Poertner v. The Gillette Company

Case # 12-cv-00803
Case Name Poertner v. The Gillette Company
Jurisdiction US District Court for M.D. FL

Gillette retails batteries under the Duracell brand. These include premium-priced Ultra Advanced and Ultra Power batteries; as well as lower-cost batteries, commonly known as "copper tops,"

Plaintiffs allege that Defendants intentionally mislead consumers about the performance of their premium-priced Ultra Advanced and Ultra Power batteries. They claimed that these batteries were more powerful and would last longer than competing, lower-cost batteries. It was later found that the premium batteries had no material difference in battery life than the lower-cost batteries. 

Final Approval Date 08/21/2014
  1. All objections were found to lack merit.
  2. There was no practical way to deliver greater value to Class Members.
  3. The litigation played a large part in ending the retail of Ultra batteries, a direct benefit to the class.
  4. Attempts to identify actual purchasers of Ultra batteries would be "difficult, expensive, and essentially fruitless."
  5. The fact that Ultra batteries were not sold after July 2013 indicates the terminal date of the class.
  6. Relevant documents were available in Spanish, despite Objector Paul Dorsey's claim to the contrary.
  7. The automatic redirect of the website leads to relevant information.
  8. Objectors Christopher Batman (pro se), Grace M. Cannata (through Attorney Sam P. Cannata), Robert Falkner (through Attorney Brian M. Silverio), Theodore H. Frank (through Attorney Adam E. Schulman), and Wanda J. Cochran (pro se) appealed the Final Approval.
  9. Appeal of Objector Wanda J. Cochran was dismissed for failing to file and appellant's brief and appendix in a timely manner on 03/09/2015. This appeal was reinstated on 05/29/2015.
  10. All objectors joined in the appeal brief filed by Objector Frank.
  11. The Eleventh Circuit dismissed every argument made by Objector Frank and AFFIRMED the decision of the District Court.
  12. On 12/11/2015, Objector Frank petitioned for a writ of certiorari before the Supreme Court (discussed below.)
  13. Objector Frank's petition for certiorari was denied on 3/21/2016.
Dismissal of Last Appeal 07/16/2015
Attachments Third Amended Complaint.pdf
Preliminary Approval.pdf
Plaintiff's Responses to Objections.pdf
Defendant's Responses to Objections.pdf
Transcript of Final Fairness Hearing.pdf
Final Approval Order.pdf
Docket Report.pdf
Appeal Docket.pdf
Appellate Opinion.pdf
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Objection of Christopher Batman

Objectors Christopher Batman
Signers Christopher Batman
Attorneys Christopher A. Bandas
  1. Settlement is unfair in that it expects class members to have retained receipts for the purchase of small consumer products (i. e. batteries) up to five years after the fact.
  2. Cy pres award improperly directs settlement funds to non-class members.
  3. Attorneys' fees are excessive and improperly and abstrusely calculated.
  4. Release is overly broad.
  5. Conflicts of interest occur between class counsel and class representatives, and unnamed class members.
Attachments Objection of Christopher Batman.pdf
Appeal of Objector Christopher Batman.pdf
Bandas Appearance for Objector-Appellant Batman.pdf
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Objection of Grace M. Cannata

Objectors Grace M. Cannata
Signers Sam P. Cannata
Attorneys Sam P. Cannata
  1. Notice of settlement does not disclose the specific amount of requested attorneys' fees.
  2. Once specific information is made available, class members need reasonable time to object to the fees and/or opt out of the settlement.
  3. Settlement does not provide the aforementioned "reasonable time".
  4. Attorneys' fees are excessive.
  5. Cy pres award improperly directs settlement funds to charitable organizations that may not benefit class members.
  6. Cy pres award donation merely functions as a marketing incentive for the Defendant.
Attachments Objection of Grace M. Cannata.pdf
Appeal of Objector Grace M. Cannata.pdf
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Objection of Jeanne Ann Gaspar

