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Case: 2:11-cv-00436-GCS-NMK Doc #: 128 Filed: 01/23/14 Page: 1 of 50 PAGEID #: 2247

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 OBJECTION OF JOSHUA BLACKMAN


AND THE OBJECTION OF ZIK/HEARON
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, LLP
Two Miranova Place, Suite 700
Columbus, Ohio 43215
(614) 221-2121
Facsimile: (614) 365-9516

James B. Lind (0083310)


jblind@vorys.com
VORYS, SATER, SEYMOUR AND
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

Attorneys for Plaintiffs

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TABLE OF CONTENTS
Page
Table of Authorities .......................................................................................................... i
I.

Preliminary Statement ...................................................................................... 1

II.

Facts................................................................................................................. 2
A.

Settlement Terms and Provisions. .................................................................... 2

B.

The Notice and Claims Process........................................................................ 3

C.

The Class Response......................................................................................... 6

D.

The Seeger Settlement. .................................................................................... 8

III.

Argument .......................................................................................................... 9

A.

Class Counsel pursued, adequately protected, and obtained significant


value for the Gym Cancel Subclass................................................................ 10
1.

The Zik/Hearon claims were also alleged in Robins and alleged and
investigated in Gascho. .............................................................................. 11
The same allegations about gym cancellation billings were made by
Zik/Hearon, the plaintiffs in Robins v. Global Fitness Holdings, LLC,
Case No. 1:11-cv-01373-DAP, and the Plaintiffs in this Lawsuit.
Class Counsel thoroughly investigated the same claims alleged by
Zik/Hearon and their potential value............................................................ 11

2.

Success of Zik/Hearons Claims was unlikely. ............................................ 13


The Objectors claims were unlikely to succeed on the merits because
the Northern District of Ohio rejected the identical claims saying that
members were properly billed, per their contracts, for two more billing
cycles and that Urban Actives Membership Contracts expressly
permitted it to charge additional fees. Robins v. Global Fitness
Holdings, LLC, 838 F. Supp.2d 631, 643-44 (N.D. Ohio 2012). .................. 13

3.

Even if successful individual damages were limited. ................................... 13


Even if the Objectors claims were successful, the maximum recovery
for the typical class member would be $36. Pursuant to this
Settlement, Class Counsel has eliminated any and all risk of an
adverse judgment and secured immediate payment of $44.54 to the
average Gym Cancel Subclass Member. .................................................... 13

B.

Class Counsel pursued, adequately protected, and obtained significant


value for all other Class/Subclass Claims....................................................... 14
The Class recovery pursuant to this Settlement is particularly notable
given the significant risks of this litigation which include, the adverse
decisions in Robins, 838 F. Supp.2d at 651; Robinss decision to
appeal to the Sixth Circuit; the absence of guiding case law relative

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to the KHSA and PECA; Urban Actives strong equitable arguments;


and the fact that Urban Active is no longer in business............................... 14
C.

The Release is narrowly tailored and appropriate........................................... 16


The Settlement Release fits squarely within the confines of the
identical factual predicate doctrine. Wal-Mart Stores, Inc. v. Visa
U.S.A. Inc., 396 F.3d 96, 107 (2d Cir. 2005); Olden v. Gardner, 294 F.
Appx 210, 220 (6th Cir. 2008); In Levell v. Monsanto Research Corp.,
191 F.R.D. 543, 561 n.32 (S.D. Ohio 2000). ............................................... 16

D.

The Settlement is Procedurally Fair. ............................................................... 18


Class Counsels discussions with Zik/Hearons counsel broke down
with no agreement. Because no agreement was reached, Class
Counsel vigorously prosecuted its claims, filed its Motion for Class
Certification, engaged in settlement negotiations, and reached a
Settlement Agreement. This Court is the appropriate forum for
administration of the Settlement because it has original jurisdiction,
significant Ohio interests exist, the Court is familiar with the litigation,
and court and settlement administration efficiency...................................... 18

E.

Class Representatives are representative, typical, and certification of


the Settlement is appropriate.......................................................................... 20
Certification of the Settlement is appropriate because the Class
Representatives were subject to common policies and practices and
typically suffered the same type of injury as the Class Members. The
Class Representatives also posses sufficient unity so that absent
members can fairly be bound by the decisions of the Class
Representatives. Amchem Products, Inc. v. Windsor, 521 U.S. 591,
619-620 (1997); Manners v. American General Life Ins. Co., 1999
U.S. Dist. LEXIS 22880, at *47-48 (M.D. Tenn. Aug. 10, 1999);
Schwartz v. TXU Corp., 2005 U.S. Dist. LEXIS 27077, at *46-49, 54
(N.D. TX 2005). ........................................................................................... 20

F.

The Class Notice was proper. ......................................................................... 24


The Notice Program, which included the Legal Notice, Postcard
Notice, email notice, reminder email notice, general publication
notice, and the numerous newspaper and television reports, was
robust and exceeded the requirements of due process............................... 24

G. The Claims Process was reasonable and necessary...................................... 26


1.

A Claims Made Process is common, and expected, including in gym


settlement................................................................................................... 26
The simple claims process employed is common to consumer class
action settlements and is particularly suited to class actions involving
health clubs. Lonardo v. Travelers Indemnity Co., 206 F. Supp. 2d
766, (S.D. Ohio 2010); Kritzer v. Safeline Solutions, LLC, 2012 U.S.
Dist. LEXIS 74994 (May 30, 2012, S.D. Ohio); Martina v. L.A. Fitness

ii

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Intl, Inc., 2013 U.S. Dist. LEXIS 145285, at *27 (D. N.J. October 8,
2013); Friedman v. 24 Hour Fitness USA, Inc., 2010 U.S. Dist. LEXIS
143816, at *9 (C. D. Cal. July 12, 2010)...................................................... 26
2.

The Open Claims Process resulted in potential new Class Members and
additional recoveries. ................................................................................. 28
The wide publicity and simple open claims process resulted in 3,900
claims by former club members who did not appear in Urban Actives
records and the opportunity for thousands of Subclass Members to
recover more money than what was represented in Urban Actives
records. ....................................................................................................... 28

3.

Cases relied on by counsel are inapplicable to this Settlement................... 28


The authorities cited by the Objectors to support its position that
courts reject claims made settlement are unpersuasive and
distinguishable. Burden v. Selectquote Ins. Servs., 2013 U.S. Dist.
LEXIS 16977, at *17-18 (N.D. Cal. Mar. 18, 2013)...................................... 28

H.

The class representatives enhancement payments are reasonable and


appropriate based upon their active participation in this case and the
favorable settlement. ...................................................................................... 29
The Class Representatives came forward, willingly assisted counsel
in prosecuting this action, and provided a valuable service to the
Class.
Courts routinely provide enhancement payments to
compensate class representatives for such services. Lonardo v.
Travelers Indemnity Co., 206 F. Supp. 2d 766, 787 (S.D. Ohio 2010);
In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366,
373-74 (N.D. Ohio 1990). ............................................................................ 29

I.

Class Counsels fee request is reasonable under both the lodestar and
common fund approach as adopted by Courts in the Sixth Circuit. ................ 32
1.

The Lodestar Approach is best suited for this Settlement. .......................... 32


The lodestar approach is particularly appropriate here because the
Class claims involved fee shifting statutes and the award of attorney
fees does not diminish the fund available to the class................................. 32

2.

A Common Fund Cross-check establishes the reasonableness of Class


Counsels lodestar award. .......................................................................... 35
Courts routinely use a common-fund cross-check in cases in which a
lodestar fee award has been requested and the common fund is
calculated taking into consideration the total award available to the
Class. Van Horn v. Nationwide Property and Casualty Ins. Co., 436
Fed. Appx. 496, 501 (6th Cir. 2011); Lonardo v. Travelers Indemnity
Co., 206 F. Supp. 2d 766, 800-802 (S.D. Ohio 2010). ................................ 35

3.

Plaintiffs Fee Request is Reasonable in Proportion to Damage Actually


Suffered by the Class. ................................................................................ 36

iii

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Pursuant to this Settlement, over 606,000 class members had the


opportunity to complete a simple claim form providing nothing more
than their name, address, and other contact information. The
average claimant will be receiving a payment of $36.42, which is
more than 140% of the cost of average monthly due paid by a
member. For this significant reward, Class counsel has agreed to
accept less than their current lodestar value. .............................................. 37
4.

Although not a necessary disclosure, Class Counsels fee distribution is


consistent each firms lodestar totals.......................................................... 37

5.

Zik/Hearon argument is inconsistent with the CCAF regarding Class


Counsels fee awards, but neither is correct............................................... 38
The Objectors played no role in the prosecutions of this action, the
negotiations of this Settlement, and the substantial relief being
provided to the Class. Therefore, they are not entitled to any
attorneys fee award..................................................................................... 38

6.
IV.

The CCAFs clear sailing and kicker aruments are without merit. .......... 39
Conclusion...................................................................................................... 41

Certificate of Service ..................................................................................................... 42

iv

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TABLE OF AUTHORITIES
Cases
Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ................................. 27, 28, 29
Bittner v. Tri-County Toyota, 58 Ohio St. 3d 143, 569 N.E.2d 464 (1991)..................... 42
Blessing v. Sirius XM Radio Inc., 2011 U.S. Dist. LEXIS 94723 (S.D.N.Y. Aug.
24, 2011) ................................................................................................................... 19
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .................................................... 45, 46
Browne v. Am. Honda Motor Co., Inc., 2010 WL 9499072, (C.D. Cal. July 29,
2010) ........................................................................................................................... 6
Burden v. Selectquote Ins. Servs., 2013 U.S. Dist. LEXIS 16977 (N.D. Cal. Feb.
5, 2013) ..................................................................................................................... 36
Churchill LLC v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) .......................................... 6, 8
City of Livonia Employees Retirement Sys. v. Wyeth, 2013 WL 4399015 (Aug. 7,
2013) ........................................................................................................................... 7
Cook v. Niedert, 142 F.3d 1004 (7th Cir. 1998)............................................................. 38
D'Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir. 2001).................................................. 6
DeHoyos v. Allstate Corp., 240 F.R.D. 269, 314 (W.D. Tex. 2007) ............................... 34
Dewey v. Volkswagen of Am., 728 F.Supp. 2d 546, 575 (D. N.J. 2010) ......................... 7
Ferrari v. Howard, 2002 Ohio 3539 (8th Dist.)............................................................... 42
Friedman v. 24 Hour Fitness USA, Inc., 2010 U.S. Dist. LEXIS 143816 (C. D.
Cal. July 12, 2010)..................................................................................................... 35
Garner v. State Farm Mut. Auto: lns. Co., 2010 WL 1687832 (N.D, Cal. 2010) .............. 8
Gooch v. Life Investors Ins. Co. of Am., 672 F.23d 402 (6th Cir. 2012) ........................ 51
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir.1998) ....................................... 8
In re Apple Iphone 4 Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 113876 ....................... 33
In re Countrywide Fin. Corp. Customer Data Sec. Breach Litig., 2010 U.S. Dist.
LEXIS 87409 (W.D. Ky. Aug. 20, 2010)..................................................................... 22
In re Dry Max Pampers Litig., 724 F.3d 713................................................ 39, 46, 47, 51
In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366 (N.D. Ohio
1990) ......................................................................................................................... 37
In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 801 (3d Cir.
Pa. 1995) ................................................................................................................... 28
In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 359, 376 (N.D. Ohio 2001) ......... 30
In re Law Office of Jonathan E. Fortman, LLC, 2013 WL 414476 (E.D. Mo. Feb.
1, 2013) ....................................................................................................................... 7
In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000)..................................... 38
In re Prudential Ins. Co. of Am. Sales Prac. Litg., 261 F. 3d 355, 366-67 (3rd Cir.
2001) ......................................................................................................................... 20
In re Southwest Airlines Voucher Litig., 2013 WL 4510197 (N.D. Ill. Aug. 26,
2013) ......................................................................................................................... 38
In re Synthroid Mktg. Litig., 264 F.3d 712 (7th Cir. 2001).............................................. 38
In re Worldcom, Inc. Sec. Litig., 2005 U.S. Dist. LEXIS 23079 (S.D.N.Y. Oct. 11,
2005) ................................................................................................................... 20, 22
In re: Educ. Testing Serv. Praxis Principles of Learning and Teaching Grades 712, 2006 U.S. Dist. LEXIS 83479, 2006 WL 3332829 (E.D. La. Nov. 15, 2006).. 32, 34
i

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Jones v. Dominion Res. Servs., Inc., 601 F.Supp.2d 756 (S.D. W.Va. 2009) ............... 38
Kritzer v. Safeline Solutions, LLC, 2012 U.S. Dist. LEXIS 74994 (May 30, 2012,
S.D. Ohio)...................................................................................................... 33, 44, 50
Levell v. Monsanto Research Corp. .............................................................................. 21
Little-King v. Hayt Hayt & Landau, 2013 U.S. Dist. LEXIS 129587 (D.N.J. Sept.
10, 2013) ................................................................................................................... 22
Lonardo v. Travelers Indem. Co., 706 F.Supp. 2d 766, 785 (N.D. Ohio 2010).......passim
Luft v. Perry County Lumber & Supply Co., 2003 Ohio 2305 (10th Dist.)...................... 42
Mangone v. First USA Bank, 206 F.R.D. 222 (S.D. ll. 2001) ........................................... 8
Manners v. American General Life Ins. Co., 1999 U.S. Dist. LEXIS 22880 (M.D.
Tenn. Aug. 10, 1999) ........................................................................................... 28, 29
Martina v. L.A. Fitness Intl, Inc., 2013 U.S. Dist. LEXIS 145285 (D. N.J. October
8, 2013) ..................................................................................................................... 35
Masters v. Wilhelmina Modeling Agency, Inc., 473 F.3d 423 (2d Cir. 2007) ................. 38
Milliron v. T-Mobile, 2009 U.S. Dist. LEXIS 101201 (D. N.J. Sept. 10, 2009)................ 33
Moulton v. U.S. Steel Corp., 581 F.3d 344, 349 (6th Cir. 2009) .................................... 20
Natl Super Spuds, Inc. v. N.Y. Mercantile Exch., 660 F.2d 9, 18 n.7 (2d Cir.
1981) ......................................................................................................................... 20
Olden v. Gardner, 294 F. Appx 210, 220 (6th Cir. 2008) ........................................ 19, 20
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) ................................................. 42
Physicians of Winter Haven LLC v. Steris Corp., 2012 U.S. Dist. LEXIS 15581
(N.D. Ohio) ................................................................................................................ 46
Radcliffe v. Experian Info. Solutions, Inc., 715 F.3d 1157 (9th Cir. 2013) ..................... 39
Reynolds v. Beneficial Natl Bank, 288 F. 3d 277, 282 (7th Cir. 2002) .......................... 28
Robins v. Global Fitness Holdings, LLC, 838 F. Supp.2d 631 (N.D. Ohio 2012)....passim
Schulte v. Fifth Third Bank, 805 F.Supp.2d 560, (N.D. Ill. 2011)................................... 32
Schwartz v. TXU Corp., 2005 U.S. Dist. LEXIS 27077 (N.D. TX 2005)......................... 29
Smith v. Levine Leichtman Capital ................................................................................ 36
Spark v. MBNA Corp., 48 F. Appx 385, 390 (3d Cir. 2002) .......................................... 34
Stoetzner v. U.S. Steel Corp., 897 F,2d 115 (3d Cir. 1990) ............................................ 6
Taft v. Ackermans, 2007 U.S. Dist. LEXIS 9144 (S.D.N.Y. Jan. 31, 2007) ................... 22
TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 460 (2d Cir. 1982)............. 20
Van Horn v. Nationwide Prop. & Cas. Ins. Co., 2010 U.S. Dist. LEXIS 42357
(S.D. Ohio)..................................................................................................... 41, 44, 45
Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 Fed. Appx. 496 (6th Cir.
2011) ......................................................................................................................... 45
Vassalle v. Midland Funding LLC, 708 F.3d 747, 755-56 (6th Cir. 2013) ...................... 40
Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 107 (2d Cir. 2005) ................... 19
Wess v. Storey, 2011 U.S. Disc. LEXIS 41050 *12 (S.D. Ohio Apr. 14, 2011).............. 38
Wren v. RGIS Inventory Specialists, 2011 WL 1230826 (N.D. Cal. Apr. 1, 2011)........... 6
Statutes
28 U.S.C. 1332(d)(2) .................................................................................................. 20
28 U.S.C. 1332(d)(3) .................................................................................................. 20
KRS 367.900................................................................................................................. 33
KRS 367.912(1) ............................................................................................................ 14
KRS 367.930(2) ............................................................................................................ 33
ii

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O.R.C. 1345.01 ............................................................................................................. 33


O.R.C. 1345.09(F)(2) .................................................................................................... 33
O.R.C. 1345.44(C) ........................................................................................................ 14

iii

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PLAINTIFFS RESPONSE TO THE OBJECTION OF JOSHUA BLACKMAN


AND THE OBJECTION OF ZIK/HEARON
Plaintiffs Amber Gascho, Ashley Buckemeyer, Michael Hogan, Edward
Lundberg, Terry Troutman, Anthony Meyer, Rita Rose, Julia Snyder, Albert Tartaglia,
Michael Bell, Matt Volkerding, and Patrick Cary, on behalf of all members of the Class
and Subclasses, hereby respond to the Objections of Zik and Hearon filed on
December 23, 2013, (Docket No. 118) (Zik/Hearon Objection) and Joshua Blackman
filed on December 27, 2013, (Docket No. 122) (CCAF Objection).
I.

PRELIMINARY STATEMENT
Pursuant to this Settlement Agreement, Defendant Global Fitness Holdings, LLC

d/b/a Urban Active Fitness (Urban Active) pledged over $17,000,000 in cash refunds
to more than 606,000 former members. To receive an award, Class Members needed
only to complete a claim form providing basic contact information and, if applicable,
check box(es) indicating Subclass membership. No further proof or documentation was
needed. Approximately 55,600 Claim Forms were filed of which 49,457 were deemed
valid and approximately 3,965 are pending further review. Most importantly, the
average payment for each Approved Claimant is $36.41 a significant amount because
the average monthly payment for an Urban Active gym membership was $26.00.
Despite these results, a professional objector, the CCAF, whose client has paid
Urban Active nothing and thus has no damages seeks to overturn this Settlement
because Class Counsel settled his claims for a mere $25.00 payment.

The

Zik/Hearon Objection is equally frivolous when one considers the ruling in Robins v.
Global Fitness Holdings, LLC, 838 F. Supp.2d 631, 654 (N.D. Ohio 2012), dismissing
claims identical to Zik/Hearons. In addition, even assuming Zik/Hearon could succeed

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on its claims which partially overlap with the claims of the Gym Cancel Subclass, the
average class member of a proposed Zik/Hearon Class would only recover $36.00
($26 monthly fee plus $10 cancellation fee). Here, the average Allowed Claimant will
recover $36.41, and the average Gym Cancel Subclass Member will recover $44.54.
Not only is this Settlement fair, reasonable, and adequate, but this Settlement is
in the best interest of the Class/Subclasses because it provides immediate payment
from a defunct company, eliminates any risk of an adverse judgment, and provides a
significant cash award equaling or exceeding what could be achieved at trial.
II.

FACTS
A.

Settlement Terms and Provisions.

The Settlement, as preliminarily approved by this Court, creates a single Class


and three Subclasses whose members may receive the following awards:
The Class includes all individuals who signed a gym membership or
personal training contract on or between January 1, 2006, to October 26,
2012. Any Class Member that filed a valid Claim Form will receive $5 in
addition to any other Claim Award.
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 between April 1, 2009, to October 26, 2012. Any FIF
Subclass Member that filed a valid Claim Form will receive $20 in addition
to any other Claim Award.
The Gym Cancel Subclass includes all Class Members who cancelled
their gym membership contract on or between January 1, 2006, to
October 26, 2012. Any Gym Cancel Subclass Member that filed a valid
Claim Form will receive $20 in addition to any other Claim Award.
The Personal Training Cancel Subclass includes all Class Members who
cancelled a personal training contract on or between January 1, 2006, to
October 26, 2012. Any Personal Training Cancel Subclass member who
becomes an Allowed Claimant will receive $30 in addition to any other
Claim Award.

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Thus, all Class/Subclass Members who file a claim will receive a cash payment
of $5, $25, $35, $45, $55, or $75 for alleged conduct causing actual damages of
between $0 and $100 to virtually all Class Members. Class/Subclass inclusion is based
solely on simply defined, common, and objective criteria:
For the Class, the existence of a membership contract;
For the Gym Cancellation Subclass, the cancellation of that contract;
For the FIF Subclass, the payment of a FIF; and
For the Personal Training Cancel Subclass, the existence of and
cancellation of a personal training contract.
These payments are in settlement of this lawsuits claims and allegations which
include misrepresentations and violations of states consumer sales practices acts,
breach of contract, and unjust enrichment. The Release is narrowly tailored to only
release claims that were raised or which could have been raised in the Action, and
which arose during the Class Period and arise out of or are related to the factual
allegations or are based on the same factual predicates as alleged in the Actions Third
Amended Complaint. See Settlement Agreement 2.23 (emphasis in original).
B.

The Notice and Claims Process.

This Court approved a notice program involving a Notice Postcard, an email


notice, a reminder email notice, general publication, and establishment of an internet
site. Approximately 601,000 potential claimants were provided direct Notice. Counsel
also issued a press release and placed it on the PR Newswire. As a result of this
extensive notice program, newspapers and television stations in Columbus, Cincinnati,
Cleveland, Lexington, Louisville, and Harrisburg reported on the settlement and
included instructions on how to file a Claim. See Exhibit 1. Numerous independent
websites and other social media outlets also reported the Settlement and provided

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instructions on how to file a claim. See Exhibit 2.


To perfect a claim, a Class Member needed only to complete a Claim Form
containing basic identifying information and submit it online or via U.S. Mail.

No

documentation or other proof of their claim was required. Moreover, the claims process
was open to any individual, even those not receiving direct Notice.
This open claims process was necessary because Urban Actives data (produced
in discovery and provided to the Claims Administrator) was unreliable in identifying the
current name and current address of all Class Members and the Settlement amount
each was entitled. This unreliability stemmed from the fact that Class Members moved,
changed emails, changed names, and were otherwise not reachable via the information
provided when they signed their contracts, which was anytime between January 1,
2006, to October 26, 2012. Because the Postcard Notice was not mailed until October
30, 2013, the contact information in Urban Actives records was 1 to 8 years old.
Compounding the passage of time is the fact that Urban Active used 4 different
electronic record management systems since 2006. The use of these various systems,
and the transfer of information between them meant that Urban Actives data contained
inaccuracies, therefore necessitating an open claims process.
On October 30, 2013, Postcard Notices were mailed to the 601,494 Class
Members for whom valid mailing addresses existed. See Affidavit of Jeffery D. Dahl,
President of Dahl Administration, January 21, 2014, attached hereto as Exhibit 3, at
12.

More than 146,000 Notice Postcards were initially returned to the Settlement

Administrator as undeliverable. Id. at 14.


In response to the Notice program, Dahl received 55,597 claim forms, of which

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49,457 were deemed timely filed and valid, 3,965 are pending further review, 2,161
were invalid duplicates, and 14 were untimely. Id. at 33. Of the total, 4,130 were filed
without a Claimant ID number (Id. at 43), indicating that the Claimant learned of the
Settlement through news reports or other general publications, and not through the
Postcard Notice or email notice. Moreover, 3,900 of the timely filed Claims did not
match any information contained in Urban Active records.

Id. at 33.

Thus, the

Settlement Administrator is reviewing those potential Claims to determine the Claimants


are indeed Class Members that do not appear within Urban Actives records. Id. at 32.
As of today, 49,457 of the 55,418 claims have been deemed valid. Id. at 33.
The total payout to these 49,457 Allowed Claimants will be between $1,542,505 and
$2,003,416.

Id. at 38.

The Settlement Administrator is currently resolving this

variance pursuant to its duties in paragraph 10.4 of the Settlement Agreement. Id. The
variance exists because Claim Forms submitted by approximately 20,459 Allowed
Claimants, indicated membership in additional subclass(es) not matching Urban
Actives records. Id. The Settlement Administrator thus requested additional information
from Defendant and is following up with those Allowed Claimants. Id.
As of today, the average confirmed cash payment to each Allowed Claimant is
$36.41. Id. at 36. Objectors Zik/Hearon take particular issue with the award to each
Gym Cancel Subclass Member; however, as of today, the average cash payment to
Gym Cancel Subclass Members is $44.54. Id. During the Class Period, the average
membership sold by Urban Active cost approximately $26.00 per month,1 meaning the

A review of the databases provided in discovery by Urban Active for Kentucky Members indicated
an average monthly fee of $25.51. A review of the database produced by Urban Actives third party
vendor Motionsoft for members in Ohio, Kentucky, Georgia, Tennessee, North Carolina, and
Pennsylvania indicated an average monthly fee of $26.76. For simplicity purposes, these calculations
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typical Class Member will be refunded 140% of one months dues and the typical Gym
Cancel Subclass member will be refunded over 170% of one-months dues.
C.

The Class Response.

Only two Objections were filed out of a 606,000 member class, demonstrating
unusually broad support for the settlement.2 Neither of these objections were filed by
Class Members who truly believe the compensation is inadequate. Rather, one is by an
ideological professional objector and the other alleges that this Settlement specifically
the Gym Cancel Subclass compromises pending class action claims.
Objector Joshua Blackman is represented by the Center for Class Acton
Fairness (CCAF). Mr. Blackman filed a Claim Form seeking $25 as a member of the
Class and Gym Cancel Subclass. As noted in Defendants Motion to Strike, Docket No.
125, Mr. Blackman joined Urban Active on August 16, 2011, and rescinded his contract
during the 3-day cancellation period. He was fully refunded everything paid. Thus, Mr.
Blackman has paid Urban Active nothing, has made a claim for $25, and is
simultaneously arguing that the Settlement Agreement is unfair to the Class.
While the CCAF preemptively tries to establish that it is not a professional
objector[], the above facts and its track record prove otherwise. The Northern District
of Ohio recently commented that the CCAF is a serial objector long on ideology and
short on law. Lonardo v. Travelers Indem. Co., 706 F.Supp. 2d 766, 785 (N.D. Ohio

have been rounded to $26.00 per month.


attached as Exhibit 4, 5-6.

See Affidavit of Thomas McCormick, January 21, 2014,

See Browne v. Am. Honda Motor Co., Inc., 2010 WL 9499072, at * 18 (C.D. Cal. July 29, 2010)
(finding that low percentage of objections favors settlement approval); Churchill LLC v. Gen. Elec., 361
F.3d 566, 577 (9th Cir. 2004) (affirming final approval with 45 objections out of 90,000 notices); Wren v.
RGIS Inventory Specialists, 2011 WL 1230826, at *10 (N.D. Cal. Apr. 1, 2011) (finding 0.02% objection
rate "strongly supports approval of the settlement"); see also, e.g., Stoetzner v. U.S. Steel Corp., 897
F,2d 115, 118-19 (3d Cir. 1990); D'Amato v. Deutsche Bank, 236 F.3d 78 86-87 (2d Cir. 2001).
6

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2010).

Another court referred to the CCAF and its founder, Ted Frank, as a

professional objector of which federal courts are increasingly weary. See Dewey v.
Volkswagen of Am., 728 F.Supp. 2d 546, 575 (D. N.J. 2010).

Yet another Court

observed that a CCAF objection was not grounded in the facts of that particular case,
but rather in the CCAFs objection to class actions in general. See City of Livonia
Employees Retirement Sys. v. Wyeth, 2013 WL 4399015, at *5 (Aug. 7, 2013). When
considering the content of the CCAFs Objections, this Court should consider the
background and intent of objectors and their counsel, particularly when indicative of a
motive other than putting the interest of the class members first. In re Law Office of
Jonathan E. Fortman, LLC, 2013 WL 414476, at *5 (E.D. Mo. Feb. 1, 2013).
Here, as in other cases, the CCAF used its blog to solicit objectors. See, e.g.,
http://centerforclassactionfairness.blogspot.com/2013/11/urban-active-fitness-classaction.html. The CCAFs November 20, 2013, blog post said: [o]ne hopes that a class
member who received a[n Urban Active] postcard investigates the unfairness of the
settlement and retains qualified counsel to object. Indeed, the CCAF has objected to
over 27 class settlements since 2009, making similar arguments to those made here.
Objectors Robert and April Zik and James Hearon are Class Members and Gym
Cancel Subclass members eligible to recover $25 pursuant to Urban Actives records.
These individuals did not file Claim Forms; therefore they have no stake in the proceeds
of the Settlement should it be finally approved. As evidenced by the Request for Fees,
the motivation in objecting is not to secure additional value or compensation to the
class, but rather to secure payment of over $640,000 in attorneys fees.
Despite these two objections, the Classs response to this Settlement has been

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overwhelmingly positive as only 90 Class Members opted-out. Such a low opt-out rate
(0.014%) shows that overall the Class considers the Settlement to be fair.3
D.

The Seeger Settlement.

Zik/Hearon devotes significant space to comparing this Settlement to the Seeger


Settlement. The Seeger Settlement provided coupons for 30 day memberships. The
Seeger Court determined that these coupons were worthless because (i) most class
members had cancelled their membership with Urban Active and had no desire to go
back, and (ii) 30-day trial memberships are a common marketing tool used by health
clubs to generate business.

In exchange, Urban Active received a broad general

release absolving Urban Active of any wrongdoing, at any time, for any reason. As set
forth in the chart below, the Seeger Settlement does not compare to this Settlement:

See Garner v. State Farm Mut. Auto: lns. Co., 2010 WL 1687832, at * 15 (N.D, Cal. 2010)
(0.4%.opt-out rate "is a further indication of the fairness of the Settlement"); see also, e.g., Mangone v.
First USA Bank, 206 F.R.D. 222, 227 (S.D. ll. 2001); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th
Cir.1998); Churchill L.L.C. v. Gen. Elec., 361 F.3d 566, 577 (9th Cir. 2004).
8

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Seeger

Gascho

Notice

Email or Postcard

Email and Postcard

Class Member
Benefit

30 Day Coupon

Cash Refund (between $5-$75, with


an average of $36.41).

Release

General Release:
Unlimited in time or
scope.4

Specific Release:
Limited to class period and alleged
claims.5

Minimum payment

$0.00

$1,300,000.006

Approved Claims

1,4447

Between 49,457 and 53,422

Claim Rate

0.6%8

9.2%9

Payment to the Class

$0.00

Between $1,542,505 and


$2,003,416

Zik/Hearon ignores these facts and attempts to persuade this Court with
inaccurate statements, unsupported attacks, and unconvincing arguments.

As

discussed below, this Settlement is in the best interest of the Class because it provides
substantial recovery to all Urban Active Members without any risk of an adverse
judgment.
III.

ARGUMENT
Many of the Objectors statements are simply false. Each Objection should be

overruled. Rather than responding to each misstatement and unduly lengthen this
(already lengthy) Response, Class Counsel will focus on and directly respond to the
4

See Exhibit 5, Order denying Final Approval saying, the release sought by the defendant is
overly broad. The release is unlimited in time or nature of claims. The release includes claims that do not
share the identical factual predicate as Plaintiffs claims.
5
See Section III(C) herein.
6
Settlement Agreement 7.1
7
See Exhibit 5 at 3.
8
Id.
9
See Exhibit 3 at 46.
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arguments and inaccuracies relevant to the Final Approval decision.10


A.

Class Counsel pursued, adequately protected, and obtained


significant value for the Gym Cancel Subclass.

The Zik/Hearon Objections are primarily concerned with the Settlement of the
Gym Cancel Subclass claims.

The Settlement allows all Gym Cancel Subclass

Members to collect at least $20 for breach of contract, unjust enrichment, and consumer
sales practice act claims associated with the members cancellation of their gym
membership contracts pursuant to Defendants policies of charging cancellation fees,
refusing to accept, process, and honor cancellations, and continuing to charge
members monthly fees after cancellations.
The Zik/Hearon claims focus on just two of the cancellation policies at issue in
this Litigation: charging of one extra months dues after cancellation and a $10
cancellation fee. Zik/Hearon argue that they are the only plaintiffs to allege the simply
defined and contractual claims related to these billing practices.11 Zik/Hearon also
repeatedly allege that these claims are very likely to be certified and succeed on the
merits. Id. at 5, 24. Last, Zik/Hearon allege that each Class Member is owed up to $60
for these claims.

Id. at 22.

As discussed below, each of these allegations is

categorically false.

10

Pursuant to this Courts Preliminary Approval Order and the Settlement Agreement, 13.2, the
Joint Proposed Final Order, Joint Proposed Final Judgment, and the associated Joint Motion Documents
will be filed on February 4, 2014. These documents will further address this Courts obligations under
Fed. R. Civ. P. 23(e) and any other legal requirements necessary for Final Approval
11

See Zik/Hearon Objection pp. 5, 22, 23 (saying that Zik/Hearon seeks certification of simplydefined, contractually-based claims, and the core of the Ziks Classs claims is that their contracts with
Urban Active did not permit it to charge members an additional months dues upon cancellation and/or a
$10 administrative cancellation fee, and that the heart of [the] Zik Classs claims are that Urban Active
irrefutably failed to follow its own membership contracts in charging an additional months dues and
charging a $10 cancellation fee.)
10

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1.

The Zik/Hearon claims were also alleged in Robins and alleged


and investigated in Gascho.

