally change the mid-point calculation other than
reducing Class Counsels award to slightly less than 20% of the fund.
Page 16 of 24
3.
Class Counsels Lodestar award was adequately documented

and supported.
Given the dearth of support for its positions, it is not surprising that the Objectors
attempt to bring a new argument not previously presented. Specifically, the Objectors
argue that Class Counsels affidavits in support of its fee requests were insufficient.
Despite a number of opportunities to do so, this Objection was never made prior to the
R&R, and therefore, it has been waived. In fact, the R&R specifically commented on
the absence of any objection to Class Counsels rates or hours by saying, despite
vigorous objections to other aspects of the settlement, there has been no objection to
the reasonableness of the hourly rates or the hours expended on the litigation. See
R&R at 73-74, PAGEID 2871-2872.
The failure to object before the R&R is significant because Class Counsels fee
request was filed on December 9, 2013 (Docket No. 114). The Objectors had the fee
request 21 days prior to the Objection Deadline and more than two months before the
Fairness Hearing. Because no Objection was raised prior to the R&R, the Objection
has been waived. United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998). It is well
established that a party may not raise an argument, advance a theory, or marshal
evidence before a District Judge that was not fairly presented to the Magistrate Judge.
Marr v. Foy, No. 1:07cv908, 2010 WL 3061297, at *4 (W.D. Mich. Aug.3, 2010).11
11
The Magistrate Judge Act, 28 U.S.C. 631 et seq., does not allow parties to raise at the district
court stage new arguments or issues. JonesBey v. Caruso, No. 1:07cv392, 2009 WL 3644801 (W.D.
Mich. Oct. 30, 2009) (citing Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000)). The Act was
not intended to give litigants an opportunity to run one version of their case past the magistrate, then
another past the district court. JonesBey at *1 (quoting Greenhow v. United States, 863 F.2d 633, 638
39 (9th Cir. 1988), rev'd o.g. sub nom, United States v. Hardesty, 977 F.2d 1347 (9th Cir.1992) (en
banc)). Moreover, under Fed. R. Civ. P. 72(a), a district courts review is limited. Objections not raised
before the magistrate should not be considered by the District Judge. Jesselson v. Outlet Assoc. of
Williamsburg, 784 F.Supp. 1223, 1228 (E.D. Va. 1991) (citing Paterson-Leitch Co. v. Massachusetts Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir.1988)); see also Borden v. Sec'y of Health and
Page 17 of 24
Even assuming this Objection was timely, the R&R found Class Counsels
Declarations sufficient to establish the reasonableness of the hours and rates billed.
Class Counsel averred under penalty of perjury that the hours expended were
necessary to prosecute the action and Class Counsel provided a detailed list of the
primary activities performed in prosecution of this case. See R&R at 72-73, PAGEID
2870-2871; and Plaintiffs Motion for an Award of Fees (Docket No. 114) at 10-11,
PAGEID 1854-1855; McCormick Declaration 6-10, PAGEID 1867-1869; and
Troutman Declaration 5-10, PAGEID 1882-1884. The Court found Class Counsels
rates to be consistent with those in the market, and importantly, the Court noted that
Class Counsel has not billed for the significant number of hours expended after the date
the Settlement Agreement was signed. R&R at 73, PAGEID 2871.
The R&R also discussed Class Counsels time and effort noting that the litigation
was highly contested since its inception more than two and a half years ago and the
Court cited the numerous contested pre-trial motions that required resolution. See
R&R at 33-34, PAGEID 2831-2832. In addition, the Court recalled that discovery and
ESI issues were extensive and that the enormity of that undertaking necessitated
significant Court involvement and several extensions of the pretrial schedule. Id.
In short, this Court had more than enough information to satisfy itself that the
hours and rates of Class Counsel were reasonable and necessary to successfully
prosecute this action. See Lonardo, 706 F.Supp.2d at 793, (documentation must be of
sufficient detail and probative value to enable the court to determine with a high degree
Human Servs., 836 F.2d 4, 6 (1st Cir.1987). This rule is based upon the same concept which prevents
parties from arguing in the appellate courts issues and arguments not raised below. Jesselson, 784
F.Supp. at 1228 (citing Borden, 836 F.2d at 6).
Page 18 of 24
of certainty that such hours were actually and reasonably expended in the prosecution
of the litigation.); Thompson v. Midwest Found. Independent Phys. Assn, 124 F.R.D.
154, 162 (S.D. Ohio 1988) (The Court's active involvement in the supervision,
management, and trial of this litigation during the past two years places the Court in a
prime position to evaluate the amount and propriety of the attorneys fees awarded.)
(emphasis added); Connectivity Sys., Inc. v. Natl City Bank, No. 2:08-cv-1119, 2011
WL 292008, at *13 (S.D. Ohio Jan. 26, 2011) (relying on Declarations of counsel to
support attorney fee award).
Class Counsels detailed billing and time records are voluminous.
Had the
Objectors contested the hours or this Court indicated that additional support was
needed, Class Counsel would have readily provided these records in advance of the
Final Fairness Hearing. Likewise, if the District Judge requires these records prior to its
decision on Final Approval, then Class Counsel will swiftly provide them.
4.
Allegations of preferential treatment are unfounded and

