CALIFORNIA ATTORNEY'S FEES

Class Action, Costs, Lodestar, Reasonableness Of Fees, Section 998: Trial Judge Properly Awarded Class $333,000 In Attorney’s Fees Out Of Requested $780,845.62

However, Lower Court Did Properly Award Voluntary Mediation Expenses And Expert Fees Incurred By The Class After Rejection Of A CCP § 998 Offer.

            In Diaz v. Grill Concepts Service, Inc., Case No. B284146 (2d Dist., Div. 2 Oct. 19, 2018) (unpublished), former restaurant employees of a Daily Grill brought a class action for being paid less than a “living wage” and eventually won a judgment of $300,751.31 after restaurant admitted a major degree of liability. The trial judge awarded the class $9,775 in voluntary mediation expenses and $7,497.80 in expert witness fees incurred by the class after restaurant rejected a CCP § 998 offer of $499,999 inclusive of fees and costs. The class moved to recoup $780,845.62 in attorney’s fees (which included a 1.5 multiplier) under CCP § 1021.5 and Labor Code § 218.5. However, the lower court only awarded $333,000 in fees, after reducing for duplication and block billing, consisting of a $222,000 lodestar augmented by a 1.5 multiplier. As a cross-check, the lower court found the fees reasonable because they equaled 71% of the benefits obtained by the class (which was well above a 33% contingency threshold).

            The restaurant appealed the costs awards, while the class appealed the fee award.

            Nothing changed on appeal.

          The lower court had discretion to determine the voluntary mediation expenses were “reasonably necessary” to the litigation, and no discretion was abused in this case. With respect to the expert witness fees, restaurant did reject a 998 offer which did not outstrip the judgment plus total fees and costs awarded (given the wording of the 998 offer). The fact that the 998 offer was structured as a firm number plus future fees/costs did not make the offer uncertain, given there is some “estimation uncertainty” always present in such offers. (Elite Show Services, Inc. v. Staffpro, Inc., 119 Cal.App.4^th 263, 266-270 (2004).)

            That shifted attention to the class fee award. Here is what the appellate court had to say in affirming the lower court’s ruling:

• The lower court did not have to accept, carte blanche, the requested fees numbers by a fee applicant, with the court making sufficiently clear why it made certain reductions based on duplication, block billing, and unreasonable hourly rates;
• Although opposing counsel’s work effort can be probative, it was not error to fail to compare defense work to the class work because the opposition work was not reviewed by the lower court for duplication, inefficiencies, and block billing;
• Use of a “blended rate” for class counsel is not per se impermissible and was not so in this case;
• Class counsel’s use of declarations from fellow “friends” did not have to be automatically credited but could be discounted based on bias; and
• Although the lower court “cross-checked” by the class benefits (not including the fee recovery), no sole methodology is proper; but, in any case, even if the benefits plus fee recovery was used, the fee recovery was still 41% of the total recovery—well above a 33% contingency or percentage-of-recovery measure.

Class Action: Tenth Circuit Court Of Appeal Dismisses Challenge By Three Employee, Non-Equity Lawyers To Fee Allocations Made In Long-Time Class Action Case

They Lacked Standing, Federal Court Of Appeals Rules.

            In Roselle, et al. v. Berger & Montague, P.C., Case No. 17-1328 (10th Cir. Oct. 11, 2018) (nonprecedential), the Tenth Circuit dismissed an appeal by three attorney-employees of the now-defunct law firm of Waite, Schneider, Bayless & Chesley (WSBC) seeking personal compensation for work in a 27-year class action litigation. It concluded that the three attorneys lacked standing to challenge the fee allocation made by the district judge given they were only employees, not partners or equity-shareholders in the law firm.

Class Action: $8.7 Million Class Action Fee Recovery In Limited Credit Settlement Was Reversed And Remanded Because Coupons Were At Issue And Redemption Rate Needed To Be Factored In

CAFA Coupon Feature Needed To Be Analyzed.

            In re EasySaver Rewards Litig., No. 16-56307 (9^th Cir. Oct. 3, 2018) (published) involved a $12.5 million approved settlement by which “credits” would be provided by the defendant for a limited list of products, with $8.7 million allocated as fees to class counsel and $3.5 million available for class distributions through credits.   The district court valued the “credit” settlement at $38 million. The Ninth Circuit reversed the fee award for two reasons: (1) the “credit” was actually a “coupon” settlement such that it had to be reevaluated under the Class Action Fairness Act (CAFA); and (2) redemption rates had to be factored into valuation of what the settlement was worth.