Two other class actions containing the same allegations about gym cancellation
billing were filed around the same time as Zik/Hearon. One is Robins v. Global Fitness
Holdings, LLC, Case No. 1:11-cv-01373-DAP (N.D. Ohio), which was dismissed
pursuant to Rule 12(b)(6), 838 F.Supp.2d 631 (2012). The other is this Litigation.
In Robins, plaintiffs alleged that:
[Urban Active] drafted form contracts containing egregious, confusing and
misleading cancellation provisions that guarantee members will be
charged for one or more months beyond the date they cancel their
memberships. ***
In mid-November 2010, [two named plaintiffs] informed Global of their
intent to cancel, and Global confirmed [the] cancellation in writing on
November 22, 2010. Still, Global billed them not only for the remainder of
November, but for the entire month of December, and for the entire month
of January although Januarys payment was eventually reversed by the
bank.
Id. at 637, 638. These claims are identical to Zik/Hearons allegations Urban
Active improperly charged an additional month after the 30 day cancellation
period.
In this Litigation, Plaintiffs alleged a class of Ohio Members who cancelled their
contracts, and for whom Urban Active continued to charge their credit, bank, or debit
accounts. See Second Amended Complaint, Docket No. 31, August 5, 2011, at 7
The Complaint further alleged that Urban Active had a common policy and practice of
intentionally avoiding, refusing to accept, and refusing to properly process notices of
cancellation; that Defendant engages in a common policy and practice of avoiding
cancellation, making cancellations as difficult as possible, and failing to honor
cancellations; and, that Urban Active breached is contracts by making unauthorized

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charges to members accounts, refusing to honor contract cancellations, and failing to


comply with terms and conditions regarding contract cancellation. Id. at 10, 20, and
163. Almost identical allegations were made in the Tartaglia litigation.12 See First
Amended Complaint, July 11, 2011, 7, 9, 57, 68, attached as Exhibit 6. A number of
Class Representatives made specific allegations related to the $10 fee and additional
monthly fees after cancellation with one specifically claiming that he was not allowed to
submit his cancellation form at the front desk, and, just like the plaintiffs in Robins and
Zik/Hearon, that he was charged an additional months dues after his cancellation was
sent by certified mail. Id. at 43. He described his claims by saying:
[I] sent the form to Urban Active via certified mail on or about February 1,
2011.
Despite complying with these extra-contractual cancellation
procedures, I continued to incur charges through April, 2011. In addition, I
was charged a $10 cancellation fee which was never disclosed.
Exhibit 7.
During discovery, Class Counsel reviewed hundreds of thousands of internal
emails and other documents. Pursuant to these extraordinary efforts, which no other
plaintiffs group engaged in, Class Counsel learned that Urban Active referred to its
practice of charging one additional months dues after the 30 day cancellation period as
the two billing cycle cancellation policy. See e.g. Exhibit 8.

From this, and other

internal documents, Class Counsel learned, among other things, that the two billing
cycle cancellation policy language was added to the standard form contract in
approximately March, 2008, and that enforcement of the policy began on July 9, 2009.
Id. Urban Active claims that it ceased enforcement of its two billing cycle cancellation
12

The Tartaglia matter is parallel litigation filed in Kentucky State Court by the Vorys firm alleging
violations of Kentucky law. Upon reaching a global settlement, the Tartaglia Plaintiffs and causes of
action were incorporated into the Third Amended Complaint filed here. The Tartaglia matter has been
stayed pending the final resolution of this Settlement, and will be dismissed upon final approval.
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policy in June, 2010. While some evidence exists to support this statement, other
evidence indicates that Urban Active was inconsistent in eliminating the policy.
Regarding the $10 cancellation fee, Class Counsel learned that the $10
cancellation fee provision (paragraph 45) was added to Urban Actives standard form
contract in late 2007, and that its enforcement began on July 9, 2009. See Exhibit 9.
2.

Success of Zik/Hearons Claims was unlikely.

Zik/Hearons statement that its claims were very likely to be certified and
succeed on the merits is directly contradicted by established case law.

As noted

above, Robins identical claims were dismissed because the plaintiffs, were properly
billed, per their contracts, for two more billing cycles (i.e., December 2010 and January
2011) and that the Membership Contracts expressly permitted [Urban Active] to
charge these fees to their accounts. See Robins, 838 F. Supp.2d at 643-44. Thus, at
best, success for Zik/Hearon is uncertain.
Similarly, success on Zik/Hearons contract claim related to the $10 cancellation
fee is also uncertain because, as noted above, beginning in 2008 all of Urban Active
contracts provided for the charging of a $10 cancellation fee and Urban Actives
documents prove that defendant did not start charging this fee until July, 2009.
Zik/Hearon are unlikely to succeed on the merits of those claims.
3.

Even if successful individual damages were limited.

Zik/Hearon also overstate the value of their claims. Zik/Hearon argue that each
member is owed as much as $60 for being overcharged by one month and the $10
cancellation fee. This number is inflated because the typical Class Member only paid
$26 in monthly dues. Exhibit 4, 5-6.
In other words, even if both of Zik/Hearons claims were entirely successful, the
13

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maximum recovery for the typical class member would be $36 ($26 + $10). Here, Class
Counsel has (i) eliminated any and all risk of an adverse judgment, and (ii) secured an
immediate payment of no less than $25 to every member of the Gym Cancel Subclass.
In fact, the average award to be received by a member of the Gym Cancel Subclass is
$44.54 $18 more than Zik/Hearons maximum damages. See Exhibit 3 at 36.
B.

Class Counsel pursued, adequately protected, and obtained


significant value for all other Class/Subclass Claims.

Zik/Hearon also object claiming that Kentucky Class Members have not received
sufficient value for the release of their Kentucky Health Spa Act (KHSA) claims. This
argument displays a fundamental misunderstanding of the pending claims, the overall
structure of the Settlement, and the inherent risks associated with any litigation.
One potential remedy available under the KHSA is the voiding of the contract.
See KRS 367.912(1). Likewise, rescission of the contract is a possible remedy under
the Ohios Prepaid Entertainment Contract Act (PECA). See ORC 1345.44(C). Thus,
while the laws may be different, and the facts necessary to succeed on the claims may
be different, the potential remedies available are similar.
In negotiating this Settlement, Class Counsel was keenly aware of the potential
value of all of the Class claims, but also the risks to the Class associated with
continued litigation. Here, that risk was heightened by a number of factors.
First, as discussed above, the ruling in Robins hampered the Class claims. In
Robins, not only were plaintiffs contract claims dismissed, but the Kentucky
Subclasses KHSA claims and the Ohio Classs CSPA and PECA claims were also
dismissed. In dismissing the Kentucky Subclass claims, the Court specifically ruled that
Urban Actives contracts complied with the KHSA saying:

14

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A review of these Plaintiffs contracts shows that they comply with the
statutory provisions and contain, verbatim, the quoted statutory
language. Because these Plaintiffs have not alleged facts showing that
these contracts violate the Kentucky statute, Count Seven must be
dismissed with prejudice.
See Robins, 838 F. Supp.2d at 651. In dismissing the Ohio CSPA and PECA claims,
the Court said, among other things:
More importantly, Plaintiffs have failed to allege individual claims against
Global under the Acts because Globals conduct in charging postcancellation and other fees was consistent with the executed contracts,
and any oral representations to the contrary were precluded by the
integration clauses in those contracts. Furthermore, the contracts
contained, nearly verbatim, the statutory language for three-day
cancellations and cancellations due to death, disability and relocation
the only cancellation provisions required under the OPECA. Accordingly,
Counts Four and Five are dismissed with prejudice.
Id. at 649.
Second, the Class claims were further threatened by Robins appeal to the Sixth
Circuit. Robins et al v. Global Fitness Holdings, LLC, Case No: 12-3231 (6th Cir.). At
the time of the Settlement, Robinss appeal was being briefed. Had the Sixth Circuit
affirmed the Northern Districts decision, the Class would have had to distinguish its
claims from the Sixth Circuits affirmation.
Third, the KHSA and PECA have rarely been litigated with few judicial decisions
on point. Indeed, there is no Kentucky or Ohio case law interpreting the KHSA and
PECA and identifying when rescission is appropriate. Likewise, no cases describe an
appropriate method to calculate damages. This absence of guiding law was further
complicated by the fact that Urban Active possessed strong equitable arguments (i.e.
members were provided substantial benefits pursuant to their contracts), which would
have weighed against monetary recovery in excess of what is already being provided

15

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pursuant to this Settlement. This again reinforces the significant value being provided
pursuant to this Settlement, all while eliminating any risk of an adverse judgment.
Last, Urban Active is no longer in business and has no income stream, which
weighs against continuing a protracted and expensive litigation. In sum, Class Counsel
negotiated to maximize the value of the Class claims while still securing a substantial
and guaranteed recovery for the Class/Subclasses.
C.

The Release is narrowly tailored and appropriate.

The Release here releases no more than conduct aris[ing] out of the identical
factual predicate as the settled conduct. Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396
F.3d 96, 107 (2d Cir. 2005); see also Olden v. Gardner, 294 F. Appx 210, 220 (6th Cir.
2008) (approving class-wide release because it only released claims arising from the
identical factual predicate). Pursuant to the identical factual predicate doctrine, Class
plaintiffs may release claims not asserted in the litigation as long as they arise from the
same factual allegations. See Blessing v. Sirius XM Radio Inc., 2011 U.S. Dist. LEXIS
94723, at *15 (S.D.N.Y. Aug. 24, 2011); In re Prudential Ins. Co. of Am. Sales Prac.
Litg., 261 F. 3d 355, 366-67 (3rd Cir. 2001).
The same or identical predicate refers to any claim that depend[s] on the very
same set of facts as the underlying class action complaint. In re Worldcom, Inc. Sec.
Litig., 2005 U.S. Dist. LEXIS 23079, at *3 (S.D.N.Y. Oct. 11, 2005) (quoting Natl Super
Spuds, Inc. v. N.Y. Mercantile Exch., 660 F.2d 9, 18 n.7 (2d Cir. 1981)); see also
Moulton v. U.S. Steel Corp., 581 F.3d 344, 349 (6th Cir. 2009) (The question is . . .
whether the released claims share a factual predicate with the claims pled in the
complaint.) (quotations and citation omitted). Because the focus is on the facts giving

16

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rise to the complaint rather than the legal theories pled therein, released claims can
include not only those that were, or could have been pleaded, but also those that
were unknown or had not accrued at the time of settlement. Olden, 294 F. Appx , at
219-20; see also TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 460 (2d Cir.
1982) (providing that a claim can be released even though the claim was not presented
and might not have been presentable in the class action).
Here, the Settlement Release fits squarely within these requirements. It releases
only those claims that share a factual predicate with those pled in the Complaint.
Specifically, the released claims are limited to those that:
were raised or which could have been raised in the Action, and which
arose during the Class Period and arise out of or are related to the factual
allegations or are based on the same factual predicates as alleged in the
Actions Third Amended Complaint. This specifically includes any and all
claims for breach of contract, unjust enrichment, misrepresentation, and/or
violations of consumer protection acts, health spa acts, or prepaid
entertainment contract statues resulting from Defendants sales,
communications, contracting, billing, and/or cancellations of any gym or
personal training contracts.
See Settlement Agreement 2.23 (emphasis in original).
In fact, courts routinely approve settlements involving similar settlement releases.
In Levell v. Monsanto Research Corp., this Court rejected objections and approved a
settlement that released any and all claims which the [class members] may possess
under the Price Anderson Act, the Common Law, or any other federal or state law,
regulation, or rule of any kind and which relate in any way [to the defendants] acts,
omissions, disclosures, non-disclosures, or conduct concerning [the] operation of the
Mound facility . . . . 191 F.R.D. 543, 561 n.32 (S.D. Ohio 2000) (emphasis added).
The Southern District of New York recently approved a similar settlement, which

17

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released any and all claims arising out of, based upon, or related in any way to: (a)
the purchase, acquisition, sale, disposition, retention, or ownership of [certain] securities
. . . and the allegations that were made or could have been made in the Litigation, as
well as (b) the purchase or other acquisition of, the retention of, [the ownership of,] the
sale or other disposition of, or any other transaction involving [certain] securities by any
of the Released Persons during the Settlement Class Period; or (c) the settlement or
resolution of the Litigation. Taft v. Ackermans, 2007 U.S. Dist. LEXIS 9144, at *24-26
(S.D.N.Y. Jan. 31, 2007) (emphasis added).
This Court should likewise reject Zik/Hearons argument that the second
sentence of the provision describing the released claims could be construed as being
independent from, and thus not limited by, the preceding sentence. [T]he release in
the . . . Settlement must be read in the context of the entire document and not parsed
out. Little-King v. Hayt Hayt & Landau, 2013 U.S. Dist. LEXIS 129587, at *47 (D.N.J.
Sept. 10, 2013). The subordinate sentence of the provision describing the released
claims is just that -- subordinate. To be released, a claim must either be pled in or
based on the same factual predicate as the complaint. Settlement Agreement 2.23.
Obviously, a failure to understand the settlement agreement is not a valid objection. In
re Countrywide Fin. Corp. Customer Data Sec. Breach Litig., 2010 U.S. Dist. LEXIS
87409, at *29 (W.D. Ky. Aug. 20, 2010). It is, after all, a given that the Release will
only be applied insofar as its application conforms to law. In re WorldCom, Inc. Secs.
Litig., 388 F. Supp. 2d 319, 342 n.36 (S.D.N.Y. 2005).
D.

The Settlement is Procedurally Fair.

Objectors Zik/Hearon argue that the Settlement is procedurally unfair because

18

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settlement discussions occurred without their involvement.

No legal basis exists to

support this Objection and Zik/Hearon cite none. Therefore, it should be rejected.
After the Seeger Settlement was defeated, Class Counsel and Zik/Hearon
discussed consolidating actions and/or pooling resources to jointly prosecute these
actions against Urban Active. These discussion broke down. Because no agreement
was reached, Class Counsel separately prosecuted their claims: continuing discovery,
taking numerous depositions, and moving for class certification on June 14, 2013.
Shortly thereafter, the parties began meaningful settlement negotiations, reaching
agreement on September 12, 2013.
Regarding Class Counsels negotiations with Zik/Hearon, as evidenced in Class
Counsels email of January 23, 2013, (attached as Exhibit 10) Zik/Hearon refused to
accept compensation based on a legally supportable position, i.e. (1) the time, effort,
and costs, committed to the litigation (i.e. a lodestar analysis); or (2) an already overly
generous percentage of the Kentucky Class recovery as compensation for their simply
defined contractually based claims that already overlapped with Gaschos claims (i.e.
the common fund approach). Simply stated, Zik/Hearon refused to accept a fee sharing
agreement that could be justified in any Court. Notably, as they continue to do in their
Objections, Zik/Hearon refused to acknowledge Robins, which dismissed the same
contract claims. Instead, they insisted that they be handsomely compensated for a
purported nationwide class of all members from 1996 to 2012, despite Robins ruling
that Urban Actives form contracts bar such claims. While Class Counsel made
numerous efforts to bridge the gap, it ultimately became clear that Zik/Hearon would not
accept fees proportional to time, effort and value; and its demands were not based in

19

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reality.
Objectors Zik/Hearon further argue that by seeking Final Approval in this Court,
the parties have forum-shopped. See Zik/Hearon Objection at 36. This accusation is
erroneous. During the Class Period, Urban Active had 19 gyms in Ohio compared to
only 10 in Kentucky,13 Urban Active had almost twice as many members in Ohio than
Kentucky (315,611 vs. 179,635 members), and despite doing business in seven states,
more than 52% of all members belonged to Ohio gyms (315,611 of approximately
606,000 members). Ohios interest in this litigation is obvious.
Nevertheless, Zik/Hearon wrongfully claim that pursuant to 28 U.S.C.
1332(d)(3), this Court should decline jurisdiction because more than 1/3 of the Class
Members and Defendant reside in Kentucky. This argument fails on the numbers alone.
Less than 30% of the Class (179,635 of 606,000 members) belonged to Kentucky
gyms. Therefore, under 28 U.S.C. 1332(d)(2) this court has original jurisdiction of this
action and may not decline jurisdiction under subsection 1332(d)(3). Regardless, even
assuming this Court had discretion under subsection 1332(d)(3), the significant Ohio
interest described above, this Courts familiarity with the litigation, court and settlement
administration efficiency, and the multi-state nature of this Settlement all weigh heavily
in favor of this Federal Court retaining jurisdiction as opposed to Kentucky State Court.
E.

Class Representatives are representative, typical, and


certification of the Settlement is appropriate.

Inclusion in the Class, or any Subclass, of this Settlement is based upon easily
defined, objective, and common criteria.
Every Class member had a membership contract, and therefore, was
subject to the practices and policies alleged in the Third Amended
13

See Exhibit 11.


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Complaint. The Class Representatives are representative of the Class.


Every Gym Cancel Subclass member cancelled their membership
agreement, and, as alleged in the Third Amended Complaint, was subject
to the Urban Actives practices and policies which included charging
additional fees and refusing to honor, accept, and process gym
membership cancellations in accordance with its contracts and applicable
law.
All Class Representatives except Snyder and Cary are
representative of this Subclass.
Every FIF Subclass Member paid Urban Active a $15 Facility
Improvement Fee, and therefore, as alleged in the Third Amended
Complaint was subject to Urban Actives practice and policy of failing to
properly disclose these fees. All of the Class Representatives are
representative of this Subclass.
Every Personal Training Cancel Subclass Member cancelled a personal
training contact. Every member of this Subclass was, as alleged in the
Third Amended Complaint, subject to Urban Actives practices and
policies which included charging additional fees and refusing to honor,
accept, and process personal training cancellations in accordance with its
contracts and applicable law. Class Representatives Gascho, Tartaglia,
Buckenmeyer, Lundberg, Troutman, and Snyder are representative of this
Subclass.
Despite Class Representatives being subject to these common policies and
practices and typically suffering from the same type of injury, Zik/Hearon argue that the
Class Representatives and the Class claims are too disparate for settlement purposes.
Zik/Hearons argument is legally and factually incorrect.
Legally, Zik/Hearon completely misconstrues the seminal holding in Amchem
Products, Inc. v. Windsor, 521 U.S. 591 (1997).

In Amchem, the Supreme Court

affirmed the Thirds Circuits decision to reject a class action settlement related to
asbestos claims. In affirming, however, the Supreme Court criticized the Third Circuits
refusal to consider the fact of settlement as part of the Rule 23 analysis. The Supreme
Court said, settlement is relevant to a class certification and confronted with a
request for settlement-only class certification, a district court need not inquire whether

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the case, if tried, would present intractable management problems for the proposal
is that there be no trial. Id. at 619-20.

The Supreme Court went on to say that the

dominant concern is whether a proposed class has sufficient unity so that absent
members can fairly be bound by decisions of class representatives and that the Third
Circuit should have acknowledged that settlement is a factor in the calculus. Id. at
22. (Emphasis added).
Turning to the facts of Amchem, the Supreme Court said that regardless of the
Third Circuits incorrect application of the law, No settlement class called to our
attention is as sprawling as this one and specifically noted that a global class of
asbestos claimants could not satisfy Rule 23 because of individuals varying medical
expenses, smoking histories, and family situations. Id. at 624-25. Importantly, the
Supreme Court commented that, predominance is a test readily met in certain cases
alleging consumer or securities fraud or violations of the anti-trust laws. Id. (Emphasis
added.) Thus, this Litigation, as a consumer action, fits squarely within the Supreme
Courts instruction that predominance is a test readily met.
The other cases cited by Zik/Hearon also support approval of this Settlement.
See Reynolds v. Beneficial Natl Bank, 288 F. 3d 277, 282 (7th Cir. 2002) (rejecting
settlement for a number of reasons, none of which deal with any conflict of interest
between class members; in discussing the alleged conflict of interest, the court
specifically said, we are not disposed to regard this particular defect in the settlement
as fatal.); In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 801 (3d
Cir. Pa. 1995) (pre-Amchem decision holding that at the very least, the class should
have been divided into sub-classes so that a court examining the settlement could

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consider settlement impacts that would be uniform at least within the sub-classes.).
Following Amchem, numerous class actions involving allegations of consumer
fraud and misconduct similar to those in this case have been approved. For example,
the court in Manners v. American General Life Ins. Co., 1999 U.S. Dist. LEXIS 22880, at
*47-48 (M.D. Tenn. Aug. 10, 1999), found commonality and predominance because:
[P]laintiffs allege over 30 factual and legal issues common to the Class.
These allegations relate to whether AGL uniformly failed to disclose
material information relating to policy dividends, interest credits and
values, whether AGL developed a common scheme for fraudulently
inducing Class Members to purchase insurance, and whether AGL
implemented any such scheme by training agents to use uniformly
deceptive sales techniques and by providing agents with uniformly
deceptive sales materials and policy illustrations to be used with
prospective purchasers. Resolution of these issues will clearly so
advance the litigation that they may fairly be said to predominate.
Id. That court also rejected any argument that differences in state laws prevented
certification because (i) the Third Circuit had expressly rejected that argument, and (ii)
because, to the extent any variations in state law would suggest that the case might not
be readily manageable as a class action, that is an issue that the Supreme Court has
specifically stated a court need not consider in determining whether a class should be
certified for settlement purposes. Id. at 49-50 (citing Amchem, 521 U.S. at 620).
Likewise, the Court in Schwartz v. TXU Corp., 2005 U.S. Dist. LEXIS 27077, at
*46-49, 54 (N.D. TX 2005), certified a settlement class finding that commonality,
typicality, and predominance were all satisfied because the claims of all class members
rested on the same false and misleading statements, the alleged misconduct affected
the members of the class in the same manner, and the alleged misrepresentations
involved a series of statements that were uniformly distributed. Id. (emphasis added).
Here, like in Manners and Schwartz, the Class has alleged a course of conduct

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that was uniformly applied to the Class. In addition, the Subclasses allege a course of
conduct that was applied uniformly to each Subclass and resulted in the charging of
unlawful and undisclosed fees and dues. Zik/Hearons objections completely ignore
like they ignore Robins the fact that three distinct subclasses have been created
relating directly and objectively to the conduct of Urban Active which caused
Class/Subclass members damage. As noted in In re Inter-Op Hip Prosthesis Liab.
Litig., 204 F.R.D. 359, 376 (N.D. Ohio 2001):
Differences in state law . . . do not destroy class cohesion because the
settlement agreement provides for distribution of benefits based on the
objective criteria described therein. Similarly, individual issues relating to
causation, injury, and damage also disappear because the settlements
objective criteria provide for an objective compensation scheme. The
Court does not mean to state that the benefits of the settlement itself
provide a common issue which satisfies the predominance requirement;
rather, this Court finds that the common issues that preexisted the
proposed settlement -- involving a common product, defendant, and
course of conduct -- when considered in light of the proposed settlement,
predominate over any individual issues between class members.
Id. As such, the Class Representative and Class/Subclass Members share common
interests because the factual, legal, and remedial theories raised by the Representative
Plaintiffs are shared with the Class/Subclass Members.
F.

The Class Notice was proper.

In the Preliminary Approval Order, this Court approved the Claim Form, Legal
Notice (Notice), and Notice Postcard. Preliminary Approval Order 3. Despite this
approval, Zik/Hearon accuses Class Counsel of disingenuously claim[ing] that Notice
meets the requirements of Rule 23. Zik/Hearon Objections at 33.
To support this argument, Zik/Hearon first argues that the Legal Notice, rather
than the Notice Postcard, should have been mailed to all Class Members. No legal
support is provided for this argument because none exists. See Newberg on Class
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Actions 8:28 (5th ed.) (Even though the quantity of information conveyed on a
postcard is less than that included in a several-page notice, numerous courts have held
that postcard notice is more than sufficient. Notice sent by postcards is particularly
useful when used in conjunction with other forms of notice, including publication and
email. These short-form postcards may also include information telling class members
how to receive long-form notice if they want more information).
Next, Zik/Hearon acknowledges that whatever gets mailed to the Class Members
must interest them to the extent they access the more detailed description of the
settlement terms on the website. Zik/Hearon Objections at 33. Zik/Hearon then quotes
from the Federal Judicial Center saying, in part, [wi]th junk mail on the rise legal
notices must stand out. Notices can be discarded unopened. [and], a good notice
starts with envelope design. Id.
Here, the Postcard Notices do not have envelopes, do not have to be opened,
and thus there is no need for better envelope design.

In fact, the Settlement

Administrator and Newberg on Class Actions agree that Postcard Notice combined with
a website is particularly effective at producing high claim rates. See Exhibit 3 at 40.
Here, the Postcard Notice prominently lists both Global Fitness Holdings LLC
and Urban Active, it grabs the readers attention by saying they are entitled to money,
and then it highlights the Settlement website so the reader can gather more detailed
information. Simply put, the Legal Notice, Postcard Notice, email notice, reminder email
notice, general publication notice, and the numerous newspaper and television reports
combined to provide the Class with all of the information needed to learn about the
settlement and make an informed decision regarding participation in the Settlement.

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The Notice program was robust and exceeded the minimum requirements of due
process. Id. at 40,45.
G.

The Claims Process was reasonable and necessary.

The Objectors advocate for a direct payment system that would have sent more
than 140,000 checks to undeliverable addresses, and countless others to addresses in
which class members no longer resided. Id. at 14. This boilerplate objection, which is
often raised by professional objectors, especially CCAF, has been widely rejected
despite CCAFs claims to the contrary.

Indeed, courts recognize that a direct-

distribution of settlement benefitsis not a panacea. Schulte v. Fifth Third Bank, 805
F.Supp.2d 560, 594 (N.D. Ill. 2011) (citing In re: Educ. Testing Serv. Praxis Principles of
Learning and Teaching Grades 7-12, 2006 U.S. Dist. LEXIS 83479, 2006 WL 3332829,
at *2 (E.D. La. Nov. 15, 2006)
1.

A Claims Made Process is common and expected, including in


gym settlements.

The simple claims process employed in this case is common to consumer class
action settlements. See, e.g., Lonardo, 706 F. Supp at 766 (granting final approval to
settlement in which claimants who properly submit a claim form receive $18); Kritzer v.
Safeline Solutions, LLC, 2012 U.S. Dist. LEXIS 74994, **32 (May 30, 2012, S.D. Ohio)
(granting final approval to settlement in which claimants were required to submit a claim
form); In re Apple Iphone 4 Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 113876, at *11
(rejecting argument that claims process was overly burdensome where perspective
class members needed to provide only their name, address and iPhone serial number
and to check a box); Milliron v. T-Mobile, 2009 U.S. Dist. LEXIS 101201, at *19 (D. N.J.
Sept. 10, 2009) (Courts have frequently upheld claims forms such as the one utilized in

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this case, and the Court finds it perfectly appropriate to require Class members to
submit certain information proving that they are entitled to collect the relief awarded in
this case.); DeHoyos v. Allstate Corp., 240 F.R.D. 269, 314 (W.D. Tex. 2007). See
also Spark v. MBNA Corp., 48 F. Appx 385, 390 (3d Cir. 2002 ) (declining invitation to
fashion across-the-board rule requiring that all settlements provide only for an automatic
credit or disbursement and stating that a claims process is not inherently
inconsistent with a fair and reasonable settlement, as this case demonstrates.);
The claims process employed here is particularly suited to disputes involving
fitness clubs because the Class includes persons who provided their names and
addresses up to 8 years ago, and includes a large number of younger health club
members who tend to move, on average, more frequently than other age groups.
Moreover, Defendant used four different databases during the Class Period to collect
and store member information resulting in lost information related to older members.
Indeed, nearly 25% of the Notice Postcards were returned as undeliverable. This figure
does not include notices where the post office was able to make delivery, but the
intended recipient no longer resided at that address. Courts have found this problem to
be reason alone to reject the direct-payment approach CCAF demands. See In re:
Educ. Testing Serv. Praxis Principles of Learning and Teaching Grades 7-12, 2006 WL
3332829, at *2 (overruling objection because claims process prevents checks from
being mailed to unverified and old addresses and thereby reduces fraudulently cashed
checks).
Tellingly, courts around the country have approved claims processes like this one
involving fitness clubs. See, e.g., Martina v. L.A. Fitness Intl, Inc., 2013 U.S. Dist.

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LEXIS 145285, at *27 (D. N.J. October 8, 2013); Friedman v. 24 Hour Fitness USA,
Inc., 2010 U.S. Dist. LEXIS 143816, at *9 (C. D. Cal. July 12, 2010).
2.

The Open Claims Process resulted in potential new Class


Members and additional recoveries.

Objectors request for a direct-distribution settlement may have foreclosed the


identification of potential Class Members. Here, the wide publicity and simple open
claims process resulted in 3,900 claims by former club members who did not appear in
Urban Actives records. Exhibit 3 32-33.

Moreover, as noted on pages 5-6 herein,

the open claims process also resulted in an opportunity for thousands of Subclass
Members to recover more money than what was represented in Urban Actives records.
3.

Cases relied on by Objetors are inapplicable to this


Settlement.

The CCAF cites to a number of cases for the proposition that more and more
frequently courts are rejecting superfluous claims processes. CCAF Objection at 17.
To the extent that claims-made distributions have been rejected, they have been
rejected on unique facts and represent the rare exception not the rule. The authorities
cited by CCAF in support of its position are weak, at best.
For example, in Burden v. Selectquote Ins. Servs., 2013 U.S. Dist. LEXIS 16977
(N.D. Cal. Feb. 5, 2013), the Court did not reject a claims-made process, but instead
ordered supplemental briefing on the issue. CCAF neglects to inform this Court of the
subsequent decision rendered less than six weeks later approving the claims
process. See 2013 U.S. Dist. LEXIS 16977, at *17-18 (N.D. Cal. Mar. 18, 2013).
Similarly, the court in Smith v. Levine Leichtman Capital, found the entire settlement
problematic and questioned only one aspect of the proposed claims process. 2012 U.S.

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Dist. LEXIS 163672, at *8 (N.D. Cal 2012). Likewise, the advisory notice authored by
Judge Alsup which CCAF claims to be well-respected has not been cited by a single
court in the country.
H.

The class representatives enhancement payments are


reasonable and appropriate based upon their active
participation in this case and the favorable settlement.

The Class Representatives have adequately represented the Class.

Courts

routinely review and permit incentive awards (used interchangeably with enhancement
payments) to class representatives.14

See, e.g., Lonardo, 706 F.Supp. 2d at 787

(approving $5,000 incentive award for those who have extensively involved themselves
in litigation more than a typical class member); In re Dun & Bradstreet Credit Servs.
Customer Litig., 130 F.R.D. 366, 373-74 (N.D. Ohio 1990) (finding that [n]umerous
courts have not hesitated to grant incentive awards to representative plaintiffs who have
been able to effect substantial relief for classes they represent and approving incentive
awards ranging from $35,000-$55,000,); Wess v. Storey, 2011 U.S. Disc. LEXIS 41050
*12 (S.D. Ohio Apr. 14, 2011) (approving incentive award in a very modest amount of
$3,000 each).15 Given the prevalence of service payments and the frequency of their
approval, this Court should approve the modest Enhancement Payments.
The Class Representatives came forward and willingly assisted counsel in
prosecuting this action. As set forth in Plaintiffs Motion for Enhancement Payments,

14

Although the Sixth Circuit has never explicitly passed judgment on the appropriateness of
incentive awards, it has recognized there may be circumstances where incentive awards are
appropriate. Vassalle v. Midland Funding LLC, 708 F.3d 747, 756 (6th Cir. 2013) (citation omitted). That
said, nearly every class action settlement across the nation contains incentive awards.
15

See also, e.g., Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998); In re Mego Fin. Corp. Sec.
Litig., 213 F.3d 454, 463 (9th Cir. 2000); In re Southwest Airlines Voucher Litig., 2013 WL 4510197, at
*11 (N.D. Ill. Aug. 26, 2013); Masters v. Wilhelmina Modeling Agency, Inc., 473 F.3d 423, 430 (2d Cir.
2007); Jones v. Dominion Res. Servs., Inc., 601 F.Supp.2d 756, 768 (S.D. W.Va. 2009).
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the Class Representatives performed a range of tasks necessary to prosecute their


claims and protect the Class interests. Many Class Representatives suffered only $50
of damages or less, yet they willingly agreed to serve as class representatives with no
assurance that they would receive anything. See In re Synthroid Mktg. Litig., 264 F.3d
712, 722 (7th Cir. 2001) ([i]ncentive awards are justified when necessary to induce
individuals to become named representatives). Given the class representatives efforts
in bringing this case to counsel and assisting counsel, the agreed upon Class
Representative Enhancement Payments are within, and frankly below, typical awards.
Nevertheless, the CCAF objects saying that the Enhancement Payments render
the settlement unfair. This Objection ignores the relevant inquiry whether the class
representatives performed services benefiting the Class and fulfilled their fiduciary
obligations to the Class. Instead, it constitutes CCAFs ideological position, which relies
almost entirely on two settlements which are not comparable to the Settlement here.
The CCAF first compares this Settlement to In re Pampers Dry Max Litig., which
provided an incentive award payment of $1,000 per affected child. 724 F.3d at 716.
Class members, however, only received injunctive relief.16 Id. This disparity put the
class representatives in a situation in which they would be entitled to a different form of
relief, and an infinitely more valuable award than nearly every class member.
The CCAF also relies on Radcliffe v. Experian Info. Solutions, Inc., 715 F.3d
1157, 1165 (9th Cir. 2013), which provided $5,000 incentive awards expressly
conditioned on the class representatives support for the settlement. Id. at 1164. The
court said, we are not confronted with run-of-the-mill incentive awards, but rather a

16

Class Members were only eligible for a refund of one box of diapers if they saved UPCs and
receipts from diaper purchases.
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settlement provision that weighs on the class representatives independent judgment on


whether to support the settlement by calling for the denial of incentive awards if they do
not support it. Id. at 1167. One expert opined that he reviewed hundreds of class
action settlements without ever seeing a term expressly requiring class representatives
to support the settlement to obtain their incentive award. Id.
Last, the CCAF references the Sixth Circuits decision in Vassalle, but again that
case is distinguishable because the Vassalle named plaintiffs received a different type
of benefit

exoneration of their debts

than class members who retained their debt and

received less than $20. See Vassalle v. Midland Funding LLC, 708 F.3d 747, 755-56
(6th Cir. 2013).
Here, no preferential treatment exists and the incentive award is not
perfunctory.17

As of today, the average award per claimant is $36.41, with the

average Gym Cancel Subclass Member receiving $44.54. Importantly, the CCAF never
argues that the compensation arrangement to Class/Subclass members is inadequate.
This is fatal to many of the CCAFs arguments, including this one.
Moreover, the Settlement Agreement does not condition Enhancement Payments
on the Class Representatives support for the Settlement.