without support.
CCAF Objection 3 alleges generally that the award of attorneys fees constitutes
preferential treatment toward class counsel. In many ways, this argument overlaps with
Zik/Hearons Objection VII.
Regardless of where they are made, or how they are
presented, the R&R thoroughly vetted and soundly rejected all of these allegations.
See R&R at 39-49, PAGEID 2837-2847.
CCAF principally relies on Pampers and Bluetooth, which as noted above are
distinguishable. The only new case cited by CCAF is Howell v. Jbi, Inc., 2014 U.S. Dist.
LEXIS 44632 (D. Nev. 2014); however, this case is likewise inapplicable because,
unlike here, it is a common fund settlement and the Court had concerns about the
Page 19 of 24
adequacy of the class award. Id. at 21-23, 26. Most importantly, the Court denied
preliminary approval because the class notice was misleading and inadequate, not
because of the attorney fee award. Id. at 31-33. To suggest, as CCAF does, that the
Court denied preliminary approval because of a misallocation of funds is simply wrong.
Zik/Hearon cites Dennis v. Kellog Co., 697 F.3d 858, 868 (9th Cir. 2012), but this
case does nothing to support their position. In Dennis, the Ninth Circuit rejected a
settlement because the $5.5 million cy pres was not adequately identified or supported
and this raised serious questions about the alleged value of the settlement. Id. Here,
no valuation questions exist because there is no cy pres and the value of the settlement
(both in available funds and claimed funds) has been calculated and considered.
Last, in alleging preferential treatment, the Objectors ignore the R&Rs finding
that (i) this Settlement provides an immediate, substantial, and significant recovery
to the Class, and (ii) there is a substantial public interest in compensating counsel for
work performed and awarding counsel for taking the risk of contingent cases that benefit
consumers. See R&R at 46-47, 71. PAGEID 2844-2845, 2869.
I.
CCAF Objection 4 (clear sailing clause) and Objection 5 (kicker

provision) lack merit.
This Settlement provides a substantial and significant recovery to the Class

and Class Counsels attorney fee award is not excessive or unreasonable. Therefore,
the purported clear sailing provision did not insulate an excessive fee and the purported
kicker provision did not harm the Class. The R&R conducted a thorough analysis of
these provisions and, for all of the reasons set forth therein, any objections regarding
these provisions should be overruled. See R&R at 50-54, PAGEID 2848-2852.
Page 20 of 24
J.
Zik/Hearon Objection VIII should be denied because Zik/Hearon is

not entitled to attorneys fees.
Zik/Hearons request for attorneys fees is contrary to the law. This issue was
discussed at the Fairness Hearing, and, as recognized in the R&R, Sixth Circuit case
law recognizes that awards of attorneys fees to objectors may be appropriate where the
objector provided a benefit to the class by virtue of their objection. See R&R at 78,
PAGEID 2876, (quoting Lonardo, 706 F.Supp. 2d at 803-804.)
By virtue of their Objection, Zik/Hearon provides no benefit to the Class.
Instead, Zik/Hearons Objections are adverse to the Class because, if successful, Gym
Cancel Subclass members will no longer be entitled to receive an average of $41.28 in
guaranteed money. Rather, under Zik/Hearon, they have the chance to recover an
average payment of $36.00. That is hardly a benefit to the Class.
K.
CCAF Objection 2 has no merit because the public interest favors

approval.
The public interest favoring approval of this Settlement was discussed in the
R&R, including the explicit finding that the Class will receive an immediate cash
settlement in an amount that is fair, reasonable and adequate.
PAGEID 2837.
See R&R at 39,
CCAF ignores this, and the other cited public interest factors, and
argues that Pampers requires rejection of this Settlement. Pampers is inapposite and
CCAFs argument is without merit.
L.
CCAF Objection 6 is without merit because the Class Representative

Enhancement Payments are fair and reasonable.
CCAF Objection 6 lacks merit because it is based almost entirely on the

Pampers decision.
Also, CCAFs reliance on Vassalle and Radcliffe is misplaced
because the incentive payment in Radcliffe was expressly conditioned on the class
Page 21 of 24
representatives support for the Settlement, and in Vassalle the class representatives
received equitable relief not available to absent class members.
See Plaintiffs
Response to Objections (Docket No. 128), at 30-31, PAGEID 2284-2285. Finally, the
R&Rs finding that (i) the incentive payments were tailored to compensate the Class
Representatives based on time and effort, and (ii) that the Class Representatives
initiative, time, and effort were essential to a significant recovery to the class are
powerful factors supporting approval. See R&R at 57-58, PAGEID 2855-2856.
M.
CCAF Objection 8 alleging a failure to disclose Class Counsels fee

division is without legal support and entirely frivolous.
CCAF Objection 8 entirely fabricates a requirement that Class Counsel disclose

its internal fee-sharing agreement prior to the claims period deadline. CCAF provides
no support for this Objection because none exists. As discussed in the R&R, Rule 23
requires that class notice be directed in a reasonable manner. R&R at 67-68, PAGEID
2865-2866. The R&R found that all applicable requirements were met, including the
disclosure and request for payment of Class Counsels reasonable attorneys fees in the
amount of $2.39 million. Id. The R&R recognized CCAFs Objection and overruled it by
(i) citing Bessey v. Packerland Plainwell, Inc., No. 4:06-cv-95, 2007 WL 3173972, at *13 (W.D. Mich. Oct. 26, 2007), for the legal principle that no such requirement exists, and
(ii) acknowledging that Class Counsel disclosed its fee split well in advance of the
Fairness Hearing. Id.
CCAFs argument is without legal support, it is contradicted by Bessey, and the
disclosure it seeks is entirely irrelevant.
The Class Notice clearly and adequately
disclosed to all absent class members that Class Counsel would seek an award of
$2.39 million.
How the Vorys and Isaac Wiles firms divided the work is entirely
Page 22 of 24
irrelevant to the fairness and reasonableness of the Settlement.
The CCAF, in
trumpeting this Objection, makes no effort to explain how this information bears on the
overall fairness of the Settlement.
IV.
CONCLUSION
For the reasons set forth above; for the reasons contained in the R&R; and for
the reasons discussed in Plaintiffs Response to the Objections, January 1, 2014

