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IN THE CIRCUIT COURT OF THE 19TH JUDICIAL DISTRICT


LAKE COUNTY, ILLINOIS
SHAUN FAULEY, SABON, INC.,
)
SANDY ROTHSCHILD & ASSOCIATES, )
INC., DEBAUN DEVELOPMENT, INC.,)
and CHRISTOPHER LOWE HICKLIN DC)
PLC, Individually and as the
)
representatives of a class of )
similarly-situated persons,
)
Plaintiffs,
)
)
-vs)
)
METROPOLITAN LIFE INSURANCE
)
COMPANY, et al.,
)
Defendants.
)

No. 14 CH 1518

Videotaped discovery deposition of


JUDD CLAYTON, JR. taken before CYNTHIA A. SPLAYT, CSR
and Notary Public, pursuant to the provisions of the
Code of Civil Procedure of the State of Illinois and
the Rules of the Supreme Court thereof, pertaining to
the taking of depositions for the purpose of
discovery, at 3701 Algonquin Road, Suite 320, Rolling
Meadows, Illinois, commencing at the hour of 7:23
p.m. on the 7th day of January, A.D. 2015.

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APPEARANCES:

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ANDERSON + WANCA
By: MR. ROSS M. GOOD
MR. DAVID M. OPPENHEIM
3701 Algonquin Road, Suite 760
Rolling Meadows, IL 60008
(847) 368-1500
rgood@andersonwanca.com
doppenheim@andersonwanca.com

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On behalf of the Plaintiffs,
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(VIA TELEPHONE)
SMITH AMUNDSEN, LLC
By: MR. WARREN R. WILKOSZ
150 North Michigan Avenue, Suite 3300
Chicago, IL 60601
(312) 894-3200
wwilkosz@salawus.com
On behalf of the Defendant.

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LISKOW & LEWIS, PC


By: MR. WADE T. HOWARD
First City Tower
1001 Fannin Street, Suite 1800
Houston, TX 77002
(713) 651-2900
wthoward@Liskow.com

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On behalf of the Objector,


Judd Clayton, Jr.

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Also present:
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Mr. Cary Davidow


Enhanced Legal Video

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EXAMINATION INDEX

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WITNESS

PAGE

3
JUDD CLAYTON, JR.
4
Examination by Mr. Good

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100

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6

Examination by Mr. Howard

96

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CLAYTON EXHIBIT INDEX
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10
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MARKED FOR IDENTIFICATION


Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit

No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.
No.

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15

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75
79
91

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(Exhibits 1-15 are attached.)

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Certified Question

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18-20

* * * * * * * * * *

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THE VIDEOGRAPHER: Good evening. We are now on


the record. This is the videotaped discovery
deposition of Judd Clayton, Jr. being taken on
January 7th, 2015, and the time is now 7:23
a.m. -- correction, 7:23 p.m. as indicated on the
video screen. We are located at 3701 West Algonquin
Road, Suite 760 (sic), Rolling Meadows, Illinois.
This deposition is being taken on behalf of
the plaintiff in the matter of Shaun Fauley, et al.
versus Metropolitan Life Insurance Company, et al.
Case number 14 CH 1518 filed in the Circuit Court of
the 19th Judicial District, Lake County, Illinois.
My name is Cary Davidow, certified legal
videographer, representing Enhanced Legal Video with
offices at 8600 Summerset Drive, Belvidere, Illinois.
The Court Reporter today is Cynthia Splayt of MJ
Reporting with offices at 2390 Esplanade Drive,
Suite 200D, Algonquin, Illinois.
Counsel, please identify themselves for the
video record and the parties which they represent.
MR. GOOD: Ross Good and David Oppenheim on
behalf of the plaintiffs and the class.
MR. HOWARD: Wade Howard representing the
objector, Judd Clayton.

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If you don't understand a question, please


let me know. If you answer a question, I will assume
that you understood it.
If you need to take a break for any reason,
please let me know, but if there is a question
pending, please answer the question prior to going on
break.
Do you understand all that?
A. Yes, sir, I do.
Q. Thank you.
Mr. Clayton, what is your home address?
A. 1724 Oleander Drive in Dickinson, Texas,
77539.
Q. And, Mr. Clayton, are you an attorney?
A. No, I am not.
Q. And have you ever had any legal training?
A. No, sir.
MR. GOOD: Court Reporter, can we mark this as
Deposition Exhibit No. 1.
(Clayton Deposition Exhibit
No. 1 marked as requested.)
MR. GOOD: Q. The Court Reporter has handed you
what has been marked as Deposition Exhibit No. 1.
Have you seen this document before?

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MR. WILKOSZ: Warren Wilkosz representing


Metropolitan Life.
THE VIDEOGRAPHER: And will the Court Reporter
swear in the witness, please.
JUDD CLAYTON, JR.,
called as a witness herein, having been first duly
sworn, was examined upon oral interrogatories and
testified as follows:
EXAMINATION
by Mr. Good:
MR. GOOD: Q. Mr. Clayton, my name is Ross Good.
As I just said, I represent the plaintiffs and the
class in this case, and this deposition is being
taken pursuant to the Illinois Supreme Court Rules,
the Texas Supreme Court Rules and all applicable
local rules. Do you understand that?
A. I do now.
Q. I'll just remind you, even though I have a
feeling you have some experience with these
depositions, that you need to keep your answers out
loud. Don't shrug your shoulders or nod your head.
The Court Reporter can only take down what one person
says at a time, so please allow me to finish asking a
question before you answer it.

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A. It appears to be substantially similar to a


document I have seen -Q. Okay.
A. -- before, and without comparing it to each
page, I can't say with 100 percent certainty, but I
do recognize the document.
Q. Okay. The first three pages of the
document are titled Judd Clayton, Jr.'s Objections to
Subpoena Duces Tecum. Do you see that?
A. Yes, sir, I do.
Q. And have you seen those first three pages
before?
A. I have.
Q. Okay. And this document includes specific
objections which start at the bottom of page 2, and
there are three specific objections. The first
relates to all correspondence with any other member
in the present case. The second relates to all
correspondence with any attorney representing any
other class member in the present case, and the third
represents copies of all objections filed by
Judd Clayton, Jr. in any other class action lawsuit
settlement. Do you see those?
A. I do.

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Q. And have you seen those objections and the


responses that your attorney provided prior to this
deposition?
A. I don't know if I have seen the responses.
I've seen these objections.
Q. Okay. Can you go over the responses and
make sure they are true and accurate?
MR. HOWARD: The objections are legal. He's not
making objections, so he wouldn't know if they're
true and accurate. The witness doesn't make legal
objections.
MR. GOOD: Okay.
MR. HOWARD: So you're asking him if he's a
lawyer and he knows that the objections are legal?
MR. GOOD: He may know whether or not certain
things are true and correct.
MR. HOWARD: Other than the legal objections?
MR. GOOD: Correct.
MR. HOWARD: Okay. You mean like the "none"
answer?
MR. GOOD: Yes.
MR. HOWARD: Okay.
THE WITNESS: I have no issue with the three
responses if that's --

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MR. GOOD: Q. Okay.


A. But as far as the rider to amended notice
for deposition, which is on the third page of this
document identified as Clayton Exhibit No. 2, I have
at least seen this page.
Q. Okay. And I'll just represent to you that
the deposition today is being taken pursuant to both
Deposition Exhibit No. 1 and Deposition Exhibit No.
2.
MR. HOWARD: We disagree with that. It's being
taken pursuant to the subpoena and our agreement.
I've never even seen this deposition -- amended
deposition notice, so I don't believe that it's being
taken subject to a notice which you -MR. OPPENHEIM: Well, with all due respect, your
co-counsel has seen it and has been served with it,
and it references a deposition which the Court said
that we can have in a forum that we -MR. HOWARD: I'm just saying we're here -- we're
here pursuant to a subpoena, not pursuant to this
notice.
MR. GOOD: In that case, we appreciate you coming
up to Rolling Meadows.
MR. HOWARD: Well, yeah. We agreed. I mean, we

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MR. GOOD: Q. That is -A. -- responsive to your question.


MR. GOOD: That is responsive to my question.
Thank you for answering that.
Just for the record, could we make this
Exhibit 2.
(Clayton Deposition Exhibit
No. 2 marked as requested.)
MR. GOOD: Q. The Court Reporter has just handed
you what's been marked as Exhibit No. 2. This is a
three page document entitled Plaintiff's Amended
Notice of Taking Videotaped Deposition of
Judd Clayton, Jr. filed in the Circuit Court of the
19th Judicial Circuit, Lake County, Illinois. Do you
see that?
A. I do.
Q. And have you seen this document before?
A. I don't have a recall if I have seen the
first page of this document. I have seen another
document like this. I don't know that it was an
amended notice, but I have seen a notice that
requests and has a similar subpoena duces tecum.
MR. HOWARD: I don't think he has seen it because
I don't think I've ever seen it.

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agreed pursuant to the subpoena to present him here.


I mean, I don't have a problem with it.
MR. GOOD: Okay.
MR. HOWARD: The rider is different than the
subpoena duces tecum that was served in Texas, and
like I said, I've never seen it, so if there is
something new on the rider, we didn't make any effort
to provide those documents or respond to them.
MR. GOOD: Okay. And I'll represent for the
record that I'm unaware of any additional requests in
the Deposition Exhibit No. 2 from Deposition Exhibit
No. 1. I was not trying to show that there was some
new document, but let's mark the next three exhibits
as the documents that Mr. Clayton provided today, so
that's one, two -- actually, it's going to be four
documents.
(Clayton Deposition Exhibit
Nos. 3-6 marked as
requested.)
MR. GOOD: Q. So the Court Reporter has -- I
need to know which one is which. That's what I was
going to say on the record.
The Court Reporter has marked as Deposition
Exhibit No. 3 the class action objector power of

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attorney and contingent fee agreement, which is four


pages long, dated October 6th, 2014.
The Court Reporter has marked as Deposition
Exhibit No. 4 the representation related to class
action settlement objections from Liskow & Lewis,
which is dated December 15th, 2014.
The Court Reporter has marked as Deposition
Exhibit No. 5 the agreement dated November 26th, 2014
with Roach, Johnston & Thut.
And the Court Reporter has marked as
Deposition Exhibit No. 6 the Verizon statement from
August 4th, 2014.
I'll represent for the record that one
additional document was given to me by Mr. Clayton
that I was unable to make copies of and that was a
previous phone bill, but since plaintiff's counsel
only asked for one phone bill, I only made a copy of
this one phone bill.
Mr. Clayton, is that a true and correct
statement regarding the documents you brought here
today?
A. The last portion of it was. I thought I
heard the prelude to me having presented these
documents to you, Deposition Exhibits 3 through 6, as

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$5,000?
A. I'm not certain that that's the
interpretation, but as I read it and I read that
sentence, that would be my interpretation, although I
don't know the legal meaning behind that statement.
Q. To your knowledge, is there any agreement
in which you can possibly receive more than $5,000 as
part of being objector in this case?
A. I don't know the answer to that.
Q. Directing your attention to the last page
of this document, page 4, it says it is signed and
accepted on October 6th, 2014. Do you see that?
A. Yes.
Q. And do you recall reading this document
prior to signing it?
A. I did.
Q. And is that your signature on this
document?
A. It is.
Q. And right next to the name Judd Clayton,
did you write in the comma, Junior?
A. I did because, in fact, I am.
Q. Understood.
So whoever drafted this document drafted it