In fact, Class

Representatives must submit a claim form to receive relief just like any other Class
Member. See Settlement Agreement 8.1. The Enhancement Payment is provided
only for their service and assistance to the class and notably, the Settlement
17

The online Oxford Dictionary defines perfunctory as meaning (of an action or gesture) carried
out with minimum effort or reflection. See www.oxforddictionaries.com. The CCAF provides no evidence
to support a claim that the Settlement was not carefully considered and fervently negotiated by Class
Counsel. Moreover, the term perfunctory cannot be examined in a vacuum without considering the
individual claims and circumstances of the case. The CCAF, however, ignores all circumstances of this
case (perhaps because its client suffered zero damages), and instead seems to argue that all negotiated
settlements, which necessarily involve some compromise, are perfunctory.

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Agreement even varies the amount of the Enhancement Payment based upon the
varied burdens and obligations each Class Representative faced.18 Id. at 8.1 - 8.2.
No Class Representatives was promised any payment at the onset of the case nor was
any promised service payments only if they agreed to the Settlement.
The CCAFs entire Objection relies on the errant assumption that the Settlement
is somehow unfair. However, once this Court determines that the Settlement is fair, it
implicitly acknowledges that the Class Representatives aptly fulfilled their role, and a
strong presumption should exist that the Class Representatives incentive awards are
proper. As such, this Court should overrule the CCAFs Objection.
I.

Class Counsels fee request is reasonable under both the


lodestar and common fund approach as adopted by Courts in
the Sixth Circuit.

Courts in this Circuit have wide discretion as to whether to employ a lodestar or


common benefit approach to counsel fees, and frequently one method of analysis is
employed as a cross-check on the other. See Van Horn, 2012 U.S. Dist. Lexis 42357,
at **8. Here, a lodestar approach with a common benefit cross-check is employed.
1.

The Lodestar Approach is best suited for this Settlement.

The lodestar approach is particularly appropriate here for at least two reasons.
First, a significant number of Plaintiffs claims involve fee shifting statutes. See
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550-51 (2010) (adopting lodestar
analysis in most situations where fee shifting is the appropriate remedy). Plaintiffs core

18

In a similar way, the Staton case referenced by the CCAF in footnote 10 fares no better when
analyzed in conjunction with the actual terms of this settlement. Staton v. Boeing Co., 327 F.3d 938, 97677 (9th Cir. 2003). The Ninth Circuit was evaluating incentive awards of up to $50,000 and that averaged
$30,000 per class representative. Id. Even non-named class members were to receive such payments,
which the Court observed was not fair. Id. Thus, that court acknowledged that the incentive awards need
to be evaluated individually to ensure their fairness. Id. at 977.

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claims in Kentucky and Ohio were based upon the Kentucky Health Spa Act (KRS
367.900 et seq.) and the Ohio Consumer Sales Practices Act (O.R.C. 1345.01 et seq.),
which contain fee shifting provisions. See KRS 367.930(2) and O.R.C. 1345.09(F)(2).
Ohio courts routinely grant lodestar awards or reasonable attorneys fees that
exceed the relief obtained. See Luft v. Perry County Lumber & Supply Co., 2003 Ohio
2305 (10th Dist.) (recovery of $86,115 in attorney fees on recovery of $8,000); Ferrari v.
Howard, 2002 Ohio 3539 (8th Dist.) (reversing trial court decision that only allowed
attorney fee recovery of $600 on an amount in controversy of $670). In Bittner v. TriCounty Toyota, 58 Ohio St. 3d 143, 569 N.E.2d 464 (1991), the Ohio Supreme Court
made it clear that the determination of attorney fees under the Ohio Consumer Sales
Practices Act should not be a function of the amount recovered on behalf of the plaintiff
in order to avoid frustrating the public policy favoring private enforcement of Ohios
consumer protection laws.

The over-arching policy behind these decisions require

courts to award a fee that is both reasonable and sufficient to incentivize lawyers to take
these important cases at their own risk.

As such, it is critical that attorneys are

reasonably compensated for bringing actions on behalf of consumers.


Second, the lodestar approach is particularly appropriate in cases where the
award of attorney fees does not diminish the fund available to the class. See Lonardo,
706 F. Supp. 2d at 789 (adopting a lodestar approach because the provision for
attorneys fees was independent of the benefit to the class).
The CCAF entirely rejects the lodestar analysis arguing that an attorney fee can
never be independent of the common fund. This argument fails because the classs

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recovery here was negotiated before, and independently of, attorneys fees,19 and
because the CCAFs position is contrary to the law of this Circuit.
The lodestar approach is firmly established as an appropriate methodology to
award fees in the Sixth Circuit. See Van Horn at *9; Bldg. Serv. Local 47 Cleaning
Contractors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1401 (6th Cir. 1995).
Moreover, the District Court in Lonardo rejected these same arguments also made by
CCAF. In adopting a lodestar approach, with a common benefit cross-check, that court
reminded the CCAF that relying purely on a common benefit analysis would often
significantly undervalue class counsels service to the class and the public, and that
courts may choose to use lodestars, cross-checked by the common benefit, to reach an
accurate and well-reasoned result. Lonardo, 706 F.Supp. 2d at 789-92. The Lonardo
court also reminded the CCAF that it had expressly admitted that there is a strong
presumption that an unenhanced lodestar figure is a reasonable fee. Id. at 816.
In summary, the Objections ignore entirely the reasonableness of applying a
lodestar to Class Counsels fee request.

The Objectors failure is likely borne of

ideology rather than reality given Class Counsel will receive less than their total lodestar
value. Moreover, Class Counsel accepted this representation on a contingent basis,
expended an immense of amount of time, and secured an exceptional benefit for the
class. See Kritzer v. Safeline Solutions, LLC, 2012 U.S. Dist. LEXIS 74994, at *30 (May
30, 2012, S.D. Ohio) (noting that some courts consider the risk of non-recovery the
most important factor in fee determination.)

19

See Declarations of Thomas N. McCormick and Mark Troutman (Class Counsel), and Richard
Gurbst (Defense Counsel) attached as Exhibits 12-13.

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2.

A Common Fund Cross-check establishes the reasonableness


of Class Counsels lodestar award.

Courts routinely use a common-fund cross-check in cases in which a lodestar fee


award has been requested. See, e.g., Van Horn, 2010 U.S. Dist. LEXIS 42357, at *2125; Lonardo v. Travelers Indemnity Co., 206 F. Supp. 2d 766, 796 (S.D. Ohio 2010). As
established in Class Counsels Motion for Fees (Docket No. 114 at 14-15), the
requested fee is reasonable because it is at the low end of percentages of common
funds awarded by Ohio courts.
Recognizing this, the CCAF urges this Court to adopt a valuation method
contrary to the law in the Sixth Circuit. A recent Sixth Circuit decision reviewed these
same arguments (also presented by the CCAF), and soundly rejected them. See Van
Horn, 2010 U.S. Dist. LEXIS 42357 (S.D. Ohio), affd 436 F. Appx (6th Cir. 2011).
Moreover, recent district court cases from within this circuit have likewise
rejected the CCAFs arguments. In Lonardo, the Court carefully considered an identical
CCAF Objection. 706 F.Supp. 2d at 800-02. After extensive analysis and thorough
consideration, the court explicitly rejected the CCAFs position and instead used the
mid-point between the actual funds available to the class and the amount paid out (or
likely to be paid out) to the class. Id. at 802. In rejecting the CCAFs argument, the
Court noted this was precisely the argument that had already been rejected by the
Second, Ninth, and Eleventh Circuits. (Citations omitted). Moreover, that Court said
that the CCAFs position conflicted with the principle articulated in Boeing Co. v. Van
Gemert, 444 U.S. 472 (1980), which held that the Available Benefit is a benefit, and as
a corollary to that principle, that an important aspect of the Courts responsibility in
evaluating the Settlement Agreement is to ensure that class counsel is fairly

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compensated for the work done and the result achieved.


Following Boeing and Lonardo, the court in Physicians of Winter Haven LLC v.
Steris Corp., 2012 U.S. Dist. LEXIS 15581 (N.D. Ohio), awarded an attorney fee based
upon class counsels estimate of the total class benefits of approximately $20 million.
The CCAF does not cite a single case from the Sixth Circuit to support its
position that the percentage should be calculated on the basis of the amount paid out to
the class rather than the total amount available to the class, and indeed, none exist.20
In an earlier portion of the Objection (p. 17), the CCAF cites to a few cases from other
jurisdictions to support its claim that the amount claimed should constitute the
appropriate valuation of the common fund, however, all of these cases are easily and
readily distinguishable from the present case. Moreover, in none of these cases did a
court state that the reasonableness of attorney fees was to be determined only on the
basis of the amount actually paid out.21
3.

Plaintiffs Fee Request is Reasonable in Proportion to Damage


Actually Suffered by the Class.

Pursuant to this Settlement, over 606,000 class members had the opportunity to
complete a simple claim form providing nothing more than their name, address, and
other contact information. The average claimant will be receiving a payment of $36.42,
20

In the course of its argument on this issue, CCAF does cite to In re Dry Max Pampers Litigation,
however, that case stands only for the unobjectionable proposition that settlement values cannot be
premised on a fictive world. This Settlement is hardly fictive. The total amount of money available to
the Class can be established with near certainty through a simple mathematical calculation of total
number of Class/Subclass members multiplied by the award to each.
21

The CCAF also argue that Boeing was superseded by the 2003 Amendments to Federal Rule of
Civil Procedure 23 and the Class Action Fairness Act in 2005. However, the CCAF provides no
explanation, and, aside from citation to a single law review article, provides no authority whatsoever for
this proposition. The CCAF also cites to the Federal Judicial Center Manual for Complex Litigation,
th
21.71 (4 ed. 2004), but again never explains how this authority supersedes the established law of this
Circuit as noted above.

36

Case: 2:11-cv-00436-GCS-NMK Doc #: 128 Filed: 01/23/14 Page: 45 of 50 PAGEID #: 2291

which is more than 140% of the cost of average monthly due paid by a member.

For

this significant reward, Class counsel has agreed to accept less than their current
lodestar value.

Pursuant to this Settlement, over 606,000 class members had the

opportunity to complete a simple claim form providing nothing more than their name,
address, and other contact information. For this simple task, Class Members were
eligible to receive between $5 and $75.

The average claimant will be receiving a

payment of $36.42, which is more than 140% of the cost of average monthly due paid
by a member.
Thus, unlike the cases cited by the Objectors, this is not a case in which the
attorneys get a windfall and the class gets only coupons of little value. See, e.g., In re
Dry Max Pampers Litig., 724 F.3d 713. Nor is it a case where the cash recovery by the
class represents only a tiny portion of the actual damages suffered by the class
members. This is a case in which counsel took a significant risk, obtained an excellent
result, and deserves the fee that it has requested.
It is ironic that the CCAF claims that the class has settled for something less
than adequate compensation while the attorneys have prospered. The CCAFs client,
Blackman joined an Urban Active gym after the filing of this lawsuit, cancelled his
membership during the three-day cancellation period, and received a full refund.
Blackman has paid absolutely nothing to Urban Active, seeks to recover $25, yet argues
that Class Counsel has settled his claims for less than full value.
4.

Although not a necessary disclosure, Class Counsels fee


distribution is consistent each firms lodestar totals.

While such disclosure is not necessary for Final Approval, and it provides
absolutely no useful information to the Class, Class Counsel will split this Courts Award

37

Case: 2:11-cv-00436-GCS-NMK Doc #: 128 Filed: 01/23/14 Page: 46 of 50 PAGEID #: 2292

of attorney fees and costs consistent with, and pursuant to, each firms lodestar value.
Specifically, after costs are reimbursed, the Vorys Firm will recover 72% of the
remainder and the Isaac Wiles firm will recover 28% of the remainder. Because Class
Counsels Fee Request is less than Class Counsels current combined lodestar value,
these percentages were calculated to appropriately divide the award. Class Counsels
fee request is consistent with applicable case law, and the expectation that class
counsels fees should be based on time and effort expended, and the value provided.
5.

Zik/Hearon argument is inconsistent with the CCAF regarding


Class Counsels fee awards, but neither is correct.

As discussed above, the CCAF argues that the agreed upon attorney fee award
is too much.

At first, Zik/Hearon appears to support the CCAF by including in its

Objection one unsupported sentence suggesting that the fees are excessive when
compared to the value to the class. Zik/Hearon Objection at 35. Then, Zik/Hearon take
an immediate 180 degree turn and argue that if the Settlement is Finally Approved
Zik/Hearons counsel should be paid $640,000. See Zik/Hearon Objection, n. 8. This
outlandish demand is contrary to the law, unsupported, and is mathematically flawed.
In their argument, Zik/Hearon presumes that an unsuccessful negotiation with the
Vorys firm for a co-counsel arrangement magically entitles them to a significant award
despite the fact that negotiation ended approximately nine months before this
Settlement was consummated.

Zik/Hearon then proffers that 40% of the class

members are from Kentucky (which is incorrect) and arrive at a $956,000 fee award
attributable to the relief obtained for the Kentucky class members. Zik/Hearon then
claim they are entitled to attorneys fees of $637,000, which is approximately 67% of the
total fee they attribute to Kentucky!

Were the math correct, their erroneous and

38

Case: 2:11-cv-00436-GCS-NMK Doc #: 128 Filed: 01/23/14 Page: 47 of 50 PAGEID #: 2293

unsupported claim would be $382,400.22


Zik/Hearon played absolutely no role in the prosecution of this action, the
negotiations of this Settlement, and the substantial relief being provided to the Class. In
fact,

Zik/Hearons

counsel

spends

more

than

35

pages

of

its

Objections

mischaracterizing the Settlement in an attempt to advance its own interests not the
Class. This Court should recognize the objection for what it is -- an attempt by counsel
for Zik/Hearon to appropriate with no basis or justification the reasonable fees that have
been requested by Class Counsel.
6.

The CCAFs clear sailing and kicker arguments are without


merit.

The CCAF suggests at pages 18-21 of its Objection that the clear sailing and
kicker provisions are somehow evidence of collusion between the Plaintiffs and
Defendant. Again, the CCAF ignores the Sixth Circuit law and the undisputed facts.
The CCAFs entire argument on these points (in fact, its entire Objection) is
based on erroneous factual assumptions: (1) that Counsels fees were not negotiated
after class relief had been fully determined and (2) the negotiations concerning fees
somehow affected the relief available to the class. The CCAF, however, provides no
evidence to support this claim. No evidence exists because the CCAFs allegations are
categorically false. See Exhibit 12 (McCormick Declaration at 8-10 and Troutman
Declaration at 12-14) and Exhibit 13 (Gurbst Declaration at 8-10 ). See also
Class Counsels Motion for Fees (Docket No. 114) at 12-13. To finalize the settlement
and make relief available to the class on an expedited basis, Counsel agreed to accept

22

Zik/Hearon comment on what they believed were failures to provide information concerning Class
Counsels fees but provide none of their own. Even assuming that their argument makes sense, there is
nothing upon which this Court could base any award of attorneys fees or costs to Zik/Hearon.
39

Case: 2:11-cv-00436-GCS-NMK Doc #: 128 Filed: 01/23/14 Page: 48 of 50 PAGEID #: 2294

a fee below its lodestar. Once the CCAFs central thesis is abandoned, its argument
collapses.
Agreement of counsel as to fees is normal, and such agreements have been
upheld and enforced in numerous cases in this circuit. See, e.g., Kritzer v. Safeline
Solutions, LLC, 2012 U.S. Dist. LEXIS 74994 (May 30, 2012, S.D. Ohio) (negotiated fee
in settlement agreement); Lonardo v. Travelers Indemnity Co., 706 F. Supp. 2d 766
(N.D. Ohio 2010) (agreement not to oppose fee request no greater than $4.6 million);23
As with the CCAFs other arguments, his kicker argument is again dependent
on the unsupported premise that fees in this case were not negotiated independently of
class relief. The CCAFs argument also has no support in Sixth Circuit law, and the
CCAF cites none.24 When the attorney fee has been independently negotiated, courts
in the Sixth Circuit, including the Court of Appeals in Van Horn, recognize that the
attorney fees constitute an additional benefit to the class. Van Horn, 436 Fed. Appx. at
501; Lonardo, 706 F. Supp. 2d at 803.
Moreover, given the independence of the class relief and the fee agreement in
this case, it is only reasonable and fair that if the Court finds the fee request to be
unreasonable that the remainder should revert to the Defendant.

As the Court in

23

As CCAF acknowledges, the single Sixth Circuit case he cites, Gooch v. Life Investors Ins. Co. of
Am., 672 F.23d 402 (6th Cir. 2012), approved a settlement involving a clear sailing provision. In fact, the
Court upheld the settlement agreement stating that it seems likely the result of the already protracted
history of litigation between the parties a history that evidence adversity to such a degree that we have
serious doubts that plaintiffs counsel subsequently engaged in collusion with a longstanding adversary.
Id. at 426. Here, the Court is well aware of the longstanding adversary relationship between the parties.
24

CCAF does cite Pampers for the obvious economic reality that a settling defendant is concerned
with his total liability. However, the court in Pampers had nothing to say about the effect, or lack thereof,
of a kicker clause in a settlement agreement. Moreover, as previously described, the facts of Pampers
could not be more distinguishable from the facts of the present case.

40

Case: 2:11-cv-00436-GCS-NMK Doc #: 128 Filed: 01/23/14 Page: 49 of 50 PAGEID #: 2295

Lonardo recognized

and CCAF ignores

this is not a common fund case.25 The

attorney fees do not come out of the class relief; they are in additional to, and
been previously argued

as has

are considered by courts in the Sixth Circuit to be an

additional benefit to be added to the class relief in determining the value of a settlement.
If Class Counsels fee request is for any reason unreasonable

which it clearly is not

any reversion to the Defendant will not affect the relief to the class.
IV.

CONCLUSION
For the reasons set forth above, and for the reasons set forth in Plaintiffs Joint

Motion for Final Approval to be filed on February 4, 2014, this Court should reject the
Objections of Zik/Hearon and Blackman, Finally Approve the Class Action Settlement,
and award Class Representative Enhancement Payments and attorneys fees and costs
as agreed in the Settlement Agreement.

25

The CCAF argues that the attorney fees should be considered part of a constructive common
fund. It provides no definition for this term, no authority for its use or application in the Sixth Circuit, and
no justification for treating it as such.
41

Case: 2:11-cv-00436-GCS-NMK Doc #: 128 Filed: 01/23/14 Page: 50 of 50 PAGEID #: 2296

Respectfully submitted,
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, LLP
Two Miranova Place, Suite 700
Columbus, Ohio 43215
(614) 221-2121
Facsimile: (614) 365-9516

James B. Lind (0083310)


jblind@vorys.com
VORYS, SATER, SEYMOUR AND
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

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on January 23, 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
Thomas N. McCormick (0075496)
tnmccormick@vorys.com

42
1/23/2014 18500972

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-1 Filed: 01/23/14 Page: 1 of 20 PAGEID #: 2297

EXHIBIT 1

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-1 Filed: 01/23/14 Page: 2 of 20 PAGEID #: 2298


Urban Active agrees to $19 million settlement in membership dispute
Business First of Columbus
November 1, 2013 Friday
Copyright 2013 American City Business Journal, Inc. All Rights Reserved

Length: 251 words


Byline: Dan Eaton

IBody

More than 600,000 former customers of Urban Active are eligible for a piece of a $19 million
settlement from the defunct fitness center chain.
Global Fitness Holdings LLC and plaintiffs in a class-action lawsuit against the company said Friday
they had resolved their dispute over the companys business practices in a U.S. District
Court fight that stretches back two years. The fitness chain, which was sold to LA Fitness and
rebranded last year, faced allegations of improper sales, servicing and billing practices.
Lexington, Ky.-based Global Fitness denied any wrongdoing in the dispute.
The settlement affects anyone who signed a gym membership or personal training contract with
Global Fitness Holdings between Jan. 1, 2006 and Oct. 26, 2012. More than 600,000 former members are believed to be eligible for individual awards estimated to at $25 to $75. Those former
members have 60 days to file claims. They can do so and get details at UrbanActiveLawsuit.com .
Heres how the settlement breaks down:
$5 for anyone who signed a contract.
$20 for anyone who paid a $15 facility improvement or maintenance fee.
$20 for anyone who canceled a gym membership contract.
$30 for anyone who canceled a personal training contract.
The plaintiffs were represented by Columbus-based Vorys Sater Seymour and Pease LLP and
Isaac Wiles Burkholder & Teetor LLC.
Did you find this article useful? Why not subscribe to Business First of Columbus for more
articles and leads? Visit bizjoumals.comlsubscribe or call 1-866-853-3661.

Classification

Language: ENGLISH
Publication-Type: Newspaper
Subject: LITIGATION (91%); FITNESS CENTERS (91%); CLASS ACTIONS (90%);
EXERCISE & FITNESS (90%); SETTLEMENT & COMPROMISE (90%); SUITS & CLAIMS
(90%); HOLDING COMPANIES (90%); SPORTS INSTRUCTION (90%); BUSINESS TORTS
(77%); MAJOR US LAW FIRMS (7 1%)

EXHIBIT 1

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-1 Filed: 01/23/14 Page: 3 of 20 PAGEID #: 2299


Page 2 of 2
Urban Active agrees to $19 million settlement in membership dispute

ISAAC WILES BURKHOLDER & TEETOR LLC (81%); VORYS SATER


Company:
SEYMOUR & PEASE LLP (63%); BUSINESS FIRST OF COLUMBUS INC (5 1%)
Industry: NAICS541110 OFFICES OF LAWYERS (81%); SIC8111 LEGAL SERVICES
(81%)
Geographic: LEXINGTON, KY, USA (79%); KENTUCKY, USA (79%); UNITED STATES
(79%)
Load-Date: November 1, 2013

Case: 2:11-cv-00436-GCS-NMK
Doccase
#: 128-1
01/23/14
Page: 4 of 20 PAGEID
2300
Settlement
reached in Urban Active
I TheFiled:
Columbus
Dispatch
Page #:
1 of
1

Settlement reached in Urban Active


case
ls tim Fermi
The Columbus Dispatch

Friday November 1, 2013 12:53 PM

A class action lawsuit


involving urban Active
and its members has
been settled after more
than two years of
litigation and months of
negotiation, according
to a filing in federal
court in Columbus.
The lawsuit alleged
problems with sales,

A year ago. Itentocky-hased Urban Active


by Caifor nra-based LA Fitness

bought

was

servicing and billing


practices.
More than 606,000 former members are eligible for the settlement, and
the total settlement could exceed $19 million. Urban Active owner Global
Fitness Holdings continues to deny any wrongdoing but has agreed to the
terms of the settlement.
Among the individual payments due to former members: Those who
signed a contract with Urban Active are eligible for a $5 payment; those
who paid a $15 facility improvement fee or maintenance fee will get $20;
those who canceled a gym membership contract will get $20; those who
canceled a personal training contract get $30.
A notice on how to file a claim was mailed to members this week.
Additional information and claim forms are also available at
www.tirbanActivel.awsuit,cons.
A hearing on the fairness of the settlement is scheduled for February.
A year ago, Kentuckyba.sed Urban Active was bought by California-based
LA Fitness. Urban Active had 36 locations in all, in Ohio, Kentucky,
Tennessee, Georgia, Nebraska, North Carolina and Pennsylvania.
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http://www.dispatch.com/content/stories/business/2013/1 1/01/urban-active... 11/12/2013

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-1 Filed: 01/23/14 Page: 5 of 20 PAGEID #: 2301


Lawsuit; Urban Active class action settled
The Columbus Dispatch (Ohio)
November 2, 2013 Saturday
Copyright 2013 The Columbus Dispatch All Rights Reserved

litu
!Jte duudius 0*
*h
Section: BUSINESS; Pg. 4D
Length: 212 words
Byline: Tim Feran, THE COLUMBUS DISPATCH
IBody

A class-action lawsuit involving fitness chain Urban Active and its members has been settled after
more than two years of litigation and months of negotiation, according to a filing in federal court in
Columbus.
The lawsuit alleged problems with sales, servicing and billing practices.
More than 606,000 former members are eligible for the settlement, and the total settlement could exceed
$19 million. Urban Active owner Global Fitness Holdings continues to deny any wrongdoing but has
agreed to the terms of the settlement.
Among the individual payments due to former members: Those who signed a contract with Urban
Active are eligible for a $5 payment; those who paid a $15 facility improvement fee or maintenance
fee will get $20; those who canceled a gym membership contract will get $20; those who canceled a
personal-training contract will receive $30.
A notice on how to file a claim was mailed to members this week. Additional information and
claim forms are available at www.urbanactivelawsuit.com .
hearing on the settlement is scheduled for February.
year ago, Kentucky-based Urban Active was bought by California-based LA Fitness. Urban Active had 36 locations in Ohio, Kentucky, Tennessee, Georgia, Nebraska, North Carolina and Pennsylvania.
tferan(disoatch.com

I Classification
Language: ENGLISH
Publication-Type: Newspaper
Subject: LITIGATION (96%); CLASS ACTIONS (91%); SUITS & CLAIMS (90%); FITNESS
CENTERS (90%); SETTLEMENT & COMPROMISE (78%); SPORTS INSTRUCTION
(78%); LAW COURTS & TRIBUNALS (77%); ALTERNATIVE DISPUTE RESOLUTION
(77%)
Geographic: COLUMBUS, OH, USA (72%); KENTUCKY, USA (90%); OHIO, USA (79%);
NORTH CAROLINA, USA (79%); CALIFORNIA, USA (50%); UNITED STATES (90%)

Case:Active
2:11-cv-00436-GCS-NMK
128-1members
Filed: 01/23/14
Page: Busine...
6 of 20 PAGEID
#: 2
2302
Urban
settlement nets cashDoc
for #:
former
- Cincinnati
Page 1 of

From the Cincinnati Business Courier


http: / /www.bizjournals.com/cincinnati/ newsl 2013/11/04/urban-activesettlement- nets-cash-for. html
Nov 4, 2013, 2:17pm EST

Urban Active settlement nets cash for


former members

Andy Brownfield
Reporter- Cincinnati Business Courier
E mail I Twitter I Linkedln I Google+
A class action settlement with the former largest gym chain in the Tri-State has netted cash
for more than half a million former Urban Active Fitness members who were allegedly
overcharged.
The settlement with Lexington, Ky.-based Global Fitness Holdings over the fees and
business practices of Urban Active gyms could potentially result in more than $19 million in
payments. Global Fitness Holdings agreed to the terms of the settlement, but continues to
deny any wrongdoing.
The lawsuit claims that Urban Active charged a bogus $15 facility improvement or
maintenance fee, failed to honor cancelation notices on contracts, continued to charge
members after they canceled their contracts and misrepresented the terms and durations of
personal training and other contracts.
Those alleged practices earned the chain an "F" ranking from the Better Business Bureau.
The class action suit was filed by Vorys, Sater, Seymour and Pease from its Columbus,
Ohio, office.
"Were pleased this settlement allows for cash payments to class members," Vorys partner
Tom McCormick told me. "Oftentimes in settlements like this, the benefit is a coupon, and
we think obviously class members would get greater benefit from a cash payment."
Anyone who signed a contract with Urban Active between Jan. 1, 2006 and Oct. 26, 2012 more than 600,000 people - is eligible for a $5 cash payment. People who paid the facility
maintenance or improvement fee are eligible for a $20 payment. People who canceled their

http

ournals.com/cincinnati/news/20 13/11/04/urban-active-settle... 11/5/2013

Case:Active
2:11-cv-00436-GCS-NMK
128-1members
Filed: 01/23/14
Page: Busine...
7 of 20 PAGEID
#: 2
2303
Urban
settlement nets cashDoc
for #:
former
- Cincinnati
Page 2 of
gym memberships will get an additional $20, and anyone who canceled their personal
training contract is eligible for a $30 payment.
Former members who file claims at www.UrbanActiveLawsuit.com

can receive up to $75.

Global Fitness Holdings operated six gyms in Cincinnati and three in Northern Kentucky.
Brownfield covers technology, startups, manufacturing and courts.

http://www.bizjournals.com/cincinnati/news/20 13/11/04/urban-active-settle... 11/5/2013

Case:Active
2:11-cv-00436-GCS-NMK
Doc
#: 128-1 Filed:
01/23/14 Page: I 8cincinn...
of 20 PAGEID
2304
Urban
agrees to compensate
ex-members
Page #:
1 of
1
I Cincinnati.com

Urban Active agrees to compensate ex-members


Written by Bowdeya Tweh
Nov. 4, 2013 10:I6PMI

cincinnati.com

Former Urban Active Fitness members in Greater Cincinnati and Northern Kentucky could
receive compensation as part of a lawsuit filed over the companys sales, service and billing
practices.
A federal judge in Columbus granted preliminary class-action status to a suit representing
people who signed a gym membership or personal training contract between Jan. 1, 2006,
and Oct. 26, 2012, with Global Fitness Holdings LLC.
At least 600,000 people could be eligible to participate in the settlement and receive
between $5 and $75.
Ohio and Kentucky residents initially sued Global Fitness in 2011 claiming staff
misrepresented terms of membership contracts, overcharged members bank accounts, and
made it difficult for members to cancel their accounts.
"Were just very pleased that we were able to reach a settlement, and the settlement
provides a cash payment to class members," said Thomas McCormick, partner at Vorys,
Sater, Seymour & Pease LLP in Columbus.
Global Fitness denied wrongdoing in the lawsuit in court filings but agreed to settlement
terms.
Urban Active Fitness was a subsidiary of Global Fitness Holdings LLC and had nine facilities
in Greater Cincinnati and Northern Kentucky. L.A. Fitness bought all Urban Active Fitness
facilities last year.
Fore more information about the settlement and to file a claim, visit
www.urbanactivelawsuit.com . L
What did you think about this article? Send us your feedback.
Activate your account today and get the most from your subscription. Not a subscriber? Get
started now.

http://news.cincinnati.com/artic1e/2O 13 110 5 /B IZ/3 11050014/Urban-Active-... 11/5/2013

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-1 Filed: 01/23/14 Page: 9 of 20 PAGEID #: 2305

Editor: Five things you need to know today


Cincinnati Business Courier
November 5, 2013 Tuesday
Copyright 2013 American City Business Journal, Inc. All Rights Reserved

Cotwult

Length: 422 words


Byline: Rob Daumeyer
IBody

Good morning, Cincinnati! Apologies in advance for the trending-on-Google "horse slaughter"
thing below (_heres the story on that). Not a great way to get your day started, I know.
But ... here are the five most important things you need to know to help you start your busy business
day:
Latest news on University Station
The corner of Dana and Montgomery roads, near Xavier University, has long been an eyesore.
Vacant. Windswept. No longer. Construction started this summer on University Station, and now the
final piece is in place: Steve Watkins (_@SteveCinciBiz) reports that U.S. Bank has completed a
$43 million financing of the mixed-use development. Click here for the details on the other funds
being made available for the project.
Stop calling me that
I realize that the very act of writing these sentences wont help, but heres hoping this nickname
doesnt stick to U.S. Sen. Rob Portman. Chris Wetterich (_@ChrisCinciBiz) reminds us that Portman was under strong consideration to be Mitt Romneys running mate in last years presidential
election, and that since the whole selection thing was very hush-hush, some nicknames were
thrown around.
Cash from Urban Active
Ive always known going to the gym was a bad idea. The one time I tried, everyone seemed so
unhappy. Either way, Courier courts reporter Andy Brownfield (_@AndyCinciBiz) writes that a
class action settlement with what was the largest gym chain in the Tri-State has netted cash for more
than half a million former Urban Active Fitness members who were allegedly overcharged. Get the story here.
Yea for Hamilton!
Good news here for a city that needs all it can get: Procter & Gamble will lease a vacant 317,000
-square-foot industrial building in Hamilton to develop plastics processing technology for injection
molding, a packaging breakthrough that could save P&G at least $200 million annually. Our man on
the P&G beat, Barrett J. Brunsman (_@BarrettCinciBiz), has more right here.