(Docket No. 128), and the parties Joint Motion/Unopposed Motion for Final Approval,
February 4, 2014 (Docket No. 132), Plaintiffs respectfully request that: (i) the CCAF and
the Zik/Hearon Objections be overruled, (ii) that this Court accept and approve the
R&Rs recommendations (a) to (g), (iii) that this Court grant Final Approval of all
provisions of this Settlement, and (iv) that this Court enter a Final Order and Final
Judgment approving this Class Action Settlement in the proposed forms attached hereto
as Exhibits 4 and 5.12
12
A proposed Final Order and Final Judgment were previously submitted to the Court as Exhibits 1
and 2 to the Joint/Unopposed Motion for Final Approval (February 4, 2014, Docket 132). The proposed
Final Order attached hereto as Exhibit 4 has been modified on page 1 to acknowledge the filing of the
R&R and in 13 to include the final Class Payment as determined by the Claims Administrator. The
proposed Final Judgment is unchanged.
Page 23 of 24
Respectfully submitted,
s/ Thomas N. McCormick
William G. Porter (0017296)
wgporter@vorys.com
Kenneth J. Rubin (0077819)
kjrubin@vorys.com
PEASE LLP
52 East Gay Street, P.O. Box 1008
Columbus, Ohio 43216-1008
Telephone: (614) 464-6400
Facsimile: (614) 464-6350
s/ Mark H. Troutman
Mark Landes (0027227)
mlandes@isaacwiles.com
Gregory M. Travalio (0000855)
gtravalio@isaacwiles.com
Mark H. Troutman (0076390)
mtroutman@isaacwiles.com
ISAAC, WILES, BURKHOLDER &
TEETOR, LLC
Two Miranova Place, Suite 700
Columbus, Ohio 43215
(614) 221-2121
Facsimile: (614) 365-9516
James B. Lind (0083310)

jblind@vorys.com
PEASE LLP
301 East Fourth Street, Suite 3500
Great American Tower
Cincinnati, OH 45202
Telephone: (513) 723-4000
Facsimile: (513) 852-7835
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on May 1, 2014, a copy of the foregoing
was filed electronically. Notice of this filing will be sent to all parties by operation of the
Courts electronic filing system. The parties may access this filing through the Courts
system.
/s/ Thomas N. McCormick
Page 24 of 24
5/01/2014 19230613
Case: 2:11-cv-00436-GCS-NMK Doc #: 144-1 Filed: 05/01/14 Page: 1 of 24 PAGEID #: 2951
EXHIBIT 1
GASCHO v. GLOBAL FITNESS

HOLDINGS, LLC
Class Action Settlement
Exhibit 1
Final Fairness
Courts role is to ensure, "that the settlement,
taken as a whole, is fair, reasonable and
adequate to all concerne d.*
* Clark Equipment Co. v. International Union, Allied Industrial

Workers, 803 F.2d 878, 880 (6th Cir. 1986) (emphasis added).
Settlement Structure
Class/Subclass Recovery
TOTAL = $17,000,515*
* "The right to share the harvest of the lawsuit upon proof of their identity,
whether or not they exercise it, is a benefit... " See Boeing Co. Van Gemert,
444 U.S. 472 9 480 (1980); See also Lonardo v. Travelers Indem. Co., 706
F.Supp. 2d 766, 795 (N.D. Ohio 2010).
Total Class Benefits
TOTAL
$19,890,515
**S ee Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F. Appx 496, 501
(6th Cir. 2011); Lonardo v. Travelers Indern. Co., 706 F.Supp. 2d 766, 803
(N.D. Ohio 2010).
Average Value per Claimant

M
.
&I]
tII]
D]
-a
Avg. Class Award /

Avg. Gym Cancel
Subclass
Avg. Fee/Month
Similar Health Club Settlements

=
I
LI]
M
,
M
,
Gascho
Vaughn v. L.A. In Martina v. L.A.

Fitness, (2013)
Fitness, (2013)
Friedman v.
24-Hour Fitness
USA (2010)
Value to CCAF/Blackman
me
me
SII
Me
me
$(1o)
Value to the Gym Cancel Subclass
SM
-1
ME
IM
IR
Gascho
Zik/Hearon
GASCHO v. GLOBAL FITNESS

HOLDINGS, LLC
The Claims Process
Notice and Claim Process

Burden v. Selectquote Ins. Servs., 2013 U.S. Dist. LEXIS 16977 (N.D. Cal.
2013). Court approves claims process in employee wage and hour class
action. Justification for claims process was (1) a claims-made
settlement is not inherently unreasonable, (2) Claims-made
requirement was result of arms-length negotiation, (3) opportunity to
submit a claim provides a benefit to the Class.
Kritzer v. Safelite Solutions, LLC, 2012 U.S. Dist. LEXIS 74994, *257
(S.D. Ohio 2012). Class of current and former employees required to
submit a claim to recover damages for alleged wage and hour
violations.
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www.UrbanActiveLawsuit.com (contd)
me
Filing A Claim
If you are a Class/SLiblass Member and you wish to receive a Clam Award (monetary
compensation), you must file a valid Claim Form postmarked by December 30, 2013, or
completed online no later than 11:59 P.M. EST on December 30, 2013
You ARE ELIGIBLE to file a claim If:

You signed a gym mcmbcrship contract or personal training contract with Urban Active during
the period of January 1, 2006, to October 26, 2012, or meet the requirements of any of the
--]
PROCESSED BY
))DohI
Subclasses listed on the Loiig_FQnIU L egal NL) Lic and in Freuuenllv Asked Question 7.
There are two ways to make a claim:
1. You may File Online no later ilian 11:59 P.M. EST on December 33, 2013.
2. You rriay Submit Yujr Claim by mail. You must download and print a paper QALM
EQIm or request that one be sent to you by U.S. Mail by calling (888) 484-2005 or
clicking here. Complete the Claim Form and mail the completed Claim Form to the
Urban Active Claims Adniinis:rator at the address provided on the form, postmarked
no later than December 30 2013.
Simplified Access for Identified