Objectors Jeanne Ann Gaspar
Signers Jeremiah J. Talbott
Attorneys Jeremiah J. Talbott
  1. Value of the settlement to class members is significantly lower than presented.
  2. Cy pres donation is illusory, in that it is a continuation of pre-existing charitable contributions by the Defendant.
  3. Cy pres donation does not meet the definition of "cy pres" in that it is not used to make class members whole and, in fact, provides no benefit to class members.
  4. Injunctive relief is illusory, in that it does not apply to any products currently manufactured by Defendant.
  5. Attorneys' fees are excessive.
  6. The excess portion should be reallocated to class members.
  7. Plaintiffs have not demonstrated that the terms of the settlement are fair and reasonable.
  8. The plan of allocation is unreasonable, in that it does not compensate class members based on the number of batteries purchased.
  9. Class notice is deficient in that it does not provide class members adequate information to decide whether to remain in the class or to opt out.
Attachments Objection of Jeanne Ann Gaspar.pdf
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Objection of Paul Dorsey

Objectors Paul Dorsey
Signers Paul Dorsey
  1. Court has fiduciary responsibility to unrepresented class members.
  2. Class is unbounded and should not be certified.
  3. Class Counsel did not create the promised Spanish language website, thereby not fulfilling their obligations to the class.
  4. The website address class members are directed to automatically redirects to a different web address, with no warning. This may "trigger a fear reflex in the internet user."
  5. Notice does not set for the basis for calculating requested attorneys' fees.
  6. The assertion that the Notice will reach 70.4% of Duracell Ultra Battery users is not credible.
  7. Settlement Agreement does not publicly report the amount of relief that actually reached class members.
Attachments Objection of Paul Dorsey.pdf
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Objection of Robert Falkner

Objectors Robert Falkner
Signers Brian M. Silverio
Attorneys Brian M. Silverio
John J. Pentz
  1. Class counsel failed to file their Motion for Attorneys' Fees before the Objection deadline.
  2. Attorneys' fees are excessive in relation to the likely relief for the class.
  3. Excess portion could be directed to the class.
Attachments Objection of Robert Falkner.pdf
Appeal of Objector Robert Falkner.pdf
Pentz Appearance for Objector-Appellant Falkner.pdf
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Objection of Theodore H. Frank

Objectors Theodore H. Frank
Signers Adam E. Schulman
Benjamin C. Haynes
Attorneys Adam E. Schulman
Benjamin C. Haynes
  1. Attorneys' fees constitute a disproportionate amount of the settlement fund.
  2. Class Representative Award improperly favors the named representative over absent class members.
  3. Cy pres award favors to-be-named-later charities over absent class members.
  4. Since cy pres recipients are not named, class members cannot fairly assess the settlement.

Objector Frank petitioned for a writ of certiorari before the Supreme Court on 12/11/2015.  In his petition he alleges a Circuit split on the way settlements are valued and on the use of cy pres awards.  In particular, he asked the Court whether the value of a settlement, for the purposes of evaluating a fee request, should be a presumptive value or the actual recovery of the class.  Also, should cy pres awards be used liberally or only as a method of last resort.

Attachments Objection of Theodore H. Frank.pdf
Appeal of Objector Theodore H. Frank.pdf
Supreme Court Docket - Frank Cert Petition.pdf
Frank Supreme Court Cert Petition.pdf
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Objection of Wanda J. Cochran

Objectors Wanda J. Cochran
Signers Wanda J. Cochran
  1. Allowing a Motion for Attorneys' fees after the objection deadline deprives class members the right to evaluate the fees.
  2. Attorneys' fees are likely excessive.
  3. Fees should be calculated in regard to the actual recovery of the class, without regard to cy pres distribution. NOTE: Objection was filed after the deadline for objections.
Attachments Objection of Wanda J. Cochran.pdf
Appeal of Objector Wanda J. Cochran.pdf
Dismissal of Appeal by Objector Wanda J. Cochran.pdf
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