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-1 Filed: 01/23/14 Page: 10 of 20 PAGEID #: 2306


Urban Active agrees to compensate ex-members
The Cincinnati Enquirer (Ohio)
November 5, 2013 Tuesday, 1 Edition
Copyright 2013 The Cincinnati Enquirer All Rights Reserved
Section: A; Pg. 9
Length: 225 words
Byline: By, Bowdeya Tweh

Body

Former Urban Active Fitness members in Greater Cincinnati and Northern Kentucky could receive compensation as part of a lawsuit filed over the companys sales, service and billing practices.
A federal judge in Columbus granted preliminary class-action status to a suit representing people
who signed a gym membership or personal training contract between Jan. 1, 2006, and Oct.
26, 2012, with Global Fitness Holdings LLC.
At least 600,000 people could be eligible to participate in the settlement and receive between $5 and
$75.
Ohio and Kentucky residents initially sued Global Fitness in 2011 claiming staff misrepresented
terms of membership contracts, overcharged members bank accounts, and made it difficult for
members to cancel their accounts.
"Were just very pleased that we were able to reach a settlement, and the settlement provides a cash
payment to class members," said Thomas McCormick, partner at Vorys, Sater, Seymour & Pease
LLP in Columbus.
Global Fitness denied wrongdoing in the lawsuit in court filings but agreed to settlement terms.
Urban Active Fitness was a subsidiary of Global Fitness Holdings LLC and had nine facilities in
Greater Cincinnati and Northern Kentucky. L.A. Fitness bought all Urban Active Fitness facilities last year.
Fore more information about the settlement and to file a claim, visit www.urbanactivelawsuit.com.

Classification

Language: ENGLISH
Publication-Type:
Journal Code:

Newspaper

cm

Subject: LITIGATION (91%); SUITS & CLAIMS (91%); SETTLEMENT & COMPROMISE
(90%); HOLDING COMPANIES (90%); CLASS ACTIONS (78%); EXERCISE & FITNESS
(78%); JUDGES (78%); SPORTS INSTRUCTION (78%); MAJOR US LAW FIRMS (77%)
Company: VORYS SATER SEYMOUR & PEASE LLP (65%)

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-1 Filed: 01/23/14 Page: 11 of 20 PAGEID #: 2307


Page 2 of 2
Urban Active agrees to compensate ex-members

Industry: NAICS541110 OFFICES OF LAWYERS (65%); SIC8111 LEGAL SERVICES


(65%)
Geographic: COLUMBUS, OH, USA (90%); CINCINNATI, OH, USA (90%); KENTUCKY,
USA (94%); OHIO, USA (90%); UNITED STATES (94%)
Load-Date: November 5, 2013

Case:Active
2:11-cv-00436-GCS-NMK
Doc #: 128-1
Filed: 01/23/14
Page: 12 of 20 PAGEID
Page#:1 2308
of 3
Urban
members eligible for payments:
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earl.
OU,ban%

Urban Active members eligible for payments: Plain


Dealing
Oentitted%

Print (hftp:IlbIog.cIeveIand.cenlconsomemffairsIprtnt.htmI?

uto%

entryI2Ol3ll 1/urban_active_ members _eligible.html)


(http:llconnect.cleveland.comluserlsbhamslindex.html) By Sheryl Harris, The Plain Dealer

Oa%
of

(http:!!connect.cteveland.com/userlsbhamslposts.html)
Follow on Twitter (http:Iltwitter.comjcensemerwnter)

ot;

on November 14, 2013 at 542 PM, updated November 14, 2013 at e34 PM

Get skills for the 21st Century! Get


Certified for Todays Jobs!
(http:llads.cleveland.com/RealMedia!adslclick_lx.ads/www.Clevelafld.ComiCOflSumeraffairs/2013/1 liurban_ac

Sponsored Link

ution%

f,fjtn Active contract took endurance

pending in
federal court in
Columbus will
allow consumers
to collect
between $5 and
$75 if they were
Urban Active
members
between Jan. 1,
2006, and Oct.

Mavvn long. Plan Dealer

26,2012.

Urban Active made the Plain Dealing column


because members complained about difficulty
canceling contracts. When consumers tried to
cancel memberships, the gym often charged a
cancellation fee and then kept on billing them.
The class covers people who signed gym
contracts, paid $15 facilities improvement fees,
canceled a gym contract or canceled a personal
training contract. They are eligible for payments
for each action that range between $5 and $30.

hUp://www.cleveland.com/consumeraffairs/index.ssf/2013/1 1 turban active members

dig...

1/23/2014

Urban
members eligible for payments:
Plain Dealing
Page#:2 2309
of 3
Case:Active
2:11-cv-00436-GCS-NMK
Doc #: 128-1
Filed: 01/23/14
Page: 13 of 20 PAGEID
I cleveland.com
To claim the money, consumers must opt into the
class-action suit filed against Global Fitness
Holdings, Urban Actives former owner, by filing
a claim form by Dec. 30. For more information
on the settlement and for claim forms, visit
urbanactivelawsuit.com or call 1-888-484-2005.
Urban Active was purchased last year by LA
Fitness.

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http://www.cleveland.com/consumeraffairs/index.ssf/2013/1 1 /urban_active_members_elig... 1/23/2014

Case: 2:11-cv-00436-GCS-NMK
Doc pay
#: 128-1
01/23/14 Page:
14 of 20 PAGEID
Lexington-based
Urban Active could
$19MFiled:
in settlement
with member...
Page 1 of#:12310

From the Business First


http: / /www.bizjournals.com/louisville/ blog/ morning_call/ 2013/11/lexingtonbased-urban-active-could. html
Nov 5, 2013, 7:38am EST

Lexington-based Urban Active could pay


$19M in settlement with members
Staff Business First
A class action settlement with Global Fitness Holdings, the Lexington-based operator of a
gym chain, has netted cash for more than 600,000 former members who were allegedly
overcharged.
The settlement over the fees and business practices of Urban Active Fitness gyms could
potentially result in more than $19 million in payments, the Cincinnati Business Courier
reported. Global Fitness Holdings agreed to the settlement but denies any wrongdoing.
Former members who file claims at www.UrbanActiveLawsuit.com
$75.

http://www.bizjournals.com/louisville/blog/moming

can receive as much as

call/2013/1 I/lexington... 11/5/2013

Case: 2:11-cv-00436-GCS-NMK
Doc #:money
128-1 in
Filed:
01/23/14 Page: 15 of 20 PAGEID
2311
Former
Urban Active members owed
settlement
Page #:
1 of

Q: PRINTTHS
Powered by

Lirrieicft3r,

Former Urban Active members owed money in settlement


By: Kristen Kennedy - Email
Updated: Mon 6:35 PM, Nov 04,
2013
Home
/News
/Headlines List
I Article
LEXINGTON, Ky. (WKYT) A class action lawsuit
involving a Lexington-based
fitness chain has finally been
settled after more than two
years. The lawsuit against
Urban Active claimed
problems with sales,
servicing, and billing
practices.

F IT lIES S

If you received a postcard in


the mail from the return address "URBAN ACTIVE SETTLEMENT," you may be
owed money from the former health fitness business.
After more than two years of litigation and negotiation, a federal court out of
Ohio has settled a class action lawsuit involving Urban Active and its members.
More than 600,000 members from gyms in Kentucky, Ohio, Tennessee,
Georgia, Nebraska, North Carolina, and Pennsylvania will receive part of the
settlement, anywhere from $5 up to $75.
"Its not uncommon for a class action to just result in $100 or less to each of the
people who were affected by it, and thats often because the defendant in those
cases will negotiate a settlement without any admission of wrongdoing,"
explained attorney Matt Ellison with Lexington firm Fowler Bell, 175 is not that
much on its own to a lot of people, but when you add that up, over potentially
half a million or more class members, then it really starts to add up to whoever
the defendant is."

http ://gray .printthis . cl ickabil ity. com/pt/cpt?expire&titleFormer+Urban+..

. 11/5/2013

Case: 2:11-cv-00436-GCS-NMK
Doc #:
128-1inFiled:
01/23/14 Page: 16 of 20 PAGEID
2312
Former
Urban Active members owed
money
settlement
Page 2#:of
2

Urban Active is expected to pay former members more than $19,000,000.


To file a claim and collect money, visit the link below.
A year ago, LA Fitness bought out Urban Active.
Related Links
Urban Active Lawsuit

Find this article at:


5151 html

Check the box to include the list of links referenced in the article.

Copyright '2002-2010 - Gray Television Group, Inc.

http ://gray .printthis . clickability. com/pt/cpt?expire&titleFormer+Urban+...

11/5/2013

Case: Active
2:11-cv-00436-GCS-NMK
Doc
#: 128-1 Filed:
01/23/14 Page:
17 Ann...
of 20 PAGEID
Urban
Fitness Class Action
Settlement
Ad - 11/4/2013
- Legal
Page 1 of#:12313

FINDG\i 1 Lexington Area


storesca1egories

Brands

Cornniunity Picks

(Charge)

LocalAds

Powered

i Following

Keutucw

My Usts

Find&Save>Local Adso-All Advertisers>Urbarr Active Fitness Class Action Settlernento-Urban Active Fitness Class Action Settlement Ad - 11/4/2013

Urban Active Fitness


Class Action Settlement
Phone: (888) 484-2005

GLOBAL FITNESS HOLDINGS, LLC duels URBAN ACTIVE FITNESS CLASS ACTION SETTLEMENT
If you signed a gym ern,mberthlp or personal Seining contract with Global Fitness Holdings, LLC,
doing buslosco as Urban Active Fitns" you may collect money.
LEGAL NO110EO Yur heal rlohts are affected. Reid the settee curetuBc
The United States Dlutilcl Court for the S outhern D/afrlcl of Ohio authorized this Notice after It prelltniriarlIy approved
a Class Action Sett/eerenm is the case Gjoclrp. Y, GLabaLF/Iya Holdillj.LC, Case No. I I-v.O0436.
U you signed a gym membership of personal training mnbaclaaor Global Fitness holdings, LLC ditto UrtsavActroe Fitness (iJi/tan
Act/re) born January I 2000. to October 26. 2012, you are a Class Member eligible to recover money under a Settlement
Agreement Several tomnrser mindless allaged in men lawsuit, on behalf at therrrselues and others similarly situated, breath of
canbact, unjust enrichment, and isolations of state consumer protection laws related to their gym membership and persona training
contracts. Urban Active denies any wrongdoing and makes on adrrsssnon of liability by agreeing to this salltenrenl.
Class Members that submit a irnety and solid Claim Form will receive a Claim Assist Claim Awards are cumulative, P/I Class
Members will tenauva a nrlirarrutn payment 01 $5 In addition, all Class Members who pad a $15 Facility lrnprnnamnarrl Fee, Club
Administrative Fee, or any other biannual $15 tee to Urtrarr Amuse on or between April L 2006, and 0cM/tsr 26,2012. are members
of be ElF Subclass and will receive an additional $20. P/an, all Class Members who cancelled a gym membership carPort sill/i
Urban Active on or larhseen January r, 2006 and October 26 2012. are Members 01 the Gym Cancel Subclass arid wll receive
our additional $20. Last. all Class Mentbeis wino cancelled a personal Soloing contract with Urban Active on or between January
2066. and October 26. 2012. are nrembwrs 01 the Personal Training Cancel Suiboissa and will receive an additional $30
To quality for pa3nrerrL you must complete annit return a Claim Form. To request Cia/ri Form, you vast cal ii Gains administrator
11-888404-2005 or you can submit a Cisinr Form dr/are at ieren.UibaoAcoeetaeruilt corn
at
You have a choice to slay in This Class Action Lawsuit. V you oubrr/l a Claim Form and receive money, you wit re/wasa claims
against Urban P/clue and be bound by all orders and judgments of he Court It you do nothing, you will,01 receiaw any money
but your Users against Urban Active will s/tI be misused, arid you will still be bound by at orders and judgments at the Coast. to
remove yourself from the lawsuit you must tie urn Opt-Out Request. II you slay is the lswniat, you may also 0/tied and rooks a
request to sewer at the brat fairness hearing. You may hire your own lawyer at your awn expense, however you do sort have to
have a lawyer to appear The Court has appointed Thomas McCormick at Vorys, Sater, Seymour and Pease. LLP and Mark
Irsuhirran of Isaac, Piles, Barkirolder 6 Twetar, LLC to represent at Class Mwrnbeis, The Court has sctnerhrled a 6rid Iambus
heaving an February 13,2014 an 0:00 am. in Courtroom 221 of the Unbent States District Court for the Southern 0/strict of Ohio,
hastens ttivuiun, $5 fmtartzni bled,, Coluumbunt, Ott 43215. tin our contact either the Court or Urban Ac/toe about 0555 soeeotemtt,
P/I seuleroent infurrmmobon, including Irstitrudsea or bow Is Me o claim. npboot, andlio object In this setllenrorrt can be found at
,Urboru threLareou0.cnm, or by correcting the cLaims administrator alt -ygg-4A4-2000.
DO 501 DELAY: All Claim Forms must be peslrneriled by Decenirbo, 30 2013, or submitted online by 11:56 p.m. Eastern lime
on December 31
Dill (888) 434-2005 or vIsit_

Published on Monday, November 04, 2013


This

Legal Announcements ad in Lexington may Contain time-sensitive information and offers.


Please check with Urban Active Fitness Class Action Settlement

to

confirm availability,

http ://findnsave .kentucky . corn/Local-Ads/a-S 36530/Urban-Active-Fitness-... 111512013

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-1 Filed: 01/23/14 Page: 18 of 20 PAGEID #: 2314


Lexington-based Urban Active could pay $19M in settlement with members
Business First of Louisville
November 5, 2013 Tuesday
Copyright 2013 American City Business Journal, Inc. All Rights Reserved

10

k%~Jm I

Length: 117 words


Byline: Staff

IBody

A class action settlement with Global Fitness Holdings, the Lexington-based operator of a gym
chain, has netted cash for more than 600,000 former members who were allegedly overcharged.
The settlement over the fees and business practices of Urban Active Fitness gyms could
potentially result in more than $19 million in payments, the Cincinnati Business Courier reported.
Global Fitness Holdings agreed to the settlement but denies any wrongdoing.
Former members who file claims at www.UrbanActiveLawsuit.com can receive as much as $75.
Did you find this article useful? Why not subscribe to Business First of Louisville for more
articles and leads? Visit bizjournals.comlsubscribe or call 1-866-853-3661.
Classification

Language: ENGLISH
Publication-Type: Newspaper
Subject: CLASS ACTIONS (90%); SETTLEMENT & COMPROMISE (90%); HOLDING
COMPANIES (90%); FITNESS CENTERS (90%); SUITS & CLAIMS (88%)
Company: BUSINESS FIRST OF LOUISVILLE INC (53%)
Industry: SIC271 1 NEWSPAPERS: PUBLISHING, OR PUBLISHING & PRINTING (53%)
Geographic: LEXINGTON, KY, USA (90%); KENTUCKY, USA (90%); UNITED STATES
(90%)
Load-Date: November 5, 2013

Case: 2:11-cv-00436-GCS-NMK
Doc LLC,
#: 128-1
of 20
PAGEID
Gascho,
et al., v. Global Fitness Holdings,
JointFiled:
Press 01/23/14
Release onPage:
Urban19
Active
Fitn...
Page 1#:
of2315
2

Gascho, et al., v. Global


Fitness Holdings, LLC, Joint
Press Release on Urban
Active Fitness Class Action
Settlement
Information contained on this page is provided by an independent third-party content
provider. WorldNow and this Station make no warranties or representations in
connection therewith. If you have any questions or comments about this page please
contact yressreleasesa.lworldnow.com .
SOURCE Vorvs, Sater, Seymour and Pease LLP
COLUMBUS, Ohio, Nov.], 2013 /PRNewswire/ --The parties in Gascho, etal. v. Global
Fitness Holdings, LLC, announce that the United States District Court for the Southern
District of Ohio has preliminarily approved a class action settlement. The Plaintiffs in
the action include individuals who signed a gym membership or personal training
contract between January 1, 2006, and October 26, 2012, with Global Fitness Holdings,
LLC, which formerly did business as a health club chain under the name Urban Active
Fitness. The Plaintiffs, represented by the Vorys and Isaac Wiles firms based in
Columbus, Ohio, alleged that Global Fitness Holdings, LLC, was liable to Class Members
due to improper sales, servicing, and billing practices. Global Fitness Holdings, LLC,
represented by Bingham Greenebaum Doll LLP, continues to deny any and all
wrongdoing but has agreed to the terms of the settlement to fully resolve all issues.
Now that the Court has preliminarily approved the settlement, a notice, explanation of
the settlement, and directions on how to file a claim form were mailed and entailed to
Class Members on October 30, 2013. Class Members have 6o days to file a claim. Class
Members may obtain additional information and file a claim at
www.UrbanActiveLawsuit.com .
The settlement was reached after more than two years of litigation and months of
negotiation, including mediation. The settlement provides that:
1. Any Class Member who signed a contract with Urban Active and tiles a claim form will receive a $5 payment
There are over 600,000 former members eligible to receive this award
2. Any Class Member who paid a $15 facility improvement fee or maintenance fee to Urban Active and tiles a
claim form will receive a $20 payment. There are over 315,000 former members eligible to receive this
award.
3. Any Class Member who canceled a gym membership contract with Urban Active and tiles a claim form will
receive a $20 payment There are over 380,000 former members eligible to receive this award
4. Any Class Member who canceled a personal training contract and tiles a claim form will receive a $30
payment There are over 60,000 former members eligible to receive this award

Class Members may qualify for each of the groups listed above, meaning many Class
Members could be eligible to receive between 825 and 875.
The parties agreed that after years of litigation, and recognizing the cost, complexity,
and risks of continued litigation, that this settlement is a fair, reasonable, and efficient
way to provide monetary compensation to the class members and bring closure to all
parties involved.
'2012

PR Newswire. All Rights Reserved.

http://www.abc27.comlstory/23 85295 8/gascho-et-al-v-global-fitness-holdings-llc-joint-pre... 12/5/2013

Case: 2:11-cv-00436-GCS-NMK
Doc LLC,
#: 128-1
of 20
PAGEID
Gascho,
et al., v. Global Fitness Holdings,
JointFiled:
Press 01/23/14
Release onPage:
Urban20
Active
Fitn...
Page 2#:
of2316
2

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Case: 2:11-cv-00436-GCS-NMK Doc #: 128-2 Filed: 01/23/14 Page: 1 of 15 PAGEID #: 2317

EXHIBIT 2

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Case: I2:11-cv-00436-GCS-NMK
DocOverbilling
#: 128-2 Filed: 01/23/14 Page: 2 of 15 PAGEID
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Case: 2:11-cv-00436-GCS-NMK Doc #: 128-2 Filed: 01/23/14 Page: 3 of 15 PAGEID #: 2319


Page 1

1 of 1 DOCUMENT
Class Action Reporter
Copyright 1994 - 2013 Bankruptcy Creditors Service, Inc. and Beard Group, Inc.
All Rights Reserved
Class Action Reporter
December 16, 2013
SECTION: Vol. 15 ISSN: 1525-2272
LENGTH: 117 words
HEADLINE: URBANACTIVE: December 31 Settlement Claim Filing Deadline Set
BODY:
WCP0 reports that if you are among the thousands of people in Ohio
and Kentucky who used to belong to the Urban Active health club,
you could be getting some money back as well.
The chain of health clubs -- which has since been sold and renamed
-- was hit with a class action lawsuit in 2011 for hidden fees.
The suit accused the club of charging extra for fitness classes
that members had been told were part of their monthly plan.
On Sept. 30, 2013, the courts approved a proposed settlement,
where members can receive an average of $20 in refunds.
You need to apply online to receive your check by Dec. 31, 2013.
Click here for a link to the settlement page, or go to
http://www.urbanactivelawsuit.com
LOAD-DATE: December 16, 2013

Case: Active
2:11-cv-00436-GCS-NMK
DocLawit
#: 128-2
Filed: 01/23/14 Page: 4 of 15 PAGEID
Urban
Fitness Class Action
Settlement
Page#:1 2320
of 4

Open Class Action Lawsuit Settlements ;


Urban Active Fitness Class Action Lawsuit Settlement
Monday, 04 November 2013 09:13
Follow us on Twitter and Facebookfr the latest Class Action Lawsuit Settlement

Urban Active Fitness Class Action Lawsuit Settlement


Global Fitness Holdings LLC (formerly known as Urban Active
Fitness) has reached a class action settlement that would
resolve allegaipns that the fitness company engaged in
deceptive conduct regarding its membership fees and
cancellation p Jicies. If you signed a gym membership or
personal training contract with Urban Active between January 1,
2006, and October 26, 2012, you may be eligible to receive
monetary compensation.
According to the class action lawsuit (Amber Gascho, etal. v.
Global Fitnessi-/oldings LLC), the fitness company failed to
disclose all fees and costs associated with membership, misrepresented the terms of its
contracts, failed to honor valid cancellatiornotices and adopted multiple cancellation policies
that violated its contracts and confused minbers seeking to cancel their memberships.

II1NESS

Urban Active has denied any wrongdoingt agreed to settle the class action lawsuit to
avoid the burden and expense of litigatio
Class Members who submit valid claim for s will receive monetary compensation. The class
consists of a main class and three subclass. The total amount of compensation Class
Members will receive depends on how many subclasses they belong to. A Class Member who
belongs to all subclasses can receive a tota1 of $75.

The Class includes anyone who sign a gym membership contract or personal
or between January 1, 2006 and October 26,
training contract with Urban Active
2012. The Claim Award for this clas
$5.
The "FIF Subclass" includes anyone Who paid a $15 Facility Improvement Fee, Club
Administrative Fee, or any other biarual $15 fee to Urban Active on or between April
1, 2009 and October 26, 2012. The caim Award for this subclass is $20.

http ://www .topclassactions . com/lawsuit-Settlements/open-lawsuit-settlemen... 11/5/2013

Case: Active
2:11-cv-00436-GCS-NMK
DocLawt
#: 128-2
Filed: 01/23/14 Page: 5 of 15 PAGEID
Page#:2 2321
of 4
Urban
Fitness Class Action
Settlement
The "Gym Cancel Subclass" includes
contract with Urban Active on or bet
Claim Award for this subclass is $20.
The "Personal Training Cancel Subcl
contract with Urban Active on or bet
Claim Award for this subclass is $30.

Claim Forms must be submitted online or


Detailed claims filing instructions are pros
A fairness hearing for the Urban Active
scheduled for February 13, 2014.

one who cancelled a gym membership


n January 1, 2006 and October 26, 2012. The
includes anyone who cancelled a training
1 January 1, 2006 and October 26, 2012. The

narked no later than December 30, 2013.


below.
ess Class Action Settlement has been

The case is Amber Gascho, et al v. G/oba/itness Holdings LLC, Case No. 2:11-cv-00436GCS-NMK, U.S. District Court, Southern District of Ohio, Eastern Division (Columbus).

How to File a Claim for the Urban Active Fitness Class Action
Lawsuit Settlement

Website of the Class Action Lawsuit Settlement Administrator:


www.UrbanActiveLawsuit.com

Address to submit a claim form (REQUIRED):


Claim Froms can be submitted online at
address:

http://www.topclssactions.com/lawsui

or to the following

ettlemen... 11/5/2013

Case:Active
2:11-cv-00436-GCS-NMK
#: 128-2
Filed: 01/23/14 Page: 6 of 15 PAGEID
Urban
Fitness Class ActionDoc
Lawsuit
Settlement
Page#:3 2322
of 4
Urban Active Settlement
C/o Dahl Administration
P.O. Box 3614
Minneapolis, MN 55403-0614

Claims must be oostmarked by 12/30/13

Potential Award:

Up to $75 cash.

Settlement Administrator:

Dahl Administration
P.O. Box 3614
Minneapolis, MN 55403-0614
1-888-484-2005
mail@UrbanActiveLawsuit.com

Class Counsel:
Thomas N. McCormick
VORYS SATER SEYMOUR AND PEASE LLP
Defense Counsel:

V. Brandon McGrath
BINGHAM GREENEBAUM DOLL PLLC
t.. -

http://www. topc lass actions . corn/lawsuit-settlements/open-lawsuit- settlemen... 11/5/2013

Case:Active
2:11-cv-00436-GCS-NMK
Doc
#: 128-2
Filed: 01/23/14 Page: 7 of 15 PAGEID
Urban
Fitness Class Action
Lawsiit
Settlement
Page#:4 2323
of 4

Dont miss out onmoney you deserve!


Sign up now to receive class action
news and settlement alerts in our free
weekly newsletter.
First N ame

All class action and lawsuit news updates are listed in the Lawsuit News section of Top Class
Actions
LEGAL INFORMATION IS NOT LEGAL ADVICE
Top Class Actions Legal Statement
'2008 - 2013 Top Class Actionsfi LLC
Various Trademarks held by their respective owners

Last Updated on Monday, 04 November 2013 09:13

http://www .,topclassactions.com/lawsuit-

ttlements/open- lawsuit- settlemen... 11/5/2013

Case: 2:11-cv-00436-GCS-NMK
Doc #: 128-2 Filed: 01/23/14 Page: 8 of 15 PAGEID
Page #:
1 2324
of 5
urban-active
I Gymrat Fitness

iicrne
Personal Fitness Trainer
Enter search keyword

Gymrat Fitness
Personal Fitness Training
Aerobics
Bodybuilding
Diets
Exercises
Fitness Equipment
Health Issues

http://www.gymrat-fitness.com/tag/urban-active

11/8/2013

Case: 2:11-cv-00436-GCS-NMK
urban-active
I Gymrat Fitness Doc #: 128-2 Filed: 01/23/14 Page: 9 of 15 PAGEID
Page#:2 2325
of 5

Tag Arcithe I "urban-active"


Gascho, et al., v. Global Fitness Holdings, LLC, Joint
Press Release on Urban Active Fitness Class Action
Settlement
Posted on 01 November 2013. Tags: active, global, global-fitness, holdings, llc,
plaintiffs, settlement, united, urban, urban-active
COLUMBUS, Ohio, Nov. 1, 2013 /PRNewswire/ The parties in Gascho, et al. v.
Global Fitness Holdings, LLC, announce that the United States District Court for the
Southern District of Ohio has preliminarily approved a class action settlement. The
Plaintiffs in the action include individuals who signed a gym membership or personal
training contract between January 1, 2006, and October 26, 2012, with Global Fitness
Holdings, LLC, which formerly did business as a health club chain under the name
Urban Active Fitness. The Plaintiffs, represented by the Vorys and Isaac Wiles firms
based in Columbus, Ohio, alleged that Global Fitness Holdings, LLC, was liable to
Class Members due to improper sales, servicing, and billing practices. Global Fitness
Holdings, LLC, represented by Bingham Greenebaum Doll LLP, continues to deny any
and all wrongdoing but has agreed to the terms of the settlement to fully resolve all
issues.
Now that the Court has preliminarily approved the settlement, a notice, explanation of
the settlement, and directions on how to file a claim form were mailed and emailed to
Class Members on October 30, 2013. Class Members have 60 days to file a claim.
Class Members may obtain additional information and file a claim at
www.UrbanActiveLawsuit.com .
The settlement was reached after more than two years of litigation and months of
negotiation, including mediation. The settlement provides that:
1. Any Class Member who signed a contract with Urban Active and files a claim
form will receive a $5 payment. There are over 600,000 former members eligible
to receive this award.
2. Any Class Member who paid a $15 facility improvement fee or maintenance fee
to Urban Active and files a claim form will receive a $20 payment. There are over
315,000 former members eligible to receive this award.

http://www.gymrat-fitness.com/tag/urban-active

11/8/2013

Case: 2:11-cv-00436-GCS-NMK
2326
urban-active
I Gymrat Fitness Doc #: 128-2 Filed: 01/23/14 Page: 10 of 15 PAGEID
Page 3#: of
5

3. Any Class Member who canceled a gym membership contract with Urban Active
and files a claim form will receive a $20 payment. There are over 380,000 former
members eligible to receive this award.
4. Any Class Member who canceled a personal training contract and files a claim
form will receive a $30 payment. There are over 60,000 former members eligible
to receive this award.
Class Members may qualify for each of the groups listed above, meaning many Class
Members could be eligible to receive between $25 and $75.
The parties agreed that after years of litigation, and recognizing the cost, complexity,
and risks of continued litigation, that this settlement is a fair, reasonable, and efficient
way to provide monetary compensation to the class members and bring closure to all
parties involved.
View original article Gascho, et al., v. Global Fitness Holdings, LLC, Joint Press Release on Urban Active
Fitness Class Action Settlement
[Translatel
Posted in UncategorizedComments (0)

http://www.gymrat-fitness.com/tag/urban-active

11/8/2013

Case: 2:11-cv-00436-GCS-NMK
#: 128-2
Filed:
01/23/14
Page: 11on
of Ur...
15 PAGEID
#: 2
2327
Gascho,
et al., v. Global Fitness Doc
Holdings,
LLC,
Joint
Press Release
Page 1 of
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COLUMBUS, Ohio, Nov. 1, 2013 lpRNewswire/ --The parties in Gesclro, eta). v. Global Fitness Holdings, LLC,

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announce that the United States District Court for the Southern District of Ohio has preliminarily approved a
class action settlement. The Plaintiffs in the action include individuals who signed a gym membership or personal
training contract between January 1, 2006, and October 26, 2012, with Global Fitness Holdings, LLC, which
formerly did business as a health club chain under the name Urban Active Fitness The Plaintiffs, represented by

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the Vorys and Isaac Wiles firms based in Columbus, Ohio, alleged that Global Fitness Holdings, LLC, was liable

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Is Class Members due to improper sales, servicing, and billing practices. Global Fitness Holdings, LLC,

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Now that the Court has preliminarily approved the settlement, a notice, explanation of the settlement, and
directions on how to file a claim form were mailed and emarled to Class Members on October 30, 2013. Class
Members have 60 days to hie a claim, Class Members may obtain additional information and file a claim at

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The settlement was reached after more than two years of litigation and months of negotiation, including
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1. Any Class Member who signed a contract with Urban Active and files a claim form will receive a $5
payment. There are over 600,000 former members eligible to receive this award

(httpWwwvv einpresswrre com/all-press-releases)


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2 Any Class Member who paid a $15 facility improvement fee or maintenance fee to Urban Active and riles a
claim form will receive a $20 payment. There are over 315,000 former members eligible to receive this

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3. Any Class Member who canceled a gym membership contract with Urban Active and files a claim form will
receive a $20 payment. There are over 360,000 former members eligible to receive this award.
4

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Any Class Member who canceled a personal training contract and files a claim form will receive a $30
payment. There are over 60,000 former members eligible

Is receive this award.

Class Members may quality for each of the groups listed above, meaning many Class Members could be eligible

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to receive between $25 and $75


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The parties agreed that after years of litigation, and recognizing the cost, complexity, and risks of continued

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COLUMBUS, Ohio, Nov. 1 2013 /PRNewswirel -- The parties in Gascho. et al, v. Global Fitness Holdings. LLC, announce that
the United States District Court for the Southern District of Ohio has preliminarily approved a class action settlement. The Plaintiffs

Featured Video

III the action include individuals who signed a gym membership or personal training contract between January 1 2006, and
October 26. 2012, with Global Fitness Holdings, LLC, which foniiorly did business as a health club chain under the name Urban
Active Fitness The Plaintiffs, represented by the Vorys and Isaac Wiles firms based in Columbus, Ohio, alleged that Global
Fitness Holdings, Lt-C, was liable to Class Members due to improper sales, servicing, and billing practices. Global Fitness
Holdings, It C, represented by Bingham Greenebaum Doll LIP, continues to deny any and all wrongdoing but has agreed to lIre
terms of the settlement to fully resolve all issues
Now that the Court has preliminarily approved the settlement, a notice, explanation of the settlement, and directions on how to tile
a claim form were mailed and emailed to Class Members on October 30, 2013 Claus Members have 60 days to file a claim. Class
Members may obtain additional snformalion and tile a claim at we.UrbnniPe:tivel.ewuirit.cnir1
The settlement was reached after more than two years of litigation and months of negotiation, including mediation The settlement
provides that
1, Any Class Member who signed a contract with Urban Active and tiles a claim form will receive a $5 payment. lhere are over

CrnesiocK corns Newusm Cninirrrrorrr


Scow RenOwn Mm Ditk0 sod .1w:
McMsboc

600,000 former members eligible to receive this award,


2. Any Class Member who paid a $15 facility Improvement fee or maintenance fee to Urban Active and tiles a claim fomr will

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receive a $20 payment. There are over 315.000 former members eligible to receive this award,
3. Any Class Member who canceled a gym membership contract with Urban Active and tiles a claim form will receive a $20
payment. There are over 380,000 former members eligible to receive this award.
4

Any Class Member who canceled a personal training contract and tiles a claim form will receive a $30 payment. There are

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over 60.000 former members eligible to receive this award.


Clans Members may quality for each of the groups listed above, meaning many Class Members could be eligible to receive

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The parties agreed that after years of litigation, and recognizing the cost, complexity, and risks of continued litigation, that this
settlement is fair, reasonable, and efficient way to provide monetary compensation 10 the class members and bring closure to all

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Urban Active Health Club Pays Out $19 Million to Former Members in Class
Action Settlement

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November 5, 2013 by Peter S. Lubin and Vincent L. DiTommaso

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"Its not uncommon for a class action to just result in $100 or less to each of the people who were
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Bell, 175 is not that much on its own to a lot of people, but when you add that up, over potentially
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Urban Active is expected to pay former members more than $19,000,000.

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Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 1 of 52 PAGEID #: 2332

EXHIBIT 3

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 2 of 52 PAGEID #: 2333

UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION (COLUMBUS)
AMBER GASCHO, et al.,
Plaintiffs,

Case No.: 2:1 1-cv-426


Judge Smith

V.

Magistrate Judge King


GLOBAL FITNESS HOLDINGS, LLC,
Defendants.

DECLARATION OF JEFFREY D. DAHL WITH RESPECT TO NOTICE AND CLAIMS


ADMINISTRATION TASKS COMPLETE AS OF JANUARY 21, 2014
I, Jeffrey D. Dahl, declare as follows:
1.