Class Members:
gplaim
form de
Online Claim Form

Claimant Information
Claimant Name requred)
Address Line I (required)
Address LIne 2
City (required)
Stab (required)
Postal Coda (recuirea)
Country
&fj1cton less
For class members withoul

an ID. minimal address
www.UrbanActiveLawsuit.com (cont 1d)
Online Claim Form

Our =0rcs siow hit ic clim8rt idertificatior, number you entered belcc
uDouunenti
Claimant Information
Claimant Name
JANE CLAIMANT
OrinaP Claimant Address;
123 MAIN ST STE
ANyTOw, IL 65432
PFr,
rly
Dahl
If cur a.Jdfess has changed, Pease epoate it in the address fields

Address Lire I
For identified class

son
www.UrbanActiveLawsuit.com (cont 1 d)
Email
I am a member of the following ClassiSubciasses (Please check at that apply)

(required),
CiasJSubclaas
Claim
Member
Award
Definition/Requirements
Signed a gym membership contractor

00
personal training contract with Urban

Active on or between January 1, 2006, and
October 26, 2012
Paid a $15 Facility Improvement Fee, Club

$20.00
Administrative Fee or any other biannual

15 tee to Urban Active on or between
Aprill, 2009 and October 26, 2012.
All sub classes en u me rateLth.

nci le:
Cancelled a gym membership contract with

$2000
Urban Active on or between January 1, 2006

and October 28, 2012.
Cancelled a personal training contract with

$30.00 Urban Active on or botwoon January 1, 2006
and October 26 2012.
Clam awards are cumulative, meaning you shall recover the Claim
Award for each categoy in which you quaify. You car ony qualify
once under each category.
www.UrbanActiveLawsuit.com (cont ,d)
CLAIM CANNOT BE PROCESSED IF YOU DO NOT VERIFY YOUR

CLAIM
AIM I
BY CUCI< NC THE BOX 55 CA 0 ELEOTROMCI LLY SIGN AND SLASMIT MY
ACKNOWLEDGE AANT O PARTICIPATE IN THE SETTLEMENT AND RECEIVE A
QAM AWARD fMONETARY COMPENSATION) AS DESCRIBED INlTHE LEGAL NOTICE,
UNDERSTAND THAT BY SLBNNTTING THIS CLAIM FORM AM WAIVING CERTAIN
LEGAL RIG-ITS AS EXPLAINED IN THE LEGAL NOTICE. I AGREE TO 000PERAT
WITI TI IL CLAIMO ADMINISTRATOR Ir ruRr CR INQUIRY 5 MADE or L. I
DECLARE UNDER P5LAJY CF PERJURY OF THE LAWS OF THE UNITED
TEE OF
AMERICA THAT THE FOREGOING IS TRUE.
CLICK YOUR
HERE TO ELECTRONICALLY SIGN YOUR CLAIM (rtircl)
CrI
CIr and. su
JitaItIairn
&
a. i::
.........
....
Thank You
IdQuestons
jul
Your claim has be
Thank you for submitting your claim online. Your claim confirmation number is:
ntDocuments
ict Us
73087640
A confirmation has also been sent to the email address
questions, please contact the settlement administrator.
jrn filing confirmation isd
The Pampers Settlement

Pampers
Gascho
Reimbursement program
of "negligible" value.
Injunctive relief which
provided "common sense"
warning about diaper rash.
Between $5-$75.
Average of $36.50.
Funds available
to the Class
"negligible"
$17,000,515
Claim Rate
N/A
9.2%
Payments by
Defendant
$400,000 cypres
Between $1,557,450 to $2,165,180

to the Class/Subclasses
Discovery
None (Plaintiffs never even

responded to Defendants
Motion to Dismiss).
-Extensive written, ESI, and

deposition discovery of Defendant.
Wide ranging 3rd party discovery.
Attorney Fees
Requested
$2,730,000
$2,390,000
Class Member
Benefits
The Bluetooth Settlement

Bluetooth
Gascho
Class Member
Benefits
Future injunctive relief

including Defendant
posting safety information.
Between $5-$75.
Average of $36.41.
Funds available
to the Class
$0
$17,000,515
Claim Rate
N/A
9.2%
Payments by
Defendant
$100,000 cypres
Between $1,557,450 to $2,165,180

to the Class/Subclasses
Discovery
Limited voluntary
discovery as the parties
awaited the Courts
decision on Defendants
Rule 12(b)(6) Motion.
Extensive written, ESI, and

deposition discovery of Defendant.
Wide ranging 3rd party discovery.
Attorney Fees
Requested
$850,000 (8x the cypres

award)
$2,390,000
Comparable Fee Cases

Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766 (N.D. Ohio 2010) Approving a
lodestar multiplier of 1.3 in a claims-made settlement when 53,782 valid claims
amounted to an actual cash payment of $2,812,962 (plus a $2 million reversion)
from a total available fund of $17,943,693.18.
Berry v. Volkswagen Group of America, Inc., 2012 Mo. App. LEXIS 801 (Mo. App. 2012).
Awards lodestar of $3,087,320 in a claims made settlement when the actual recovery
by the class was less than $150,000 of an available $23 million. The court positively
cited Lonardo and said "where the potential value of the suit was $23 million, but
the class members recovered less than $150,000, the result did not rebut the
presumption that the lodestar represented reasonable attorneys fees."
Dennings v. Clearwire Corp., 2013 U.S. Dist. LEXIS 64021 (W.D. Wash. 2013).
Awarding a lodestar fee of $1,887,792.91 in a claims-made settlement when the
actual recovery by the Class was approximately $2.7 million of a fund "in the
tens of millions of dollars." The Court approved the lodestar method because of
fee shifting provisions in the state CSPA and the fact that class counsel
conferred "substantial benefit for the Settlement Class."
EXHIBIT 2

OHIO Member Cancellation Form
\rRNUMaER
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HOMECLUB
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MEMBEeNAME
NDLE?&
19 b E. 6-4--rt; ST.
OJRRENTADDRSSS
a.11
HOMEPHONE
woeg
CANCELLATION CONFIRMATION WILL BE SENT TO YOUR EMAIL ADDRESS LISTED BELOW
1odrocu
EMAILe.DDRESS
Which Membership do you wish to Cancel? (Select