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indicating I gave you or I provided all these


documents to you. The only document that I recall
providing to you since I've arrived today is the
phone bill, so I'm not certain where these other
documents, where these copies came from.
MR. HOWARD: I provided them.
MR. GOOD: Q. Okay. So, for the record,
Deposition Exhibits 3, 4 and 5 were provided by your
attorney who is here with you today.
A. Okay.
MR. HOWARD: That is correct.
MR. GOOD: Thank you.
THE WITNESS: 6, I did, in fact, present to you.
MR. GOOD: Q. Yes. Thank you.
Mr. Clayton, directing your attention to
Deposition Exhibit No. 3, paragraph 3.2 on the second
page of this document discusses the incentive award
and states, in part: "You understand any incentive
award or payment sought will never exceed $5,000."
Do you see that?
A. I do.
Q. Okay. And to your knowledge, does this
mean that regardless of any recovery your attorneys
receive in this case, you will receive no more than

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without knowing that you were Junior, is that


correct?
A. I don't -- I can't really answer that. I
mean, I expect that they would know that I am a
Junior, but why someone put Judd Clayton instead of
Judd Clayton, Jr., I can't go into their minds to
know why they did that, but even on the first page, I
took the liberty of correcting that.
Q. I see that. Thank you.
A. And initialed it.
MR. HOWARD: Sorry. I just called you
Judd Clayton, also.
MR. WILKOSZ: Ross, are these exhibits that you
are referring to, are they all what you produced in
the e-mail to me earlier today?
MR. GOOD: Yes, Warren. I sent them to you as
one combined PDF. Not earlier today. Like 20
minutes ago today or 30 minutes ago.
MR. WILKOSZ: Thank you.
MR. GOOD: Yeah.
Q. Mr. Clayton, how do you know Mr. Bandas?
A. The nature of my business is such that we
have crossed paths before -Q. Have you --

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A. -- some years in the past.


Q. Have you ever been retained by Mr. Bandas
or his law firm?
A. I have.
Q. And in what types of cases were you
retained?
A. I was retained as an expert witness in
personal injury, a personal injury case, maybe two,
over a period of some 20 years.
Q. And real quick. Directing your attention
to Deposition Exhibit No. 4, have you ever worked
with the Law Offices of Liskow & Lewis in the past?
A. I do not recall having done so, no.
Q. And the attorney representing you here
today, Mr. Wade, is -- has he ever represented you in
the past?
A. No, sir, he has not.
Q. And directing your attention to Deposition
Exhibit No. 5, have you ever been represented by
C. Jeffrey Thut in the past?
A. I have not.
Q. And you have ever been retained by Roach,
Johnston & Thut in the past?
A. Not that I recall.

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appeal bond?
A. If that's his recommendation.
Q. Okay. Directing your attention back to
Exhibit 1 on page 3, paragraph 3, it lists: "Copies
of all objections filed by Judd Clayton, Jr. in any
other class action lawsuit settlement," and the
response states: "Objection is made to this request
on grounds that it is overbroad, unduly burdensome
and not reasonably calculated to lead to the
discovery of admissible evidence. Subject to and
without waiving these objections, none." Do you see
that?
A. I do.
Q. And is that a true and accurate answer to
that request?
MR. HOWARD: That's a legal objection, which he's
not capable of answering.
MR. GOOD: Q. I will strike my question and
reask.
Is the answer "none" a -- accurate?
MR. HOWARD: Also, didn't the court order in this
case say that you weren't to go into other
objections?
MR. GOOD: No.

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Q. I'm sorry. Going back two questions. Did


you say you have or you have not been?
A. I have not.
Q. Okay. And to your knowledge, were these
two lawyers contracted by Mr. Bandas or yourself?
A. It would be my understanding that it would
be through Mr. Bandas's firm. I don't know if
Mr. Bandas himself did it.
Q. Okay. So payments to both of these firms
would be from Mr. Bandas, correct?
A. That would be my expectation.
Q. And are you putting up any money in this
matter?
A. I am not.
Q. Okay. And should there be an appeal bond
ordered in this matter, will you be posting that
appeal bond?
A. I don't know the answer to that.
Q. So you will consider posting the appeal
bond?
A. I'll defer to my attorney to answer that
question.
Q. So if your attorney advises you to post the
appeal bond out of your own money, you would post the

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MR. HOWARD: Didn't say you were entitled to ask


questions related to or seek documents related to
rider -MR. GOOD: No.
MR. HOWARD: -- questions 1, 2 and 5, and 3 and 4
were excluded?
MR. OPPENHEIM: It said you didn't have to
produce them. Didn't limit in any way our ability to
ask any questions; moreover, as you, yourself,
pointed out, we are here pursuant to the subpoena.
MR. HOWARD: Which we objected to.
MR. OPPENHEIM: Not to any -- not to any -MR. GOOD: But you said subject to and without
waiving those objections, none.
MR. HOWARD: I'm just -- I'm just asking about
the court order that the Court in Chicago entered
that said you weren't entitled to any documents about
those things, which I would think, then, would mean
that they were irrelevant, which would mean that you
shouldn't really ask about them in the deposition,
because if he wasn't going to let you ask for
documents about it, then I don't think he would
actually ask you -- allow you to ask questions about
it.

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MR. OPPENHEIM: Your objection is noted. Please,


refrain from speaking objections in the future.
MR. HOWARD: Okay. Then we just will instruct
the witness not to answer, and you can take it up
with the Judge and see if he thinks you should ask
questions about it in the deposition after he already
ordered you that you can't ask for discovery about
it. Okay? So we'll do it that way.
MR. GOOD: That's fine.
MR. OPPENHEIM: We'll certify the question.
Leave the deposition open. Next.
MR. GOOD: Q. That being said, regardless of
what the Court ordered, that is no excuse to be
dishonest, and I have to ask -MR. HOWARD: Dishonest?
MR. GOOD: Q. -- did you file an objection in
the case of Doherty v. Hertz?
A. Am I answering that question?
MR. HOWARD: Yes, and we can explain that the
case was dismissed, so we couldn't actually object to
it. So he can't object to a settlement if the case
is dismissed.
MR. GOOD: Mark this as Deposition Exhibit No. 7.
(Clayton Deposition Exhibit

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pursuant to the court order, but you can still


answer.
THE WITNESS: I haven't been handed Deposition
Exhibit 7, so I don't know what he's talking about.
Time out, Ross. Do you guys have a paper
clip or a stapler somewhere in here? This Exhibit
No. 1 is coming apart on me.
MR. GOOD: You got one?
MR. OPPENHEIM: It's a little bent, but that
should do the job.
MR. GOOD: There you go.
THE WITNESS: And my apologies. What's the
question pending with regard to Exhibit No. 7?
MR. GOOD: Madam Court Reporter, if you could
read that back.
MR. HOWARD: I think he asked if you'd filed any
other objections.
MR. GOOD: Yeah, you can read it back.
(Whereupon, the Court Reporter read from the
record as follows:
Q. Are there any other objections you filed
other than the objection that has been
handed to you as Deposition Exhibit No. 7
and the objection filed in this matter?)

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No. 7 marked as requested.)


MR. HOWARD: So to clarify your statement of
dishonest, the answer was not dishonest because there
was not actually an objection to a settlement because
there was no settlement because the case was
dismissed.
MR. GOOD: But the objection was filed.
MR. HOWARD: There was an objection filed.
MR. GOOD: It was document number 113.
MR. HOWARD: But we don't have any documents, so
the answer is still none. It says do you have any
documents. The answer is none. We don't have any
documents from the objection because they have all
been destroyed because the case was dismissed.
MR. GOOD: It's available on PACER.
MR. HOWARD: You can go get it.
MR. GOOD: I did.
MR. HOWARD: There you go. Then you know the
case was dismissed.
MR. GOOD: Q. Are there any other objections you
filed other than the objection that has been handed
to you as Deposition Exhibit No. 7 and the objection
filed in this matter?
MR. HOWARD: And we'll object as irrelevant

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THE WITNESS: This is the only objection I have


ever been a participant in with regard to a class
action litigated matter. Is that responsive to your
question?
MR. GOOD: Q. Yes. Thank you.
And to be clear, the document number at the
top is document number 113, is that correct?
A. Where are you looking?
Q. Right up at the top.
A. Yes. Top center of the page, there's a
reference to document 113.
Q. And the file date is September 24th, 2013,
is that correct?
A. Correct.
MR. GOOD: Let's mark as Deposition Exhibit 8.
(Clayton Deposition Exhibit
No. 8 marked as requested.)
MR. GOOD: Q. The Court Reporter has just handed
you what's been marked as Deposition Exhibit No. 8.
This is the memorandum of opinion and order in the
case of Doherty v. Hertz, document number 125, filed
June 25th, 2014, is that correct?
A. That's what it states, yes.
Q. Okay. Have you ever seen this document

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before?
A. I don't recall.
Q. Directing your attention to -- did I not
give you a copy?
MR. HOWARD: No, I don't have a copy.
MR. GOOD: I'm sorry. This is your copy. I
wrote the number 8 on it by mistake.
Q. Directing your attention to page 14 of 20,
there are five bullet points. Let me know when you
get there.
A. I am there.
Q. Okay. Directing your attention to the
third bullet point on the page, it reads: "The
overwhelmingly positive reaction of the class
similarly weighed in favor of approval of the
settlement given that only 51 of the potential 1.6
million class members opted out of the proposed
settlement and that there were only two objections
[Doc Nos. 101, 113] made to this proposed settlement,
one of which [Doc. No. 101] was ultimately withdrawn,
(see Notice of Withdrawal of All Objections [Doc. No.
118]), and the second of which [Doc. No. 113] the
Court found to be factually and legally
insufficient." Directing your attention back to

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do you have any idea why the Court found your


objection to be factually and legally insufficient?
A. I'm clueless.
Q. Okay. I'll represent -- well, strike that.
At the end of that bullet, it says -- it
cites to footnote number 7 which states: "See
transcript at 49:20-22." Do you see that?
A. I don't -- oh, okay. The footnote.
Q. Correct, the footnote.
A. See transcript at 49:20 -- I do see that,
yes.
MR. GOOD: Okay. Thank you.
Mark this as Deposition Exhibit 9.
(Clayton Deposition Exhibit
No. 9 marked as requested.)
MR. GOOD: Q. The Court Reporter has just handed
you what's been marked as Deposition Exhibit No. 9.
This is the transcript from the fairness hearing
filed on November 1st, 2013, document number 122 from
the same case, Doherty v. Hertz. Do you see that?
A. Where are you looking?
Q. At the top of the first page, top half.
A. On Exhibit No. 9?
Q. Correct.