1 am President of Dahl Administration, LLC ("Dahl"). I am a nationally-

recognized expert with over 20 years of experience in class action notice and settlement
administration. I have provided notice and claims administration services for more than 400
class actions involving securities, product liability, insurance, fraud, property, employment,
discrimination, and consumer cases such as this one. I have experience in all areas of settlement
administration including notification, claims processing and distribution. I have previously
served as a Distribution Fund Administrator for the U.S. Securities and Exchange Commission.
Attached as Exhibit A is a current copy of my CV. Background information for Dabl is attached
as Exhibit B.
2.

I am responsible for supervising services provided by Dahl with respect to this

action. I am over 21 years of age and am not a party to this action. I have personal knowledge
of the facts stated herein and, if called as a witness, could and would testify competently thereto.

EXHIBIT 3

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 3 of 52 PAGEID #: 2334

Dahl was selected as Settlement Administrator by the Parties, as authorized by the

Settlement Agreement and Release ("Settlement Agreement") and approved by the Courts
Preliminary Approval Order dated September 20, 2013 ("Order"). I submit this Declaration to
provide information concerning the notice and other administrative activities performed by Dahl,
as required by the Settlement Agreement and the Order, as well as to provide an accounting of
certain specified information required by Section 13.1 of the Settlement Agreement.
4.

This declaration includes and describes: (i) receipt of potential Class Member

records from Defendant and processing of the list of potential Class Members; (ii) formatting and
distribution of the Long Form Notice; (iii) preparation and mailing of the Mailed Summary
Notice ("Postcard Notice"); (iv) processing of the Postcard Notice returned as undeliverable; (v)
preparation and sending of the Email Notice; (vi) placing of the Publication Notice; (vii)
preparation and sending of the Supplemental Email Notice; (viii) implementation and operation
of the toll-free settlement information line; (ix) implementation and maintenance of the
settlement website; (x) receipt and processing of Opt-Out Requests; (xi) receipt and processing
of Claim Forms; and (xii) calculation of payment amounts.

ELECTRONIC DATABASE OF CLASS MEMBER INFORMATION


In accordance with Section 12.1 of the Settlement Agreement, on October 3,
2013, Dahl received data files from Defendant containing potential Class Members full name,
last known address, last known email address, home club, status of membership as of the last day
of the Class Period, and information identifying which Subclasses each Class Member belongs
to.
6.

Dahl reviewed the data records for completeness, marked duplicate records, and

compiled a final Class Member database. The final list of potential Class Members contained

605,735 records (Class Member List"), including the appointed Class Representatives: Amber

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 4 of 52 PAGEID #: 2335

Gascho, Ashley Buckenmeyer, Michael Hogan, Edward, Lundberg, Terry Troutman, Anthony
Meyer, Rita Rose, Julia Cay (fka Julia Snyder), Albert Tartaglia, Michael Bell, Matt Vokerding,
and Patrick Cary.
7.

The Class Member List was reviewed to determine if complete mailing addresses

were present. The final Notice Mailing List contained 601,494 records with complete mailing
addresses. The remaining 4,241 records were marked to receive Email Notice.
8.

In order to obtain the most current mailing address for potential Class Members,

Dahl processed the Notice Mailing List through the USPS National Change of Address
("NCOA") database. This process updates addresses for individuals who have moved within the
last four years and who filed a change of address card with the USPS.

THE LONG FORM NOTICE


9.

Dahl formatted the long-form legal notice ("Long Form Notice") in a form and

content substantially similar to the Legal Notice attached as Exhibit 6 to the Settlement
Agreement. The Long Form Notice was made available on the website and was mailed upon
request by individuals who called the Settlement Information Line. A copy of the Long Form
Notice is attached as Exhibit C.

DISSEMINATION OF THE POSTCARD NOTICE


10.

Dahl sent a notice postcard in a form and content substantially similar to the

Summary Notice attached as Exhibit 7 to the Settlement Agreement, on October 30, 2013, as
specified in the Order.
11.

Each Postcard Notice was customized for the Class Member and contained a

unique Class Member identification number bar code. A sample of the Postcard Notice is
attached as Exhibit D.
12.

Dahl mailed complete and correct Postcard Notices to the addresses contained on

the Notice Mailing List to 601,494 Class Members via First Class mail.

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 5 of 52 PAGEID #: 2336

13.

Dahl maintains a copy of the Notice Mailing List, which comprises a record of all

potential Class Members to whom the Postcard Notice was mailed on October 30, 2013. The
Notice Mailing List is available for inspection by the Court, Class Counsel, and counsel for the
Defendant upon request.

PROCESSING OF THE MAILED POSTCARD NOTICE RETURNED AS


UNDELIVERABLE
14.

Dahl is responsible for receiving and re-mailing, when possible, any Postcard

Notices returned as undeliverable by the USPS. As of January 17, 2014, Dahl has received
146,617 undeliverable Postcard Notices. Of these, 2,077 Postcard Notices were returned by the
USPS with a forwarding address and have been re-mailed to the new address provided;

144,540

Postcard Notices have been returned by the USPS without a forwarding address and the
undeliverable address information was sent to an address search firm for tracing. New addresses
were located for 89,198 records and Postcard Notices were re-mailed to the new addresses. After
re-mailing the Notices, 90.8% of the Postcard Notices were delivered.

DISSEMINATION OF THE EMAIL NOTICE


15.

In addition to mailing of the Postcard Notice, 259,195 Class Members with email

addresses were sent an Email Notice on October 30, 2013. Of these, 154,216 returned as invalid
email addresses and 150,581 were delivered. A sample of the Email Notice is attached as
Exhibit E.

THE PUBLICATION NOTICE


16.

Dahl formatted a 1/4 page Publication Notice by formatting content substantially

similar to the Summary Notice attached as Exhibit 7 to the Settlement Agreement. Counsel
reviewed and approved the final format.
17.

In accordance with Section 12.2 of the Settlement Agreement, Dahl placed the

Publication Notice so that it was published on two consecutive days with one of the two days
4

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 6 of 52 PAGEID #: 2337

being the first Sunday after the Notice Postcards were mailed. The list of newspapers and
cities/metro areas and dates in which the Publication Notices were published is attached as
Exhibit F. The final Publication Notice is attached as Exhibit G.

SUPPLEMENTAL EMAIL NOTICE


18.

In accordance with Section 12.4 of the Settlement Agreement, on November 29,

2013, all potential Class Members with valid email addresses who had not filed Claim Forms in
order to become Allowed Claimants or who had not Opted Out within thirty (30) days after the
original mailing of the Postcard Notice were sent Supplemental Email Notice ("Reminder
Email") of the settlement.
19.

After removing all Allowed Claimants and timely Opt Outs from the Notice

Mailing List, Dahl created a list of potential Class Members to be emailed a Supplemental Email
Notice ("Reminder Email List"). The Reminder Email List contained 96,213 Class Members.
20.

A sample of the Reminder Email text is attached as Exhibit H.

SETTLEMENT INFORMATION LINE


21.

Before mailing the Postcard Notices, Dahl established a toll-free helpline, the

Settlement Information Line (the "Information Line"), which was designed to assist potential
Class Members and any other persons seeking information about the Action and the proposed
settlement. The Information Line was opened on October 30, 2013, and is still operating.
22.

The Information Line is open, except for holidays, Monday through Friday from

9:00 a.m. to 9:00 p.m. Eastern Time. The Information Lines toll-free number is 1-888-4842005, which was printed in the Postcard Notice and is also posted on the settlement website.
23.

Dahl prepared, and Counsel reviewed and approved, a detailed telephone script to

provide clear and accurate answers to anticipated questions about this Action and the proposed
settlement. Dahl distributed this script to its customer service representatives ("CSRs"). Dahl
used the script to train the CSRs and guide them in responding to callers questions.

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 7 of 52 PAGEID #: 2338

24.

The toll-free telephone system includes a Voice Response System that allows

callers to listen to general information about the settlement, listen to responses to frequently
asked questions, request a Notice and Claim Form, speak with a CSR or leave a message in a
voicemail box. Class Members may also speak to a Spanish-speaking CSR.
25.

CSRs at the Information Line have been available to answer questions from

potential Class Members since October 30, 2013. Staffing levels have been adjusted based on
the volume of calls received.
26.

As of January 17, 2014, the Information Line had received 6,058 calls regarding

the settlement.

THE SETTLEMENT WEBSITE


27.

Dahl established a settlement website, www.UrbanActiveLawsuit.com , in

accordance with the terms of Section 12.2 of the Settlement Agreement. The website address
was printed in the Postcard Notice. The settlement website was activated on October 30, 2013,
and is still operating.
28.

The settlement website provides potential Class Members with general settlement

information; Dahl contact information, including a link to contact the Settlement Administrator
by e-mail and the phone number for the Settlement Information Line; a list of Frequently Asked
Questions and Answers; a list of important dates and deadlines; and a means by which to review
and print copies of certain settlement documents including the Long Form Legal Notice, the
Claim Form, the Settlement Agreement, the Order, the Scheduling Order dated October 16,
2013, and the Third Amended Complaint. The settlement website allowed potential Class
Members to file a Claim Form online.
29.

Class Counsel and counsel for the Defendant worked jointly to review and

approve the settlement website content. After approval, it was uploaded and activated. Sample
copies of the current settlement website pages are attached as Exhibit I.

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OPT-OUT REQUESTS
30.

Dahl was responsible for receiving and processing all Opt-Out Requests for

exclusion from the Settlement Class. All such requests are to be postmarked no later than
December 30, 2013. As of January 17, 2014, ninety (90) valid, timely requests for exclusion
from the Settlement Class have been received. One untimely request for exclusion has been
received. The list of potential Class Members submitting valid, timely exclusion requests as of
December 30, 2013, is attached as Exhibit J (the "Opt-Out List").
RECEIPT AND PROCESSING OF CLAIM FORMS
31.

Dahl has received 55,597 Claim Forms; 54,129 were filed online and 1,468 were

filed by mail.
32.

Dahl has reviewed each Claim Form for timeliness, completeness and validity.

Class Members who were confirmed as eligible and who filed timely Claim Forms have been
deemed Allowed Claimants. Claim Forms that were filed timely but where the claimant could
not be confirmed as an eligible Class Member are currently pending a final determination and
have been sent an Opportunity to Cure Claim Deficiency Notice asking for additional
information related to Class Membership eligibility. Claim Forms that were filed late or
identified as duplicate filings have been deemed Invalid.
33.

Claim Form counts by category are as follows:


Valid Claims (Allowed Claimants)
Pending Claims - Class Membership
Invalid Claims - Duplicate
Invalid Claims - Late

49,457
3,965
2,161
14

Total Claims

55,597

:1

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PAYMENT CALCULATIONS AND RESULTS


34.

Dahl is also responsible for calculating payments for Allowed Claimants. As part

of its review, Dahl compared the subclass eligibility data provided by Defendant with the
subclasses claimed by the Class Member on a claim-by-claim basis.
35.

For Claim Forms where the subclasses claimed matched the subclasses provided

by Defendants or where the subclasses provided by Defendant resulted in a higher payment than
the amount claimed, Dahl has deemed the claims to be complete and award amounts have been
assigned based on the Defendant subclass data.
36.

Dahl has validated and calculated final award amounts for 28,998 Allowed

Claimants, resulting in a total Class Payment of $1,055,910. For these approved claims, the
average Class Member will receive payment of $36.41. For those Class Members that are also in
the Gym Cancel Subclass, the average payment is $44.54. Claim counts by Award Amount are
as follows:
Award
Amount
$5.00
$25.00
$35.00
$45.00
$55.00
$75.00

37.

Claim
Count
1,207
13,452
397
10,309
1,835
1,798
28,998

Of the 28,998 Claim Forms for which awards are final, subclass membership

counts are:

Subclass
Gym Membership (all claims)
Facility Improvement Fee (FIF)
Gym Membership Cancel
Personal Training Cancel
Total Class Payment

Claim
Count
28,998
23,441
16,060
4,030

Value
$5.00
$20.00
$20.00
$30.00

Percent of
Claims
100.00%
80.84%
55.38%
13.90%

Award
$144,990.00
$468,820.00
$321,200.00
$120,900.00
$1,055,910.00

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38.

The remaining 20,459 Allowed Claimants indicated subclass membership in an

amount greater than the data provided by Defendant. After requesting and receiving additional
data from Defendant, Dahl is preparing Notices to be sent to these Claimants asking for
additional information related to claimed subclass membership that still does not match
Defendants records. Once this process is complete, final awards will be calculated for these
claims. The dollar value disparity between the claimed subclass awards and Defendants records
for all 20,459 Claim Forms is $486,595.00 to $1,093,965.00. In other words, Dahl has already
confirmed that these 20,459 members are entitled to at least

$486,595.00, making the average

payment per class member a minimum of $23.78. The maximum amount that would be awarded
to these 20,459 is $1,093,965.00, thereby increasing the average payment per class member to
$53.47. As shown in the numbers above, the minimum payment to the entire Class/Subclasses
will be $1,542,505.00 and the maximum payment to the entire Class/Subclasses will be
$2,003,415.00.
39.

The objective of the Notice program is to reach the highest possible percentage of

potential Class Members, provide them with meaningful information to help them understand
their legal rights and options under the terms of the settlement and provide simple, open, and
easy methods for them to file claims for settlement benefits.
40.

The Notice program was quite robust in that it included both a direct mail

Postcard Notice and Email Notice to Class Members who had valid email addresses. Moreover,
our experience shows that higher return rates result from postcard notices which prominently display
a website and email notices which provide a direct link to a settlement website.
41.

The Postcard Notice and Publication Notice were designed to conform to the

guidelines set forth by the Federal Judicial Center and provide potential Class Members with

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information about the nature and terms of the settlement, and how their rights might be affected,
in clear, concise, and plain language.
42.

The Reminder Email was sent to all potential Class Member who had not filed a

Claim Form or Opted Out of the settlement and provides an additional opportunity for potential
Class Members to learn about the settlement and how their rights may be affected.
43.

The settlement provided multiple methods for Class Members to file a Claim

Form. The website provided a simple, easy method for Class Members to file a claim online by
entering a unique identification number and verifying sub-class membership information. If a
Class Member did not have their unique identification number, they could still file a claim
online. Notably, this open claims process resulted in 4,130 claims being filed without the Class
Members unique identification number. Class Members had the option to download a Claim
Form from the website or request a Claim Form be mailed to them from the Settlement
Information Line so that they could file a paper claim form.
44.

Additional information regarding the settlement and potential Class Members

rights and options is available through the settlement website and Settlement Information Line.
45.

As of November 29, 2013, the Notice reached at least 90.8% of potential Class

Members. It is my opinion that the Notice and notice program comply fully with Rule 23 of the
Federal Rules of Civil Procedure; meet the notice guidelines established by the Federal Judicial
Centers Manual for Complex Litigation, 4th Edition (2004) as well the Federal Judicial Centers
Judges Class Action Notice and Claims Process Checklist and Plain Language Guide (2010);
and are consistent with, and even exceed, the notice programs approved previously by both state
and federal courts.
46.

Based on my experience, the filing percentage of 9.2% is a strong filing

percentage as compared to similar settlements and is due, in part, to the robust Notice program
and the easy filing process available to Class Members.
10

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I declare under the penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.
Executed this 2) day of January, 2014 n iMinneapolis, Minnesota.

6
JeffreyD. Dahi
President
Dahl Administration, LLC

11

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 13 of 52 PAGEID #: 2344

Exhibit A

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 14 of 52 PAGEID #: 2345

Jeffrey D. Dahl, CPA (Inactive)


President
Dahl Administration, LIC
6465 Wayzata Boulevard, Suite 420
Minneapolis, Minnesota 55426
(952) 562-3601
jdahl@dahladministration.com

Jeffrey D. Dahl is a nationally-recognized expert with over 20 years of experience with class
action litigation and settlement administration. During that time he has provided services on
more than 400 class action lawsuits involving securities and shareholder disputes, product
liability, fraud, property, finance, insurance, consumer privacy, employment, and
discrimination. He is an expert in all areas of settlement administration, including direct and
publication notice, data cleansing and analysis, mail and claims processing, and settlement
proceeds distribution.
Mr. Dahl is the co-founder and President of Dahl Administration, LLC, a class action settlement
administration firm specializing in consumer and employment class actions. During his five-year
tenure at Dahl, he has provided notice and claims administration services for over 150
settlements for clients including MetLife, The Hartford, USAA Insurance, Hertz, Capital One, and
Verizon Wireless.
Prior to founding Dahl Administration, Mr. Dahl was a founding partner of Rust Consulting, Inc.,
the second largest class action claims administration service provider in the United States.
During Mr. DahIs 15-year tenure at Rust Consulting, the firm provided services for over 3,000
class action and regulatory settlements, including the $1.1 billion Microsoft-California antitrust
settlement; the $950 million PB Pipe settlement; the $850 million Masonite siding and roofing
settlement. Mr. Dahl also supervised the distribution of over $2 billion for the U.S. Securities &
Exchange Commission.
Mr. Dahl has provided testimony regarding the class action settlement administration process,
both live and by affidavit, in hundreds of class action settlements. He has also been appointed
to serve courts, special masters, and administrative agencies in numerous proceedings. Some
of these judicial and regulatory appointments include:
Court-appointed Neutral Verification Expert tasked with providing final claim
determinations for the $176 million Station Nightclub Fire Settlement in Rhode
Island.
Court-appointed Distribution Agent for the U.S. Securities and Exchange
Commissions $350 million settlement with Fannie Mae, which distributed to eligible
investors in 2008.

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Court-appointed Claims Agent responsible for receiving and processing the asbestos
Proof of Claims for the $2 billion W.R. Grace & Co. asbestos bankruptcy.
Court-appointed Claims/Balloting Agent responsible for receiving and processing the
asbestos Proof of Claims and conducting the balloting for Celotex asbestos
bankruptcy.
Engaged by the court-appointed Special Master to provide notice, process claims,
and distribute funds for the Securities and Exchange Commissions $450 million
Global Research Analyst Settlement.
Mr. Dahl graduated from Concordia College-Moorhead in Moorhead, Minnesota with a
Bachelor of Arts degree in Business Administration and he is a Certified Public Accountant Inactive.

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 16 of 52 PAGEID #: 2347

Exhibit B

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OUR FIRM

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Dahl
ADMINISTRATION

LOIN] IgIj Al 1

OUR HISTORY
Dahl, Inc., which is now Dahl Administration LLC ("Dahl"), was founded in early 2008 with a
group of professionals experienced in settlement administration, process development,
document and script development, data and image capture, quality control review, accounting,
project management, and distribution. Dahl offers innovative and cost-effective solutions for all
aspects of settlement administration.
Jeff Dahl was a founding partner and co-owner of Rust Consulting, a large national claims
administration firm, and is a nationally recognized expert in the claims administration industry
for his expertise administering class action settlements. Kristin Dahl was a senior project
manager and the second employee at Rust Consulting. During their 15 years at Rust Consulting,
Jeff and Kristin managed over 300 cases of all types including insurance, product liability,
property, employment, mass tort, asbestos, and securities.
After 15 years of working for a large firm, Jeff and Kristin had a desire to return to their roots as
hands-on project management consultants providing specialized settlement distribution
services for a group of key clients. They realized that a niche existed in which a small, creative
group of professionals could assist the courts, regulatory agencies, law firms and special
masters with settlement project planning, data analysis, class member communications, claim
processing, quality control, and distribution.
Today, Dahl specializes in high quality, fast turnaround and low cost settlement services - all
with a personal touch. Our goal is to utilize our unsurpassed experience and unique processing
methods to help clients:
Reduce fees;
Improve service;
Obtain higher accuracy levels; and
Reduce the length of time required from notice to distribution.

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Dahl
ADMINISTRATION

OUR FIRM

OUR PHILOSOPHY
The Dahl professionals share a common goal - to listen to our clients and provide project
solutions that exceed our clients needs and expectations. We are committed to managing
successful projects that are completed on time, on budget, and with the highest level of quality
in the industry.
That means we are:
Available
Responsive
Innovative
Committed
Efficient
Cost-effective

OUR SERVICES
Dahl provides project management and settlement distribution services to attorneys,
distribution agents, special masters, governmental agencies, and the courts.
Our services include:
Settlement Administration Planning and Design
Project Management
Cost Analysis
Claimant Notification
Claim Document Development and Layout
Website and Call Center Services
Document Imaging and Data Capture
Claim Evaluation
Reporting
Quality Assurance Review
Problem Identification and Resolution
Distribution Management

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OUR CASE EXPERIENCE

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 21 of 52 PAGEID #: 2352

)Dahl

ADMINISTRATION

riii*i
CURRENT CASES

DAHL

CONSUMER
Applewhite v. Capital One Bank, No. 4:06-cv-69 (U.S. Dist. Ct. N.D. Miss.)
Banner v. Law Offices of David J. Stern, No. 9:11-cv-80914 (U.S. Dist. Ct. S.D. Fla.)
In re Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation,

No. 4:08-md-1967 (U.S. Dist.

Ct. W.D. Mo.)


Brandon v. Van Chevrolet-Cadillac, In., No. 1031-CV14654 (Mo. Cir Ct. Greene Cnty.)
Brannon v. Capital One, No. 3:07-cv-1016 (U.S. Dist. Ct. M.D. Fla.)
Bryant v. Motors Liquidation Co., No. 09-50026 (Bankr. S.D. N.Y.)
Brown v. Suntrup Ford, Inc., No. 08SL-CCO5103 (Mo. Cir. Ct. St. Louis Cnty.)
Busby v. RealtySouth, No. 2:04-cv-2799 (U.S. Dist. Ct. N.D. Ala.)
Charron v. Pinnacle Grp. N.Y., No. 1:07-cv-6316 (U.S. Dist. Ct. S.D. N.Y.)
Grant v. Onyx Acceptance Corp., No. 07-20315 (Fla. Cir. Ct. Broward Cnty.)
Hewitt v. Law Offices of David J.Stern, No. 50-2009-CA-036046-XXXXX (Fla. Cir. Ct. Palm Beach Cnty.)
Hooper v. Suntrup Buick-Pontiac-GMC Truck, Inc., No. 0811-CV10921 (Mo. Cir. Ct. Saint Charles Cnty.)
Johnson v. Washington University, No. 2:10-cv-4170 (U.S. Dist. Ct. W.D. Mo.)
Jones v. Wells Fargo, N.A., No. BC337821 (Cal. Super. Ct. L.A. Cnty.)
Jones v. West County BMW, Inc., No. 08SL-CCO5222-01 (Mo. Cir. Ct. St Louis Cnty.)
Gentry v. Reliable Auto., Inc., No. 0831-CV06073 (Mo. Cir. Ct. Greene Cnty.)
Gregg v. Check Into Cash of Mo., Inc., No. 4:11-cv-368 (U.S. Dist. Ct. W.D. Mo.)
Green v. Major Infiniti, Inc., No. 1116-CV09583 (Mo. Cir Ct. Jackson Cnty.)
Kreilich v. JL Autos, Inc., No. 09SL-CC0172 (Mo. Cir. Ct. St. Louis Cnty.)
Lewellen v. Reliable Imports and RV, Inc., No. 1031-CV11926 ((Mo. Cir. Ct. Greene Cnty.)

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Dahl
ADMINISTRATION

CONSUMER

CASE CITES

CONTINUED

Livingston v. Capital One, No. 3:07-CV-266 (U.S. Dist. Ct. J.D. Fla.)
Love v. LendingTree Claims Admin., No. 2009CV009598 (Wis. Cir. Ct. Milwaukee Cnty.)
Lundy v. Mid-America Credit, Inc., No. 1116-CV02060 (Mo. Or Ct. Jackson Cnty.)
Mayfield v. Thoroughbred Ford of Platte City, Inc., No. 08AE-CV00467 (Mo. Cir Ct. Platte Cnty.)
Metcalf v. Marshall Ford Sales, Inc., No. 0811-CV11381 (Mo. Cir. Ct. St. Charles Cnty.)
Miller v. Capital One Bank, No. 3:07-cv-265 (U.S. Dist. Ct. M.D. Fla.)
Mortgage Store, Inc. v. LendingTree Loans, No. 06CC00250 (Cal. Super. Ct. Orange Cnty.
Naes v. Tom Pappas Toyota, Inc., No. 0711-CV09005 (Mo. Cir. Ct. St. Charles Cnty.)
N. Star Capital Acquisitions v. Krig, No. 3:07-CV-264 (U.S. Dist. Ct. M.D. Fla.)
In re Philips/Magnavox Television Litig., No.2: 09-cv-3072 (U.S. Dist. Ct. N.J.)
Redd v. Suntrup Hyundai, Inc., No. 09SL-CC00173 (Mo.Cir. Ct. St. Louis Cnty.)
Richards v. Lou Fusz Auto. Network, Inc., No. 08SL-CC04594 (Mo. Cir. Ct. St. Louis Cnty.)
Richardson v. Weber Chevrolet Co., No. 095L-CCO0170 (Mo. Cir Ct. St. Louis Cnty.)
Rizzo v. Hendrick Auto. Grp., No. 4:08-cv-137 (U.S. Dist. Ct. W.D. Mo.)
Rhodenbaugh v. CVS Pharmacy, Inc., No. 091-CV09631 (Mo. Cir. Ct. Jackson Cnty.)
Roberts v. Source for Public Data, No. 2:08-cv-4167 (U.S. Dist. Ct. W.D. Mo.)
Sams v. Adams Auto Corp., No. 0916-CV1521 (Mo. Cir. Ct. Jackson Cnty.)
Shaffer v. Royal Gate Dodge, No. 07SL-CC00949 (Mo. Cir Ct. St. Louis Cnty.)
Shirley v. Reliable Chevrolet, Inc., No. 0831-CV06082 (Mo. Cir Ct. of Greene Cnty.)
Sims v. Rosedale Cemetery Co., No. 03-C-506 (W. Va. Cir. Ct. Berkeley Cnty.)
Stasko v. City of Chicago, No. 09-CH17167 (Ill. Cir. Ct. Cook Cnty.)
Stevens v. Bommarito Nissan, Inc. No. 095L-CC00167 (Mo. Cir. Ct. St. Louis Cnty.)
Tortora v. Guardian Prot. Servs., Inc., No. MID-L-1041-10 (N.J. Super. Ct. Middlesex Cnty.)
In re Dissolution of Nexus Fiduciary Trust Corp., No. 29D03-1003-CC-323 (Ind. Super. Ct. Hamilton
Cnty.)
Wade v. Thoroughbred Ford, Inc., No. 10AE-CVO4323 (Mo. Cir. Ct. Platte Cnty.)

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))Dahl
ADMINISTRATION

CONSUMER

CASE CITES

CONTINUED

Walczak v. ONYX Acceptance Corp., No. 03 CH 0693 (III. Cii. Ct. Lake Cnty.)
Wiles v. S.W. Bell Tel. Co., No. 2:09-cv-4236 (U.S. Dist. Ct. W.D. Mo.)
Woods v. QC Financial Services, Inc., No. 11-148-01395-09 (Am. Arbitration Assn)
Woodward v. Ozark Kenworth, Inc., No. 1031-CV02203 (Mo. Cir Ct. Greene Cnty.)
Yaakoby v. EagleRider, No. 1:09-cv-5772 (U.S. Dist. Ct. N.D. Ill.)

EMPLOYMENT
Agatep v. Forest Lawn Mortuary, No. BC433744 (Cal. Super. Ct. L.A. Cnty.)
Ayon v. Cintas Corp., Inc., No. BC310696 (Cal. Super. Ct. L.A. Cnty.)
Berg v. Zumiez, Inc., No. BC408410 (Cal. Super. Ct. L.A. Cnty.)
Bult-Ito v. Univ. of Alaska, No. 3AN 09-7875C1 (Alaska Super. Ct. Anchorage)
Calhoun v. Gen. Petroleum Corp., No. BC425216 (Cal. Super. Ct. L.A. Cnty.)
Cherry v. Mayor and City Council of Baltimore City, No. 1:10-cv-01447 (U.S. Dist. Ct. Md.)
Diaz v. Alco Iron & Metal Co., No. HG10517616 (Cal. Super. Ct. Alameda Cnty.)
Flournoy v. 3S Network, Inc., No. C09-00113 (Cal. Super. Ct. Contra Costa Cnty.)
Magee v. Am. Residential Servs., LLC, No. BC423798 (Cal. Super. Ct. L.A. Cnty.)
Myart v. AutoZone, Inc., No. 05CCO3219 (Cal. Super. Ct. Orange Cnty.)
Park v. Staples The Office Superstore LLC, No. BC449815 (Cal. Super. Ct. L.A. Cnty.)
Scaglione v. M.O. Dion & Sons, Inc., No. BC425216 (Cal. Super. Ct. San Bernardino Cnty.)
Stevenson v. Falcon Critical Care Transport,

No. CIVMSC09-00862 (Cal. Super. Ct. Contra Costa Cnty.)

Veliz v. Cintas Corp., No. 5:03-cv-1180 (U.S. Dist. Ct. N.D. Cal.)

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))Dahl
ADMINISTRATION

CASE CITES

INSURANCE
Abrahams-Goullub v. United States Auto. Assoc., No. 3AN-09-6693C1 (Alaska Super. Ct. Anchorage)
Allen v. Buehrer, No. CV-07-644950 (Ohio C.P. Cuyahoga Cnty.)
Appel v. Liberty Am. Ins. Co., No. 1:08-cv-20385 (U.S. Dist. Ct. S.D. Fla.)
Bower v. MetLife, No. 1:09-cv-351 (U.S. Dist. Ct. S.D. Ohio)
Casey v. Coventry Health Care of Kansas, Inc., No. 4:08-cv-201 (U.S. Dist. Ct. W.D. Mo.)
Childs v. Unified Life Ins. Co., No. 4:10-cv-23 (U.S. Dist. Ct. N.D. Okla.)
Douglass v. Am. United Life Ins. Co., No. 29D03-9810-CP-00568 (Ind. Super. Ct. Hamilton Cnty.)
Holling-Fry v. Coventry Health Care of Kansas, Inc., No. 4:07-cv-0092 (U.S. Dist. Ct. W.D. Mo.)
Martin v. Twin City Fire Insurance Co., No. 3:08-cv-5651 (U.S. Dist. Ct. W.D. Wash.)

SECURITIES
Capgrowth v. Franklin Elec. Publishers, Inc., No. BUR-C-043-09 (N.J. Super. Ct. Ch. Div. Burlington Cnty.)

PERSONAL INJURY
Gray v. Derderian, No. 1:04-cv-312 (U.S. Dist. Ct. R.I.)

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Dahl
ADMINISTRATION

CASE CITES
PREVIOUS CASES - JEFF AND KRISTIN DAHL

BANKRUPTCY
In re Celotex Corp., No. 90-10016-8131 1 90-10017-8131 (U.S. Dist. Ct. M.D. Fla.)
In re Raytech Corp., Case No. 89-00293 (Bankr. Ct. Conn.)
In re the Babcock & Wilcox Co., No. 00-0558 Bankr Case No. 00-10992 Sect: "R" (5) (U.S. Dist. Ct. E.D.

La.)
In re U.S. Brass Corp., No. 94-40823S (Bankr. Ct. E.D. Tex.)

In re W.R. Grace & Co., No. 01-01139 (Bankr. Ct. Del.)

CONSUMER
Aks v. Southgate Trust Co., No. 92-2193-L (U.S. Dist. Ct. Kan.)
Alachua Gen. Hospital v. Greene, No. 90-3359-CA (Fla. Cir. Ct. Alachua Cnty.)
Gray v. Derderian, No. 04-312L (U.S. Dist. Ct. R.I.)
Arscott v. Humana Hospital Daytona Beach, No. 91-2478-Cl-Cl (Fla. Cir. Ct. Volusia Cnty.)
Benacquisto v. Am. Express Fin. Corp., No.00-1980 DSD (U.S. Dist. Ct. Minn.)
Bokusky v. Edina Realty, Inc., No. 3-92--223 (U.S. Dist. Ct. Minn.)

Bonilla v. Trebol Motors Corp., No. 92-1795(JP) (U.S. Dist. Ct. P.R.)
Bunch v. Rent-A-Center, Inc., No. 00-0364-CV-W-3 (U.S. Dist. Ct W.D. Mo.)
Burney v. Thorn Ams., Inc., No. 97-CV.-1596 (Wis. Cir. Ct. Racine Cnty.)

Circle Plumbing v. Ferguson, No. 92-036478 (Tex. Dist. Ct. Harris Cnty.)
Cook v. LADA, No. 94-1730 (U.S. Dist. Ct. W.D. L.A.)
Crocker v. Sunshine Corp., No. 93-2224-H/A (U.S. Dist. Ct. W.D. Tenn.)

Dismuke v. Edina Realty, Inc., No. 92-8716 (Minn. Dist. Ct. Hennepin Cnty.)
Dyson v. Flagstar Corp., No. DKC93-1503 (U.S. Dist. Ct. Md.)

Fed. Trade Commn v. Mylan Labs., Inc., No. 1:98-CV-3114 (TFH) No. 990276 (TFH/JMF)
Garcia v. Houston Nw. Medical Ctr., Inc., No. H-94-2276, (U.S. Dist. Ct. S.D. Tex.)
George v. BancOhio Natl Corp., No. C2-92-314 (U.S. Dist. Ct. S.D. Ohio)
Gutterman v. Am. Airlines, Inc., No. 95 CH 982 (III. Cir. Ct. Cook Cnty.)
Hartings v. Am. Express Co., No. 88-0744 (U.S. Dist. Ct. W.D. Pa.)

Hinton v. ColorTyme Inc., No. 94-CV. 5198 (Wis. Cir. Ct. Milwaukee Cnty.)

