The content of this page comes from court filings about Jeffrey Wilens and his brother Gary Wilens malicious intervention as an “objector” in the NetFlix Class Action lawsuit Case No. 5:11-cv-00379.
Here is the original court filled Declaration by Jay Edelson Esq. about Jeffrey Wilens misconduct (Read paragraph 29-36) including all the exhibits from the source at gov-us-courts:
“Jeffrey Wilens begins by contending that the Court has insufficient evidence to determine Defendant’s maximum exposure. (Dkt. 194 at 2–10.) To that end, Wilens contends that “[i]f this is a frivolous lawsuit, then Class Counsel should not be rewarded. If this lawsuit has merit and Netflix was violating my rights, then Class Counsel should not be rewarded for selling me and the other Class members out.” (Id. at 1.) But this assertion ignores the middle ground: a lawsuit can have merit, but ultimately succeeding on the merits at trial or recovering a judgment for the statutory amount would pose great challenges. As established in Plaintiffs’ Final Approval Motion, that is the case here. (See Final Approval Mot. at 10–18); see also True v. Am. Honda Motor Co., 749 F. Supp. 2d at 1073 (“[C]olorable legal claims are not worthless merely because they may not prevail at trial. A colorable claim may have considerable settlement value (and not merely nuisance settlement value) because the defendant may no more want to assume a nontrivial risk of losing than the plaintiff does.”) (quoting Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 783 (7th Cir. 2004)).”
“Wilens also makes an absolutist challenge to the cy pres doctrine as a whole: “Since the settlement proposes to pay zero dollars to Class Members, even if they suffered violations of subdivision (b) (i.e., their PII was illegally disclosed), the settlement is on its face not fair.” (Dkt. 194 at 5.) But, as described in Section II.A.1, supra, the Ninth Circuit has confirmed that cy presonly funds are acceptable, even in cases asserting statutory damages, and are particularly that it required him to post a bond before he could appeal the Court’s denial of his objections. See Miletak v. Allstate Ins. Co., C 06-03778 JW, 2012 WL 3686785, at *2 (N.D. Cal. Aug. 27, 2012).
Wilens’ improper conduct in this litigation is just more of the same. Case 5:11-cv-00379-EJD Document226 Filed 11/28/12 appropriate where, like here, a cash distribution to the Settlement Class was not feasible. See Lane, 696 F.3d 811.”
“Wilens also contends that the Edelson Declaration attached to the Final Approval Motion, (Dkt. 191-3) was insufficiently detailed to justify the Settlement, specifically because the formal and informal discovery responses produced by Netflix should have been attached. (See Dkt. 194 at 5-10.) Importantly, Wilens fails to cite a single case in support of his contention that Counsel needed to disclose Netflix’s confidential discovery responses to support final approval. It is sufficient that Class Counsel was able to obtain the information necessary to effectively negotiate the Settlement, and the Court can defer to the Parties’ reasonable evaluation of the merits of the case. See Rodriguez, 563 F.3d at 965 (observing that the Ninth Circuit “has long deferred to the private consensual decision of the parties”); see also Lobatz v. U.S. West Cellular of Cal., Inc., 222 F.3d 1142, 1147–48 (9th Cir. 2000) (finding that objector was not entitled to discovery on settlement negotiations merely because she challenged the fairness of the settlement, fees, and costs.). Further, attaching Defendant’s discovery responses in support of the Final Approval Motion would violate the protective order entered in this case, (see Dkt. 73), as they contain confidential and proprietary information. Wilens simply offers no support for his demand that confidential information produced through discovery be disclosed during the Settlement approval process.”
“Wilens next contends that because Plaintiffs’ expert stated that Netflix could sustain a $150 million judgment without going out of business, that $150 million should have been the basis for calculating any recovery. (Dkt. 194 at 11.) But the $150 million figure does not establish the damages that would be awarded at trial. Rather, it shows that the potential statutory damages— which are over a thousand times larger than necessary to drive Netflix out of business—would trigger due process concerns and drive the Court to use actual damages as a basis for recovery. (See Final Approval Mot. at 13–15.)”
“Further, Wilens specifically stated that he would seek leave from the Court to obtain that discovery. Having not even tried to follow through on his promise, he can hardly complain now that he didn’t have access to that information. (See Edelson Decl. ¶¶ 31, 35.)”
“Wilens next argues that the comparison of this Settlement to Lane is inapt because statutory damages are more readily available here. (Dkt. 194 at 12–15.) This argument fails for two reasons. First, Wilens relies on the fact that the only “video tape service provider” in Lane was Blockbuster, which “was on the verge of bankruptcy.” (Dkt. 194 at 12.) But that does not make statutory damages any less recoverable than this case, where the statutory damages would assuredly bankrupt Netflix if awarded. (See Final Approval Mot. at 14.) Wilens’s argument also ignores that Blockbuster’s co-defendant, Facebook, Inc.—which assuredly had significant exposure for its role in the Beacon program—is perhaps one of the most profitable companies in history, and could afford to pay a statutory damage award well in excess of what Netflix could pay. See Section II.A.3, supra. Second, Wilens argues that the plaintiffs in Lane raised “novel legal theories” and “disputed factual issues” not present in this case, and that statutory damages are more obviously applicable here. (Dkt. 194 at 12.) But Plaintiffs’ legal theories here are just as novel, and even less likely to result in the recovery of statutory damages.53 To that end, for claims where statutory damages would be theoretically available—i.e., concerning the unlawful disclosure of PII—the merits of the disclosure claims in Lane are significantly stronger than in this case.”