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Deposition Exhibit No. 7, that is your objection is


Doc. 113, correct?
A. I don't know if we're talking about the
same case.
Q. Can you -A. Deposition Exhibit -Q. -- confirm -A. Deposition Exhibit No. 7 is, in fact,
entitled document 113, but I'm not -Q. And the case numbers match?
A. Where is the case number?
Q. To the left of the document number.
A. Okay. And where is the reference to that
case number in that bullet that you just read?
Q. At the top of the page on the bullet I just
read.
A. Oh, okay. Those numbers are the same.
Q. Okay. So the case number is the same, and
the document number for your objection is document
113 which is cited in the bullet I just read from
Deposition Exhibit No. 8, is that correct?
A. If that was the intention of that entry,
then yes, if they are referring specifically to that.
Q. Okay. Assume for a moment that they are,

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A. Yes, I do.
Q. Directing your attention to -A. Page 49, lines 20 and 22?
Q. No. We're actually going to start -- I
apologize for that. Direct you to page 45.
A. Okay.
Q. I'm going to read starting at line 5:
"Mr. Clayton submitted a declaration -- excuse me -his objection with the wrong claim form. He used a
gentleman named Mr. Schultz. Mr. Schultz, from what
we investigate, has objected to settlements before,
what I will call, as you said, a professional
plaintiff, I will call a professional objector, with
ties to a gentleman named Christopher Bandes." This
is misspelled B-a-n-d-e-s rather that B-a-n-d-a-s,
which is how Mr. Bandas spells his name. "But in our
settlement approval papers, we asked the Court, as
part of the objection, to list your prior
objections." Do you see that?
A. I saw what you read, yes.
Q. And do you know who Mr. Schultz is?
A. I do.
Q. And who is Mr. Schultz?
A. Mr. Schultz is an origin and cause

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investigator.
Q. Does he work for you?
A. No, he does not.
Q. Do you work with him -- strike that.
Have you ever worked with him in the past?
A. I have worked on cases wherein he has
worked, yes.
Q. And were those cases ever involving
Mr. Bandas?
A. There may have been one or two cases. Once
again, the ones I referred to that were -- span back
probably a 20 year period.
Q. Okay. I'll keep reading. "And we humbly
suggest to the Court -- and yes, it is
speculative -- that Mr. Schultz is behind this
objection, along with Chris Bandas, and using
Mr. Clayton as a shill. If you look at his
objection, you'll note that he goes by "Junior," in
quotes, but "Junior" was left out and he handwrote it
in. That indicates to me that someone else, other
than his office that he works in every day, knows
that he uses "Junior"." And directing your attention
back to Deposition Exhibit No. 7, was it you that
wrote in the word "Junior" on page 1 of Deposition

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A. I don't have a clue.


Q. Are you -MR. HOWARD: Are you asking about the objection
that was actually filed in the case?
MR. GOOD: Correct.
MR. HOWARD: Of course the lawyer wrote it. Only
a lawyer can file a legal pleading.
MR. GOOD: That is incorrect, sir.
MR. HOWARD: Well, I guess he can be representing
himself pro se.
MR. OPPENHEIM: Well, if we wanted to take your
deposition, sir, we would issue the notice.
MR. HOWARD: I mean, are we really asking if
someone wrote "Junior" next to his name?
MR. GOOD: We are establishing that a fraudulent
objection was filed.
MR. HOWARD: And how is it fraudulent because the
lawyer who filed it on his behalf didn't know his
name was Junior just like I didn't know his name was
Junior?
MR. GOOD: I'll explain that, I assure you.
MR. HOWARD: Okay.
MR. GOOD: Q. Directing your attention to page 4
of Deposition Exhibit No. 7, this is a screen grab of

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Exhibit No. 7?
A. It was.
Q. And was it you that wrote in "Junior" on
page 2 of Deposition Exhibit No. 7?
A. It was.
Q. And is that your signature on page 2 of
Deposition Exhibit No. 7?
A. It is.
Q. And did you also write in "Junior" on your
retainer agreement with Mr. Bandas, which is
Deposition Exhibit No. 3?
A. I did on page 1.
MR. HOWARD: I apologize. I didn't put the
"Junior" on our agreement either.
MR. GOOD: Q. Did Mr. Bandas write Deposition
Exhibit No. 7?
A. I don't have a clue.
Q. Did you write Deposition Exhibit No. 7?
A. Deposition Exhibit No. 7?
MR. HOWARD: Which one are you looking at?
MR. GOOD: Q. That's your objection in the
Doherty case.
A. I did not write it, no.
Q. Did any attorney write it?

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a FedEx envelope from your home to the Clerk of


Courts Office for the U.S. District Court of
New Jersey, is that correct?
A. Actually, it's from my office.
Q. Oh.
A. But other than that, it appears to be
correct.
Q. And did you mail this document?
A. Did I mail it?
Q. Yeah. Did you send it via FedEx?
A. Oh, I don't -MR. HOWARD: Which document are we talking about?
MR. GOOD: Q. Deposition Exhibit No. 7.
A. I doubt that I did. I mean, I'm looking to
see who it was paid to. I don't typically submit our
mail or our FedEx's from my office.
Q. Okay. And directing your attention to page
3 of Deposition Exhibit No. 7, have you ever been to
the website -A. You know, Ross, forgive me. I'm not quite
as quick as you are.
Q. Okay.
A. Okay. I'm still adjusting to the minus 2
degree temperature up here.

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MR. OPPENHEIM: It is cold.


THE WITNESS: Okay. I'm on page 3 of Depo
Exhibit No. 7 did you say?
MR. GOOD: Q. Yes. And this is a printout. At
the top, it says Hertz PlatePass Settlement Website.
MR. HOWARD: Do I have No. 7?
MR. GOOD: It's the objection from Doherty v.
Hertz.
MR. HOWARD: Okay. Mine is No. 8.
MR. GOOD: No. That's not the objection. The
objection is only four pages. No. Keep going. It's
the next one. No. Hold on one second.
THE WITNESS: I don't recall one having been
handed to you. I had to get my copy from the
Court Reporter.
MR. HOWARD: Yeah, I don't remember getting that
Exhibit 7.
MR. GOOD: I'm going to give you mine. You can
have mine.
Q. So you're now on page 3, is that correct?
A. I am, yes.
Q. Do you recall ever visiting this website?
A. I have -- I don't have a recollection one
way or the other.

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MR. HOWARD: -- caution the use of the term


"fraudulent."
MR. GOOD: Q. Directing your attention back to
Deposition Exhibit No. 9 at the bottom. It states
starting at line 20: "He submitted Mr. Schultz's -A. What page, Ross? I'm sorry.
Q. 45.
A. Okay.
Q. Starting at line 20, it states: "He
submitted Mr. Schultz's claim form because, remember,
I told you, everybody has a unique identifier. And
he did not use the Clayton unique identifier claim
form. I have for the Court a declaration from
Jeffrey Dahl, the claims administrator, that we're
prepared to file today, Your Honor, that
substantiates what I just said as far as -- and I
would be happy to approach the bench and show you
Mr. Dahl's," and then it trails off.
MR. GOOD: What number are we up to?
THE COURT REPORTER: 10.
MR. GOOD: Can you mark that.
(Clayton Deposition Exhibit
No. 10 marked as
requested.)

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Q. Can you read the confirmation number? It's


the second to last line.
A. 64060897.
MR. HOWARD: I'm going to have to object as to
relevance. I'm not sure why we're talking about
another case.
MR. GOOD: I think all fraudulent objections are
relevant.
MR. HOWARD: I'm going to have to object to the
argumentative term of "fraudulent objection."
MR. GOOD: That's what the Court called it.
MR. HOWARD: Then you can reference that as the
so-called Court's finding.
MR. GOOD: Okay.
MR. HOWARD: I still don't know why you asked
about this objection, but -THE WITNESS: Now, we're talking about two
different objections.
MR. GOOD: Actually, I should correct what I
said. The Court found it to be factually and legally
insufficient.
MR. HOWARD: Yes, so I would -MR. GOOD: Deposition Exhibit No. 8. I apologize
for misstating that.

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MR. GOOD: Q. The Court Reporter has just handed


you what's been marked as Deposition Exhibit No. 10.
This is the affidavit of Jeffrey Dahl, document
number 119 in the case of Doherty v. Hertz. Do you
see that?
A. I do.
Q. Directing your attention to the second
page, paragraph 8 reads: "The claim-submission
confirmation form appended to Mr. Clayton's objection
is not his own. Rather, Dahl's records show that it
is a claim-submission confirmation form we issued to
Mr. Michael Schulz, a different class member."
Paragraph 9 reads: "I do not know how Mr. Clayton
obtained Mr. Schulz's claim-submission confirmation
form. Dahl did not issue that form to Mr. Clayton."
Do you see that?
A. I do.
Q. Can you explain how your information was
filled out on Mr. Schulz's claim form?
A. I cannot.
Q. And you can't explain how an objection was
filed in your name in this matter?
A. I'm not sure that that question is clear to
me. I know that any claim that was filed by me would

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have been filed by Bandas's law firm. I can explain


that.
Q. Okay. So you're saying this would have
been done by Mr. Bandas's law firm?
A. I mean, I filed a claim, but Bandas would
have done whatever paperwork was associated with the
claim.
Q. Okay. So any mistake being made, by which
I mean filing a claim form with a number that was not
assigned to you, would have been done by Mr. Bandas's
firm rather than yourself personally, correct?
A. That would only be a presumption.
Q. Okay. But you're certain that you did not
file a claim under somebody else's name, correct?
A. I'm certain that I did not, yes.
Q. Okay. Thank you.
Directing your attention back to Deposition
Exhibit No. 9. This time to page 49.
A. I'm there.
Q. I'll read rows 20 to 22, which were cited
in the footnote discussed earlier: "Mr. Clayton's
objections are, I believe, both factually and legally
insufficient in light of all other evidence which
strongly supports this settlement." Are you aware of

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A. Trying to keep up with you. You jump from


the middle of the page -- okay. You read everything
across the top of the page.
Q. Correct.
A. Yes, I'm with you.
Q. Are you aware of whether or not Mr. Bandas
filed an objection in this matter?
A. I have no idea.
Q. Directing your attention to page 2, second
half of the page, the paragraph starting with the
word "Hull's papers."
A. I'm with you.
Q. The document reads: "Hull's papers do not
list counsel, but IP plaintiffs show that Hull
previously objected to another class settlement in
which he was assisted by Attorney Christopher Bandas,
a professional or serial objector located in Corpus
Christi, Texas. In fact, Hull's objection in this
case was postmarked in Corpus Christi, Texas even
though Hull lives and works in Denver, Colorado.
Bandas routinely represents objectors purporting to
challenge class action settlements, and does not do
so to effectuate changes to settlements, but does so
for his own personal financial gain"; and it cites

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whether or not Mr. Bandas has filed objections in any


case other than Doherty v. Hertz and this case,
Fauley v. Met Life?
A. I am not.
Q. Why did you contact Mr. Bandas?
A. I was aware that he is a lawyer that will
handle class action matters or objections to class
action suits.
Q. And how did you become aware of that?
A. I have worked with his firm in the past,
and during the course of a visit to his office, I
became aware of that.
Q. To your knowledge, has Mr. Bandas ever
represented a plaintiff or defendant in a class
action matter?
A. I do not know.
MR. GOOD: Let's mark this as the next exhibit.
(Clayton Deposition Exhibit
No. 11 marked as
requested.)
MR. GOOD: Q. The Court Reporter has just handed
you what's been marked as Deposition Exhibit No. 11.
This is In Re: Cathode Ray Tube (CRT) Antitrust
Litigation, 281 F.R.D. 531, 2012. Do you see that?