M,diip
EJPoo.,i
all
i5,i..h.g
that apply)
E:JTn.h,s Mnb..,hp
LJLd, P.bi
,y,,i M,,bohip
IMPORTANTI Effective date of cancellation shall be determined and approved by the Cancellation Department only pursuant to your
Membership Agreement. If approved, the request may not be valid until the neat billing cycle depending on the terms of your Agreement. All
outstanding balances must be paid In full before a cancellation notice Is valid. You will be assessed a $10 Cancellation Administrative Fee
Stated In Paragraph 45 of your Membership Agreement The Cancellation Administrative Fee may be paid by a check or money order for
$10.00 with the completed cancellation form. If payment Is not Included, by signing this form the member is authrolzing the $10.00 fee to be
BY THE CORPORATE CANCELLATION
charged using the current payment method on file. ALL CANCELLATIONS ARE SUBJECT TO APPROVAL
DEPARTMENT. If this cancellation is not approved, any monies collected for the Cancellation Administrative Fee will be applied to the next
monthly billing of dues.
YOU MAY NOT ALTER OR WRITE ADDITIONAL TERMS ON THIS FORM. DOING SO MAY MAKE ThE REQUEST INVALID.
reason
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5O, ..n,.I.Un 0.tnOnd( b.i.cnO nod bn pdd},, M
I CERTIFY THAT I HAVE READ MY AGREEMENT AND THE URBAN ACTIVE MEMBER CANCELLATION FORM. I UNDERSTAND AND
AGREE TO THE TERMS LISTED ON THIS FORM.
MAILING INSTRUCTIONS
If you have fulfilled your contract term and wish to cancel your membership, please fill Out the cancellation portion of this form
and send using the USPS forms CERTIFIED MAIL and RETURN RECEIPT REQUESTED to the following address:
URBAN ACTIVE MEMBER SERVICES - 1056 Wellington Way, Suite 200. Lexington, KY 40513
CONFIDENTIAL
Exhibit 2
IGFH0000I 7921
EXHIBIT 3
GLOBAL FITNESS HOLDINGS. LLC
URBAN ACTIVE
CE58 GOOE
H
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5959 North Hamilton Road Co lumbus, OH 43230 (614) 476-4653
MEMBERIWP AGREEMENT DISCLOSURES MADE IN C0UANCE WiTh NPUCABLE LAW
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CCNSUM8 RIGHT TO CANCELLATiON: You may cancel this conbwot for eny teuon at any tMI. pHor to midnight of tlWdIuln.as day atlir
the datsun which the first service under the contract Is available , Bu d diii. facflny or asndcsa that lathe subject of the cortact Is not available when
you sign the contract, you may cancel the contract at any thee prior to midnight of the seventh business day after the date on which you receive
your first service under the contract If you cancel within this period, the solar must send you aM refund of any money you have paid, except that
a rsaaonabl. expense foe not to exceed ten dollars may be charged I you have received your first service under the contract The selar must akao
cancel arid retwn to you wIthin teenty business day, anypap.re that you have eI5ied.
lb cancel this contract you must deliver In person, manuaJy. or by certified mall, return receipt requested, the signed and dated copy aithe attached
LixI,pgton.
Notice a! Cancellation or any other written notic. of cancellation, or send a t.legnen, to titian Active - 1051 Wehbngton Way. Si
Kentucky 405134000. or lathe address of any Urban Active facility avallabi. for use by you not isterthan mldrdghtof the third business day after the
dab on which the first service under the contract I, available, and If thefaclilty or service thetis the subject of the contract Is nut available when the
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NO110ETOBUYETh DO NOT SIGN ThIS CONTRACT UNTIL YOU HAVE REilD ALL OF1.AISO, DO NOT SIGN ThIS CONTRACTI if CONTAINS MY DLMIC SPACES.
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You opycancel this cctract for any reason at any is prior to mkhilglit of the tifotSIteinsas day aflsrli. date on wtd the first .eiviss under the contract I
subject elate contract Is not avalubus when you sign the contract, youlwy cancel the contract at any tine pric
avallatle, and lithe facility oraend cas that h, at
tpmldnlshtelthe seventh biotlneu day attar the data one you mod" Year 11rat -asiviceundsctheccntrct
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seventh husteese day slier the data on which me hirer service under me mm is avaiiaoie.
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SIQ1WIIJrL____________.
-_______
CIWdI SIW1III,e
$igned, not Isterthan ntidni
NA 763
5-CONFIDENTIAL
GFH000017917
LU
EXHIBIT 4

AMBER GASCHO, etal.,

Plaintiffs,

Judge Smith
V.
GLOBAL FITNESS HOLDINGS, LLC, et al.,
Defendants.
FINAL ORDER APPROVING CLASS ACTION SETTLEMENT

WHEREAS Plaintiffs and Defendant have entered into a Settlement Agreement and
Release with Exhibits (collectively, the "Settlement Agreement"), dated September 12,
2013, to settle this class action; and,
WHEREAS the Court entered an Order dated September 30, 2013 (Docket No. ill)
(the "Preliminary Approval Order"), preliminarily approving the settlement consistent with
Fed. R. Civ. P. 23 and ordering notice be sent to the Class and Subclass Members,
scheduling a Final Approval Hearing for February 13, 2014, and providing the Class and
Subclass Members with an opportunity either to participate in the settlement, exclude
themselves from the settlement, or object to the proposed settlement; and,
WHEREAS the Magistrate Judge held a Final Hearing on February 13, 2014, to
determine whether to give final approval to the proposed settlement, and issued a Report
and Recommendation on April 4, 2014 (Docket No. 141) granting final approval,
Exhibit 4
NOW, THEREFORE, based on the submissions of the Parties and the Class and
Subclass Members, on the information provided at the Final Approval Hearing, on the
findings contained in the Report and Recommendation, and on this Courts findings and
conclusions, it is hereby
ORDERED, ADJUDGED AND DECREED, as follows:
1.
Incorporation of Other Documents.
This Final Order Approving Class
Action Settlement incorporates the Settlement Agreement. Unless otherwise provided