“Finally, Wilens contends that the fees sought by Class Counsel in this litigation are excessive. (See Dkt. 194 at 15–19). Similar objections have already been responded to. See 53 See, e.g., Sterk v. Redbox Automated Retail, LLC, 806 F. Supp. 2d 1059 (N.D. Ill. 2011) rev’d by 672 F.3d 575 (“Redbox I”) (finding a private right of action for damages for claims under § 2710(e)); Sterk v. Redbox Automated Retail, LLC, 672 F. 3d 575 (7th Cir. 2012) (“Redbox II”) (finding no private right of action for damages under § 2710(e)); Sterk v. Redbox Automated Retail, LLC, No. 11-cv-01729, 2012 WL 1419071 (N.D. Ill. Apr. 24, 2012) (“Redbox III”) (finding, on a motion for leave to amend, that Stored Communication Act private right of action applies to violations of § 2710); Sterk v. Redbox Automated Retail, LLC, No. 11-cv-01729, 2012 WL 3006674 (N.D. Ill. July 23, 2012) (“Redbox IV”) (finding on motion to dismiss that Stored Communications Act private right of action does not apply to violations of § 2710(e)); Rodriguez v. Sony Computer Entm’t Am. LLC, No. 11-cv-4084, Dkt. 59 (N.D. Cal. Apr. 20, 2012) (finding no private right of action for violations of § 2710(e), and applying “ordinary course of business” exception to dismiss disclosure claims); Sterk v. Best Buy Stores, L.P., No. 11-cv-1894, 2012 WL 5197901 (N.D. Ill. Oct. 17, 2012) (finding that Plaintiff stated claims under VPPA for disclosure and unlawful retention, but dismissing for lack of standing).”
“Wilens also disputes Counsel’s valuation of the unlawful disclosure claims. Because his argument is essentially identical to that raised in the Krislov objection, that argument is addressed below in Section III.D, infra. Section II.B, supra. However, Wilens specifically contends that no more than 500 hours of attorney time were reasonable over the course of this litigation, and that too many attorneys worked on the case. (Id.) Of course, he offers no basis in fact or law whatsoever for his 500 hour benchmark or for his “too many attorneys” assertion, and an objector’s subjective belief as to the appropriate amount of attorney time to expend on a case, and who should expend it, is neither relevant, nor a basis for denying the fee award in this case. See Cummings v. Connell, 99-cv-2176 WBS KJM, 2006 WL 3951867, *5 (E.D. Cal. Nov. 27, 2006) (overruling objector’s claim of “‘arbitrary’ billing practices” because “rigorous statutory and common-law protections” already exist to ensure accurate billing records.”). Furthermore, as a result of being chosen after a highly contested leadership fight, Class Counsel was able to achieve recovery substantially similar to the Lane and Google Buzz settlements. (See Final Approval Mot. at 52–53.)55 Sensing that his objections entirely lack merit, Wilens resorts to attacking Class Counsel personally. (Dkt. 194 at 18–19.) First, Wilens looks to earlier briefing in the class leadership fight and, citing to cases litigated by Class Counsel’s former law partner,56 falsely asserts that Class Counsel has been involved in bad settlements in the past (including, ironically, Lane v. Facebook). (Id.) Class Counsel already responded to these baseless accusations via their Reply in support of their motion to be appointed lead counsel. (See Dkt. 43 at 8–10.) More importantly, this Court already rejected those contentions in appointing Jay Edelson as first, Interim Lead Class Counsel, and then, second, Class Counsel, following certification of the Settlement Class. (See Dkt. 59) Obviously grasping at straws, Wilens concludes his objection by arguing that Class Counsel must have “bought off” the law firm Bursor and Fisher in exchange for allowing the Settlement to proceed. Wilens has no basis to make such a claim and it is absolutely false. Perhaps that is the world in which Wilens lives, but Class Counsel did no such thing. (Edelson Decl. ¶ 36.)”
“Additionally, while Wilens contends that too many attorneys worked on the case, spreading work among attorneys with varying degrees of experience—and thus, varying hourly rates—had the intentional effect of keeping the lodestar number low. Class Counsel could, in theory, have asked only senior attorneys at Edelson McGuire to perform all the activity in this case, but that would have been inefficient and would have resulted in a much higher fee request.
These purportedly inadequate settlements included Lane, which was recently upheld by the Ninth Circuit. (Compare Dkt. No. 50 at 4 and 696 F.3d 811). Wilens’s objections are spurious and should be overruled.”
See the original Jay Edelson Esq. declaration about Jeffrey Wilens misconduct at gov-us-courts. Read paragraph 29-36
Jeffrey Wilens filing