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footnote 3. "He has been excoriated by Courts for


this conduct. (See docket number 1089-1 appendix A
thereto listing Courts comments regarding Bandas's
conduct)." Cites to footnote number 4. "In light of
these facts and questions about the bona fides of
Hull's objections, IP plaintiffs justifiable served
the discovery on Hull in order to explore not only
the bases for Hull's objections but to explore his
relationship with Bandas and his practices with
regard to asserting settlement objections." Do you
see that?
A. I saw what you read, yes.
Q. Okay. And are you aware of what a
professional or serial objector is?
A. I'm clueless.
Q. Are the actions described here where
Mr. Bandas filed an objection on behalf of another
without asserting that he was the lawyer who actually
wrote the objections similar to what happened in the
Doherty v. Hertz case?
A. I don't have any idea.
Q. But you didn't write the objection in the
Doherty v. Hertz case, correct?
A. I did not.

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Q.
A.
Q.
A.
Q.
A.
Q.

You just signed it?


I did.
Who gave it to you to sign?
It came from a law firm.
The Law Firm of Christopher Bandas?
Yes.
Thank you.
Directing your attention to the last page of
Deposition Exhibit No. 11. Footnote 3 reads:
"Professional objectors can levy what is effectively
a tax on class action settlements, a tax that has no
benefit to anyone other than to the objectors.
Literally nothing is gained from the cost:
Settlements are not restructured and the class, on
whose benefit the appeal is purportedly raised, gains
nothing." Do you see that?
A. I do.
Q. And other than enriching yourself and your
attorneys, what is the purpose of your objection in
this matter?
A. It's to create an environment where the
entire class gets a reasonable and equitable
settlement.
Q. And how much money are class members

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thereabouts 2014, all claims should have been made,


and I think an accurate accounting of such would be
available.
And from that, I think there should be a
distribution on a pro rata basis to the members of
the class and, of course, the lawyers representing
the members of the class. I think that they are due
their -- at least an hourly fee for what has been put
in time-wise and some type of risk premium on top of
that.
Other than that, I think that the class
would be getting its due if the balance beyond what I
have described as what I deem to be a reasonable fee
for the lawyers be distributed equitably. I don't
think that there should be any delineation or
segregation of the claims for someone that may have
an aged fax, have some reason to keep an aged fax
indicating that they had received some unsolicited
advertisement from Met Life, but, rather, if there is
a record of such in Met Life's own records, then that
should stand alone, so there shouldn't be $250 for
one group, $100 for another.
Now, with regard to the $50 for those
persons that don't have, say, a copy of a fax or

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currently getting on average?


A. That's difficult to ascertain because you
have the persons that are delegated or assigned to be
representatives of the class who are getting 15,000 a
piece. There are others that are for some reason
getting $250 times as many as, what, 10 claims if
they have a fax to show for each of those for at
least 10 of those occasions. You have another
portion of the class that is to receive I think $100
times 10 fax that show up on record somewhere if they
don't have copies, and then I think there's $50 worth
of change to be thrown to those that would just
attest to under oath if they had received such faxes
but doesn't show up in the form of a fax or a record
that a fax was sent to them.
Q. And how much money do you believe those
categories of class members should receive?
A. I don't know. I think that, first of all,
a firm grip needs to be obtained on the amount of
money that's really put into a settlement fund. I
mean, the $23 million that has been purported to be
set aside for settlement funds does not appear to me
to be a realistic sum. I mean, the numbers should be
attainable now since as of November 16th or

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there is no record showing that a fax was sent to


them, I'm somewhat up in the air on that, but as for
the others, I think that the amount, the actual
amount beyond what the due is to the lawyers be
distributed equitably to ever how many class members
there are that submit claims.
Q. Okay. I'll represent to you that the
settlement agreement provides for plaintiffs'
attorneys getting paid one-third, and as you
mentioned, the class representatives would each be
getting paid $15,000, and after the fees and expenses
in this case, the portion of individuals receiving
the level 2 claims, which were the $100 each that you
described, will be getting a slight pro rata
deduction in light of the fact that more than 49,000
claimants have filed claims in this case. Each of
the claimants will be receiving on average
approximately $300. The entire settlement fund will
be used contrary to your assertion without any basis
that it's not realistic. Knowing what I've asserted
for you, would you like to revise what you believe
needs to be done in this matter?
A. No, sir. I think what needs to be done in
this matter is if, in fact, there are some accurate

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records which reflect your narrative, that they be


made available to the class, the entire class, for
the class to evaluate the same and establish whether
or not the amounts to be distributed are, in fact,
equitable, and I think that the class needs to
revisit the contingency fee of 30 percent on a figure
that may or may not be accurate, that is, the 23
million, that there ought to be a pro rata
distribution. Perhaps the lodestar method is a good
way to go about doing that with regard to the
attorneys' fees.
Q. Can I ask what is the lodestar method?
A. My understanding is that it is an equitable
reward, if you will, that would be allotted to the
class lawyers based on an hourly fee and some premium
for the risk that was taken, be that a 50 percent
premium on top of that or 100 percent premium on top
of that.
Q. And to your point earlier that the record
should be made available to the class, are you
referring to the phone records that are the basis for
the class's membership made available to the class?
A. I'm sorry, Ross. What I was referring to
is you were spouting some numbers with 49,000 claims

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Q. I'm not sure if you are aware of the


company called Comcast Communications.
A. I am.
Q. They are incompetent. I will represent
that to you, and their incompetence is one of the
main reasons for that. Comcast does not have records
that go back the entire duration of the class. They
have testified to that in the form of an affidavit;
therefore, all of the records are not available
despite the fact that the class period extends beyond
how far the records go back to, so we do not have
records showing call detail records for all of the
class period, which is why we asked people who
submitted claims that if they had additional faxes
that predate the call detail records that we have,
that they have the ability to submit them.
A. Is there a question pending?
Q. Well, do you understand that -- now the
difference between the level 1 and the level 2
claimants based on that?
A. I understand that there is a difference. I
still don't understand why there is a difference.
Q. Well, sir, the class period covers farther
back from the call detail records. How do you expect

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and average distribution of 300, $500, whatever you


said, whatever records that's based on should be
provided to members of the class so they can evaluate
and confirm that such is the case.
Q. So the contact information for each class
member should be made available to the entire class?
A. No, sir.
Q. Well, then, what should be made available
to the entire class?
A. The data that you were referring to when
you were giving me facts and figures earlier. I
can't state all of that data, but just the data that
indicates there are so many claimants, so many in,
for example, the first class that would be
distributed $250 for each of these faxes they can
provide; for the second class, which is 100; the
third class, which is 50. I think that there ought
to be additional thinking given to why are we
segregating the fax copy people from those that whose
records indicate that they received a fax or at least
a fax was sent to them.
Q. The good news, sir, is I have a very simple
answer for that.
A. Okay.

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to pay claimants during that period when nothing else


is available?
A. Well, choose another method. I mean, why
does somebody have to -- if the records don't go back
any further, then someone that is in the $100
bracket, how are they supposed to be compensated?
Why would they be compensated any different than
somebody that shows you a fax that happened to have
kept a fax or was provided a fax for the purpose of
attaining that $250 for each of those?
MR. HOWARD: I'm going to have to object to that.
I think we're talking about two different things.
MR. GOOD: Q. So to your knowledge, is it -- are
class members only eligible for one of the three
categories?
A. That's my appreciation or my
interpretation, yes.
Q. Okay. That is the issue. Class members
can be both part of level 1 and receive $250 per fax
image they submit and part of level 2 and receive up
to $100 per fax that they're in the call detail
records for up to ten of each, so does that address
your concern in that area?
A. I don't know without further evaluation. I

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mean, I hear what you are saying, and, frankly, I'd


have to give that some thought, but, regardless, I as
a class member would need to see that information
that is available because without that information,
I'm really wondering now how we came up -- or how we.
How the class attorneys or how the defendant came up
with a $23 million figure off of which your
commission is -- or your contingency fee is based.
Q. Okay. And I'll represent to you that an
affidavit will be filed that lays out exactly how
many class members there are in each of those
categories and how much they will receive shortly,
which will address that. I'll also represent that
it's not really possible to provide ongoing updated
numbers for each of those categories as the class
period was open.
Did you ever contact the class administrator
to ask any of the questions relating to the concerns
you've posed today?
A. I haven't had any communication with them,
no.
Q. And have you ever been to the class
administration website?
A. I can't say that I have, no.

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today?
A. Class notice?
Q. The class notice that you were sent via
facsimile with you today.
A. Well, you keep saying I was sent via
facsimile, and I keep saying I don't know. Oh -Q. I'll represent that they were only sent via
fax and published in the USA Today, so it had to be
one or the other.
A. Well, first of all, I'm not certain if
we're communicating. I'm sure it's my fault. Are
you referring to this document here?
Q. Correct.
A. That's entitled proof of claim. I see no
reference to any fax numbers where it was sent via
fax.
Q. Correct.
A. So I don't have a recall.
Q. The fax number is listed right here. It
lists fax number, is that 261-337-1167? Is that your
number or is that 281?
A. That is my fax number, yes.
Q. Can you read it into the record?
A. What do you want me to read?

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Q. And do you know if the class administrator


provides a phone number to contact them with with any
questions?
A. I seem to recall that there is a number if
you have questions.
Q. Do you recall submitting a claim in this
case?
A. I do.
Q. And did you use the website to submit your
claim?
A. I did not. I filled out a form.
Q. Did you submit it via mail, fax or what?
A. I don't know. I could perhaps look at a
copy of the form I submitted and see how it
was -- actually got into the hands of the law firm.
Q. Okay. But you filled out a paper form, is
that correct?
A. I did. I didn't actually go to a website
to fill out the form.
Q. Would that be the paper copy that you
received via facsimile?
A. If that's how I received it, but it's a
paper form.
Q. Do you have the class notice with you

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Q. Your fax number.


A. 281-337-1167.
Q. Okay. And do you have the rest of the
document that was sent to you?
A. I have other documentation. I don't
know -- when you say "the rest of the document," I'm
not certain that I have everything stapled or
attached together that I received at the time I
received this particular document.
Q. Okay. We're not going to attach it. I'll
just represent to you that the class notice did
provide a phone number to contact the class
administrator if you had any questions.
A. Okay. I take it that's just a comment.
There's not a question on the table.
Q. Well, did you ever see that document that
was the complete multiple page class notice?
A. I don't know if I have seen every page to
whatever document you are referring to. I have seen
multiple page documents.
Q. Okay. Are you aware of what the Telephone
Consumer Protection Act is?
A. Not specifically, no. I saw a reference to
it.

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Q. Are you aware of who Scott Storick is?


