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Mirfasihi v. Fleet Mortgage Corp.

September 6, 2007

MAV MIRFASIHI, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
FLEET MORTGAGE CORPORATION, DEFENDANT,
ANGELA PERRY AND MICHAEL E. GREEN, INTERVENORS.



The opinion of the court was delivered by: Judge Joan H. Lefkow

MEMORANDUM DECISION

I. Background

Counsel for Michael E. Green and Angela Perry, the intervenors and objectors in this case ("intervenors"), have moved for an award of attorneys' fees and expenses for their role in producing the recently-approved settlement of this putative class action. [# 230].*fn1 The parties here are plaintiff Mav Mirfasihi individually and on behalf all others similarly situated ("plaintiffs") and defendant Fleet Mortgage Corporation ("FMC" or "Fleet"). The case was brought on behalf of approximately 1.6 million people whose home mortgages were owned by FMC. Plaintiffs allege that, without their permission, FMC transmitted information regarding their financial needs that it had obtained from their mortgage papers to telemarketing companies.

Thereafter, those companies used deceptive practices to sell financial services to the plaintiffs.

This case has a long history that involves two trips to the Seventh Circuit, both of which resulted in a remand for further consideration of the fairness of a proposed class settlement. For the purposes of this decision, the court assumes the reader's familiarity with the Seventh Circuit's opinion of January 29, 2004, Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781 (7th Cir. 2004) ("Mirfasihi I"), this court's Memorandum Decision of August 11, 2005, Dkt. No. 170, the Seventh Circuit's opinion of July 11, 2006, Dkt. No. 187 ("Mirfasihi II"), and with this court's recent Memorandum Decision of July 17, 2007, in which the Second Proposed Class Action Settlement was approved (for the second time). Dkt. No. 228. Here, the court will summarize only the portions of the history of this case that are relevant to the intervenors' instant motion.

This court's decision of August 11, 2005 provides a detailed comparison of the first proposed Class Settlement ("the first settlement") and the Second Proposed Class Action Settlement ("the second settlement"). The first settlement was approved by Judge Norgle on December 4, 2002. Dkt. No. 88. It certified a nationwide settlement class, which consists of two groups known as "the telemarketing class" (190,000 members) and "the information-sharing class" (1.4 million members). In the first settlement, the telemarketing class was to receive $2.63 million distributed in amounts ranging from $10 to $135, depending on the circumstances of each plaintiff's individual transaction with the telemarketers. This amount of money would provide nearly the full $135 to each class member, assuming all qualified for the maximum and all made claims. That event being most unlikely, the settlement provided that unclaimed funds would revert to Fleet. Class counsel were to receive $750,000 from the $2.63 million fund. The first settlement provided no injunctive relief, but Fleet had sold its mortgage business and could no longer offend as alleged. The information-sharing class, however, was to receive nothing. The $243,000 profit that Fleet made on the challenged conduct, said to be derived solely from the information-sharing class, was lumped into the $2.63 million fund.

In response to the parties' motion to approve the first settlement, Green and Perry moved to intervene and object. Dkt. No. 70. They argued, inter alia, that the class notice was inadequate because it failed to provide individual notice to the information-sharing class and it failed to notify the class members of a Massachusetts class action brought on their behalf against FMC. They also argued that the settlement was unfair because of the following:

* it allowed for a reversion of funds to FMC;

* it provided nothing to the information-sharing class in return for their release of claims;

* the information-sharing plaintiffs were releasing breach of contract claims;

* the information-sharing plaintiffs were releasing claims that were worth millions of dollars in statutory damages under consumer fraud statutes (including Massachusetts's statute); and

* the information-sharing plaintiffs were releasing claims under the Truth in Lending Act, 15 U.S.C. § 1601 et seq. ("TILA").

See Dkt. No. 70. Judge Norgle denied the motion to intervene on the grounds that it was untimely and not persuasive on its merits. Dkt. No. 89.

Green and Perry appealed the denial of their motion to intervene and the approval of the settlement. Dkt. No. 93. As summarized in this court's August 11, 2005 decision, the Seventh Circuit agreed with Green and Perry and reversed ...


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