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))Dahl
ADMINISTRATION

CASE CITES

CONSUMER - CONTINUED
In re Compact Disc Minimum Advertised Price Antitrust Litig., No. 1361 (U.S. Dist. Ct. Me.)
In re Toys R US Antitrust Litig., No. 98 M. D. L. 1211 (NG) (JLC) (U.S. Dist. Ct. E.D. N.Y.)
LaMontagne v. Hurley State Bank, No. 97-30093-MAP (U.S. Dist. Ct. Dist. Mass.)
Nitti v. Edina Realty, Inc., No. 3-92--386 (U.S. Dist. Ct. Minn.)
Ridgeway v. Dennys California, No. C93-20202 JW (PV.T) (U.S. Dist. Ct. N.D. Cal.)
Rowland v. Goldkist, Inc., No. CV. 94-106 (Ala. Cir. Ct. Walker Cnty.)
Sparano v. Southland Corp., No. 04 C 2098 (U.S. Dist. Ct. N.D. Ill.)
Connecticut v. Mylan Labs., Inc., No. 1:98-CV-3115 (TFH) Misc. No. 990276 (TFH/JMF) (U.S. Dist. Ct.
D.C.)
Thomas v. Charles Schwab & Co., Inc., No. 66,7000 (La. Dist. Ct. Natchitoches Parish)
Toledo Fair Housing Ctr. v. Natl Mut. Ins. Co., No. 93-1685 (Ohio C.P. Lucas Cnty.)
U.S. v. Am. Family Mut. Ins., No. 90-C-0759 (U.S. Dist. Ct. E.D. Wis.)
Weiss v. Washington, No. 99-2-11807-3 KNT (Wash. Super. Ct. King Cnty.)
Weissberg v. Delta Air Lines, Inc., No. 88 CH 4846 (III. Cir. Ct. Cook Cnty.)
Whitson v. Heilig-Meyers Furniture Co., No. CV. 94-PT-0309-E (U.S. Dist. Ct. N.D. Ala.)
Wolens v. Am. Airlines, Inc., No. 88CH 7554 (III. Cir. Ct. Cook Cnty.)
Woosley v. California, No. CA 000499 (Cal. Super. Ct. L.A. Cnty.)
YoeI v. New Jersey National Bank, No. 94-4675 (M LP) (U.S. Dist. Ct. N.J.)
EMPLOYMENT
Allen v. Thorn Ams., Inc., Case No. 97-1159-CV.-W-SOW (U.S. Dist. Ct. W.D. Mo.)
Babbitt v. Albertsons Inc., No. C92-1883 WHO (U.S. Dist. Ct. N.D. Cal.)
Berquist v. Am. Family Mut. Ins. Co., No. 96CV (Wis. Cir. Ct. St. Croix Cnty.)
Borja v. Wal-Mart Stores, Inc., No.98-CV-119 (Cob. Dist. Ct. Las Animas Cnty.)
Brunson v. City of New York, No. 94 Civ. 4507 (LAP) (U.S. Dist. Ct. S.D. N.Y.)
Forbush v. J. C. Penney Co., No. 3:90-2719-X, No. 3:92-0109-X (U.S. Dist. Ct. N.D. Tex.)
Hofer v. Capitol Am. Life Ins. Co., No. 336 (Wyo. Dist. Ct. Goshen Cnty.)
Hoffman v. Sbarro, Inc., No. 982 F. Supp. 249 (U.S. Dist. Ct. S.D. N.Y.)
Khan v. Dennys Holdings, Inc., No. BC 177254 (Cal. Super. Ct. L.A. Cnty.)
Merk v. Jewel Foods, No. 85 C 7876 (U.S. Dist. Ct. N.D. Ill.)

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Dahl
ADMINISTRATION

EMPLOYMENT

CASE CITES

CONTINUED

OCAW v. Am. Home Prods., No. 92-1238 (JP) (U.S. Dist. Ct. P.R.)
Stender v. Lucky Stores, Inc., No. 88-1467 (U.S. Dist. Ct. N.D. Cal.)
Taylor v. 0 Charlevs, No. 3-94-0489 (US Dist. Ct. M.D. Tenn.)
Wooten v. Dillards Inc., No. 99-0990-CV-W-3-ECF

INSURANCE
Barnicle v. Am. Gen. Corp., No. EC 011 865 (Cal. Super. Ct. San Diego Cnty.)
Beavers v. Am. Gen. Fin., Inc., No. CV.-94-174 (Ala. Cir. Ct. Walker Cnty.)
Blanke v. Lincoln Natl Life Ins. Co., No. 512,048 Div. K (La. Dist. Ct. Jefferson Parrish)
Bussie v. Alimerica, No. 97-40204 (U.S. Dist. Ct. Mass.)
Danko v. Erie Ins. Exch., No. 298 1991 G.D. (Pa. C.P. Fayette Cnty.)
Elkins v. Equitable Life Ins. Co. of Iowa, No. 96-296-CIV.-T-17B (U.S. Dist. Ct. M.D. Fla.)
Garst v. Franklin Life Ins. Co., No. 97-C-0074-S (U.S. Dist. Ct. N.D. Ala.)
Green v. Metro. Ins., No. 969547 (Cal. Super. Ct. S.F. Cnty.)
Hearth v. First Natl Life Ins. Co. of Am., No. 95-818- T-21A (U.S. Dist. Ct. M.D. Fla.)
In re Lutheran Brotherhood Variable Ins. Prods. Co., No. 99-MD-1309 (PAM/JGL)
In re Metro. Life Ins. Co., No. 96-179 MDL No. 1091 (U.S. Dist. W. D. Pa.)
In re Natl Life Ins. Co., No. 2-97-CV.-314 (U.S. Dist. Ct. Vt.)
Jordan v. State Farm Life Ins., No. 97 CH 11 (III. Cir. Ct. McLean Cnty.)
Kolsrud v. Equitable Life Ins. Co. of Iowa, No. 320838 (Ariz. Super. Ct. Pima Cnty.)
Kreidler v. W.-S. Life Assurance Co., No. 95-CV-157 (Ohio C.P. Erie Cnty.)
Lee v. USLIFE Corp., No. 1:97CV. -55-M (U.S. Dist. Ct. W.D. Ky.)
Levin v. Am. Gen. Life Ins. Co., No. 3-98-0266 (U.S. Dist. Ct. M.D. Tenn.)
Ludwig v. Gen. Am. Life Ins. Co., No. 4:97CV.18920 CDP (U.S. Dist. Ct. E.D. Mo.)
McNeil v. Am. Gen. Life & Accident Co., No. 3-99-1157 (U.S. Dist. Ct. M.D. Tenn.)
Reyes v. Country Life Ins. Co., No. 98 CH 16502 (III. Cir. Ct. Cook Cnty.)
Thompson v. Metro. Life Ins. Co., No. 00 Civ. 5071 (HB) Also applies to No.00 Civ., 9068, No.01-2090 &
No. 01 Civ. 5579 (U.S. Dist. Ct. S.D. N.Y.)
Woodley v. Protective Life Ins. Co., No. CV. 95-005 (Ala. Cir. Ct. Fayette Cnty.)

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Dahl
ADMINISTRATION

CASE CITES

PRODUCT LIABILITY
Ahearn v. Fibreboard, No. 6:93cv.526 (U.S. Dist. Ct. E.D. Tex.)
Cox v. Shell Oil Co., No. 18,844 (Tenn. Ch. Ct. Obion Cnty.)

Garza v. Sporting Goods Props. Inc., No. SA 93-CA-1082 (U.S. Dist. Ct. W.D. Tex.)
Hart v. Central Sprinkler Corp., No. BC176727 (C.A. Super. Ct. L.A. Cnty.)

In re Louisiana-Pacific Corp. Inner-Seal Oriented Strand Board Trade Practices Litig., No. C96-2409 VRW
(Mellett), No. C96-2468 VRW (Stewart) No. C95-3178 VRW(Aguis)

In re Rio Hair Naturalizer Prods. Liability Litig., No. 1055 (U.S. Dist. Ct. E.D. Mich.)
Ruff v. Parex, Inc., No. 96-CV.-500-59 (U.S. Dist. Ct. E.D. N.C.)

Salah v. Consolidated Indus., Inc., No. CV 738376 (Cal. Super. Ct. Santa Clara Cnty.)

PROPERTY
Anderson v. Cedar Grove Composting, Inc., No. 97-2-22820-4SEA (Wash. Super. Ct. King Cnty.)
Black v. Fag Bearings Corp., No. CV.396-264CC (Mo. Cir. Ct. Newton Cnty.)
Branin v. Asarco, Inc., No. C93-5132 (B) WD (U.S. Dist. Ct. W.D. Wash.)
Brighton v. Cedar Grove Composting, No. 97-2-21660-5 SEA (Wash. Super. Ct. King Cnty.)

Campbell v. Paducah & Louisville Railway, Inc., No. 93-Cl-05543 (Ky. Cir. Ct. Jefferson Cnty.)
Comfort v. Kimberly-Clark Corp., No. DV. -90-616 (Ala. Cir. Ct. Shelby Cnty.)
Vicwood v. Skagit, No. 00-2-00665-6 (Wash. Super. Ct. Thurston Cnty.)

SECURITIES
Eilers Furs of Rapid City v. US West Commcns, Inc., No. 92-5121 (U.S. Dist. Ct. S.D.)
Finucan v. Egghead, Inc., No. C93-1268WD (U.S. Dist. Ct. W.D. Wash.)

Global Research Analyst Settlement, (U.S. Dist. Ct. M.D. N.Y.)


In re Chambers Dev. Corp. Sec. Litig., No. 982 (U.S. Dist. Ct. W.D. Pa.)
U.S. SEC v. HealthSouth Corp., No. CV-03-J-06515S (U.S. Dist. Ct. N.D. Ala.)
In re Banc of America Sec. LLC, File No. 3-12591 (U.S. Securities and Exchange Commission
Administrative Proceeding)

U.S. SEC v. MBIA, No. 07Civ. 658 (LLS) (U.S. Dist. Ct. S.D. N.Y.)
SEC v. Fed. Natl Mortg. Assoc., No. 1:06-CV-00959 (RJL) (U.S. Dist. Ct. D.C.)

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 29 of 52 PAGEID #: 2360

Exhibit C

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 30 of 52 PAGEID #: 2361

LEGAL NOTICE:

This Notice explains the Lawsuit, the settlement, your legal rights, what benefits are available, who is eligible
for them, and how to get them.
Several former members ("Class Representatives") alleged in their lawsuit, on behalf of themselves
and others similarly situated, breach of contract, unjust enrichment, and violations of state consumer
protection laws in the sales, servicing, billing, and cancellation of gym membership and personal
training contracts (the "Causes of Action.").
Global Fitness Holdings, LLC, doing business as Urban Active Fitness ("Urban Active") denies any
wrongdoing and makes no admission of liability by agreeing to this settlement.
The Court has preliminarily approved the settlement of the Causes of Action.
You are receiving notice because Urban Actives records indicate you may have signed a gym
membership or personal training contract with Urban Active.
Your legal rights are affected whether or not you act. Read this notice carefully.

iM
11
How

GET?

You will receive between $5 and $75 i you qualify as described in Section 7 of
this Notice and on the enclosed Claim Form.

Your rights and options and the deadlines to exercise them are explained in this Notice.
The Court in charge of this case still has to decide whether to approve the settlement in final form.
Payments will be made if the Court grants final approval of the settlement and after any appeals are
resolved.

1. Why Did 1 Get Notified?

Urban Actives records indicate that you may have signed a gym membership contract or personal training
contract with Urban Active during the period of January 1, 2006, to October 26, 2012. You received this Notice
because you have a right to know about a proposed settlement of a class action lawsuit and about your
options before the Court decides whether to approve the settlement. If the Court approves the settlement,
and after any objections and appeals are resolved, an administrator appointed by the Court will make the
payments that the settlement allows.
1

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2 What Is This Lawsuit Ab out


The Class Representatives claim for the Class that Urban Active breached its contracts, unjustly enriched itself,
and violated state consumer protection and health spa statutes during the sales, servicing, billing, and
cancellation of its contracts. Specifically, the Class Representatives allege that Urban Active failed to disclose
all fees and costs associated with membership, misrepresented the terms and provisions of its contracts, failed
to provide customers with all appropriate documentation at the time of sale, failed to honor valid notices of
cancellation, and adopted multiple cancellation policies that violated its contracts and confused members
seeking to cancel.

Urban Active denies any wrongdoing, denies that it violated any law, and contends that at all times it complied
with federal, state, and local laws.

The Court did not decide in favor of Plaintiffs or Defendant. Instead, both sides agreed to the proposed
settlement. The litigation has lasted for more than two years and involved numerous motions and extensive
discovery. Class Counsel and the Class Representatives believe that the amount of the settlement is fair and
reasonable in light of the strengths and weaknesses of the claims and other factors.

All individuals who signed a gym membership contract or personal training contract with Urban Active during
the period of January 1, 2006, to October 26, 2012, are part of the Class. The settlement also provides for
other relief, as outlined in this Legal Notice.

Yes, if you want to participate in this settlement and receive money, you must file a new claim form. The

Seeger v. Global Fitness Holdings, LLC lawsuit was not finally approved by the court, meaning the settlement
never took effect. Any letters, notices, or claim forms related to the Seeger v. Global Fitness Holdings, LLC
settlement do not count and are unrelated to this settlement.
7 What Does The Settlement Provide
Class Members who submit timely and valid Claim Forms will receive a Claim Award (monetary compensation).
As shown below, the amount of each Class Members total Claim Award depends on how many Subclasses
each Class Member qualifies under.

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 32 of 52 PAGEID #: 2363

CLASS/SUBCLASS

The "Class"

CLAIM AWARD*

$5.00

1DEFINITION/REQUIREMENTS

--

Signed a gym membership contract or personal training


contract with Urban Active on or between January 1, 2006,
and October 26, 2012.

The "FIF Subclass"

$20.00

Paid a $15 Facility Improvement Fee, Club Administrative


Fee, or any other biannual $15 fee to Urban Active on or
between April 1, 2009, and October 26, 2012.

The "Gym Cancel

$20.00

or between January 1, 2006, and October 26, 2012.

Subclass"
The "Personal Training
Cancel Subclass"

Cancelled a gym membership contract with Urban Active on

$30.00

Cancelled a personal training contract with Urban Active on


or between January 1, 2006, and October 26, 2012.

* The Class and Subclass Claim Awards are cumulative, meaning that if a Class Member qualifies under the Class and all Subclasses then
that Class Member shall recover $75.00. You can only qualify once under each category.

There are approximately 606,246 Class Members, 316,721 FIF Subclass Members, 387,177 Gym Cancel
Subclass Members, and 64,805 Personal Training Cancel Subclass Members. The parties have agreed that a
Minimum Class Payment of $1,300,000.00 will be required. If an insufficient number of Class/Subclass
Members file a Claim Form, then each Class Members Claim Award will be increased until the Minimum Class
Payment is met. For services provided to the Class, the parties have agreed that the Class Representatives will
receive Enhancement Payments in the amount of $5,000 each to Albert Tartaglia and Michael Bell, $3,500
each to Amber Gascho, Ashley Buckenmeyer, Michael Hogan, Edward Lundberg, Terry Troutman, Anthony
Meyer, Rita Rose, and Julia Snyder, and $1,000 each to Matt Volkerding and Patrick Cary. The Class
Representative Enhancement Payments are included in the Minimum Class Payment.
In addition to the Claim Awards set forth above, Urban Active has agreed to pay all third party administration
costs which are estimated to be $496,259 and Class Counsels reasonable attorneys fees and litigation costs in
an amount no greater than $2,390,000. The payment of the third party administration costs and the attorneys
fees and litigation costs will have no effect on, and will not reduce in any way, payment to Class or Subclass
Members.

You must complete and return a Claim Form, and the claim must be approved by the Claims Administrator. A
Claim Form is attached to this Notice. You can also make a claim online at www.UrbanActiveLawsuit.com .
Read the instructions carefully, fill out the Claim Form completely and mail it postmarked no later than
December 30, 2013, or submit a claim online by no later than 11:59 p.m. December 30, 2013. If you do
nothing or fail to timely and properly submit a Claim Form, you will be included in the settlement, and be
bound by the terms of the settlement (including the Released Claims described in Section 9 below), but will not
receive a Claim Award (monetary compensation).

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 33 of 52 PAGEID #: 2364

Released Claims and Released Parties

Upon the final approval by the Court of the settlement, unless you submit a valid and timely Opt-Out Request,
you shall be deemed to have fully, finally, and forever released the "Released Claims." The Released Claims
shall mean any and all claims, demands, actions, causes of action, rights, offsets, suits, damages (whether
general, special, punitive, or multiple), lawsuits, liens, costs, losses, expenses, penalties, or liabilities of any
kind whatsoever, for any relief whatsoever, including monetary, injunctive, or declaratory relief, or for
reimbursement of attorneys fees, costs, or expenses, whether known or unknown, whether direct or indirect
(whether by assignment or otherwise), whether under federal, state, or local law, whether alleged or not
alleged in the Action, whether suspected or unsuspected, whether contingent or vested, which any of the Class
Representatives or Class Members have had, now have, or may have in the future against the Released Parties,
and which were raised or which could have been raised in the Action and which arose during the Class Period
and arise out of the factual allegations or are based on the same factual predicates as alleged in the Actions
Third Amended Complaint. This specifically includes any and all claims for breach of contract, unjust
enrichment, misrepresentation, and/or violations of consumer protection acts, health spa acts, or prepaid
entertainment contract statutes resulting from Urban Actives sales, communications, contracting, billing,
and/or cancellations of any gym and personal training contracts.
The "Released Parties" means Global Fitness Holdings, LLC doing business as Urban Active Fitness and its past,
present or future direct or indirect officers, directors, shareholders, members, managers, employees, agents,
principals, heirs, representatives, fiduciaries, assigns, attorneys, accountants, auditors, consultants, both
individually and in their official capacities, insurers and reinsurers, employee benefit plans, divisions and its
respective successors and/or assigns, predecessors in interest, subsidiaries, affiliates, parents, and attorneys.
The term "Released Parties" expressly includes, but is not limited to, Fitness International, LLC and Fitness and
Sport Clubs, LLC d/b/a LA Fitness, and their past, present or future direct or indirect officers, directors,
shareholders, members, managers employees, agents, principals, heirs, representatives, fiduciaries, assigns,
attorneys, accountants, auditors, consultants, both individually and in their official capacities, insurers and
reinsurers, employee benefit plans, divisions, and their respective successors and/or assigns, predecessors in
interest, subsidiaries, affiliates, parents, and attorneys.

Unless you exclude yourself, you will remain a Class Member, and you will be bound by the terms of the
settlement, including the Released Claims described above. That means that you will be unable to sue,
continue to sue, or be part of any other lawsuit about the Released Claims. It also means that all of the Courts
orders will apply to you and legally bind you.
If you do not wish to participate in the settlement, you may exclude yourself (generally called "opting out") by
submitting a written Opt-Out Request to the Claims Administrator, including your full printed name, address,
telephone number, a statement indicating your desire not to participate in the settlement, and your signature.
You must sign the Opt-Out Request personally and may not have someone sign for you, nor may you submit an
Opt-Out Request on behalf of a group. Your Opt-Out Request must be signed and returned via United States
first class mail postmarked no later than December 30, 2013, to:
Urban Active Settlement
do Dahl Administration

Phone: (888) 484-2005


Facsimile: (952) 955-4589

P.O. Box 3614


Minneapolis, MN 55403-0614

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 34 of 52 PAGEID #: 2365

If you submit a timely Opt-Out Request, then upon its receipt you shall no longer be a member of the Class,
you shall be barred from participating in any portion of the settlement, you may not object, and you shall
receive no benefits from the settlement. If you wish, you may pursue, at your own expense, any claims you
may have against Urban Active. If you do not submit a complete and timely written Opt-Out Request, you will
be included in the Class and Subclasses, and will be bound by the terms of the settlement (including the
Released Claims described in Section 9 herein), regardless of whether you filed a Claim Form and/or objected
to the settlement.
Do not submit both the Claim Form and Opt-Out Request. If you submit both, the Opt-Out Request will be
invalid, you will be included in the settlement class and you will be bound by the terms of the settlement
(including the Released Claims described above).

The Court will hold a fairness hearing in Courtroom 228 of the United States District Court for the Southern
District of Ohio, Eastern Division, 85 Marconi Boulevard, Columbus, Ohio, 43215, on February 13, 2014, at
10:00 a.m., or such other, later date as the Court may authorize, to determine whether the settlement is fair,
reasonable, and adequate; and if there are objections, the Court will consider them. The Court will also be
asked to approve Class Counsels request for Attorneys Fees and Costs, the Class Representatives
Enhancement Payments, and the Settlement Administration Costs. The hearing may be continued without
further notice to Class Members. It is not necessary for you to appear at this hearing.
If the Court approves the settlement, your settlement will be mailed to you within approximately 45 days,
unless the Court sustains an objection or any appeals are filed. It is always uncertain when these issues can be
resolved, and resolving them can take time.

Any Class or Subclass Member who does not file an Opt-Out Request may object to the proposed settlement
and/or the award of attorneys fees and expenses, and may appear at the Final Fairness Hearing, either on his
or her own or through an attorney hired at his or her expense. However, if the Court rejects your objection,
you will still be bound by the terms of the settlement. The Court-approved procedures for objecting and
appearing at the Final Approval Hearing are set forth below.
Any Class or Subclass Member who wishes to object to the proposed settlement must file with the Court and
serve on Class Counsel and Defendants Counsel a written statement of objection no later than the Claim
Period Deadline which is December 30, 2013. Such statement shall include the Class or Subclass Members
name, address, telephone number, e-mail address, the specific reason(s), if any, for each objection, including
any legal support, evidence, papers, or briefs that the Class or Subclass Member wishes the Court to consider,
and shall include a reference to the case name and case number.
To file a written statement of objection and any associated documents with the Court, Class or Subclass
Members represented by counsel shall use the Courts Electronic Filing System ("ECF") which automatically
transmits electronic copies to Class Counsel and Defendants Counsel. Class or Subclass Members who are not
represented by counsel must file any written statement of objection and any associated documents by
personal delivery to Office of the Clerk; U.S. District Court for the Southern District of Ohio, Eastern Division;
Joseph P. Kinneary U.S. Courthouse, Room 121, 85 Marconi Boulevard; Columbus, Ohio 43215; and by serving
5

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 35 of 52 PAGEID #: 2366

copies of all such filings on Class Counsel and Defendants by email and U.S. Mail as identified below:
Thomas N. McCormick

V. Brandon McGrath

Vorys Sater, Seymour and Pease LLP

Bingham Greenebaum Doll PLLC


2350 First Financial Center

52 East Gay Street


Columbus, Ohio 43215

255 E. Fifth Street

tnmccorrnick@vorvs.com
(614) 464-6433

Cincinnati, OH 45202

Counsel for Plaintiffs and the Classes

(513) 455-7600
Counsel for Defendant

bmcgrath@bgdlegal.com

Any Class or Subclass Member who does not timely file and serve a written objection pursuant to the terms set
forth above shall be deemed to have waived any objection to the settlement, and any objection that is not
timely made shall be barred.
If any Class or Subclass Member who timely files and serves an Objection also wishes to appear at the Final
Fairness Hearing, a Notice of Intent to Appear must be filed with the Court and served on Counsel along with
the objection. Any Class or Subclass Member who does not timely file and serve a notice of intention to appear
pursuant to the terms of this paragraph shall not be permitted to appear, except for good cause shown. Class
and Subclass Members do not need to appear at the Fairness Hearing or take any other action to indicate their
approval.
To be valid and effective, any objections to approval of the settlement or notice of intention to appear must be
filed with the Clerk of the Court and served upon each of the above-listed attorneys by U.S. mail postmarked
no later than December 30, 2013. DO NOT TELEPHONE THE COURT.
If you intend to object to the settlement, but wish to receive your share of the settlement proceeds, you
must timely submit your Claim Form as stated above. If the Court approves the settlement despite any
objections, and you have not submitted your Claim Form, you will not receive any settlement proceeds but
will be bound by the terms of the settlement (including the Released Claims described above).

The above is a summary of the basic terms of the settlement. For the precise terms and conditions of the
settlement, you should consult the detailed Settlement Agreement and Release between Plaintiffs and
Defendants which is on file with the Clerk of the Court, Case No. 11-cv-00436 and available at
www.UrbanActiveLawsuit.com . The pleadings and other records in this litigation, including the settlement
agreement, may be examined at any time during regular business hours at the Office of the Clerk of the United
States District Court for the Southern District of Ohio, Eastern Division. Certain documents are also available at
www.UrbanActiveLawsuit.com .
If you have any questions, you can call the Claims Administrator at (888) 484-2005 or any Class Counsel (see
Section 12 for phone numbers.)
PLEASE DO NOT WRITE OR TELEPHONE THE COURT OR THE OFFICE OF THE CLERK FOR INFORMATION
REGARDING THIS SETTLEMENT OR THE CLAIM PROCESS.
BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN
DIVISION

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 36 of 52 PAGEID #: 2367

Exhibit D

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 37 of 52 PAGEID #: 2368

LEGAL NOTICE: Your legal rights are affected. Read this notice carefully.

The United States District Court for the Southern District of Ohio authorized this Notice after it preliminarily approved
a Class Action Settlement in the case Gascho v. Global Fitness Holdings, LLC, Case No. 11-c v-00436.
You are receiving this Notice because the records of Global Fitness Holdings, LLC d/b/a Urban Active Fitness (Urban Active) indicate that you signed a gym
membership contract or personal training contract with Urban Active from January 1, 2006, to October 26, 2012, and therefore, you are a Class Member
eligible to recover money under a Settlement Agreement. Several former members alleged in their lawsuit, on behalf of themselves and others similarly
situated, breach of contract, unjust enrichment, and violations of state consumer protection laws related to their gym membership and personal training
contracts. Urban Active denies any wrongdoing and makes no admission of liability by agreeing to this settlement.
Class Members that submit a timely and valid Claim Form will receive a Claim Award. Claim Awards are cumulative. All Class Members will receive a
minimum payment of $5. In addition, all Class Members who paid a $15 Facility Improvement Fee, Club Administrative Fee, or any other biannual $15 fee to
Urban Active on or between April 1, 2009, and October 26, 2012, are members of the "FIF Subclass" and will receive an additional $20. Also, all Class
Members who cancelled a gym membership contract with Urban Active on or between January 1, 2006, and October 26, 2012, are Members of the Gym
Cancel Subclass" and will receive an additional $20. Last, all Class Members who cancelled a personal training contract with Urban Active on or between
January 1, 2006, and October 26, 2012, are members of the "Personal Training Cancel Subclass" and will receive an additional $30.
To quality for payment, you mast complete and return u Claim Form. To request a Claim Form, you must call the claims administrator at 1-888-484-2005 or
you can submit a Claim Form online at ,UrbanActiveLawsuit.com .
You have a choice to stay in this Class Action Lawsuit, If you submit a Claim Form and receive money, you will release claims against Urban Active and be
hound by all orders and judgments of the Court. If you do nothing, you will not receive any money but your claims against Urban Active will still be released,
and you will still be hound by all orders and judgments of the Court. To remove yourself from the lawsuit, you must file an Opt-Out Request If you stay in the
lawsuit, you may also object and make a request to appear at the final fairness hearing. You may hire your own lawyer at your own expense, however you do
not have to have a lawyer to appear. The Court has appointed Thomas McCormick of Vorys, Sater, Seymour and Pease, LLP and Mark Troutman of Isaac,
Wiles, Burkholder & Teetor, LLC to represent all Class Members, The Court has scheduled a final faimess hearing on February 13, 2014 at 10:06a.m. in
Courtroom 228 of the United States District Court for the Southern District of Ohio, Eastern Division, 85 Marconi Blvd., Columbus, OH 43215. Do not contact
either the Court or Urban Active about this settlement All settlement information, including instructions on how to file a claim, opt-out, and/or object to this
settlement can be found at www.UrbanActiveLawuuit.com or by contacting the claims administrator at 1-888-484-2005.
DO NOT DELAY: All Claim Forms must be postmarked by December 30, 2013, or submitted online by 11:59 p.m. Eastern Time on December 30, 2013

Call (888) 484-2005 or visit www.UrbanActiveLawsuit.com .

URBAN ACTIVE SETTLEMENT


C /O DAHL ADMINISTRATION

P0 BOX 3614
MINNEAPOLIS MN 55403-0614

PRESORT
FIRST CLASS
U.S. POSTAGE
PAID
TWIN CITIES, MN
PERMIT NO 6220

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 38 of 52 PAGEID #: 2369

Exhibit E

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 39 of 52 PAGEID #: 2370

Email Subject: URBAN ACTIVE FITNESS CLASS ACTION SETTLEMENT


Email Text:
This Notice is for: [Name]
Claimant ID: [12345678]
If you signed a gym membership or personal training contract with Global Fitness Holdings, LLC,
doing business as "Urban Active Fitness" you may collect money. To learn more, read the rest of
this email, call (888) 484-2005, or visit www.UrbanActiveLawsuit.com .
LEGAL NOTICE: Your legal rights are affected. Read this notice carefully. The United States District
Court for the Southern District of Ohio authorized this Notice after it preliminarily approved a Class Action
Settlement in the case Gascho v. Global Fitness Holdings, LLC, Case No. I I-cv-00436.

You are receiving this Notice because the records of Global Fitness Holdings, LLC d/b/a Urban Active
Fitness (Urban Active") indicate that you signed a gym membership contract or personal training contract
with Urban Active on or between January 1, 2006, and October 26, 2012, and therefore, you are a Class
Member eligible to recover money under a Settlement Agreement. Several former members alleged in
their lawsuit, on behalf of themselves and others similarly situated, breach of contract, unjust enrichment,
and violations of state consumer protection laws related to their gym membership and personal training
contracts. Urban Active denies any wrongdoing and makes no admission of liability by agreeing to this
settlement.
Class Members that submit a timely and valid Claim Form will receive a Claim Award. Claim Awards are
cumulative. All Class Members will receive a minimum payment of $5. In addition, all Class Members who
paid a $15 Facility Improvement Fee, Club Administrative Fee, or any other biannual $15 fee to Urban
Active on or between April 1, 2009, and October 26, 2012, are members of the "FIF Subclass" and will
receive an additional $20. Also, all Class Members who cancelled a gym membership contract with Urban
Active on or between January 1, 2006, and October 26, 2012, are Members of the "Gym Cancel
Subclass" and will receive an additional $20. Last, all Class Members who cancelled a personal training
contract with Urban Active on or between January 1, 2006, and October 26, 2012, are members of the
"Personal Training Cancel Subclass" and will receive an additional $30.
To qualify for payment, you must complete and return a Claim Form. To request a Claim Form, you must
call the claims administrator at 1-888-484-2005 or you can submit a Claim Form online at
www.UrbanActiveLawsuit.com .
You have a choice to stay in this Class Action Lawsuit. If you submit a Claim Form and receive money,
you will release claims against Urban Active and be bound by all orders and judgments of the Court. If
you do nothing, you will not receive any money but your claims against Urban Active will still be released,
and you will still be bound by all orders and judgments of the Court. To remove yourself from the lawsuit,
you must file an Opt-Out Request. If you stay in the lawsuit, you may also object and make a request to
appear at the final fairness hearing. You may hire your own lawyer at your own expense, however, you
do not have to have a lawyer to appear. The Court has appointed Thomas McCormick of Vorys, Sater,
Seymour and Pease, LLP and Mark Troutman of Isaac, Wiles, Burkholder & Teetor, LLC to represent all
Class Members. The Court has scheduled a final fairness hearing on February 13, 2014 at 10:00 am. in
Courtroom 228 of the United States District Court for the Southern District of Ohio, Eastern Division, 85
Marconi Blvd., Columbus, OH 43215. Do not contact either the Court or Urban Active about this
settlement. All settlement information, including instructions on how to file a claim, opt-out, and/or object
to this settlement can be found at www.UrbanActiveLawsuit.com , or by contacting the claims
administrator at 1-888-484-2005.
DO NOT DELAY: All Claim Forms must be postmarked by December 30, 2013, or submitted online by
11:59 p.m. Eastern Time on December 30, 2013.
Call (888) 484-2005 or visit www.UrbanActiveLawsuit.com.