A. What's the name, sir?
Q. Scott Storick, S-t-o-r-i-c-k, is his last
name.
A. Other than possibly he's one of the
plaintiffs representing the class.
Q. Did you do any research in the underlying
case?
A. I did not other than what I was provided
and some of the documents that we've already referred
to in previous exhibits.
Q. And are you -- strike that.
Who provided you the documents that you are
referring to?
A. All documents I received in connection with
this case came from Chris Bandas's office.
Q. Okay. Directing your attention back to
Deposition Exhibit No. 11 on page 4, footnote 4, the
footnote reads: "For example, in Brown v. Wal-Mart
Stores, Inc., the Court stated that Bandas is a
professional objector who is improperly attempting to
hijack the settlement of this case from deserving
class members and dedicated, hard-working counsel,
solely to coerce ill-gotten, inappropriate and

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my eyes. I certainly think that Mr. Bandas ought to


be compensated for his efforts, and I think that
compensation could be just as fair as I think the
compensation -- or the amount of monies that would be
received by the plaintiff attorneys in this case.
Q. And so do you believe it's possible that
you could be convinced that the one-third award of
attorneys' fees is appropriate if you had additional
documents?
A. I would have to evaluate those documents to
see.
Q. What documents -A. And I think that if, for example -- and I
apologize.
Q. Keep going.
A. -- the lawyers representing the class are
getting more than the class members themselves, that
that would be inappropriate.
Q. Okay.
A. I think that if the lawyers representing
the class are getting any more than their hourly fee
plus whatever a judge deems is reasonable for a
premium given the risk involved, I would be
concerned, but I think if a fair assessment is made

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unspecified legal fees. Bandas's and his clients'


attempt to inject themselves at the last minute into
this eight year litigation constitutes an effort to
extort money from the class and/or class counsel."
Do you see that?
A. I saw what you read, yes.
Q. Do you know how many years this litigation
has been pending?
A. I do not.
Q. Do you believe that Mr. Bandas is
attempting to extort money from the class and/or
class counsel?
A. I don't know what his objectives are. I've
simply asked him to represent my concerns as an
objector.
Q. And would it concern you if Mr. -- strike
that.
Would it concern you if Mr. Bandas were to
receive a sum of money in order to go away and do
nothing to benefit the class?
A. I haven't thought about that. It certainly
wouldn't concern me as much as the class attorneys
receiving 30 percent of the contingency fee on an
amount that has not been substantiated, at least in

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with some accountable numbers, that an hourly fee and


a set premium on top of that is fine.
Q. So if the judge were to review the
documents you've just described and find that the fee
was appropriate, you would have no disagreement with
that?
A. I would continue to object unless what I
have already testified to was -- you know, unless the
agreement was amended to reflect what I have just
testified to.
Q. Well, I've already represented to you and
stated that an affidavit will be filed that explains
the amount of money received by the class members and
that amount of money is greater than the amount of
money received by the attorneys, which I believe was
what you've just said was your issue with the
attorneys' fees. Am I incorrect?
A. I don't know. I mean, I haven't seen this
affidavit, and if you are to provide all this
information so that it can be reviewed and evaluated
and things are fair and equitable and you as the
class attorneys are receiving what your hourly fee
and expenses would sum up to and an appropriate
premium, then I'm good with that. If you don't, you

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receive more than that, I'm not good with that.


Q. And if -A. If the persons who have been listed as
plaintiffs representing the class are getting more
money than the rest of the class, I would object to
that. I mean, you're talking about creating a bias
environment in my view for these people who have no
reason, then, to do anything other than agree to the
settlement because they are essentially getting
substantially more than the rest of the class.
Probably for a lot less effort than what I'm doing
here.
Q. Do you have any idea what work the class
representatives have done in this case?
A. I haven't seen any work that they've done.
Q. So are you aware generally, not just
speaking of this case, what is required of a class
representative?
A. I have a perception that what was required
of them is far less than what has been required of me
thus far other than agreeing to whatever terms the
plaintiff attorneys have set forth for them and go
along for the ride.
Q. Do you know if class representatives were

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seriously doubt that the vast majority of cases -MR. OPPENHEIM: If there is a trial, then they
have to be there.
MR. HOWARD: Oh, if there is a trial.
MR. OPPENHEIM: Yes.
MR. HOWARD: Plaintiffs never have to be there
regardless of whether it's a class action or any
other trial, so I don't know how you can say that, so
if you want to show me a rule that requires a
plaintiff to be at a trial?
MR. GOOD: They also -- they have to take the
witness stand.
MR. HOWARD: Well, if they're called as a
witness, they have to be there, but plaintiff doesn't
have to take the witness stand unless they're called.
MR. OPPENHEIM: You don't want your client
sitting next to you at the table?
MR. HOWARD: They're not required to be there.
I've had plenty of trials where my client is not
sitting at the trial.
MR. GOOD: Okay. Do you want me to rephrase the
question to say that they could be called as a
witness at a trial?
MR. HOWARD: Absolutely. That's a valid

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required to answer written discovery?


A. I expected that would be the case. That's
kind of normal procedures for litigation.
Q. Are you aware of whether or not class
representatives are deposed?
MR. HOWARD: In this case or in general?
MR. GOOD: Q. In general.
A. Generally, there are depositions. I
haven't seen any production documents. I haven't
seen any discovery documents. I haven't seen any
depositions.
Q. Are you aware that presence at trial,
mediation, settlement negotiations and other
important events throughout the case is routinely
required of class representatives?
MR. HOWARD: Are you talking about this case or
in general?
MR. GOOD: No. I said generally, in general. I
am asking his general knowledge about class actions.
MR. HOWARD: So are you saying generally class
actions go to trial?
MR. GOOD: Ours do.
MR. HOWARD: I think like 3 percent of cases in
general and civil litigation going to trial, so I

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question.
MR. GOOD: Q. Okay. Are you aware that class
representatives can be called as witnesses at trial?
A. I expect that any person that is a party to
a suit can be called -Q. Okay. Are you -A. -- as a witness to a trial.
Q. Are you aware that a court-ordered
mediation class representatives can be ordered to
attend?
A. I expect that class members could be
ordered to attend.
Q. Are you aware of whether class
representatives in this matter were ordered to attend
any mediations?
A. I am not aware. I have seen no such
documentation.
Q. And is that because you haven't looked?
A. That's because I haven't been provided that
information.
Q. Did you ever ask?
A. I don't recall having asked for the
discovery documents other than what was sent to me,
and beyond that, no.

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Q. I didn't ask you about any discovery


documents. I asked if you had seen any orders from
judges requiring class representatives to attend
mediations?
A. I have not seen such a document. I don't
know if that document even exists.
Q. And my next question. Have you ever looked
for such a document?
A. I don't recall having looked for that
document. I have not been provided such a document.
Q. Have you ever looked for any document that
shows what work any of the class representatives in
this case have done?
A. I have not done any research beyond what
I've talked about.
Q. Why?
A. Why? I mean, I got my own schedule to take
care of. I respond in accordance with demands in
this case from you guys where you wanted to depose
me. That's not a document that I was requested to
produce.
MR. HOWARD: Maybe you can tell them all the
things that class counsel did and ask him if 15,000
is reasonable then.

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MR. GOOD: Could we mark this as Deposition


Exhibit No. 12.
(Clayton Deposition Exhibit
No. 12 marked as
requested.)
MR. GOOD: I'm sorry. Yet again, I wrote on
yours Deposition Exhibit No. 12.
MR. HOWARD: That's all right.
MR. GOOD: Q. But I am giving it to you.
Mr. Clayton, the Court Reporter has just
handed you what's been marked as Deposition Exhibit
No. 12. This is the order striking objections due to
objectors' lack of standing in the case of In Re:
Hydroxycut Marketing and Sales Practices Litigation.
This is dated September 17th, 2013. Do you see that?
A. If you're reading across the top of the
page, yes.
Q. Thank you. Directing your attention to
page 4 in the middle.
A. Okay.
Q. I'm going to start reading from the third
line.
A. I'm looking at paragraph that has the
asterisk 5 by it?

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MR. OPPENHEIM: We'll do our deposition. Thank


you for your suggestion.
MR. HOWARD: I'm just saying. I mean, you're
speculating about all these other general class
actions. Tell them that they did in this case to
deserve 15,000.
MR. OPPENHEIM: We always appreciate helpful
tips.
MR. HOWARD: Exactly. If they did so much, I'm
sure Mr. Clayton would be happy to pay them $15,000.
MR. OPPENHEIM: Something tells me that listening
to him, I doubt it.
MR. GOOD: Mark this next.
THE WITNESS: Was that a derogatory remark,
David?
MR. OPPENHEIM: It was a -- you may take my
remark however you'd like.
THE WITNESS: Okay. So that you're just
generally always an asshole or -MR. GOOD: I am.
THE WITNESS: Are you? Well, I know you are,
Ross. I just didn't think that David had it in him.
MR. GOOD: David is like my mentor.
THE WITNESS: Okay.

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Q. Yes. Correct. The third line. "When


Mr. Reid asked Mr. Bandas what his issues were with
the proposed settlement, Mr. Bandas said that he
didn't care about changing one word of the settlement
and that he filed the objections because it was a
large settlement and plaintiff's counsel stood to
make millions of dollars." Are those the same facts
at issue in this case?
A. I'm not sure.
MR. HOWARD: Objection. Relevance.
THE WITNESS: I mean, you're talking about
Mr. Bandas' testimony there or discussion, so you
would have to ask that to Mr. Bandas.
MR. GOOD: Q. Would you consider $23 million to
be a large settlement?
A. Not particularly. I mean, it depends on
the number of class members you have. I think that a
30 percent contingency fee is a large settlement by
comparison to the amount of time that would have been
put into a case such as this.
Q. How much time do you think was put into a
case -- to this case?
A. I don't think $7 million worth of time was
put into it.

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Q. How many years were put into it?


A. I don't know.
Q. It continues: "Mr. Bandas said that he was
willing to wager that Mr. Reid's client would gladly
pay him somewhere in the neighborhood of $400,000 to
make his objection go away; otherwise, he could hold
the settlement process up for two or three years
through the appeals process. Mr. Bandas explained
that the objections filed in the case were
particularly valuable given his success in Dennis v.
Kellogg which probably made Timothy Blood very
angry." Do you see that?
A. I see what you read.
Q. Do you believe there is a certain dollar
figure that would make your objection go away?
A. What would make my objection go away is if
you met the terms that we've discussed before, which,
incidentally, I've written those concerns down, if
you'd care to read those, and they -- basically, the
items that I talked about earlier are reflected on
that document.
Q. And if we were to make those go away, your
attorney would not be asking for any money?
A. You'd have to ask my attorney. I'm talking

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Q. Would it be more than $1,000?


A. I do not know.
Q. So it could be less?
A. I do not know.
Q. Okay. How many attorney hours do you think
are required to justify a fee award of one-third of
$23 million?
A. That doesn't compute. I mean, that
question really -- I don't understand that question.
MR. HOWARD: About 200,000 hours.
MR. GOOD: Q. So if I were to tell you that this
litigation had been pending for more than two years
and seven attorneys were involved in it, how many
hours would the attorneys have had to work in order
to justify receiving one-third of the $23 million
settlement?
A. I don't have that number in mind. I need
to see your facts. I need to see your figures.
Certainly, you wouldn't have fraudulent figures, so I
mean, if those figures are produced to the class for
evaluation, then I can answer that question, and
that's why those figures need to be produced rather
than to take somebody's word for it who is over there
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about my objections -Q. Yes, your objections.


A. -- and my concerns, which are reflected in
the objections that have been filed. As for, you
know, Mr. Bandas and what his thought process are,
that's between you and Mr. Bandas.
Q. Do you have the ultimate authority as to
whether or not to withdraw your objection?
A. I believe I would, yes.
Q. Okay. And if all of the problems you have
with the settlement were resolved, would you withdraw
your objection?
A. If all of the problems that I have were
resolved, yes.
Q. Even if that did not include a payment to
Mr. Bandas?
A. I think that Mr. Bandas is due for the time
that he has placed into this file.
Q. How much time has Mr. Bandas placed into
this file?
A. I do not know.
Q. How much money do you think Mr. Bandas is
owed?
A. I do not know.