Class Action: Attorneys’ Failure To Disclose Separate Settlement For Fee Recovery With Defendant W/O Court Approval Gave Lower Court Exclusive Concurrent Jurisdiction To Order Disgorgement Of $5M Court-Escrowed Fees To Class Members Rather Than Attys.

Class Action Fiduciary Duties and Court’s Continuing Equitable Authority To Do Justice Justified The Lower Court’s Decision To Award Attorneys Nothing.

            Lofton v. Wells Fargo Home Mortgage, Case No. A146282 (1^st Dist., Div. 3 Sept. 28, 2018) (published) is a stark reminder to attorneys that trial courts have broad jurisdiction to administer justice and make sure that “secret” fee deals of a separate nature are cut in a related class action context unless there is court approval.

            What happened in a prior appeal was that the appellate court affirmed a TRO by which attorneys were ordered to deposit into court over $5 million in settlement proceeds claimed as attorney’s fees in cases brought against Wells Fargo, based on the theory that the attorneys were compensating themselves out of a separate settlement without court approval which really related to representing a class action which was resolved through a separate $15 million settlement. The appellate court in that prior appeal also remanded, based on the trial court’s continuing jurisdiction under various grounds (including the equitable authority to administer justice), to gauge whether disgorgement of all or some of the $5 million was in order.

            The lower court decided that no fees should be awarded to attorneys; instead, it ordered the escrowed moneys paid to class members who filed claims in the settled class action matter.

            Attorneys’ appeal did not disrupt the trial judge’s injunctive relief/disgorgement orders. The reason was that the trial judge did have exclusive concurrent jurisdiction given that a common fund settlement was at issue, since the settlement money belonged to the class subject to fee allocation to attorneys to prevent unjust enrichment by the court. The attorneys did not ask for fees, but really only challenged jurisdiction. Coupled with their nondisclosure of the separate agreement not subject to court approval, plenty of equities justified the disgorgement ordered by the lower court.

Class Action: Seventh Circuit Court Of Appeals Determines, Unless Settlement Agreement Has A Bar, Settlement Agreement Should Not Be Read To Bar Objectors From Requesting Fees For Adding Value To Settlement Based On Equitable And Common Fund Principles

Federal Appeals Court Ordered An End To The Litigation, With Class Counsel To Pay Objector’s Fees Adding Value To Class Settlement.

            We like the near conclusion to the next federal circuit court case we post on: “Despite our remand [ordering a class objector’s fees paid from class counsel fee recovery], our message is clear: we expect this case to end ‘so that the tail can stop wagging the dog.’” (Quoting Estate of Enoch v. Tienor, 570 F.3d 821, 823 (7^th Cir. 2009).) This sounds a lot like the quote from our blog Mission Statement: "All too often attorney fees become the tail that wags the dog in litigation."  Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993). Who says federal and state jurists do not agree on issues? Not us, although it may depend on the issue.

            What happened in In re Southwest Airlines Voucher Litig., No. 17-3541 (7^th Cir. Aug. 2, 2018) was that an objector had some challenges to supplemental class counsel fees which were found meritorious and led to a rejiggling of the settlement in favor of the class in an airline drink voucher case. The objector wanted a modest $80,000 in fees, less than 5% of class counsel’s total award. Nothing in the settlement agreement addressed objectors’ fees.

            The Seventh Circuit agreed the litigation should end, with objector’s fees paid by class counsel—reversing a district judge’s denial of fees to objector.   Unless something in the settlement agreement said otherwise, settlement agreement should not be read to bar attorney’s fees for objectors adding genuine value to a class action settlement, all the more so based on equitable and common fund principles which would support the award of fees in this situation.

            BLOG OBSERVATION—This does raise a gnarly question as to whether settlement agreements will address objector’s fee claims. It is our experience that this is not addressed and only addressed depending upon the result of approval hearings/subsequent appeals on a pragmatic, negotiated basis.   Although we are aware of “blow” provisions for excessive opt-outs, maybe there can be a threshold “blow” provision which nullifies the settlement if claimed objector fees reach a certain level. We doubt this will happen, but this opinion does seem to indicate that counsel in class actions can negotiate what happens with respect to the “objector fee” possibilities if they wish to do so in class settlement agreements.