herein, all defined terms from the Settlement Agreement shall have the same meaning in
this Final Order.
2.
Jurisdiction.
Because adequate notice has been disseminated and all
potential Class and Subclass Members have been given the opportunity to opt-out of this
Action, the Court has personal jurisdiction with respect to the state law and common law
claims of all Settling Plaintiffs. The Court has subject-matter jurisdiction over this Action
pursuant to 28 U.S.C. 1331 and 1367, including jurisdiction to approve the proposed
settlement, grant certification of the Class and Subclasses, and dismiss the Action on the
merits with prejudice.
3.
Class Certification.
The Class and Subclasses are certified for settlement
purposes, under Fed. R. Civ. P. 23(a) and 23(b)(3), the Court finding that the Class and
Subclasses satisfy the applicable requirements of Fed. R. Civ. P. 23 and due process.
a. The "Class" includes all individuals who signed a gym membership or
personal training contract with Defendant during the Class Period, which
is January 1, 2006, to October 26, 2012, and who did not file a valid OptOut Request. The total number of Class members is approximately
605,735 persons.
b. The "FIF Subclass" includes all Class Members who paid a $15 Facility
Improvement Fee ("FIF"), Club Administrative Fee ("CAF"), or any other
biannual $15 fee charged by Defendant during the ElF Subclass Period,
which is April 1, 2009, to October 26, 2012, and did not file a valid OptOut Request. The total number of FIF Subclass members is
approximately 300,017 persons.
c. The "Gym Cancel Subclass" includes all Class Members who cancelled
their gym membership contract, and did not file a valid Opt-Out Request.
The total number of Gym Cancel Subclass members is approximately
323,518 persons.
d. The "Personal Training Cancel Subclass" includes all Class Members who
cancelled a Personal Training contract, and did not file a valid Opt-Out
Request. The total number of Personal Training Cancel Subclass
members is approximately 50,038 persons.
4.
Adequacy of Representation.
Class Counsel and the Class
Representatives have fully and adequately represented the Class and Subclasses for
purposes of entering into and implementing the Settlement and have satisfied the
requirements of Fed. R. Civ. P. 23(a)(4).
5.
Class Notice.
The Court finds that all notice requirements, and follow-up
procedures, have been implemented pursuant to the Settlement Agreement and this
Courts Preliminary Approval Order and that they:
a.
constituted the best practicable notice to Class Members under
the circumstances of this Action;

b.
constituted notice that was reasonably calculated, under the

circumstances, to apprise Class Members of (i) the pendency
of this Action, (ii) the terms and conditions of the Settlement
Agreement, their rights thereunder, and instructions on how to
submit, and the timetable for submission of, a Claim Form, (iii)
their right to exclude themselves from the Class and
Subclasses and the proposed settlement and submit an OptOut Request, (iv) their right to object to any aspect of the
proposed settlement (including final certification of the
settlement Class and Subclasses, the fairness,
reasonableness, or adequacy of the proposed settlement, the
adequacy of the Classs representation by the Class
Representatives or Class Counsel, and/or the award of
attorneys fees and costs and the Enhancement Payments to
the Class Representatives), (v) their right to appear at the Final
Hearing, either on their own or through counsel hired at their
own expense, if they did not exclude themselves from the
Class, and (vi) the binding effect of the Orders and Judgment
in this Action, whether favorable or unfavorable, on all persons
who do not file an Opt-Out Request;
C.
constituted notice that was reasonable, adequate, and

sufficient notice to all persons entitled to be provided with
notice; and
d.
constituted notice that fully satisfied the requirements of the

Federal Rules of Civil Procedure (including Fed. R. Civ. P.
23(c)(2) and (e)), and the United States Constitution (including
the Due Process Clause), and any other applicable law.
6.
Final Settlement Approval. The terms and provisions of the Settlement
Agreement have been entered into in good faith and are fully and finally approved as fair,
reasonable, and adequate, and in the best interests of each of the Parties and Settling
Plaintiffs. All Objections to the Settlement are without merit and overruled. The Parties
and Settling Plaintiffs are hereby directed to implement and consummate the Settlement
Agreement according to its terms and provisions.
7.
Binding Effect. The terms of the Settlement Agreement and this Final Order
and the accompanying Final Judgment are binding on the Parties, the Class
Representatives, all other Settling Plaintiffs as well as their heirs, executors, and
administrators, successors and assigns, and those terms shall have
resjudicata and other
preclusive effect in all pending and future claims, lawsuits, or other proceedings maintained
by or on behalf of any such persons, to the extent those claims, lawsuits, or other
proceedings involve matters that were or could have been raised in this Action and are
encompassed in the Release of Claims set forth in the Settlement Agreement.
8.
Releases.
The Class Representatives and all Settling Plaintiffs shall be
bound by the Release of Claims provided in the Settlement Agreement, which is

incorporated herein in all respects, regardless of whether such persons received any
compensation under the Settlement Agreement. The Release of Claims is effective as of
the date of this Final Order and the accompanying Final Judgment. The Court expressly
adopts all defined terms in the Settlement Agreement, including, but not limited to, the
definition of Released Claims, Released Parties, and the Class Representatives Released
Claims.
9.
Permanent Injunction. All Settling Plaintiffs are barred and enjoined from (i)
filing, commencing, prosecuting, maintaining, intervening in, participating in (as class