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to the class.
Q. And I have represented to you that they
will be -- the figures regarding the class members
will be made available to the Court and the public in
the form of an affidavit, but my question is would
one thing that is acceptable to you be to post the
attorney hours on the website so that people could
view them?
A. I think that that would be a good step.
Q. Did you look at the attorneys -- strike
that.
Did you look at the website to see if that
was available?
A. I thought you already asked and answered
that question. I have not looked at the website,
but, obviously, all of that information has got to be
submitted. To just give a blanket statement that
where you got $23 million in this potential pie to be
distributed in a way that doesn't appear to be
appropriate, a pro rata to me does not sit well with
me, and I'm objecting to it.
MR. HOWARD: Counsel, didn't you guys object
producing that information to the other counsel, the
other objector?

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MR. GOOD: It's being produced in camera to the


Court.
MR. HOWARD: Okay. So it's not on the website,
so you were just asking him a pure hypothetical?
MR. GOOD: Yes.
MR. HOWARD: Because you guys actually refused to
provide your attorney hours to the objectors.
MR. GOOD: We offered to provide them to the
Court.
MR. HOWARD: That's not the objector. I'm not
the Court.
MR. OPPENHEIM: That is true. Move on. Go on.
MR. GOOD: Q. The next paragraph reads: "On
May 28th, 2013, the day before the evidentiary
hearing was originally scheduled, Mr. Bandas
called -A. Ross, you are going to have to start me
over again.
MR. HOWARD: He doesn't know where you are.
THE WITNESS: I was listening to a lawyer over
here, and I got a lawyer acting judge, and I lost
track of where you were, so where are you still in
that?
MR. GOOD: Q. You had previously looked at the

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that?
A. I saw what you read.
Q. Do you believe tactics such as that
described by the Court are appropriate for class
action litigation?
A. I'm not even sure I understand what you
just read.
Q. Do you want to take some time to reread it
yourself?
A. It matters not to me. I mean, if I'm going
to give an evaluation on a case and opinions about
that, I'd have to review the entire file. All the
documents associated with it and all the facts
associated with it.
Q. I don't believe Mr. Bandas testified. It
was only the one attorney that testified, and the
Court said it found it credible. What other
documents do you need to review?
A. What other documents are associated with
the case, whatever was produced.
Q. You mean produced related to Mr. Bandas or
related to other -A. Just related to the case. I mean, if you
ask me to evaluate a case and give opinions, I'll

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paragraph starting with asterisk 5. I'm at the next


paragraph.
A. Okay. Very good.
Q. The next paragraph reads: "On May 28th,
2013, the day before the evidentiary hearing was
originally scheduled, Mr. Bandas called Mr. Reid
because Mr. Bandas had heard that Mr. Reid had been
subpoenaed to testify. Mr. Bandas said several times
during that conversation that he wasn't sure whether
he was having a senior moment or something, but it
was very difficult for him to even recall the details
of the prior conversation regarding settlement and
numbers and that it was most likely that both of them
couldn't remember what they had talked about."
The next paragraph reads: "According to
Mr. Reid's testimony, which the Court finds credible,
Mr. Bandas was attempting to pressure the parties to
give him $400,000 as payment to withdraw the
objections and go away. Mr. Bandas was using the
threat of questionable litigation to tie up the
settlement unless the payment was made. Even though
Miss McBean was Mr. Palmer's client, it was clear
that Mr. Bandas was authorized to speak for
Mr. Palmer on Miss McBean's behalf." Do you see

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need to see what documentation exists.


Q. Okay. So it is possible that's
appropriate?
MR. HOWARD: I'm not even sure what the question
is.
THE WITNESS: I don't know. I'd have to evaluate
the facts of the case.
MR. HOWARD: Objection. Hold on. Objection.
Vague. What is the question?
MR. GOOD: Q. The question is whether offering
payment to withdraw objections is appropriate
proceedings in a class action.
MR. HOWARD: I'm going to object. This calls for
a legal conclusion.
MR. GOOD: Q. You can answer.
MR. HOWARD: You mean, like, proper, like,
morally correct or legally correct?
MR. GOOD: Legally and morally.
MR. HOWARD: Well, legally, then I'm going to
have to object. This calls for a legal conclusion.
MR. OPPENHEIM: If he's confused by the question,
he can say restate the question.
MR. HOWARD: I'm trying to figure out whether I
need to make an objection. If he's asking --

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MR. OPPENHEIM: You did make an objection.


MR. HOWARD: I know, and he said now he's asking
for a legal opinion, so, now, I have to object. This
calls for a legal conclusion.
MR. OPPENHEIM: All right. We got -- have we
covered the waterfront?
MR. HOWARD: Yes, and I'm also going to object as
to relevance. What is the relevance of some other
case to this case?
MR. OPPENHEIM: Okay. And I'm going to step in
and put my -MR. HOWARD: And why are you even talking?
MR. OPPENHEIM: -- and put my zebra stripes on.
MR. HOWARD: Wait, wait, wait. Why are you even
talking?
MR. OPPENHEIM: Because this is ridiculous. We
do not allow speaking objections in this
jurisdiction -MR. HOWARD: And I'm sure -- and I'm sure -MR. OPPENHEIM: -- and every objection has been
an improper objection since we started this
deposition.
MR. HOWARD: And I'm sure in this jurisdiction
also that you're not even entitled to speak.

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A. I'm looking at it.


Q. In part, the footnote states:
"Unfortunately, this type of abuse of the objection
process is not uncommon. As explained in the Manual
for Complex Litigation, section 21.643, fourth
edition, some objections, however, are made for
improper purposes and benefit only the objectors and
their attorneys. Example, by seeking additional
compensation to withdraw even ill-founded objections.
An objection even of little merit can be costly and
significantly delay implementation of a class
settlement. See also In Re: Checking Account
Overdraft Litigation. Professional objectors can
levy what is effectively a tax on class action
settlements, a tax that has no benefit to anyone
other than to the objectors. Literally, nothing is
gained from the cost: Settlements are not
restructured and the class on whose benefit the
appeal is purportedly raised gains nothing." Do you
see that?
A. I saw what you read.
Q. Do you believe Mr. Bandas's attempt to
obtain $400,000 would have benefited the class any?
MR. HOWARD: Objection. Calls for speculation.

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MR. OPPENHEIM: You're sure?


MR. HOWARD: Because one lawyer represents one
party in this deposition, and that's him. Not you.
So if you would like to follow the rules, you,
please, stop speaking entirely -MR. OPPENHEIM: Well, no, sir.
MR. HOWARD: -- and clouding the record. Thank
you.
MR. OPPENHEIM: That is incorrect.
MR. HOWARD: Okay. So your jurisdiction allows
multiple lawyers to speak in a deposition who
represent a single party?
MR. OPPENHEIM: Absolutely.
MR. HOWARD: Okay. Which rule is that?
MR. OPPENHEIM: Not sure.
MR. HOWARD: Okay.
THE WITNESS: And that's my answer to the
question.
MR. GOOD: Q. What's your answer to the
question?
A. I'm not sure.
Q. Okay. The paragraph I just read cites to
footnote 3, which is on page 5. Can you refer to
that for me, please?

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THE WITNESS: I wouldn't know without reviewing


the file and all the documents associated with it.
MR. GOOD: Q. So it is possible that Mr. Bandas
was attempting to benefit the class?
MR. HOWARD: Objection. Calls for speculation.
THE WITNESS: I don't know without reviewing the
file, making a proper evaluation of it.
MR. GOOD: Mark this as the next exhibit.
(Clayton Deposition Exhibit
No. 13 marked as
requested.)
MR. GOOD: Q. The Court Reporter has just handed
you what's been marked as Deposition Exhibit No. 19
(sic). This is an article published in the National
Law Review titled Ninth Circuit Grants Summary
Affirmance In Objectors' Appeal From Class Action
Settlement: A Case Study In Dealing With Serial
Objectors. Do you see that?
THE COURT REPORTER: It's 13.
MR. GOOD: Q. What I just said was for
Deposition Exhibit No. 13. Please take a minute and
read through the document.
A. You want me to read the entire document?
Q. Yes.

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A. You got anything in particular you want me


to read?
Q. No. The whole thing.
A. Well, then, let's just take a break while
we do that.
MR. GOOD: Okay. Great idea.
THE VIDEOGRAPHER: Going off the record at 8:41
a.m. -- correction, 8:41 p.m.
(Recess.)
THE VIDEOGRAPHER: We're back on the video record
at 8:47 p.m.
MR. OPPENHEIM: As a housekeeping matter, a
question was asked about what rule governed
depositions that allows or doesn't prevent a party
from having more than one person speak. That would
be Illinois Supreme Court Rule 206. Ross, continue.
MR. GOOD: Q. Okay. Mr. Clayton, did you have
the opportunity to read Deposition Exhibit No. 11 -strike that.
Did you get the opportunity to read
Deposition Exhibit No. 13?
A. I read at it.
Q. Okay. I'll read just real quick, if you
turn to page 2 at the bottom.

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reading this article?


A. I'm not aware of Mr. Bandas's cases and how
he conducts himself in cases other than the one I'm
involved in today.
Q. And knowing what you know now -- strike
that.
Having been shown this about Mr. Bandas, do
you believe that he is seeking to serve the best
interest of the class?
MR. HOWARD: Objection. Calls for speculation.
THE WITNESS: All I know about him is that I have
retained him to seek the best interest of me, and as
far as what his intentions are beyond that, I could
not offer any testimony in that regard.
MR. GOOD: Q. And, Mr. Clayton, do you know what
an appeal bond is?
A. Yes. It's a bond that's posted when you
file an appeal.
Q. Okay. And are you willing to post an
appeal bond in this case?
A. If such is necessary, yes.
Q. How much money are you willing to post?
MR. HOWARD: Objection. Calls for speculation.
THE WITNESS: I don't know that I can answer that

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A. I'm there.
Q. "Bandas nevertheless continued to ignore
the appeal bond order, instead filing emergency
motions to stay with the district court and the Ninth
Circuit. The district court thus sua sponte ordered
the objectors' attorneys to appear in court and show
cause why they should not be sanctioned for failing
to post the appeal bond. Although Bandas posted the
bond a few days later, the district court proceeded
with the hearing, providing notice to Bandas and his
clients that they stood accused of bad faith conduct,
not merely unreasonable conduct. At the hearing, the
district court admonished Bandas for game playing.
Finding clear and convincing evidence that Bandas had
disobeyed the bond order, the district court then
took the extraordinary step of barring Bandas from
practicing in the Western District of Washington as
sanctions for what the court describes as vexatious
and deplorable conduct. Thereafter, the Ninth
Circuit again granted summary affirmance of the
district court's fee order, finally and fully
resolving this case." Do you see that?
A. I see what you've read, yes.
Q. And were you aware of this conduct prior to

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question.
MR. GOOD: Q. Well, if it's half a million
dollars, would you be willing to post that much?
A. Probably not a half a million dollars, no.
MR. GOOD: Mark this as Deposition Exhibit 14.
(Clayton Deposition Exhibit
No. 14 marked as
requested.)
MR. GOOD: Q. The Court Reporter has just handed
you what has been marked as Deposition Exhibit No.
14. This includes the notice of motion and the
motion for leave to file the objection of
Judd Clayton, Jr. and the objection of Judd Clayton,
Jr. Do you see that?
A. I was with you until notice of motion and
then the -Q. You got to flip to the next page.
A. Okay. Okay. I see the verbiage you just
read.
Q. Okay. Thank you.
And directing your attention back to the
first page, this was submitted by Peter F. Higgins of
the Law Firm Lipkin & Higgins. Do you see that?
It's the signature.