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 40 of 52 PAGEID #: 2371

Exhibit F

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 41 of 52 PAGEID #: 2372

Prepared at the request of Counsel


Proprietary and Confidential

Page 1 of 1

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 42 of 52 PAGEID #: 2373

Exhibit G

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 43 of 52 PAGEID #: 2374

GLOBAL FITNESS HOLDINGS, LLC dlbla URBAN ACTIVE FITNESS CLASS ACTION SETTLEMENT
If you signed a gym membership or personal training contract with Global Fitness Holdings, LLC,
doing business as "Urban Active Fitness" you may collect money.
LEGAL NOTICE: Your legal rights are affected. Read this notice carefully.
The United States District Court for the Southern District of Ohio
authorized this Notice after it preliminarily approved
a Class Action Settlement in the case Gascho v. Global Fitness Holdinas, LLC. Case No. 11-cv-00436.
If you signed a gym membership or personal training contract with Global Fitness Holdings, LLC dib!a Urban Active
Fitness ("Urban Active") from January 1 2006, to October 26, 2012, you are a Class Member eligible to recover money
under a Settlement Agreement. Several former members alleged in their lawsuit, on behalf of themselves and others
similarly situated, breach of contract, unjust ennchment, and violations of state consumer protection laws related to their
gym membership and personal training contracts. Urban Active denies any wrongdoing and makes no admission of
liability by agreeing to this settlement.
Class Members that submit a timely and valid Claim Form will receive a Claim Award. Claim Awards are cumulative. All
Class Members will receive a minimum payment of $5. In addition, all Class Members who paid a $15 Facility
Improvement Fee, Club Administrative Fee, or any other biannual $15 fee to Urban Active on or between April 1, 2009,
and October 26, 2012, are members of the "FIF Subclass" and will receive an additional $20. Also, all Class Members
who cancelled a gym membership contract with Urban Active on or between January 1, 2006. and October 26, 2012,
are Members of the "Gym Cancel Subclass" and will receive an additional $20. Last, all Class Members who cancelled
a personal training contract with Urban Active on or between January 1, 2006, and October 26, 2012, are members of
the "Personal Training Cancel Subclass" and will receive an additional $30.
To qualify for payment, you must complete and return a Claim Form. To request a Claim Form, you must call the claims
1-888-484-2005 or you can submit a Claim Form online at www.UrbanActiveLawsuit.com .
administrator at
You have a choice to stay in this Class Action Lawsuit. If you submit a Claim Form and receive money, you will release
claims against Urban Active and be bound by all orders and judgments of the Court. If you do nothing, you will not
receive any money but your claims against Urban Active will still be released, and you will still be bound by all orders
and judgments of the Court. To remove yourself from the lawsuit, you must file an Opt-Out Request. If you stay in the
lawsuit, you may also object and make a request to appear at the final fairness hearing. You may hire your own lawyer
at your own expense, however you do not have to have a lawyer to appear. The Court has appointed Thomas McCormick
of Vorys, Sater, Seymour and Pease, LLP and Mark Troutman of Isaac, Wiles, Burkholder & Teetor, LLC to represent all
Class Members. The Court has scheduled a final fairness hearing on February 13, 2014 at 10:00 a.m. in Courtroom
228 of the United States District Court for the Southern District of Ohio, Eastern Division, 85 Marconi Blvd., Columbus,
OH 43215. Do not contact either the Court or Urban Active about this settlement. All settlement information, including
instructions on how to file a claim, opt-out, and/or object to this settlement can be found at wiww.UthanActivewsuit.com ,
or by contacting the claims administrator at 1.888-484-2005.
DO NOT DELAY: All Claim Forms must be postmarked by December 30, 2013, or submitted online by 11:59 p.m.
Eastern Time on December 30, 2013.
Call (888) 484-2005 or visit w,w.UrbanActiveLawsuit.com .

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 44 of 52 PAGEID #: 2375

Exhibit H

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 45 of 52 PAGEID #: 2376

Email Subject: REMINDER: URBAN ACTIVE FITNESS CLASS ACTION SETTLEMENT


Email Text:
This Notice is for: [Name]
Claimant ID: [12345678]
On October 30, 2013, you were mailed a Notice Postcard and emailed an electronic Notice regarding the
Class Action Settlement in Gascho v. Global Fitness Holdings, LLC, Case No. 1 1-cv-00436, filed in the
United States District Court for the Southern District of Ohio. The Notice Postcard and electronic Notice
contained information about a proposed settlement, the monetary award you are entitled to, and your
options regarding participation in the settlement before the Court decides whether to finally approve the
settlement.
To learn more, read the rest of this email, call (888) 484-2005, or visit www.UrbanActiveLawsuit.com .
You received these Notices because records show that you signed a gym membership or personal
training contract with Global Fitness Holdings, LLC, doing business as "Urban Active Fitness," and
therefore, you are eligible to collect some or all of the Claim Awards described below. Claim Awards are
cumulative, meaning you may recover the Claim Award for each category in which you qualify. If you
qualify under the Class and all Subclasses you will recover $75.00. You can only qualify once under
each category.
Class/Subclass

The "Class"

$5.00

The "FIF Subclass

$20.00

The Gym Cancel


Subclass"
The "Personal Training
Cancel Subclass"

Definition/Requirements

CIaiMAird

$20.00
4"

3O 00

Signed a gym membership contract or personal training


contract with Urban Active on or between January 1,
2006, and October 26, 2012
Paid a $15 Facility Improvement Fee, Club
Administrative Fee, or any other biannual $15 fee to
Urban Active on or between April 1, 2009, and October
26, 2012.
Cancelled a gym membership contract with Urban Active
on or between January 1, 2006, and October 26, 2012.
Cancelled a personal training contract with Urban Active
on or between January 1, 2006, and October 26, 2012.

If you wish to participate in this settlement and receive a monetary award, you must call (888) 4842005 and request a Claim Form. You may also submit a Claim Form online at
www.UrbanActiveLawsuit.com .

DO NOT DELAY: All Claim Forms must be postmarked or submitted online by 11:59 P.M. EST on
December 30, 2013.
Call (888) 484-2005 or visit www.UrbanActiveLawsuit.com .
.

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 46 of 52 PAGEID #: 2377

Exhibit I

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 47 of 52 PAGEID #: 2378

4*

1a urbane eawsuie corn

WELCOME TO THE URBAN ACTIVE FITNESS


SETTLEMENT WESSTE
aiafes : SO i
vet

A class echos eettierrntrt rieelvrrrg Global Frtrreos Heidrnqo LIC formerly drive Urban Active
Fiteossi LUther Acrrve) was orsllrrmnari ap-rcsed in the United States District Court for trio
Osethern District oiOhrs us Septeerhcr 33, 2013

r
I
0L.

555.
Lrrider 4h. crortesed settierrront r:cirrd isle wilts scarred a gym rrresrhershrp cerrtract or
personal trau - ing contract with Other Active nliirirrg the p-ried ofJarrrrer 1 2030 to Ocisber

26. 2012 the Class PenodS. are Class Members and are eligmle to re - ere money under he
settlement. The settlement ales providesor the three subclasses descnised is the hoses

))Dahl
Clans/Subclass

he "Class

Claim

DetinitiroaLRequinemaoto

AwariF

$600

Sgsed a gym membership corutroSt or personar


training cOnnect wrllt Uten Actre Or; or betceen

Jestery 1,20-36 cod October 20. 2012.

The "FtP

30.00

Poid cOld Facility lmpnocerrerc Foe, Club


Mrninistrati,e Fee, or any other c-iannua 515 leers

Subclass

Urban Active re on osteacer Sari

l 2009. and

0ctnbor2$ 22.12.

TIre "Gym

520.00

Coecelied a gym meerbershit vetted with U, tan

Ccrcel

Active error heteeee January 1

Sobs/ass"

26, 2312,

The"Petsnrrai
Taring Cancel

530.02.

2030. and October

Cancelled e verseealtrarnirrecoslrectvilli Urban


Active err or between January 1.2006 and Ccitt-er

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 48 of 52 PAGEID #: 2379

thU.o .otree Fitneon Seth


urbanactivelawsuit.conVirafcfnc

FFequently Asked Questions


FoiItw:eg
atipsrttot Dates

:5 5

last cI frequently asked queskons shoal that settlement To niew the aesse, to

q500t:on, pLane click on the question from the list b&oc. The answers tc these questions wall
updated peraodacaliy to affect the outlast status of the set! lameefr

Pelt era eel 0 sneer ants


55510 INFORMATION
Contact Ut
lbfihv Dad I Get NoISed -,
2

What an This Loabsuit About?

-1 What is fiiOan Actises Positlsfl?

5)Dah1

4. Why Is Theta A Settlement?


5

HoW do 1 Knwv fflWh Per; OfThe Settlement?


I Got A Sit: list Notice in 2512 Related to the Lawsuit SaooCn Gi of a t mfaoSo
hiectisc l_LCD5 I Stall Need Is Do Aeythmnc?

CLASS MEMBER BENEFITS AND RIGHTS


7
S

What Does The Settlemeet Prodde?


How Can I Get Faimen -,?
What Riuhis Do I dice Us ill Paalrcsate Or Do NotheatS

REQUESTING EXCLUSION FROM ("OPTING


0

How Del Declaim

our

OF THE SETTLEMENT

MyselfFrorr The Setelerrent?

FINAL APPROVAL HEARING


11

When Is The Heal Acon000l Heariras and St/Iran OPt tdot let

Payment?

OBJECTING TO THE SETTLEMENT


12

How Do I Obiect To The Sellientent Peal Annear At The F:arai Amnetast HeatinO?

MORE INFORMATION

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 49 of 52 PAGEID #: 2380

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 50 of 52 PAGEID #: 2381

Exhibit J

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 51 of 52 PAGEID #: 2382


GASCHO v. GLOBAL FITNESS SETTLEMENT
VALID REQUESTS FOR EXCLUSION

ADDRESS

CITY

1VII4I7

Esther Alcaina

7644 Lyon Street

San Francisco

CA

94115

David Leonard

160 Wentworth Avenue

Cincinnati

OH

45220

Rachel Robinson

702 Juliet Drive

Mount Juliet

TN

37122
37138

MAME

Richard Whitmore

3229 Lakeshore Drive

Old Hickory

TN

Sara Turney

3921 Clareridge Drive, Unit B

Toledo

OH

43623

James Wayne Phillips

7927 Fields Ertel Road

Cincinnati

OH

45249

Mindy Jeanne Smith

832 Central Avenue

Newport

KY

41071

Amy Samuels

7001 Simmons Church Road

Centerbury

OH

43011

Michelangelo Samuels

7001 Simmons Church Road

Centerbury

OH

43011

Darren Strickland

2000 Kitty Hawk Drive

Xenia

OH

45385

Lora Eggers

119 Sherman Ave

Lexington

KY

40502

Stacie Lynn Buck

900 Barton St. Apt 302

Fredericksburg

VA

22401

Russell Goetz

3077 Regent St.

Kettering

OH

45409

Lydia Boehler

350 N. Walnut St

Galena

OH

43021

William Johnston

1925 Harrison Park Dr.

Atlanta

GA

30341

Christina DubelI

1220 Patterson Rd, Apt 4

Dayton

OH

45420

Kristi Holland

5207 John Hager Rd

Hermitage

TN

37076

Peggy Rensing

3121 Lawrence Dr.

Edgewood

KY

41017

Erin Cameron

28 Gleason Circle

East Rochester

NY

14445

Keith T. Hinshaw

7362 Africa Rd

Galena

OH

43021

Elsie L. Hinshaw

7362 Africa Rd

Galena

OH

43021

Alice Ta

2144 Forge Ridge Circle

Nashville

TN

37217

Lauren Hinds

8130 Timothy Lane

Sylvania

OH

43560

Sofia Alvarez

1136 Mallard Creek Rd

Louisville

KY

40207

Miguel Cossio

1136 Mallard Creek Rd

Louisville

KY

40207

Robin Estelle Sullender

601 Mary Ingles Hwy, P0 Box 228

Melbourne

KY

41059

Marsha A. Schneider

5639 Davis Rd

Whitehouse

OH

43571

Helyn Teepe

7601 Sheed Rd

Cincinnati

OH

45247

Morgan Crawley

11155 E. Alameda Ave, Apt 201

Aurora

CO

80012

Kristen Thomas

6391 Glenhurst Dr, Apt 8

Maumee

OH

43537

Andrew Marcotte

7067 South Lane

Waite Hill

OH

44094

Claire Moon

211 Detriot Blvd

Xenia

OH

45385

Patricia A. Blackwell

4640 Porter Road

North Olmsted

OH

44070

Alexander Poli

3413 Floral Run Court

Cincinnati

OH

45239

Carolyn Sue Leaf

5095 Shepard Lane

Lexington

KY

40515

Crystal Marie Dixon

2145 Quarry Valley Rd

Columbus

OH

43204

Daniel Marshall Dixon

2145 Quarry Valley Rd

Columbus

OH

43204

Anna Brehl

4645 Orwell Drive

Columbus

OH

43220

Anjek Stough-Hunter

806 Breezedale P1

Columbus

OH

43213

Gerald Irineo Acacio

817 Delmead Drive

Galloway

OH

43119

1* 211

Neelima Roy Gautam

2515 Calhoiun Rd, Apt

New Berlin

WI

53151

Sherry Scott

9351 C Round Top Road

Cincinnati

OH

45251

David Lee Hockensmith

320 11th Ave S, Apt # 316

Nashville

TN

37203

Michael James Allen

9973 Darrow Park Road, Apt 4* 218C

Twinsburg

OH

44087

lConover

NC

28613

Ashley Taylor

13506 Duck Pond Dr NE


Page 1of 2

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-3 Filed: 01/23/14 Page: 52 of 52 PAGEID #: 2383


GASCHO v. GLOBAL FITNESS SETTLEMENT
VALID REQUESTS FOR EXCLUSION

ADDRESS

Tina Jadhav

12795 Peachtree Rd NE, Unit 407


3622 Brookstone Dr., Apt D

Esther Cheng
Atul Singla

GA

ZIP
303051

OH

45209

CITY

,NAME

Atlanta
Cincinnati

35 Broadway Village Dr, Apt G

Columbia

MO

65201
43212

Drew Stephen Meyer

1220 Chambers Rd, Apt 402A

Columbus

OH

Moon Keller

175 E Longview Ave

Columbus

OH

43202

Jeremy L. Smith

106 Alice Dr

Lawrenceburg

KY

40342

NaShante Bell

1526 Forestbrook Lane

Painesville

OH

44077

Kaylea Renee Thresher

6926 Urban Barn Drive

New Albany

OH

43054

Valerie Harmon

672 Cherryhill Ct E, Apt 2

Columbus

OH

43228

Sue Rixman

5910 DeWitt Dr

Louisville

KY

40258

Donna M. Cottrell

33284 Fairport Drive

Avon Lake

OH

44012

Carol L Rixman

5211 Kaffir, Apt 3

Louisville

KY

40258

Daniel Patrick Micaletti

920 Ashbrooke Way, Apt 1115

Knoxville

TN

37923

Valerie Lee Brickner

1851 Kettle Run Court

Perrysburg

OH

43551

Regina Forster

1112 Morning Side Dr

Lexington

KY

40509

Julia Schwenk

1112 Morning Side Dr

Lexington

KY

40509

Andreas Schmitz

1112 Morning Side Dr

Lexington

KY

40509

Rebecca Huber

3250 Nandale Dr, #1

Cincinnati

OH

45239

Cathleen Janos

52 Orchard Lane

Columbus

OH

43214

Pamela A. Semer

202 Rosie Ave

Pataskala

OH

43062

Leah M. Carlyle

1360 Dublin Rd. Apt #8

Columbus

OH

43215

Tracy Ann Bellamy

5039 N. 144th Ave

Omaha

NE

68116

Lee Cross

6129 W. Pem bridge Dr

Toldeo

OH

43615

Kylie Cross

6129 W. Pem bridge Dr

Toldeo

OH

43615

Whitney M Wilbert

8209 Pandorea Drive

Louisville

KY

40258

Helen Y. How

5989 Country Hills Drive

Cincinnati

OH

45233

Jeffery Moore

1105 Oakway Court

Nashville

TN

37214

Omar Nash

6837 Bantry Ave

Cincinnati

OH

45213

Steve Zadiraka

4302 Madeira Court

Sarasota

FL

Maria Christina Bruch

2632 Charney Rd

University Height OH

44118

34233

Tanya Baker

1709 Montwood Lane

Louisville

KY

40272

Danette Green

514 Peaceful Way

Shepherdsville

KY

40165

Carolyn Odell i

4302 Madeira Court

Sarasota

FL

34233

Shandrea R. Reed

5810 Arvis Drive

Louisville

KY

40258

Samantha Ferneding

337 E. Sycamore St

Columbus

OH

43206

Taylor M Medeiros

364 Clearwater Dr.

Nashville

TN

37217

Matthew Lee Moore

1717 Woodland Street

Nashville

TN

37206

Lindsey Krauss

2322 Benning Dr

Powell

OH

43065

Adria Haley

2414 Branch Street

Nashville

TN

37216

Katherine Kozak

1408 Lake Shore Drive, Unit C

Columbus

OH

43204

Mohammed Taj Hejazi

13247 Roachton Road, Apt 2

Perrysburg

OH

43551

William B. Richards

1262 Pond Hallow Lane

New Albany

OH

43054

Katelyn Keighley

3304 Renwood Blvd, Apt 304

Louisville

KY

40214

Christopher Marrow

462 Ewing Drive

Nashville

TN

37207

INashville

JTN

37214

Victoria Moore

11105 Oakway Court


Page 2 of 2

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-4 Filed: 01/23/14 Page: 1 of 3 PAGEID #: 2384

EXHIBIT 4

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-4 Filed: 01/23/14 Page: 2 of 3 PAGEID #: 2385

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION (COLUMBUS)
AMBER GASCHO, et al.,
on behalf of themselves and all
others similarly situated,

CASE NO. 2:11-CV-00436

Plaintiffs,
JUDGE SMITH
V.

GLOBAL FITNESS HOLDINGS, LLC,

MAGISTRATE JUDGE KING

Defendant.
DECLARATION OF THOMAS MCCORMICK
1.

I, Thomas McCormick, Partner in the firm of Vorys, Sater, Seymour and

Pease, LLP ("Vorys"), have served as Plaintiffs Counsel, Plaintiffs Interim Co-Lead
Counsel and now Class Counsel in the above-captioned action, including the related
action, Tartaglia v. Global Fitness Holdings, LLC, Case No. 11 Cl 1121 (Boone County
Circuit Court, Commonwealth of Kentucky), combined for purposes of Settlement
(collectively, the "Litigation").
2.

During discovery, Class Counsel requested from Urban Active its

customer database files which included transaction reports and other information
related to the monthly dues and other fees paid by members to Urban Active. After
filing a motion to compel which was granted by the Kentucky State Court, Urban Active
produced to Class Counsel the appropriate database.
3.

Moreover, Class Counsel subpoenaed from Urban Actives primary third-

party vendor, Motionsoft, all of its customer database files for Urban Active which again

EXHIBIT 4

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-4 Filed: 01/23/14 Page: 3 of 3 PAGEID #: 2386

included information related to the monthly dues and other fees paid by members to
Urban Active.
4.

At numerous points in this litigation, our litigation technology team and e-

discovery analysts proficient in SQL, reviewed these databases to provide Class


Counsel with data related to the charging of customer by Urban Active.
A review of the databases provided in discovery by Urban Active for

5.

Kentucky Members indicated that between January 1, 2009 and July, 2012, the average
monthly fee for a gym membership contract was approximately $25.51.
6.

A review of the database produced by Urban Actives third party vendor

Motionsoft for members in Ohio, Kentucky, Georgia, Tennessee, North Carolina, and
Pennsylvania indicates that the average monthly fee from 2009 until 2012 was
approximately $26.76.

I hereby affirm under penalty of perjury of the laws of the United States that the
foregoing is true and accurate.

Dated:

f/o:3

"

Thomas N. McCormick (0075496)


tnmccorm ick( vorys.com
VORYS, SATER, SEYMOUR & PEASE, LLP
52 East Gay Street, P.O. Box 1008
Columbus, Ohio 43215-1008
(614) 464-6433 (telephone)
(614) 719-4693 (facsimile)
One of Plaintiffs Class Counsel

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-5 Filed: 01/23/14 Page: 1 of 4 PAGEID #: 2387

EXHIBIT 5

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-5 Filed: 01/23/14 Page: 2 of 4 PAGEID #: 2388

()
COMMONWEALTH OF KENTUCKY
BOONE CIRCUIT COURT
DIVISION I
CASE NO. 09CI03094

[7 I
J..N 1 3
Oyl-

DAVID SEEGER, ET AL

PLAINTIFF

VS.
GLOBAL FITNESS HOLDINGS, LLC

DEFENDANT

ORDER
The Court conducted a Fairness Hearing on December 21, 2012. The Plaintiffs were
represented by Hon. Charles Lester and Hon. Eric Deters. The Defendant Global Fitness
Holdings, LLC were represented by Hon. V. Brandon McGrath, Hon. David A. Owens and Hon.
Jason T. Amos. Intervenors Zik and Hearon were represented by Hon. Gregory A. Belzley and
Hon. Joshua T. Rose. Intervenors Tartaglia and Bell were represented by Hon. James B. Lind
and Hon. Thomas McCormick. Two witnesses testified at the hearing, Stephen D. Mueller,
project manager for the administrator of the class and Hon. Charles Lester. The Court granted all
parties until January 4, 2013 to file a post hearing memorandum and until January 11, 2013 to
file a Reply memorandum. The Court enters the following Order.
The fairness, reasonableness and adequacy of the settlement are analyzed in light of
several factors. These factors are as follows: (1) Plaintiffs likelihood of ultimate success on the
merits balanced against the amount and form of relief offered in settlement; (2) The complexity,
expense and likely duration of the litigation; (3) The state of the proceedings and the amount of
discovery completed; (4) The judgment of experienced trial counsel (5) The nature of the
negotiations; (6) The objections raised by the class members, if any; and (7) The public interest.

EXHIBIT 5

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The Court has considered the settlement in light of these factors. The Court will
summarize the greatest reasons as to why the Court has concluded this settlement should not be
approved.
The release sought by the defendant under the settlement is overly broad. The release is
unlimited to time or nature of the claims. The release includes claims that do not share the
identical factual predicate as Plaintiffs claims. Class counsel has not conducted meaningful and
adequate discovery on many of the claims sought to be released.
One of the factors cited by Class Counsel in favor of the settlement was the concern that
the Defendant may not have the ability to withstand greater judgment. However, the evidentiary
hearing provided no evidence to support that conclusion. In fact, the Defendant has sold its
business and has refused to disclose the financial nature of the transaction. Thus, one of the
articulated driving factors in reaching the settlement has no evidentiary basis in fact.
The reaction of the class has been dismal. This may be partly a result of the procedural
shortcomings of the settlement. The Notice was deficient in that it put members on notice that
the settlement was with Global Fitness and not Urban Active, which is the name with which
members were familiar. It did not adequately provide notice to members of what was being
released. It did not comply with the ninety (90) days notice requirements set forth in the Courts
Order. The Court has great concern that the evidence showed the notice process was completely
handled by the Defendant and Plaintiff had no involvement.
The low participation rate may partly be a result of the lack of value of the settlement. It
is a coupon settlement for the most part, and for those seeking a cash refund the process was
cumbersome. When a claims process is too difficult it has the effect of discouraging the filing of
claims. Ninety percent of the cash refund claims were rejected. The claims administrator had
final authority over claim approval and Plaintiff counsel did not retain any say in approving or

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()

C)

rejecting of refund claims. There were 242,243 potential class members and only 2, 720 made
claims and 48% were returned to claimants as deficient. Only 4% of deficient claims refiled.
Only 1,444 claims were approved, which is just 0.6% of the potential class. The Court concludes
under the evidence presented that the beneficiaries of this settlement agreement is the defendant
who receives a global release and Class Counsel who seeks a fee in the range of $250,000 to
$300,000, as well as the representatives of the Class who are to receive $1,000 a piece. The
Court notes that not one of the class representatives attended the hearing. These benefits are
disproportionate to the benefits to be received by the class. The settlement is unfair in that too
large a group of people are bound to an agreement for which little benefit is given.

IT IS HEREBY ORDERED that the settlement agreement is not approved by this Court
for the reasons set forth above.

IT IS FURTHER ORDERED that the stay of litigation is lifted in this case and in
Boone Circuit Court Case No. 11-CI-1121.
DATED this

/5 day of January 2013.


ANTHO
BOONE

CC: ALL ATTORNEYS AND PARTIES OF RECORD

U1T COURT

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EXHIBIT 6

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FILED
IOONE CIRCUIT, DISTRICT COURT

COMMONWEALTH OF KENTUCKY
BOONE CIRCUIT COURT
DIVISION I
ALBERT TARTAGLIA,
1331 Christie Ave., Apt. 2
Louisville, KY 40204,

JUL 2 72011
DI
BY

AY, CLERK

CASE NO. Il -Cl- I 121


JUDGE FROHLICH

MICHAEL BELL
4101 Pecunnie Way
Louisville, KY 40218
FIRST AMENDED COMPLAINT AND
JURY DEMAND
on behalf of themselves and all
others similarly situated,
Plaintiffs,
VS.

GLOBAL FITNESS HOLDINGS, LLC,


d/b/a/ URBAN ACTIVE,
430 Meijer Drive
Florence, KY 41042
Defendant.

Plaintiffs Albert Tartaglia and Michael Bell, on behalf of themselves and all others
similarly situated, and for their First Amended Complaint against Defendant Global Fitness
Holdings, LLC d/b/a Urban Active, allege as follows:
PRELIMINARY STATEMENT
1.

Plaintiffs bring this action to secure redress for themselves and others similarly

situated for violations by Defendant Global Fitness Holdings, LLC dlb/a Urban Active 1400,
LLC of the Kentucky Consumer Protection Act ("KCPA"); violation of KRS 367.900 et seq.;

EXHIBIT 6

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and breach of contract. Plaintiffs seek equitable relief, rescission, and damages on behalf of
themselves and the Classes described herein for Defendants unlawful actions which occurred
before, during, and after the sale of Defendants membership contracts, personal training
contracts, and contracts for other services (collectively, the "Contracts").
PARTIES
2.

Plaintiffs are individuals who reside in Louisville, Kentucky, and entered into

Contracts with Defendant.


3.

Defendant Global Fitness Holdings, LLC d/b/a/ Urban Active ("Urban Active" or

"Defendant") is a Kentucky limited liability company conducting business throughout Kentucky,


including but not limited to operating fitness clubs and offering personal training and other
services.
JURISDICTION AND VENUE
4.

This Court has personal jurisdiction over Defendant. Defendants primary place

of business is in Fayette County, Kentucky, and it transacts business in the State of Kentucky by
operating ten Urban Active locations around the State, including a facility in Boone County
located at 430 Meijer Drive, Florence, KY 41042.
5.

This Court possesses subject matter jurisdiction over all claims in this action.

6.

Venue is proper in this Court under KRS 367.220 and 367.930.


CLASS ALLEGATIONS

7.

Plaintiffs bring this action on their own behalf and as a class action pursuant to

CR 23.01 and CR 23.02 of the Kentucky Rules of Civil Procedure. The Classes consist of:
a. All persons in Kentucky to whom Defendant sold membership contracts from
May 13, 1996, until the present.

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b. All persons in Kentucky to whom Defendant sold personal training contracts and
other contracts for services within the State of Kentucky from May 13, 1996, until
the present.
c. All persons in Kentucky who cancelled Defendants Contracts and for whom
Urban Active continued to charge their credit, bank, or debit accounts from May
13, 1996, until the present.
As Class discovery progresses, Plaintiffs reserve the right to add to or amend the Class
definitions.
8.

The members of the Classes are so numerous and geographically diverse that

joinder of all of them is impracticable.


9.

There are questions of fact and law common to members of the Classes that

predominate over any questions affecting any individual members including, inter alia, the
following:
a. Whether Defendant has a common policy and practice of knowingly
misrepresenting the terms of its Contracts, the total costs of its Contracts, and the
quality of services provided in order to induce consumers to enter such Contracts.
b. Whether Defendant has a common policy and practice of failing to comply with
Kentucky law by, among other things, failing to provide consumers with copies of
its Contracts at the time of signing; failing to provide prospective members with a
comprehensive list of all membership and service plans at the time of Contract
formation; failing to disclose to prospective customers the total cost of its
Contracts; and failing to accept, process, and/or honor notices of cancellation in
accordance with Kentucky law.
c. Whether Defendant has a common policy and practice of charging members fees
and expenses not authorized in its Contracts, failing to perform its Contracts in

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good faith and fair dealing and of breaching its contracts by failing to comply
with contractual terms and conditions.
10.

The claims of Plaintiffs are typical of the claims of the other members of the

Classes, and Plaintiffs have no interests that are adverse or antagonistic to the interests of the
other members of the Classes.
11.

Plaintiffs will fairly and adequately protect the interests of the other members of

the Classes. Plaintiffs are committed to prosecuting this Class Action and have retained
competent counsel experienced in litigation of this nature.
12.

Plaintiffs envision no unusual difficulty in the management of this action as a

Class Action. For all of the foregoing reasons, a Class Action is superior to the other available
methods for the fair and efficient adjudication of this action.
FACTUAL BACKGROUND
13.

Defendant actively and aggressively solicits customers to sign its Contracts.

14.

Defendant engages in a common policy and practice of misrepresenting the terms

of these Contracts at the time of sale. Through communications from Defendant, its employees
are encouraged and- incentivized to do the same.
15.

Among other things, Defendant misrepresents the duration and value of the

Contracts, the qualifications of its staff, the availability and quantity of services, the terms of
cancellation, and the total cost of the Contracts.
16.

Plaintiffs, and Class members whom they seek to represent, relied on these

misrepresentations.
17.

Defendant also engages in a common policy and practice of failing to provide its

prospective customers with a comprehensive list of all membership plans, personal training plans

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and plans for other services. In addition, Defendant represents to customers that membership
and personal training plans constitute limited time deals or special pricing when in fact they do
not. Through communications from Defendant, its employees are encouraged and incentivized
to do the same.
18.

Defendant also engages in a common policy and practice of avoiding

cancellations, making cancellations as difficult as possible, and failing to honor cancellations.


Through communications from Defendant, its employees are encouraged and incentivized to do
the same.
19.

Defendant effectuates this common practice by, among other things, not

disclosing cancellation terms, refusing to accept cancellations, providing inaccurate information


regarding cancellations, and/or misdirecting customers seeking to cancel to other employees or
departments within the company.
20.

Urban Active requires that persons who sign Contracts pre-pay for services and

authorize payment from a credit, debit, or bank account so that funds may be withdrawn from
members accounts without specific authorization and/or after authorization has expired or been
terminated.
Albert Tartaglia
21.

Plaintiff Albert Tartaglia is a member of Urban Active, a fitness center owned and

operated by Defendant.
22.

In October 2010, Tartaglia signed a membership contract with Urban Actives

Taylorsville Road facility in Louisville, KY.


23.

Prior to signing the membership contract, Defendants representatives told

Tartaglia, a prospective purchaser, that Urban Active was offering a special deal at the time and

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that the special deal would expire in a couple of days. The special deal was a one-year contract
for $29 per month.
24.

In violation of KRS 367.915,Tartaglia was never presented with any other

membership plans nor was he shown a comprehensive list of all membership plans offered for
sale by Urban Active that included the respective price and/or duration of each plan.
25.

A few days later, on October 28, 2010, employees of Defendant were promoting

personal training contracts. Tartaglia was approached by Andy, a personal training consultant
employed by Defendant.
26.

Andy encouraged Tartaglia to sign up for a long-term personal training contract.

27.

Prior to signing the personal training contract, Andy provided Tartaglia, a

prospective purchaser, a list of five or six personal training plans. In violation of KRS
367.915, Tartaglia was not presented with a comprehensive list of all personal training plans
offered for sale by Urban Active that included the respective price and/or duration of each plan.
28.

Andy told Tartaglia that he would receive a workout plan and a meal plan to assist

him in his training goals and that he could cancel the personal training contract at any time
without any penalty.
29.

Based on these representations, Tartaglia agreed to sign a personal training

contract.
30.

When Tartaglia signed the personal training contract, he was not provided a copy

of the personal training contract and he was not given any oral or written information regarding
the cancellation policy, other than the false representations described above.

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31.

After four sessions, Tartaglia was dissatisfied with the personal training service,

including, but not limited to, Defendants failure to provide a meal plan and weight training plan
and the qualifications of Defendants training staff to do the same.
32.

In December, and before he ever received a copy of his personal training contract,

Tartaglia attempted to cancel his personal training contract both in person at the Taylorsville
Road facility and via telephone calls to Urban Actives Corporate Headquarters. Contrary to the
representations made by Andy, Tartaglia was told that Urban Active would not cancel his
personal training contract absent payment of a $250 fee or a doctors note saying he was
physically not capable of training. Defendant continued to charge Plaintiff for training services
at a cost of $90 per month.
33.

In May 2011, after Tartaglia contacted the Better Business Bureau, Defendant

finally stopped charging Tartaglia $90 per month for the alleged personal training contract;
however, Defendant has refused to void Plaintiffs personal training contract and/or refund
money taken from Tartaglia under the alleged personal training contract.
34.

In addition, Defendant continues to charge Tartaglia pursuant to an alleged

membership contract.
35.

Defendants unlawful actions have directly and proximately caused damage to

Tartaglia in an amount greater than $400.


Michael Bell
36.

Plaintiff Michael Bell is a member of Urban Active, a fitness center owned and

operated by Defendant.
37.

In March 2010, Bell signed a membership contract with Urban Actives

Taylorsville Road facility in Louisville, KY.

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38.

Prior to signing the membership contract, Defendants representatives told Bell, a

prospective purchaser, that the membership contract costs $29 per month for a one-year contract
and that this was a special deal that needed to be acted on right away.
39.

In violation of KRS 367.9 15, Bell was not presented with any other membership

plans nor was he shown a comprehensive list of all membership plans offered for sale by Urban
Active that included the respective price and/or duration of each plan.
40.

Bell was never told about the $15 administrative fee that would be charged twice

during his one-year membership contract.


41.

Over the course of his membership, Bell was charged at least two $15 fees that

were not disclosed at the time he signed the membership contract and he also incurred multiple
other charges of approximately $20 that were not disclosed prior to, nor authorized in, his
membership contract.
42.

In February 2011, Bell attempted to cancel his membership contract and terminate

the authorized and unauthorized charges by completing the required form at the Taylorsville
Road facility. Bell was told that he could not cancel his contract in person, but instead had to
print a cancellation form from Urban Actives website and send it in via certified mail.
43.

Despite complying with these extra-contractual requirements, Bells cancellation

was not accepted and he was billed in March and April of 2011. Defendant has not voided Bells
membership contract nor refunded any of the money unlawfully taken from Bell.
44.

Defendants unlawful actions have directly and proximately caused damage to

Bell in an amount greater than $100.

