Archives: Class Action Settlements

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Are Incentive Awards for Named Plaintiffs in Class Actions Allowed? Not According to the Eleventh Circuit

A recent decision by the Eleventh Circuit struck down a practice that is commonplace in class action settlements—providing a modest incentive award to a named plaintiff. In Johnson v. NPAS Solutions, LLC, No. 18-12344, 2020 WL 5553312 (11th Cir. Sept. 17, 2020), the district court, as part of the final approval of a class action … Continue Reading

Ninth Circuit Reverses Class Action Settlement Based on Notice Concerns and Insufficient Scrutiny

Class action settlements are complicated. They often take months to negotiate. The last thing the lawyers or their clients on either side want to happen is for the trial court to deny approval or, even worse, for an appellate court to overturn a decision approving the settlement when an objector appeals. That happened earlier this … Continue Reading

Visa/Mastercard Class Action Settlement Struck Down Due To Intraclass Conflict

Yesterday the Second Circuit reversed the approval of what was reportedly the largest antitrust class action settlement in history, valued at $7.25 billion. In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 2016 U.S. App. LEXIS 12047 (2d Cir. June 30, 2016). The case was brought by merchants who challenged the fees and … Continue Reading

Injunction in Aid of Class Action Settlement Addressed by Seventh Circuit

Defendants who are defending multiple class actions involving the same issue in different jurisdictions can sometimes be faced with a quandary when they want to settle. They might reach a settlement agreement with plaintiffs’ counsel in one of the cases, but until that settlement is final, which typically takes months, they may have to continue … Continue Reading

Cy Pres Distributions in Class Action Settlements Addressed By Eighth Circuit

Over the last several years, federal courts of appeals have been closely scrutinizing cy pres distributions to charitable organizations in class action settlements. This includes opinions by the First Circuit, Third Circuit and Ninth Circuit. The general thrust of these decisions is that cy pres should be used sparingly, and the charitable organization should be … Continue Reading

State Enforcement Actions Following Class Settlements Addressed By Ninth Circuit

A recent Ninth Circuit decision caught my eye. It addressed whether a state enforcement action can be barred by a class action settlement on the same issue, finding that it was barred in part, to the extent the suit sought restitution that was the same relief at issue in the class action. In People v. … Continue Reading

Class Action Settlement: Judge Posner Strikes Again At Excessive Plaintiffs’ Attorneys’ Fees

Judge Posner of the Seventh Circuit continues to be prolific in authoring class action-related opinions. I enjoy blogging about these decisions because they are entertaining to read and usually relatively short and to the point, making them easy to get through and summarize here. This opinion, once again, concluded that an award of attorneys’ fees … Continue Reading

Attorneys’ Fees In Class Action Settlements Addressed By Judge Posner

Judge Posner of the Seventh Circuit is a frequent author of class action-related opinions. His most recent one reversed an order approving a class action settlement because the attorneys’ fee award was too high.  The case involved claims that RadioShack violated the Fair and Accurate Credit Transactions Act by putting expiration dates for credit card … Continue Reading

Class Action Settlement in Pella Windows Case Overturned By Seventh Circuit

One of the prominent cases in which a products liability class action has been certified in recent years is Pella Corp. v. Saltzman, 606 F.3d 391 (7th Cir. 2010), involving windows that allegedly contained a design defect that allowed water infiltration.  After the class was certified, a settlement was reached and approved by the federal … Continue Reading

Innovative Class Action Settlement Overturned By Sixth Circuit

Some loyal readers of my blog may recall my June 8, 2011 blog post about the district court’s approval of the class action settlement in In re Dry Max Pampers Litigation.  This case alleged that Pampers “Dry Max” diapers purportedly caused excessive diaper rash.  Both the U.S. Consumer Products Safety Commission and Health Canada investigated … Continue Reading

Attorneys’ Fees For Coupon Settlements Under CAFA Addressed By Ninth Circuit

Under the coupon settlement provision of the Class Action Fairness Act (CAFA), do attorneys’ fees always have to be based on the value of the coupons redeemed, or can they be based on a lodestar calculation?  The Ninth Circuit recently addressed this question and held, in a 2-1 decision, that any award of fees “attributable … Continue Reading

