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In Re Kentucky Grilled Chicken Coupon Marketing & Sales Practices

November 16, 2011


The opinion of the court was delivered by: Hon. James F. Holderman



I, SETH A. SAFIER, declare under penalty of perjury under the laws of the United States of America that the following facts and statements are true and correct, except as to such matters stated to be made on information and belief, and as to such matters, I certify that I believe the same to true.

1. This declaration is made in support of Plaintiffs' Motion for Final Approval of Class Action Settlement, Attorneys' Fees, and Incentive Awards in this matter.

2. I am a partner in the law firm Gutride Safier LLP ("GSLLP"). A true and accurate copy of my firm's resume is attached hereto as Exhibit 1.

3. My partner, Adam Gutride, and I are members in good standing of the bars of the State of California, the Northern and Central Districts of California, and the U.S. Court of Appeals for the Ninth Circuit. We also have been admitted to practice in this case pro hac vice and are attorneys of record for Plaintiffs.

4. I am familiar with (i) the claims, evidence, and legal arguments involved in this settlement, (ii) the terms of the settlement, and (iii) the relevant defenses, evidence, and legal arguments to date.

5. Throughout my involvement in this matter, I ensured that GSLLP did its part to litigate efficiently, without undue duplication of effort among co-counsel for Plaintiffs, and at minimal expense. My firm has not received any remuneration thus far for its efforts. My firm also has advanced expenses on behalf of its clients, Plaintiffs Veronica Mora and James Asanuma.

6. Over the course of this litigation, GSLLP provided the following legal services:

a. On June 17, 2009, GSLLP filed a class action complaint entitled, Asanuma, et al. v. KFC Corporation, Inc., et al., in Los Angeles Superior Court ("Complaint").

b. In the Complaint, Plaintiffs alleged that, on or about May 5, 2009, Defendants, in order to gain widespread publicity for their new grilled chicken offering, announced a promotion on The Oprah Winfrey Show ("Oprah"). Defendants promised that, for 24 hours, they would give to anyone who went to the Oprah website and downloaded, printed and presented a coupon to a KFC restaurant a "free" Kentucky Grilled Chicken meal consisting of "two pieces of grilled chicken, two individual sides and a biscuit" (the "Coupon" or "Promotion"). The Promotion was so popular, Defendants announced that they would extend it for a full day and moved the downloadable Coupon to Defendants' own website: WWW.UNTHINKFC.COM ("Website"). The Promotion continued to gain widespread acceptance. In excess of 6 million Coupons were downloaded and printed. However, on or about May 7, 2009, Defendants reneged on the Promotion, limiting the Promotion to the first one hundred Coupons presented at each store during a business day, irrespective of whether or not a particular store had additional supplies on hand of Kentucky Grilled Chicken. Defendants later decided to refuse to honor the Coupons according to their original offer.

c. Prior to drafting, filing and serving the Complaint, GSLLP spent time communicating with Plaintiffs James Asanuma and Veronica Mora (and with their counsel Craig Borison, Esq.) concerning their claims, gathering their documentation and negotiating with them retainer agreements. GSLLP also undertook extensive pre-filing investigation, including without limitation researching, tracking and analyzing Defendants' Promotion marketing and reviewing Defendants' websites, press releases, and online documents. Throughout this litigation, GSLLP has continued to monitor, research and review such materials.

d. Along with the Complaint, GSLLP drafted and served on Defendants a comprehensive demand letter under the California Consumers Legal Remedies Act ("CLRA"). GSLLP also researched and drafted a comprehensive electronic discovery preservation letter.

e. Following the filing of the Complaint, GSLLP responded to a number of inquiries from the press, other attorneys around the nation and some putative class members. GSLLP also dealt with a number of administrative matters in Los Angeles Superior Court related to whether or not the case would be designated "Complex." GSLLP also responded to an order to show cause regarding service of the summons.

f. After Defendants responded to Plaintiffs' CLRA demand letter, GSLLP reviewed the response.

g. On or about July 17, 2009, Defendants removed the litigation to the United States District Court for the Central District of California. GSLLP reviewed Defendants' removal papers and researched the possibility of remand. Plaintiffs eventually elected not to move for remand.

h. GSLLP then negotiated, with Defendants, the first of many stipulated extensions of time for Defendants to respond to the Complaint. On July 20, 2011, Defendants moved to stay the case pending transfer to a multidistrict proceeding ("MDL"). GSLLP researched, drafted and served an opposition to Defendants' motion to stay. GSLLP reviewed Defendants' reply memorandum and notice of recent developments and prepared for oral argument. Prior to oral argument, Judge Synder granted Defendants' motion.

i. GSLLP then spent time opposing Defendants' MDL petition, including filing an opposition and strategizing with co-counsel regarding how and where best to proceed. The case was eventually transferred to this Court, and GSLLP moved to have its attorneys admitted pro hac vice.

j. GSLLP then worked with co-counsel to manage and litigate this matter. For example, GSLLP reviewed drafts of and suggested changes to Plaintiff's oppositions to Defendants' motion to dismiss and to Plaintiffs' initial disclosures. GSLLP also gathered documents from Mr. Asanuma and Ms. Mora for production and prepared written responses to Defendants' discovery requests. GSLLP also reviewed Defendants' document production.

k. This firm was involved in the settlement proceedings, in that it reviewed and commented on terms sheets, draft settlement agreements and the exhibits thereto, preliminary approval papers and now final approval papers.

7. After engaging in all of the aforementioned tasks, GSLLP is in a position to evaluate this Settlement. In advising Mr. Asanuma and Ms. Mora whether or not to enter into the Settlement Agreement, GSLLP was cognizant of the risks involved in protracted litigation. GSLLP was also cognizant of Defendants' size and financial resources. When considering the risks and costs associated with proceeding to trial against the nature of the benefits that were being offered by Defendants, GSLLP concluded that the Settlement is in the best interests of the class. Indeed, the goals of this litigation were accomplished. The Settlement provides Settlement Class Members cash of up to $3.99 per coupon downloaded, with a maximum of $15.96 per household-i.e., up to the full value that they would have received had the coupons been honored. I believe this is an excellent settlement.

8. Plaintiffs Asanuma and Mora are requesting an incentive award of $5,000 each, because each of them took on the risk of the possibility of bearing Defendants' costs in a losing effort and spent a good deal of time on this litigation including without limitation reviewing documents, producing documents, responding to ...

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