members or otherwise), or receiving any benefits or other relief from, any other claim,
lawsuit, arbitration, or administrative, regulatory, or other proceeding or order in any
jurisdiction based on, arising out of, or relating to the claims and causes of action in this
Litigation and/or the Settled Claims; (ii) raising as a defense to any claim brought against
them for repayment of a loan or any of the claims or causes of action in the Litigation
and/or the Settled Claims; and (iii) organizing or soliciting the participation of any Class
Members into a separate class for purposes of pursuing as a purported class action
(including by seeking to amend a pending complaint to include class allegations or by
seeking class certification in a pending action) any claim, lawsuit, or other proceeding
based on, arising out of, or relating to the claims and causes of action or the facts and
circumstances relating thereto, in this Litigation and/or the Settled Claims. The Court finds
that issuance of this permanent injunction is necessary and appropriate in aid of the
Courts jurisdiction over the Litigation and to protect and effectuate the Courts Final Order
and Final Judgment.
10.
Enforcement of Settlement.
Nothing in this Final Order or the
accompanying Final Judgment shall preclude any action to enforce the terms of the
Settlement Agreement.
11.
Attorneys Fees and Expenses and Enhancement Payments. Class
Counsel are hereby awarded attorneys fees and reimbursement of their costs and
expenses in the total amount of $2,390,000.00 to be paid by Defendant to Class
Counsel. In addition, the Court hereby awards Class Representative Enhancement
Payments, in the amount of forty thousand dollars ($40,000.00) for service and
assistance to the Class. The Enhancement Payments shall be distributed as follows:
a. Albert Tartaglia and Michael Bell shall each receive $5,000.00.
b. Amber Gascho, Ashley Buckemeyer, Michael Hogan, Edward Lundberg,
Terry Troutman, Anthony Meyer, Rita Rose, and Julia Snyder shall each
receive $3,500.00.
c. Mall Volkerding and Patrick Cary shall each receive $1,000.00.
Attorneys fees, costs, and expenses and the Class Representatives
Enhancement payments shall be paid by Defendant in accordance with the terms and
conditions set forth in the Settlement Agreement.
12.
Claims Administrator Payment. Defendant shall pay the reasonable and
necessary Settlement Administration Costs of the Claim Administrator in accordance

with the terms and conditions set forth in the Settlement Agreement.
13.
Class Payment. Defendant shall pay the Class Payment of
$1,593,240.00 as determined by the Settlement Administrator and in accordance with

the terms and conditions set forth in the Settlement Agreement. The Claims
Administrator shall then distribute the Class Payment to each Allowed Claimant in
accordance with the terms of the Settlement Agreement.
14.
Modification of Settlement Aqreement.
The Parties are hereby authorized,
without needing further approval from the Court, to agree to and adopt such amendments
to, and modifications and expansions of, the Settlement Agreement, as are in writing and
signed by the Parties counsel and are consistent with this Final Order and do not limit the
rights of the Class or Subclass Members under the Settlement Agreement.
15.
Retention of Jurisdiction.
The Court has jurisdiction to enter this Final
Order and the accompanying Final Judgment. This Court expressly retains jurisdiction as
to all matters relating to the administration, consummation, enforcement, and interpretation
of the Settlement Agreement and of this Final Order and the accompanying Final
Judgment, and for any other necessary purpose, including, without limitation,
(a)
enforcing the terms and conditions of the Settlement
Agreement and resolving any disputes, claims, or causes of action in the

Consolidated Litigation that, in whole or in part, are related to or arise out of
the Settlement Agreement, this Final Order, or the Final Judgment (including,
without limitation, whether a person or entity is or is not a Settling Plaintiff;
whether claims or causes of action allegedly related to this case are or are
not barred by this Final Order and the Final Judgment);
(b)
entering such additional Orders as may be necessary or
appropriate to protect or effectuate the Courts Final Order and the Final
Judgment approving the Settlement Agreement, dismissing all claims on the
merits and with prejudice, and permanently enjoining Settling Plaintiffs from
initiating or pursuing related proceedings, or to ensure the fair and orderly
administration of this settlement; and
(c)
entering any other necessary or appropriate Orders to protect
and effectuate this Courts retention of continuing jurisdiction.

16.
No Admissions.
Neither this Final Order and the accompanying Final
Judgment nor the Settlement Agreement (nor any other document referred to here, or any
action taken to carry out this Final Order and the Final Judgment) is, may be construed as,
or may be used as, an admission or concession by or against the Defendant or the
Released Parties of the validity of any claim or any actual or potential fault, wrongdoing or
liability. Entering into or carrying out the Settlement Agreement, and any negotiations or
proceedings related to it, shall not be construed as, or deemed evidence of, an admission
or concession as to the Defendants denials or defenses and shall not be offered or
received in evidence in any action or proceeding against any party hereto in any court,
administrative agency or other tribunal for any purpose whatsoever, except as evidence of
the settlement or to enforce the provisions of this Final Order and Final Judgment and the
Settlement Agreement; provided, however, that this Final Order, the accompanying Final
Judgment, and the Settlement Agreement may be filed in any action against or by the
Defendant or the Released Parties to support a defense of res judicata, collateral estoppel,
release, waiver, good-faith settlement, judgment bar or reduction, full faith and credit, or
any other theory of claim preclusion, issue preclusion, or similar defense or counterclaim.
17.
Dismissal of the Action.
This Action, including all individual and Class
claims resolved in it, is dismissed on the merits and with prejudice against the Class
Representatives and all other Settling Plaintiffs, without fees or costs to any party or nonparty except as otherwise provided in this Order and the Final Judgment.
18.
Rule 58 Separate Judgment.
The Court will separately enter the
accompanying Final Judgment in accordance with Fed. R. Civ. P. 58.