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A. I do.
Q. And do you know who Peter F. Higgins is?
A. I can't say that I do.
Q. Have you ever spoken to Mr. Higgins?
A. Not in connection with this case.
Q. And to your knowledge, would Mr. Bandas
have contracted Mr. Higgins to file this document?
A. I do not know. I can't address the
legalities of that. The possibility exists, but I
don't know how they came to develop relationship or
how his name came to be on this document.
I didn't mean to mislead you when you asked
me if I knew Mr. Higgins. I may know a Mr. Higgins,
but I have had no communication with him in
connection with this case.
Q. Okay. Directing your attention to page 6,
the pages are labeled at the top right.
A. Okay. I'm there.
Q. This document is entitled objection of
Judd Clayton, Jr., and I'd just like you to briefly
skim through from page 6 to page 14 and confirm that
this is a true and correct copy of the objection that
was filed on your behalf on October 14th, 2014?
A. So we just want to go through page 14?

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A. Other than what I've personally written


down, but as far as actually, you know, filing a
motion on my behalf, this is the only objection that
I'm aware of.
Q. Is -- when you say you've "written down"
things, are those objections outside of what's in
Deposition Exhibit No. 14?
A. There may be. For example, we talked
earlier about the disbursement of funds, $250 a whack
to one level of class member, $100 for the other and
then $50 for the third level. I object to the way
that that money is being distributed.
Q. And how do you believe it should be
distributed?
A. I don't know why somebody has to have a
piece of paper in the form of a fax in their hand to
attest to the fact that they did, in fact, receive
such a fax if there are records that faxes were sent
to them regardless of the incompetence of Comcast
because that's certainly not the class members' fault
nor the attorneys representing the class members'
fault. It sounds like there's going to have to be a
lot of words, a lot of promises, a lot of allegations
accepted by both parties on both sides, but because

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Q. Yeah, just to page 14.


A. The answer is yes, it is.
Q. Okay. And that is a true and accurate copy
of the objection filed on your behalf in this matter?
A. It appears to be, yes.
Q. And do you see any mention of Mr. Bandas
anywhere in this document?
A. I'd have to read the entire document to
see. Do you want me to read the entire document?
Q. Well, have you seen it before?
A. Have I seen the document?
Q. Yes.
A. Yeah, but I've read thousands of pages of
documents since I read this.
Q. Yeah. Read through it.
MR. HOWARD: I mean, if it doesn't, tell him it
doesn't. I don't want to spend ten minutes.
MR. GOOD: Q. Okay. It doesn't.
MR. HOWARD: Okay. Then we'll take your word for
it.
MR. GOOD: Q. Okay. Other than the objections
in this Deposition Exhibit 14, are there any other
objections you have to the class action settlement in
this case?

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somebody has a piece of paper in hand when there is,


in fact, a record that there were documents sent
them, I don't know why they receive a premium one and
a half times someone who doesn't have that piece of
paper in hand.
Q. Did you understand when I represented to
you that you could be part of both level 1 and
receive $250 per fax and level 2 of receiving $100
per time you're in the CDRs, which are call detail
records, CDR is the acronym, up to ten of each?
A. In other words, a person could double dip
into level 1 and level 2?
Q. Correct.
A. I'm not certain that I am aware I
interpreted that to be the case. I'm of the
persuasion, at least as I interpreted it, that there
are three different levels.
Q. There are three different levels. You are
correct about that, but it is possible to be in more
than one category.
A. At the same time?
Q. Correct.
A. Which means you should be able to be in
three categories?

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Q. No.
MR. HOWARD: I mean, I don't read that in the
settlement document. Are you just making that
representation to him now? Because the settlement
I've seen does not seem to indicate that.
MR. GOOD: It does indicate that, and it will be
further established in the affidavit showing how many
members there are in levels 1, levels 2 and levels 3.
MR. HOWARD: Okay.
MR. GOOD: It is not possible to be in level 3
and either of the other two levels because level 3 is
only for people -MR. HOWARD: Who aren't in the other two?
MR. OPPENHEIM: Who aren't in the other two.
MR. GOOD: Exactly, who aren't in the other two,
but it is possible to be in both level 1 and level 2,
and that is because, as I explained to you, Comcast
did not have the records that covered the entire
class period. They only had some of them, and as a
result of that, the records for level 2 are
incomplete; therefore, people that actually had the
fax are also in category 1 -- or level 1 because they
can prove they have a fax from the time period that
there are no call detail records.

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Q. Okay. Why is that objection not part of


the objection you filed in the case which has been
attached as Deposition Exhibit 14?
A. That is an objection or at least a point
that came to fruition within my mind as I was
reviewing documentation in preparing for this
deposition.
Q. And how long ago was that?
A. Probably about the time I received the
subpoena, the first subpoena -- actually, the only
subpoena I received for a deposition that was set at
I want to say a Holiday Inn in Texas City back in
December of last year.
MR. GOOD: Let's go off the record for just a
second.
THE VIDEOGRAPHER: Going off the video record at
8:59 p.m.
(Recess.)
THE VIDEOGRAPHER: Going back on the video record
at 9:00 o'clock p.m.
MR. GOOD: Q. Mr. Clayton, can I direct your
attention to what is marked at the top right as page
12 of 41.
A. Which exhibit are you in?

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MR. HOWARD: You still understand that doesn't


address his issue, right? I'll ask questions. I'll
let him explain.
THE WITNESS: I have a hard time, then,
understanding. I guess that's another problem I have
with the settlement proposal is that's not clear to
me. I don't know why a person who is in level 2, for
example, wherein there's records showing that he, in
fact, received those faxes can't say that he received
the faxes during the time period that Comcast doesn't
have record and at least get 50 bucks a pop for
those.
MR. GOOD: Q. I'll also represent that it's not
$50 per time. It's $50 period for level 3.
A. I think I do understand that.
Q. Okay. Thank you.
A. But why a person couldn't triple dip is
what I'm saying, and I guess it's obvious from
talking to me about these three tiers that I don't
have a full comprehension based on what I've been
provided how that is split out.
Q. Why isn't that -A. I'm sorry. It's not clear to me as I read
the settlement proposal.

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Q. The exhibit you have in your hand that is


Deposition Exhibit 14.
A. Page 12?
Q. Yes. It's marked at the top. I think
you've gone too far. Oh, this is the document you
brought with you. Do you have the document the
Court Reporter marked? That's this document,
Deposition Exhibit No. 12, and then at the very top
of Deposition Exhibit No. 12, it will say on the top
right, page 12 of 41.
A. I'm there.
Q. Okay. The second paragraph, the second
sentence reads: "This is a settlement with a
difficult and burdensome claims process where the
defendant has a reversionary interest in the
unclaimed funds and there is also a cy pres
component." Do you see that?
A. I do.
Q. How was the claims process difficult and
burdensome?
A. I don't know. Whoever wrote that can
answer that question.
Q. But you did not write that, correct?
A. Obviously not.

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Q. Okay. And do you know what the cy pres


component is?
A. That's a component I believe wherein if
some claims are submitted, received, approved, checks
are written, the checks don't clear within 180 days,
there's essentially a distribution in the form of a
donation to I think there's some five entities
listed. 50 percent of which goes to the local bar,
and then the rest disbursed to the other four, if
there are, in fact, five. That's just my
recollection.
Q. Okay. And other than the objection you
explained a few minutes ago that is not listed as
part of Deposition Exhibit 14, do you have any other
objections to this class action settlement?
A. I'm just going to read this into the
record. It's only a two page document.
Q. Go right ahead.
A. This is an accurate reflection of my
objections in Judd words.
Q. In addition -A. I don't know if I can read it as quick as
you would, but I will read it. White legal page
document. Page 1. "Objections. $23 million

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I'm now on page 2. "Given the manner in


which the proposed attorney fees are currently set
forth, the class attorneys stand to receive their
monetary -- more monetary benefit than the class
itself. In other words, the contingent fee
arrangement based on a fictional $23 million
settlement fund guarantees them 7.67 million;
whereas, the class as a whole may receive less than
that."
"The $15,000 allotment, which is up to 15
times more than the other members will receive, to
select plaintiffs who allegedly represent the class
is excessive. Receipt of such amounts serves to
impede the ability of said entities to objectively
represent the best interest of the remainder of the
class and further seek premature settlement of this
matter."
"There should not be a bonus, at least not
two and a half times as much, i.e., $250 versus $100,
for each claim simply because some class member
retained a fax copy or was provided one of an aged
unsolicited Met Life advertisement, which is the
subject of this class action. If the defendants have
a record or records that such document was faxed, all

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settlement fund is a misrepresentation of the actual


funds to be distributed. Defendants and class
attorneys know that not all potential class members
will file claims. Further, as all claims must
be -- must have been submitted by 11-26-14, a more
accurate accounting of the funds to be placed into
reserve should be available and made known to the
class for better assessment, slash, evaluation of a
more equitable victim allotment."
"On the other hand, if the defendants have
truly placed 23 million in reserve, the entirety of
such funds should be distributed pro rata. None of
the unclaimed funds should revert back to the
defendants. The defendants should not receive any
relief from payment of restitution as a consequence
of their knowledge that a large percentage of claims
will not be submitted."
"Class attorneys should only be entitled to
actual hourly fees and expenses plus a risk premium.
A 30 percent contingency fee based on an inflated
settlement fund is egregiously excessive. The
lodestar method of calculating attorneys' fees is
most appropriate and fair for class members in the
resolution of this litigation."

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intended recipients should receive equitable


settlements."
That's my words.
Q. Do you mind if we mark that as an exhibit
and enter that into the record?
A. I do not.
Q. Thank you. We're going to mark this as
Deposition Exhibit 15, and, Warren, I'm getting this
to you after the deposition. I'm not going upstairs
right now.
A. Pardon?
MR. HOWARD: He's talking to Warren.
MR. GOOD: Talking to Warren.
(Clayton Deposition Exhibit
No. 15 marked as
requested.)
MR. WILKOSZ: Is that typed or handwritten?
MR. GOOD: It is handwritten, and I'm not sure
how our scanner is going to handle it, so we may be
doing a cell phone picture again.
THE WITNESS: Do it in color.
MR. GOOD: I don't have that option.
Q. Mr. Clayton, if $23 million was actually
being paid out, how would that change your

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objections?
A. I'd have to look at each of those
objections and see. I mean, if there was actually a
$23 million payment, I think when you say actual
payout, it certainly doesn't change the amount that I
think that the plaintiff attorneys representing the
class should be reimbursed. I would have to evaluate
that data. That's what I'm objecting to. I want to
see that data, see how many legitimate claims there
are to see how much money would be proportioned in a
pro rata basis to the members themselves.
Q. And when you say "legitimate claims," you
mean claims that have been approved by the
independent claims administrator?
A. Well, I'm not sure what the position of
that person is, but approved by whatever process
claims are approved by.
Q. Okay. And when you read out what's in the
two pages that are being marked as Deposition Exhibit
No. 15, you said that you believed that the class
representatives were making 15 times more than the
maximum other class members would receive. Do you
recall that?
A. I don't remember saying "maximum." I said

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A. Somebody actually provided them with a copy


of a fax.
Q. You mean like the defendants sent them a
fax and that's how they have it?
A. Let's say fraudulently, for example.
Q. Oh, so -- can you explain what you mean by
provided it to them fraudulently?
A. Sure. They didn't have that fax on hand.
They haven't held that fax on their person since,
say, 2008, but, yet, since the class action suit had
been brought forth, somebody has provided them with a
copy of a fax.
Q. Okay. So this is similar to your objection
in Doherty v. Hertz where somebody provided you a
claim form for somebody else and you did not fill it
out fraudulently?
A. I don't see the similarity. I'm talking
about a fax of the unsolicited advertisement that's
the basis for this class action suit.
Q. And you're talking about that going to one
person and then that person providing it to somebody
who never received it so that they could file a claim
and receive $250, correct?
A. That would be a for instance, yes.