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CAUSES OF ACTION
COUNT ONE
Violation of the Kentucky Consumer Protection Act (KRS 367.110 etseq.,)
Plaintiffs incorporate by reference the allegations contained in paragraphs I

45.

through 44 as if frilly rewritten herein.


Plaintiffs and all of the members of the Classes are "persons" as defined by KRS

46.
367.110(1).
47.

Defendant is a "person" as defined by KRS 367.110(1).

48.

Defendants business of selling Contracts qualifies as "trade and commerce" as

defined by KRS 367.110(2).


49.

Defendant engages in a common policy and practice of unfair, false, misleading,

and deceptive conduct in violation of KRS 367.170 by knowingly misrepresenting the terms
and conditions of its Contracts; overcharging members for use of its facilities and services;
charging members undisclosed and unauthorized fees; and refusing to accept, intentionally
avoiding, and failing to honor Contract cancellations that comply with Kentucky law.
50.

Plaintiff and Class members rely upon Defendants representations when deciding

to enter into Contracts.


51.

Plaintiffs request injunctive and declaratory relief from Defendants actions and

damages as detailed in the prayer for relief.


COUNT TWO
Violation of the Kentucky Health Spa Statute (KRS 367.910 et seq.)
52.

Plaintiffs incorporate by reference the allegations contained in paragraphs 1

through 51 as if fully rewritten herein.

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53.

Defendant is an establishment which provides, for profit, as one of its primary

purposes, services and facilities which purport to improve the users physical condition or
appearance through participation in sports activities, fitness training, exercise or body building
and therefore qualifies as a "health spa service" as defined in KRS 367.900(1).
54.

The membership contracts between Class members and Defendant constitute

"contracts" by which one becomes a "member" entitled to use the "facilities" of Urban Active
within the meaning of KRS 367.900(2), (3), & (5).
55.

The personal training contracts between Class members and Defendant constitute

"contracts" by which one becomes a "member" entitled to specific "services" of Urban Active
within the meaning of KRS 367.900(2), (3), & (6).
56.

Defendant is a "seller" as defined by KRS 367.900(4).

57.

Defendant has knowingly engaged in a pattern and practice of conduct prohibited

by Kentucky law (KRS 367.910 367.930), which includes but is not limited to the following
actions:
a. Failing to provide Plaintiffs and Class members with a copy of their Contracts at
the time the Contracts are signed (KRS 367.910);
b. Failing to inform Plaintiffs and Class members of their right to cancel Contracts
within three days and failing to honor members attempts to cancel Contracts
within three days of execution (KRS 367.910);
c. Failing to honor cancellation rights and provide refunds in a timely manner (KRS
367.913);
d. Failing to provide prospective gym members and personal training members with
a comprehensive list of all membership plans and personal training plans offered

1101

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for sale by Urban Active and the respective price and/or duration of each plan
(KRS 367.915);
e. Making material misrepresentations to members and prospective members
regarding the terms and conditions of its Contracts including, but not limited to
the qualifications of its staff; availability, quality and extent of facilities; the
period of time discounts or special offers are available; and

oral

misrepresentations regarding the rights of membership (KRS 367.920);


f. Knowingly misrepresenting the terms and conditions of its Contracts and refusing
to accept, intentionally avoiding, and failing to honor membership and personal
training cancellations that comply with Kentucky law.
58.

Plaintiffs request injunctive and declaratory relief from Defendants actions; that

all Contracts entered into between Defendant and Class members be declared void pursuant to
KRS 367.912; and damages as detailed in the prayer for relief.
COUNT THREE
Unjust Enrichment
59.

Plaintiffs incorporate by reference the allegations contained in Paragraphs 1

through 58 as if fully rewritten herein.


60.

Plaintiffs and the Class members agreed to permit Defendant to deduct money

from their accounts pursuant to the oral representations made by Defendants representatives and
the terms of their contracts. No further amounts should have been deducted.
61.

Contrary to their agreement, Defendant deducted money from the accounts of

Plaintiffs and the Class members without any agreement from Plaintiffs and the Class members.

IF

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62.

Through Defendants unlawful and improper deductions, Plaintiffs and Class

members conferred a benefit on Defendant, to which it is not entitled and which lawfully belongs
to Plaintiffs and Class members.
63.

Defendant has accepted and retained the benefits conferred by the Plaintiffs and

the Class members under circumstances that make it inequitable for Defendant to retain the
benefits without paying the value of the benefits conferred.
64.

Plaintiffs request injunctive and declaratory relief from Defendants actions, as

well as damages as detailed in their prayer for relief.


COUNT FOUR
Breach of Contract
65.

Plaintiffs incorporate by reference the allegations contained in paragraphs 1

through 64 as if fully rewritten herein.


66.

To the extent all Contracts are not void, Plaintiffs and all Class members have

complied with the duties and obligations of their Contracts with Defendant.
67.

Defendant, on the other hand, has a common policy and practice of failing to

comply with the terms and conditions of its Contracts with Plaintiffs. Copies of the Contracts
are not attached to this Complaint because they are form contracts prepared and maintained by
Defendant and because, as alleged above, in many instances Plaintiff and Class members were
not provided with copies of Contracts as required by Kentucky law.
68.

Defendant engaged in a common policy and practice of breaching its Contracts

with its members by, among other things, making unauthorized charges to members bank,
credit, or debit accounts; refusing to honor Contract cancellations; failing to comply with terms
and conditions regarding Contract cancellations; and intentionally thwarting Plaintiffs ability to
cancel Contracts.
12

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69.

The policies and practices described above also breach the implied covenants of

good faith and fair dealing imposed by Kentucky law.


70.

Plaintiffs and Class members have been damaged by Defendants contractual

breaches and request injunctive and declaratory relief from Defendants actions, as well as
damages as described in the prayer for relief.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and the members of the Class,
respectfully request this Court grant the following relief:
a. Certification of this action as a class action pursuant to CR 23.01 and CR 23.02 of the
Kentucky Rules of Civil Procedure on behalf of the members of the Classes,
appointing Plaintiffs and their counsel to represent the Classes;
b. A declaratory judgment that the practices complained of herein are unlawful under
the Kentucky Consumer Protection Act, the Kentucky Health Spa Statute, and the
laws of the State of Kentucky;
c. An injunction against Defendant and its employees from engaging in each of the
unlawful practices described herein;
d. A declaration that all Contracts are void as contrary to public policy pursuant to KRS
367.912;
e. A refund of all monies collected by Defendant from Class members pursuant to the
voided Contracts,
f. An award of compensatory and punitive damages in an amount in excess of $25,000
for the Class;

13

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g. An award of costs and expenses of this action together with reasonable attorneys fees
as permitted under the Kentucky Consumer Protection Act; and
h. Such other relief as this Court deems just and appropriate.
RespctfuIly submitted,
Rosemary D(W41sh (Ky. Bar. No. #865 84)
James B. Lirl&(JLy. Bar No. #92594)
VORYS, SATER, SEYMOUR AND PEASE LLP
221 East Fourth Street
Suite 2000, Atrium Two
Cincinnati, OH 45202
(513)-723-4487
(513)-852-8449 (fax)
Thomas N. McCormick
VORYS, SATER, SEYMOUR AND PEASE LLP
52 East Gay Street, P.O. Box 1008
Columbus, Ohio 43215-1008
Phone: (614) 464-6433
Fax: (614) 719-4693
Counsel for Plaintiffs

JURY DEMAND ENDORSED HEREON


Plaintiffs hereby demand a trial by jury of all issues so triable.

Rosemary D.
I

14

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served by U.S. Mail, postage prepaid,
upon the following counsel on this 27th day of July, 2011:
Mark T. Hayden
V. Brandon McGrath
Greenebaum Doll & McDonald PLLC
2900 Chemed Center
255 E. Fifth Street
Cincinnati, Ohio 45202

Rosemary D. eh

15
7/27/2011 11909023

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EXHIBIT 7

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Exhibit I
Statement of Michael Bell

I am providing the following statement in an attempt to answer, to the best of my


recollection, the numerous interrogatories propounded by Defendant which are repetitive,
redundant, and call for a narrative response. While not all encompassing of every fact or
conversation with, or about, Urban Active, the statement is intended to substantively respond to
the interrogatories propounded by Defendant.
I became interested in joining a gym in early 2010. A co-worker Jeff Herni suggested
Urban Active in Louisville, Kentucky because of the low rate that he was paying. In March
2010, I went to the Taylorsville Road Urban Active to inquire about possible membership.
Following a brief tour of the facility, I met with a membership representative. I do not recall the
individuals name, but he was a white male in his early 20s. I was told that Urban Active was
running a special membership offer of $29.00 per month for a one year membership. I believe
that there was a sign located in the membership area advertising this special. I was also told that
this membership special was about to expire and that I had to sign up right away. I was not
offered other membership options nor was I presented with a comprehensive list of all
membership plans that included the price and duration of each plan. In order to obtain the
special deal, I signed up for the one year plan.
Over the course of my membership, I was charged $15.00 on at least two occasions. I co
iot recall whether these charges were disclosed to me. In addition, on multiple other occasions
Urban Active charged me approximately $20.00 that I do not recall authorizing. I called Urban
Active on multiple times for an explanation regarding these charges and also asked about these
charges in person in January 2011. I do not believe that anyone at Urban Active adequately
explained these charges to me.
in January 2011, I went to the Taylorsville Road Urban Active to cancel my membership.
The staff members who worked at the front desk were extremely rude and dismissive and told
me that I could not cancel my membership in person but instead had to obtain a form from Urban
Actives website and send the form in by certified mail. I asked to speak with a manager and
was repeatedly told that the managers were busy or unavailable. After waiting for 30 - 40
minutes to speak with a manager, I became frustrated and left the gym.
After leaving the gym, I found the cancellation form on the internet and sent the form to
Urban Active via certified mail on or about February 1, 2011. Despite complying with these
extra contractual cancellation procedures, I continued to incur charges through April 2011. In
addition, I was also charged a $10.00 fee which was never disclosed.
My bank records show some of the damages that I have incurred as a result of Urban
Actives conduct related to my gym membership These damages resulted from Urban Actives
failure to comply with Kentucky law, misrepresentations at the time of sale, misrepresentations
regarding cancellation, and the failure to accurately advise me of and abide by their own
cancellations provisions. Damages include but are not limited to all of the charges I incurred
from Urban Active.

2/1/20I2 13093801

EXHIBIT 7

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EXHIBIT 8
TO BE FILED UNDER SEAL

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EXHIBIT 9
TO BE FILED UNDER SEAL

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EXHIBIT 10

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McCormick, Thomas N.
From:
Sent:
To:
Cc:
Subject:

McCormick, Thomas N.
Wednesday, January 23, 2013 10:54 AM
Joshua T. Rose
Lind, J. B.; gbelzleyaol.com ; Rubin, Kenneth J.
RE: Joining Forces

Josh and Greg:


First and foremost, congratulations. Im assuming that you received the Order from the Court rejecting the Seeger
Settlement. It was a pleasure working with you to achieve that result. It is my hope that we can now reach an
agreement and move forward prosecuting these actions.
Regarding our emails below, I believe there are two ways in which we can justify/create the recovery split.
(1) One is by time put in to the case, i.e. a lodestar analysis. Based on the number of hours below, such a split would be
far below what we offered in November. I understand your opposition to this method and for that reason, we offered a
second method.
(2) The second is by the value that each side brings to the case, i.e. the evidence and the value of the claims. It is in this
context that I made the statement that we, and you, are not hampered by the disproportionate amount of hours that
Vorys has put into the case. If our claims did not have any merit, then I would not be seeking to recover on them or
asking you to shoulder the burden of the hours that have been put in. Likewise, if I thought the value of our claims
were equal, I could agree to the 50-50 split on the first $7 million as you have set forth below. However, turning to the
evidence, merit, and value of the claims, we cannot agree with the split that you have proposed below. We believe our
claims are more suitable for class certification, easier to prove on the merits, and present a larger potential recovery.
Much of our evidence has already been presented in our Objections, but Id happy to discuss this with you at your
convenience. Regarding your claims, I do not believe Global Fitness is in a catch 22. From reading the briefs, my
understanding is that Global Fitness has acknowledged/admitted to charging your plaintiffs as set forth in their contracts
(with the exception that the $10 fee did not appear in one of the contracts). As such, they will further admit to charging
all members as set forth in the contracts. However, the contracts changed in 2008 to include $10 cancellation fees and
to include the different language about pre-payment of dues and whether you will be charged 1 or 2 additional months.
So, for a large percentage of the class, the merits of your claims will depend on which version of the contract the class
member signed which will require an individual analysis and whether or not the court believes that language was
ambiguous/deceitful. While both your claims and our claims have positives and negatives, we believe ours are more
likely to be certified and more likely to succeed on the merits.
Email is probably not the best medium for these type of discussions, so, Id be happy to discuss this over the phone or to
meet again in Cincinnati. Last, I want to emphasize that I strongly believe the class will benefit from both of our firms
working together and avoiding what happened in the Seeger case. As we discussed in Cincinnati, the amount of money
that can be recovered from Global Fitness is enough to fully compensate the class and both firms for the work put in.
We look forward to talking with you soon. Thanks
Tom McCormick
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
Columbus, Ohio 43216
614-464-6433

EXHIBIT 10

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From: Joshua T. Rose [mailto:jrose@hcmsrlaw.com]
Sent: Wednesday, January 16, 2013 4:21 PM
To: McCormick, Thomas N.
Cc: Lind, J. B.; gbelzley@aol.com
Subject: RE: Joining Forces
Tom,
In response to your questions:
When we met, we raised our concern that your firms $1,000,000 (or more) in fees thus far could hamper the
classs recovery, particularly given the stage of the proceedings, unless a very large recovery could be acheived
You responded that we should not be concerned, as any fee award should be split based on the recovery and
value brought to the table, not quantity of hours. This is one reason we believe our proposal is fair at this point in
time, by providing Vorys an increasingly larger share as the recovery increases. In any event, I estimate that our
attorney hours are less than 500 thus far. Also, Gregs comment regarding his fees thus far was that they were
relatively minimal when compared to Voryss fees.
Every paper Global has ever filed affirmatively and repeatedly asserts that they had the right to charge two
months and explains why they believe that to be true, including its Answer and Globals numerous 20 page
memoranda in support of their motions to dismiss. Theyve done much more than merely take a position
assuming our allegations to be true. Also, their corporate employees have admitted it. But most importantly,
Global is in a catch 22. If it takes the position that others with the same cancellation clauses were only charged 1
month and no $10 fee, it is in effect admitting that our clients were improperly charged 2 months and the $10 fee.
That would eliminate the need to prove liability and simply leave the issue of how many others were likewise
improperly charged.
I look forward to hearing from you.
Josh
Joshua T. Rose
Attorney at Law
Hummel Coan Miller Sage & Rose
239 South Fifth Street
KY Home Life Bldg., Suite 1700
Louisville, KY 40202-3268
Tel: 502-585-3084
Fax: 502-585-3548

LLC

jrose@hcmsrlaw.com
From: McCormick, Thomas N. [mailto:tnmccormick@vorys.com]
Sent: Tuesday, January 15, 2013 1:47 PM
To: Joshua T. Rose
Cc: Lind, J. B.; gbelzley@aol.com
Subject: RE: Joining Forces
Josh and Greg:
Sorry for the delay in getting back to you on this. As to the Seeger settlement, Ill paraphrase from something that JB
said ... Im feeling pretty good because Brandons last brief can be summarized as "class counsel stinks ... but we spent a
lot of money so it should be affirmed."
As to your proposal below, I need some additional information to respond. Specifically,

Case: 2:11-cv-00436-GCS-NMK Doc #: 128-10 Filed: 01/23/14 Page: 4 of 4 PAGEID #: 2414


(1)

Back before we met in Cincinnati, we discussed sharing with each other the costs and hours you had into
the case. From our discussion in Cincinnati, Greg said his time and expense was minimal and was just the
efforts to defeat the Seeger Settlement. I never received any information from Josh however. I would

appreciate it if you could provide that.


(2) In evaluating this from the standpoint of what each side is bringing to the case from a merits and evidence
standpoint, I would also be interested in learning in what form Defendants admissions about charging the
class have been made. Based on my review of the papers in your case, Defendant admitted for the purpose
of its Rule 12 motion, that your allegations were true. Have they made other admissions or statements on
which you will rely to prove that they charged all members for 2 months. Thanks.
Tom McCormick
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
Columbus, Ohio 43216
614-464-6433

From: Joshua T. Rose [mailto:jrose@hcmsrlaw.com]


Sent: Monday, December 31, 2012 9:33 AM
To: McCormick, Thomas N.
Cc: Lind, J. B.; cibelzIey@iaoI.com
Subject: Joining Forces
Tom,
Following up on our meeting and after careful consideration, Greg and I propose the following split between our firms Vorys and any of its co-counsel (on the one hand, hereinafter "Vorys") and my and Gregs firm (on the other hand,
hereinafter "RG"):
50/50 split of all fees related to any settlement or award up to $7,000,000;
Vorys gets 70% (30% to RG) of all fees related to any settlement or award from $7,000,000 - $10,000.
Vorys gets 90% (10% to RG) of all fees related to any settlement or award above $10,000.
Vorys and RG stipulate that both will be named class counsel for purpose of certification and/or settlement in
any of the pending cases.
Costs of all firms will be paid first from any award or settlement, and each firm will continue to bear its own
costs going forward.
We look forward to hearing from you and hope we can continue to work together for the benefit of the class.
Happy New Year!
Josh

Joshua T. Rose
Attorney at Law
Hummel Coan Miller Sage & Rose
239 South Fifth Street
KY Home Life Bldg., Suite 1700
Louisville, KY 40202-3268
Tel: 502-585-3084
Fax: 502-585-3548

LLC

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EXHIBIT 11

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Locations ( Urban Active

Page 1 of

M11\fl
Locations
Membership >)
Social Community >
Personal Training >)
Group Fitness & Proams>>
News
Contact

Locations
Home >>Locations

Georgia
Buckhead Atlanta - Georgia

Kentucky
Lexington-Downtown -Kentucky
Lexington-Palomar - Kentucky
Lexington-Palumbo - Kentucky
Louisville-Dixie Highway - Kentucky
Louisville-Preston Highway Kentucky
Louisville-St. Matthews - Kentucky
Louisville-Taylorsville Rd - Kentucky
Northern KY-Bellevue - Kentucky
Northern KY-Erlanger - Kentucky
Northern KY-Florence Kentucky

Nebraska
NW Omaha - Nebraska

North Carolina
Charlotte-Ballarityne - North Carolina

http://www.urbanactive.com/locations/

Ohio
Cleveland-Crocker Park - Ohio
Cleveland-Legacy Village - Ohio
Cincinnati-Coierain - Ohio
Cincinnati-Deerfield Ohio
Cincinnati-Hyde Park - Ohio
Cincinnati-Kenwood - Ohio
Cincinnati-West Chester - Ohio
Cincinnati-Western Hills - Ohio
Columbus-Dublin - Ohio
Columbus-Graceland - Ohio
Columbus-Grandview - Ohio
Columbus-Grove City -Ohio (No Group
X Classes)
Columbus-Billiard - Ohio
Columbus-New Albany - Ohio
Columbus-Polaris - Ohio
Columbus-Powell - Ohio
Dayton-The Greene - Ohio
Toledo-Maumee - Ohio
Toledo-Sylvania - Ohio

Pennsylvania

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Locations I Urban Active

Page 2 of 3

Tennessee
Nashville-Hermitage - Tennessee
Nashville-Murfreesboro , - Tennessee
Nashville-Rivergate Tennessee (No
Group X Classes)
Download Mobile App Real-time Class Schedules and Updates
What is Your Fat Stat?

!!A ?f :14:!

Try Us Free

http://www.urbanactive.com/1ocations/

8/18/2012

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EXHIBIT 12

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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION (COLUMBUS)

AMBER GASCHO, etal.,


Plaintiffs,

Case No. 2:11-cv-436


Judge Smith

V.

GLOBAL FITNESS HOLDINGS, LLC, etal., :

Magistrate Judge King

Defendants.

DECLARATION OF THOMAS N. MCCORMICK IN SUPPORT OF PLAINTIFFS


MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
I, Thomas N. McCormick, hereby provide the following declaration to support
preliminary approval of the Settlement Agreement in this matter:
1) I am a partner with the law firm of Vorys, Sater, Seymour & Pease LLP ("Vorys")
and serve as one of the lawyers for the Plaintiffs in this case. Previously, this Court
appointed my law firm as interim co-lead counsel in this case. Thus, I have served
as interim co-lead counsel while prosecuting the Plaintiffs claims against Defendant
Global Fitness ("Urban Active").
2) In addition to service as interim co-lead counsel in this case, the Vorys law firm and
I also filed a similar action in the Boone County Circuit Court in Kentucky, captioned

Tartaglia v. Global Fitness Holdings, LLC, Case No. 11 Cl 1121, alleging similar
causes of action and claims against Urban Active. Notably, on behalf of the
Plaintiffs and putative class members in the Tartaglia case, a Motion for Glass
Certification was filed on June 13, 2013.

EXHIBIT 12

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3) 1 make this Declaration out of my own personal knowledge. If I am needed to


testify, 1 am competent to offer testimony on all matters provided for in my
Declaration. Thus, I provide this Declaration in support of Plaintiffs Motion for
Preliminary Approval of the Settlement Agreement.
4) Through my nearly 11 years of practice, I have significant litigation experience,
including numerous complex and class action cases involving such consumer
claims that are involved in this case. I have actively represented my clients in
Ohios state courts, as well as Ohios federal courts and other jurisdictions state
and federal courts.
5) Since the filing and consolidation of the actions in the Southern District of Ohio,
Eastern Division, the parties have fully engaged in many legal strategies sought to
advance their interests in the litigation. Two detailed Motions for Judgment on the
Pleadings were resolved, which allowed Plaintiffs claims to proceed. In addition,
substantial discovery, including motion practice and meet-and-confer attempts,
resulted during the course of the litigation. In fact, the parties were handling the
remaining few depositions necessary before Plaintiffs completed all discovery
necessary to file for class certification when the mediation proceeded in July 2013.
6) After months of exchanging general settlement communications, the parties agreed
to mediation on July 8, 2013, in Columbus, Ohio. Mediator William Hartgering from
the Chicago office of JAMS assisted the parties with mediation. Although the
parties made significant progress, no settlement was reached during that mediation.
7) Immediately following the mediation, the parties continued to negotiate key points
relevant to the substantive relief afforded to the classes. The settlement that

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resulted came about as a product of vigorous negotiation between Plaintiffs and


Urban Actives counsel. The negotiations were hard fought and neared impasse on
several occasions based upon the positions taken by each party.
8) There was no collusion by me during the course of any negotiations, nor do I know
of any such collusion involving anyone else because I was personally involved in all
decisions concerning the negotiations with Urban Active.
9) None of the named Plaintiffs have any interests conflicting with the Settlement
Classes.
1O)The parties did not begin negotiations on attorneys fees and costs until after the
substantive relief for the class was agreed upon between Plaintiffs and Urban
Active. Thus, it is clear that the Settlement resulted from arms-length negotiation
and fair dealing with the named Plaintiffs and classes best interests in mind.
11)Based upon my personal involvement in this case and experience, the benefits
provided to the classes are significant. The members of the classes receive real
money, not coupons, vouchers, or future discounts. This is not a settlement where
Class/Subclass members will not be motivated to participate when it takes merely
completing a one-page form to obtain monetary relief under the settlement up to
$75 for many class members.
12) For all the reasons provided above, it is my belief that the settlement is fair and
reasonable to all members of the classes. It is my belief that the settlement fairly
provides for all classes and offers them results now, when further litigation would
only retain the risk of non-collection and delay any compensation going to the
Class/Subclass members.

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Under penalty of perjury under the laws of the United States, I declare that my Declaration
is true and accurate and was executed in Columbus, Ohio on September 17, 2013.

Thomas N. McCormick
tnmccormickcvorvs.com
Vorys, Sater, Seymour & Pease LIP
52 East Gay Street
Columbus, Ohio 43215
(6 14) 464-6400 (telephone)
(614) 719-4693 (facsimile)

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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION (COLUMBUS)

AMBER GASCHO, et al.,


Plaintiffs,

Case No. 2:11 -cv-436


Judge Smith

GLOBAL FITNESS HOLDINGS, LLC, et al.,

Magistrate Judge King

Defendants.

DECLARATION OF MARK H. TROUTMAN IN SUPPORT OF PLAINTIFFS MOTION


FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
I, Mark H. Troutman, hereby provide the following declaration to support preliminary
approval of the Settlement Agreement in this matter:
1) I am a partner with the law firm of Isaac, Wiles, Burkholder & Teetor, LLC ("Isaac
Wiles") and serve as one of the lawyers for the Plaintiffs in this case. Previously,
this Court appointed my former law firm of Isaac, Brant, Ledman & Teetor, LLP
("Isaac Brant") as interim co-lead counsel in this case, and all of the lawyers
involved in representing the Plaintiffs from Isaac Brant currently still work with Isaac
Wiles. Thus, both the Isaac Brant and Isaac Wiles law firms have served as interim
co-lead counsel while prosecuting the Plaintiffs claims against Defendant Global
Fitness ("Urban Active").
2) I make this Declaration out of my own personal knowledge. If I am needed to
testify, I am competent to offer testimony on all mailers provided for in my
Declaration. Thus, I provide this Declaration in support of Plaintiffs Motion for
EXHIBIT

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Preliminary Approval of the Settlement Agreement.


3) Along with other lawyers from Isaac Wiles such as Gregory M. Travalio and Mark
Landes, I have extensive experience representing consumers in various class
actions and individual cases alleging unfair, deceptive, and unconscionable
business practices. My firm has actively represented plaintiffs in a wide range of
actions, and it is experienced in litigating a wide range of types of cases in Ohios
and other jurisdictions federal courts.
4) Since Gregory Travalio joined Isaac Brant and now Isaac Wiles, he and I have
actively litigated cases for individual consumers and proposed classes of
consumers to protect their legal rights. Besides our handling numerous individual
actions, Mr. Travalio and I have been appointed as co-lead counsel while
advocating for consumers in other cases, most recently in In Fe: Porsche Cars North

Amercia, Inc., Plastic Coolant Tubes Products Liability Litigation,

Case No. 2:11-md-

2233 (consolidated by the Multi-District Litigation Panel before Judge Frost in the
Southern District of Ohio, Eastern Division).
5) Beyond litigation experience, Mr. Travalio and I co-author a text entitled Ohio

Consumer Law, which is published annually by Lexis. The text provides Ohio
consumers and practitioners with annotated background regarding all types of
consumer law claims under Ohio law. Thousands of versions of the text are
currently in circulation.
6) During my nearly 10 years of practice, I have personally been involved in an
estimated 100+ mediations, representing both plaintiffs and defendants. I have
even served as mediator in an effort to help other parties resolve their cases.

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7) 1 have attached true and accurate copies of Gregory Travalios, Mark Landes,
and my resumes to this Affidavit as Exhibits A, B, and C, respectively.
8) 1 have served consumers in many regards in a wide range of cases, including,
but not limited to, products liability and other consumer litigation. Based upon
my personal experience with prosecuting this action, my co-counsel and I have
remained dedicated to our clients and the putative class to adequately represent
their interests in this litigation.
9) Since the filing and consolidation of the actions in the Southern District of Ohio,
Eastern Division, the parties have fully engaged in many legal strategies sought to
advance their interests in the litigation. Two detailed Motions for Judgment on the
Pleadings were resolved, which allowed their claims to proceed. In addition,
substantial discovery, including motion practice and meet-and-confer attempts,
resulted during the course of the litigation. In fact, the parties were handling the
remaining few depositions necessary before Plaintiffs completed all discovery
necessary to file for class certification when the mediation proceeded in July 2013.
10)After months of exchanging general settlement communications, the parties agreed
to mediation on July 8,2013, in Columbus, Ohio. Mediator William Hartgering from
the Chicago office of JAMS assisted the parties with mediation. Although the
parties made significant progress, no settlement was reached during that mediation.
11) Immediately following the mediation, the parties continued to negotiate key points
relevant to the substantive relief afforded to the classes. The settlement that
resulted came about as a product of vigorous negotiation between Plaintiffs and
Urban Actives counsel. The negotiations were hard fought and neared impasse on

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several occasions based upon the positions taken by each party.


12)There was no collusion by me during the course of any negotiations, nor do I know
of any such collusion involving anyone else because I was personally involved in all
decisions concerning the negotiations with Urban Active.
13)None of the named Plaintiffs have any interests conflicting with the Settlement
Classes.
14)The parties did not begin negotiations on attorneys fees and costs until after the
substantive relief for the class was agreed upon between Plaintiffs and Urban
Active. Thus, it is dear that the Settlement resulted from arms-length negotiation
and fair dealing with the named Plaintiffs and classes best interests in mind.
15)Based upon my personal involvement in this case and experience, the benefits
provided to the classes are significant. The members of the classes receive real
money, not coupons, vouchers, or future discounts. This is not a settlement where
Class/Subclass members will not be motivated to participate when it takes merely
completing a one-page form to obtain monetary relief under the settlement up to
$75 for many class members.
16)For all the reasons provided above, it is my belief that the settlement is fair and
reasonable to all members of the classes. It is my belief that the settlement fairly
provides for all classes and offers them results now, when further litigation would
only retain the risk of non-collection and delay any compensation going to the
Class/Subclass members.
Under penalty of perjury under the laws of the United States, I declare that my Declaration
is true and accurate and was executed in Columbus, Ohio on September 17, 2013.

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Mark H. Troutman
mtroutmanisaacwiles.com
Isaac, Wiles, Burkholder & Teetor, LLC
Two Miranova Place, Suite 700
Columbus, Ohio 43215
(614) 221-2121 (telephone)
(614) 365-9516 (facsimile)
2360573.1 : 03964 00002

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EXHIBIT 13

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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION (COLUMBUS)
AMBER GASCHO, etal.,
Plaintiffs,
V.

GLOBAL FITNESS HOLDINGS, LLC, et al., :

Case No. 2:11-cv-436

Judge Smith
Magistrate Judge King

Defendants.

DECLARATION OF RICHARD S. GURBST IN SUPPORT OF PLAINTIFFS MOTION


FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT
I, Richard S. Gurbst, hereby provide the following declaration to support
preliminary approval of the Settlement Agreement in this matter:
1) I am a Partner with the law firm of Squire Sanders (US) LLP and serve as one of
the lawyers for Defendant Global Fitness, LLC d/b/aF Urban Active Fitness in this
case.
2) I make this Declaration based on my own personal knowledge. If I am needed to
testify, I am competent to offer testimony on all matters provided for in my
Declaration. Thus, I provide this Declaration in support of Plaintiffs Motion for
Preliminary Approval of the Settlement Agreement.
3) I have more than 40 years of trial experience in state and federal courts
representing both plaintiffs and defendants. I have handled complex litigation
throughout my career, such as this litigation between Plaintiffs and my client,
Global Fitness, LLC.

EXHIBIT 13

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4) Since the filing and consolidation of the actions in the Southern District of Ohio,
Eastern Division, the parties through counsel have fully sought to advance their
respective interests in the litigation. Two detailed Motions for Judgment on the
Pleadings were filed, which despite the best efforts of Defendants, allowed some
of Plaintiffs claims to proceed in this particular matter. In addition, substantial
discovery, including motion practice, document review, and meet-and-confer
attempts, resulted during the course of the litigation. In fact, the parties were
nearly completed with all discovery pertaining to Plaintiffs Motion for Class
Certification when they sought the assistance of an outside mediator to attempt
settlement negotiations.
5) To assist with efforts at negotiation, the parties engaged William Hartgering, a
mediator who works out of the Chicago office of JAMS. Beginning on the
evening of July 7 and continuing all-day on July 8, 2013, the parties held
mediation sessions in Columbus, Ohio. Despite significant progress, the parties
did not reach a settlement on that date; however, the parties agreed to continue
their efforts.
6) Eventually, the parties came to agreement on the terms of the substantive relief
to be afforded to the class members. Such agreement was the product of
vigorous, heated, and sometimes acrimonious settlement negotiations. From my
perspective, I believe the parties, particularly Defendant made significant
concessions in order to reach the final agreement that is found in the Settlement
Agreement.

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7) I know of no collusion involving anyone during the course of these negotiations I


was personally involved in all discussions concerning the settlement
negotiations. If there was any collusion, 1 would be in a position to know.
8) From the outset of the negotiations Plaintiffs counsel made clear that they would
not negotiate on any other subject, including fees and costs, until the parties had
reached agreement on all aspects of the relief to be accorded to Plaintiffs and the
class they represent Plaintiffs never negotiated attorneys fees and costs until
after they concluded all substantive negotiations with regard to the relief afforded
to the named Plaintiffs and classes in general. Such a fact further supports that
all terms of the Settlement Agreement resulted from an arms-length and fair
negotiation with the Plaintiffs counsel on behalf of their named Plaintiffs and the
class members as whole.
Under penalty of perjury under the laws of the United States, I declare that my
Declaration is true and accurate Executed in Cleveland, Ohio on September 17, 2013.
28 USC 1746.

richard.gurbst'squiresanders.com
Squire Sanders (US) LLP
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114
(216) 479-8607 (telephone)

Gascho v. Global Fitness Holdings, LLC, Docket No. 2:11-cv-00436 (S.D. Ohio May 19, 2011), Court Docket

General Information

Court

United States District Court for the Southern District of Ohio;


United States District Court for the Southern District of Ohio

Federal Nature of Suit

Contract - Other[190]

Docket Number

2:11-cv-00436

Status

Closed

2016 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service
// PAGE 187