Incentive Awards For Class Representatives Addressed By The Ninth Circuit

Last week the Ninth Circuit issued a decision reversing the district court’s approval of a class action settlement, based on a provision in the agreement that, as interpreted by the court, required the class representatives to support the proposed settlement in order to qualify for receiving an incentive award.  The court concluded that this presented … Continue Reading

You Can’t Give the Named Plaintiffs Too Sweet a Deal in a Class Settlement, The Sixth Circuit Reminds Us

Objectors to class action settlements often argue that the proposed settlement is really benefiting the plaintiffs’ lawyers and not the class.  It’s less common to see an argument that a settlement is benefiting the named plaintiffs at the expense of the class they are representing.  The Sixth Circuit recently found such a problem, and reversed … Continue Reading

Cy Pres Relief in Class Action Settlements: Third Circuit Weighs In

Last week the Third Circuit issued its first opinion on the subject of cy pres relief (i.e., distributions to charity instead of directly to class members) in class action settlements.  There have been several federal appellate decisions over the last year on this issue.  These decisions have suggested a need for greater scrutiny of cy … Continue Reading

Discovery By Objectors to Class Action Settlement: Montana Supreme Court Opens Door to Discovery

A recent 4-3 decision by the Montana Supreme Court allows objectors to a class action settlement to take fairly broad discovery regarding the terms of the settlement, potentially including deposing class counsel regarding the negotiations and mediation, notwithstanding a Montana statute providing for confidentiality of mediations.  This decision demonstrates the importance of recognizing that, although … Continue Reading

Class Action Settlements Involving Cy Pres Awards: Ninth Circuit Modifies Dennis v. Kellogg Company Opinion

In my July 19, 2012 blog post, I wrote about the Ninth Circuit’s decision in Dennis v. Kellogg Company, 687 F.3d 1149 (9th Cir. 2012).  Last week, however, the Ninth Circuit withdrew its previous opinion and substituted a new opinion – Dennis v. Kellogg Company, Nos. 11-55674 and 11-55706, 2012 U.S. App. LEXIS 18576 (9th … Continue Reading

Rule 23(b)(2) Class Action Settlements: Notice and Opt Out Rights Will Be Required if Damages Predominate and Perhaps if Damages Are Not Incidental, According to the Second Circuit

One important distinction that Rule 23 makes between different types of class actions is that the rule does not require notice to the class or an opportunity to opt out for 23(b)(1) and (b)(2) classes, but notice and an opportunity to opt out are required for 23(b)(3) classes.  See Fed. R. Civ. P. 23(c)(2)(A), (B).  … Continue Reading

Class Action Settlement Reversed By Ninth Circuit Due To Lack of Specificity in Cy Pres Award And Excessive Attorneys’ Fees

Over the last year or so, several circuits have reversed the approval of class action settlements, particularly where they found problems with cy pres awards and attorneys’ fee awards.  (For a quick snapshot of recent trends in this area, skim through the Class Action Settlements page of my blog.)  The courts of appeals have emphasized … Continue Reading

Cy Pres Distribution of Class Action Settlement Funds: First Circuit Provides New Guidance

Last week, in In re Lupron Marketing & Sales Practices Litigation, Nos. 10-2494, 11-1329, 2012 U.S. App. LEXIS 8263 (1st Cir. Apr. 24, 2012), the First Circuit issued a significant opinion providing substantial guidance on distribution of excess funds in a class action settlement on a cy pres basis. This situation typically occurs when there … Continue Reading

Insurance Class Action Settlements: Eleventh Circuit Approves An Interesting New Approach

Insurance companies often view class actions as meritless suits driven by plaintiffs’ lawyers and perhaps one or two disgruntled insureds.  But they often want to resolve small disputes with their customers, and give insureds the benefit of the doubt.  After all, keeping insureds happy and retaining their business year after year is very important.  So … Continue Reading