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than some people. I mean, some people -- for


example, some people may only receive $1,000.
Q. What is -A. I think actually it's 15 plus times more.
Some people are only receiving $50 in accordance with
the settlement structure now.
Q. To your knowledge, what is the maximum a
class member can receive?
A. I don't know that I've done that math. I
mean, now, you have given me interpretation that I
had not placed on available monies for a class member
that they could double dip and maybe, in some
instances, triple dip.
Q. They cannot triple dip.
A. Okay. So the maximum amount would be 2,500
plus 1,000.
Q. Which is?
A. $3,500.
Q. Okay. Thank you.
And you also mentioned towards the end, you
said for submitting a fax or was provided one. Do
you recall that?
A. Correct.
Q. What do you mean "provided one"?

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Q. Okay. And how is that fact pattern


different than what happened in Doherty v. Hertz?
A. I'm not familiar with Doherty v. Hertz. I
mean, I'm not familiar with all the issues nor all
the production that was provided in concert with that
case.
Q. Are you aware that you were accused of
filing a claim form that did not belong to you?
A. I was not aware of such.
Q. Are you now aware of it?
A. I don't know. I mean, I saw where you read
some legal documentation, and, frankly, I'd have to
sit down and review the entirety of the case and see
what allegations have been made and why judges have
ruled the way they have.
Q. Okay. In -- strike that.
Are there any other objections besides what
are listed in Deposition Exhibit No. 14 and
Deposition Exhibit No. 15 that you have to this class
action?
A. Let's see. 14 is the actual objection
that's filed, and 15 are my handwritten notes?
Q. Correct.
A. No, sir.

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MR. GOOD: I have nothing further. Warren?


MR. OPPENHEIM: Warren, are you there? Do you
have any questions?
MR. WILKOSZ: I'm there. I had to click a couple
times. No, I have no questions.
EXAMINATION
by Mr. Howard:
MR. HOWARD: Q. Yeah. Mr. Clayton, just a
couple of questions.
Plaintiffs' class counsel has represented
to you that the average level 2 class members is
going to get about $300.
MR. GOOD: I represented that the average class
member is going to receive about $300.
MR. HOWARD: Q. Okay. The average class member
is going to receive about $300. Knowing that, does
that change your opinion that the class
representatives should not get $15,000 each?
A. Well, that would certainly be a basis for
objection where somebody who is receiving 50 times as
much, I don't think could be an equitable partner in
the class and represent the true interests of the
class.
Q. Do you think they should get $15,000 each

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Q. Okay. Do you think that would be an


unreasonable risk premium of five times their actual
hourly rates?
A. I personally do, yes.
Q. Okay. Now, just to clarify the 250 versus
the 100. Plaintiffs' class counsel has now seemed to
indicate that there will be some clarification of the
settlement agreement that if you actually have a fax,
you can actually get the $250, and then if that
number -- if your number shows up in the autodial,
you get another $100. Do you understand that?
A. I do now, yes.
Q. Okay. Do you understand whether or not you
could get the 250 and the 100 for the same fax? Has
that been made clear to you?
A. I don't recall any discussion in that
regard.
Q. Okay. Is that made clear in the settlement
document?
A. I don't remember that verbiage.
Q. Okay. So do you know if somebody actually
has the fax from a document that's on the autodial,
whether they get 250, 100 or 350?
A. I thought if they actually had the fax,

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without having to make any showing of how many hours


or how much time they spent furthering the class's
issues?
A. I would not think so.
Q. Okay. If the records indicate that maybe
they only spent 10 or 15 hours in furtherance of this
litigation, do you think they should get $15,000
each?
A. That would be an awful high hourly rate.
Q. Okay.
A. It is dependent upon the distribution to
the other class members.
Q. And do you believe that 50 times what the
other class members get is an unreasonably high
compensation for the class reps?
A. Unless they put 50 times as much effort
into it, yes.
Q. Okay. As far as the attorneys' fees, if
the actual hours that the attorneys spent, the dollar
value of the time they spent is, say, $1.5 million
and those records are ultimately made available to
you, would you still object to them getting over $7
million?
A. I would.

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they got 250. I'm not certain if the mere presence


of the fax gives them the 250 plus the 100. There
was some implication by class counsel that there are
occasions where that can happen. I'm still not
certain how.
Q. Okay. So the settlement document is not
really clear as to how each individual claim is going
to be settled?
A. It's not clear to me.
Q. Okay. Is your position basically that if
there is some record that indicates that a claimant
got a fax, then they should get a certain dollar
value for that fax?
A. Yes.
Q. Whether they have the fax, the old fax or
not?
A. If there is a record, yes, there will be
some allotment of funds going their direction.
Q. Because whether they have the fax or
whether it shows up in the records that a fax was
sent, we still have evidence that they were sent a
fax, right?
MR. OPPENHEIM: Objection. Leading.
THE WITNESS: There is evidence in the possession

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of, say, in this case, the defendant, yes.


MR. HOWARD: Q. Okay. And what you are saying
is they should be compensated the same?
MR. OPPENHEIM: Objection. Leading.
THE WITNESS: One should be compensated the same
if they have a fax or not as long as there is a
record reflecting that a fax was sent their
direction.
MR. HOWARD: Okay. Fair enough. Those are all
the questions I have. Thank you.
FURTHER EXAMINATION
by Mr. Good:
MR. GOOD: Q. I have a couple quick things.
Mr. Clayton, what is the hourly rate you
charge?
A. For what?
Q. For your services.
A. What services?
Q. For your expert witness services.
A. $300 per hour.
Q. Okay. And how much time did you spend
reviewing the settlement agreement in this case?
A. Probably several hours.
Q. Would several be less than ten do you

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A. It's the only place that that specific


issue is discussed that I am aware of.
MR. GOOD: Anything else?
MR. OPPENHEIM: That's the other one.
MR. GOOD: Q. And your actual objection, which
is attached as Deposition Exhibit 14, does not
mention any objection to the different levels of
payment that we've discussed, correct?
A. I don't recall that specific issue having
been mentioned in the terms that I have offered it
today.
MR. GOOD: Okay. I have nothing further.
Warren, are you all good?
MR. OPPENHEIM: Let's wait for him to unclick.
MR. WILKOSZ: I am, yes. Thank you, David.
THE VIDEOGRAPHER: Counsel, we're concluded?
Going off the video record at 9:16 p.m. at the end of
media number 1.
(The following was had off
the video record.)
THE COURT REPORTER: Signature?
THE WITNESS: I would like to sign it.
(Discussion had off the
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think?
A. Yes.
Q. And were you compensated for your time?
A. No.
Q. Your actual objections that was filed,
which was part of Deposition Exhibit 14, does not
mention any objection to the class rep incentive
award, is that correct?
A. That is the 250 versus the 100?
Q. No, no. That's the $15,000 for class
representatives.
MR. HOWARD: I think that mischaracterizes the -THE WITNESS: Let me see.
MR. HOWARD: -- the document.
MR. GOOD: I think mine is searchable. I think I
can beat all of you. Maybe not.
THE WITNESS: If you look on page 8 -- well -MR. GOOD: Q. Page 13 of 41.
A. Is it page 13?
Q. Yeah. Page 13 of 41 at the top right I
think is what you are referring to.
A. Well, the first full paragraph, that topic
is covered.
Q. And is that the only place?

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MR. HOWARD: The witness has asked to read and


sign the deposition. We've asked that the deposition
be mailed to him so that he can read and sign it,
and, apparently, as of right now, the Court Reporter
is unclear whether or not they can mail the
deposition to the witness; however, we would ask the
transcript not be considered official until it's read
and signed per the rules.
MR. GOOD: And I'll just state for the record
that objector's counsel is refusing to pay for it.
MR. HOWARD: I don't think any rule requires
anybody to buy a transcript.
MR. OPPENHEIM: We're done.
MR. HOWARD: And, again I'm not asking you to
send it to me. I'm asking you to send it to the
witness, and if you want him to return the original
transcript with signature, that's fine.
(Proceedings concluded at 9:19 p.m.)
-----------

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1

STATE OF ILLINOIS

2
3

COUNTY OF KENDALL

)
)
)

ss:

I, Cynthia A. Splayt, Certified


4
Shorthand Reporter, and Notary Public in and for the
5
County of Kendall, State of Illinois, do hereby
6
certify that on the 7th day of January, A.D., 2015,
7
the deposition of the witness, JUDD CLAYTON, JR.,
8
called by the Plaintiff was taken before me, reported
9
stenographically and was thereafter reduced to
10
typewriting through computer-aided transcription.
11
The said deposition was taken at 3701
12
Algonquin Road, Suite 320, Rolling Meadows, Illinois,
13
and there were present Counsel as previously set
14
forth.
15
The said witness, JUDD CLAYTON, JR.,
16
was first duly sworn to tell the truth, the whole
17
truth and nothing but the truth, and was then
18
examined upon oral interrogatories.
19
I further certify that the foregoing
20
is a true, accurate and complete record of the
21
questions asked of and answers made by the said
22
witness, at the time and place hereinabove referred
23
to.
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2

The signature of the witness was not


waived by agreement.

The undersigned is not interested in

the within case, nor of kin or counsel to any of the

parties.

I further certify that my certificate

annexed hereto applies to the original transcript and

copies signed and certified by me.

responsibility for the accuracy of any reproduced

10

I assume no

copies not made under my control or direction.

11

Witness my official signature and seal

12

as Notary Public in and for Kendall County, Illinois

13

on this 8th day of January, A.D. 2015.

14
15
16
17
18
19

___________________________
CYNTHIA A. SPLAYT, CSR
Notary Public
License No. 084-003295

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21
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IN THE CIRCUIT COURT OF THE 19TH JUDICIAL DISTRICT


LAKE COUNTY, ILLINOIS

2
3
4
5
6
7
8
9

SHAUN FAULEY, SABON, INC.,


)
SANDY ROTHSCHILD & ASSOCIATES, )
INC., DEBAUN DEVELOPMENT, INC.,)
and CHRISTOPHER LOWE HICKLIN DC)
PLC, Individually and as the
)
representatives of a class of )
similarly-situated persons,
)
Plaintiffs,
)
)
-vs)
)
METROPOLITAN LIFE INSURANCE
)
COMPANY, et al.,
)
Defendants.
)

No. 14 CH 1518

10
11
12
13

I, JUDD CLAYTON, JR. being first duly


sworn, on oath say that I am the deponent in the
aforesaid deposition taken on 1-7-15; that I have
read the foregoing transcript of my deposition,
consisting of pages 1 through 106 inclusive, and
affix my signature to same.

14
15
16

___________________________
JUDD CLAYTON, JR.

17
18
19

SUBSCRIBED AND SWORN TO


before me this _________ day of
__________________________, 20______.

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_________________________________
Notary Public

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cause 27:24 77:7
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comma 14:21
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