SO ORDERED this
day of May, 2014.
HONORABLE GEORGE SMITH

UNITED STATES DISTRICT COURT JUDGE,
9
5101/2014 18517417
EXHIBIT 5

AMBER GASCHO, etal.,

Plaintiffs,

Judge Smith
V.
GLOBAL FITNESS HOLDINGS, LLC,
Defendants.
FINAL JUDGMENT
IT IS HEREBY ADJUDGED AND DECREED THAT:
The settlement of this class action on the terms set forth in the parties
1.
Settlement Agreement and Release with Exhibits (collectively, the "Settlement

Agreement"), dated September 12, 2013, is approved, and the following Class and
Subclasses are granted certification for settlement purposes under Fed. R. Civ. P. 23(a)
and 23(b)(3):
a. The "Class" includes all individuals who signed a gym membership or
personal training contract with Defendant during the Class Period which is
January 1, 2006, to October 26, 2012, and who did not file a valid Opt-Out
Request. The total number of Class members is approximately 605,735
persons.
b. The "FIF Subclass" includes all Class Members who paid a $15 Facility
Improvement Fee ("ElF"), Club Administrative Fee ("CAF"), or any other
Unless otherwise provided herein, all terms in this Final Judgment shall have the same meaning
as set forth in the Settlement Agreement.
Exhibit 5
biannual $15 fee charged by Defendant during the FIF Subclass Period,
which is April 1, 2009, to October 26, 2012, and did not file a valid OptOut Request. The total number of FIF Subclass members is
approximately 300,017 persons.
c. The "Gym Cancel Subclass" includes all Class Members who cancelled
their gym membership contract, and did not file a valid Opt-Out Request.
The total number of Gym Cancel Subclass members is approximately
323,518 persons.
d. The "Personal Training Cancel Subclass" includes all Class Members who
cancelled a personal training contract, and did not file a valid Opt-Out
Request. The total number of Personal Training Cancel Subclass
members is approximately 50,038 persons.
2.
Individual Postcard Notice, email notice, and a reminder email notice
complying with Fed. R. Civ. P. 23(c)(2), 23(e) was sent to each reasonably identifiable
Class and Subclass Members last-known address and email address. Follow-up
procedures outlined in the Settlement Agreement were completed on behalf of the
parties. With respect to the state law and common law claims, the Court finds that the
Settling Plaintiffs, as defined in the Settlement Agreement (all Class Members who
have not timely opted out of the settlement), are bound by the Final Judgment.
4. The claims in this action are dismissed on the merits and with prejudice
according to the terms and conditions set forth in the parties Settlement Agreement and in
the Courts Final Order Approving Class Action Settlement, dated May, 2014, without
costs to any party or non-party except as provided therein.
FINAL JUDGMENT is hereby entered in accordance with Fed. R. Civ. P. 58 this

day of May, 2014.
HONORABLE GEORGE SMITH

UNITED STATES DISTRICT COURT JUDGE,
5/01/2014 18517412

Blackman v. Gascho - 144 Response To Objection

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Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 1 of 29 PAGEID #: 2922

UNITED STATES DISTRICT COURT

Case No. 2:11-cv-436

PLAINTIFFS RESPONSE TO THE OBJECTIONS OF JOSHUA BLACKMAN

James B. Lind (0083310)

Attorneys for Plaintiffs

Attorneys for Plaintiffs

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 2 of 29 PAGEID #: 2923

PRIOR ARGUMENT AND THE COURTS R&R................................................... 1

The R&Rs Relevant Findings .................................................................... 2

The Settlement provides great monetary value to the Class ........... 2

The claims process was easy and user friendly .............................. 3

The Settlement eliminated all risk of an adverse judgment ............. 3

Class Counsel independently negotiated attorneys fees and

The Objectors Interests are adverse to the Class ..................................... 4

The Objectors rely on easily distinguishable case law and

THE CCAF AND ZIK/HEARON OBJECTIONS ARE WITHOUT MERIT

Zik/Hearon Objection II and CCAF Objection 7 fail because the

Zik/Hearon Objection V has no support because the Release is

Zik/Hearon Objection III fails because the adequacy, commonality,

Zik/Hearon Objections IV and VI(A) fail because the value of this

Zik/Hearon Objection VI(B) should be denied because the opinions

Zik/Hearon Objection VI(C) fails because success on the merits

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 3 of 29 PAGEID #: 2924

Zik/Hearon Objection VI(D) and CCAF Objection 1 are without merit

Zik/Hearon Objection VII and CCAF Objection 3, 9, and 10, which

The R&Rs use of the Lodestar methodology was

While unnecessary, the R&R properly applied the

Class Counsels Lodestar award was adequately

Allegations of preferential treatment are unfounded and

CCAF Objection 4 (clear sailing clause) and Objection 5 (kicker

Zik/Hearon Objection VIII should be denied because Zik/Hearon is

CCAF Objection 2 has no merit because the public interest favors

CCAF Objection 6 is without merit because the Class

CCAF Objection 8 alleging a failure to disclose Class Counsels fee

CERTIFICATE OF SERVICE ........................................................................................ 24

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 4 of 29 PAGEID #: 2925

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 5 of 29 PAGEID #: 2926

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 6 of 29 PAGEID #: 2927

PRIOR ARGUMENT AND THE COURTS R&R

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 7 of 29 PAGEID #: 2928

The R&Rs Relevant Findings.

A courts core responsibility in granting final approval is to ensure that the

The Settlement provides great monetary value to the Class.

Id. As discussed in the Joint

See, e.g., R&R at 46, PAGEID 2844 ([t]his is a significant recovery

2845 (the Settlement Agreement provides an immediate and significant

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 8 of 29 PAGEID #: 2929

The claims process was easy and user friendly.

minutes to complete. No further proof or documentation was needed.

The Settlement eliminated all risk of an adverse judgment.

Similar claims brought by a class of consumers against Global Fitness were

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 9 of 29 PAGEID #: 2930

Class Counsel independently negotiated attorneys fees and

After reaching an agreement on Class recovery and payments, the parties

The Objectors Interests are adverse to the Class.

In addition to lacking merit, CCAFs Objections are an affront to the tens of

CCAFs client, Joshua

Case: 2:11-cv-00436-GCS-NMK Doc #: 144 Filed: 05/01/14 Page: 10 of 29 PAGEID #: 2931

Specifically, the average Gym Cancel Subclass Member will

The Objectors rely on easily distinguishable case law and

CCAFs Objections rely almost exclusively on two readily distinguishable cases:

At the Fairness Hearing, Class Counsel provided a side-by-side comparison distinguishing