Class Action, Private Attorney General: $100,000 CCP § 1021.5 Fee Award To Two Plaintiffs’ Counsel In Foreign Driver’s Case With Limited Success Affirmed On Appeal

Plaintiffs Sought $1.7 Million (Inclusive Of Multiplier), But Went Home With Much Less.

            Sancandi v. City of Los Angeles, Case No. B268839 (2d Dist., Div. 7 July 31, 2018) (unpublished) is a case which illustrates the principles that limited success in a non-certified class action, combined with an inflated request by the marginally-winning two plaintiffs, will result in a reduced fee award to plaintiffs’ counsel.

            In this one, three groups of plaintiffs appealed in a non-certified class action challenging a determination that driving with a foreign driver’s license should be recognized by California as a valid driver’s license. They had very limited success in federal and state court litigation, although somewhat vindicating a City of Los Angeles impound policy and obtaining an $8,000 recovery total for two plaintiffs, even though their class certification action was denied. Plaintiffs sought recovery of almost $1.7 million in attorney’s fees, inclusive of a two times positive multiplier, as against the defense based on the $8,000 victory. Instead, the trial judge awarded $100,000 in plaintiffs’ favor.

            Both sides appealed, but the fee award retained intact—plaintiffs wanted more; the defense wanted no fees ordered. Plaintiffs were entitled to private attorney general fees under the “catalyst theory,” because they did get Los Angeles to adopt a special order on foreign licenses and any settlement efforts would have been futile given Los Angeles’ position that a foreign license was irrelevant to the legal issues being adjudicated. Plaintiffs had limited success—no class certification; very limited success on the merits (at best, mixed). Given that the plaintiffs only got $4,000 each, no problem that attorney’s fees were limited to $100,000.

Class Action, Common Fund: Seventh Circuit Determines That “Up To” Dollar Amount Does Not Create Common Fund Such That District Court Can Base Fee Recovery On Claims Actually Made

Case May Suggest Drafting Tips For Class Counsel But Might Signal A More Ominous Trend, Although Facts Limited To Quick Settlement Achieved After A “Paucity Of Effort.”

            Although a federal case, class action practitioners involving smaller settlements resultant from little work may need to pay attention to the reasoning of Camp Drug Store, Inc. v. Cochran Wholesale Pharmaceutical, Inc., No. 17-2086 (7^th Cir. July 27, 2018), which suggests that a common fund might be somewhat of a “flexible” term depending on the results achieved and that using language such as “up to” for a potential common fund may present a basis to award reduced fees to class counsel, especially in the case of a quick settlement with a small expenditure of effort by class counsel.

            In this one, a class and defendant settled a Telephone Consumer Protection Act (TCPA) class action, relating to faxing unsolicited advertisements to class members, for “up to $700,000 available to settle the case,” subject to class members submitting a claim for $125 (with a pro-rata reduction if the claims exceeded the $700,000 ceiling), along with any unclaimed funds reverting to the defense, with an incentive award of $15,000 each to representative plaintiffs, and with class counsel to be paid one-third of the $700,000 settlement fund to the tune of $233,333.33 (with the actual lodestar being a claimed $156,000). The district judge was concerned with this settlement, but preliminarily approved the settlement. The settlement administrator garnered 1,765 class member returned claim forms out of a 17,000 member potential class, with no one filing objections and only 12 class members requesting to be excluded—in total, the total amount of funds that defendant paid to claimants was $220,625. At the final approval hearing, the district judge awarded $ 1,000 as an incentive award to the named plaintiffs and awarded $73,468.13 in fees to class counsel, with the fee award being one-third of the returned claims. The district judge did not feel there was a true common fund given the reversion and no guaranty that the “up to” $700,000 commitment was anything more than a security deposit.

            The Seventh Circuit affirmed the fees award, much to the chagrin of class counsel.

            The appellate court did not believe that a true common fund was involved based on the “up to” language in the settlement agreement (not a sum certain); rather, it was a “claims-made” settlement where funds should be gauged against what claims were actually returned. It distinguished Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) on this basis, but then went further. Boeing does not dictate a percentage-of-recovery approach from a common fund because the fee award must still be reasonable. The problem here was that there was no real litigation in the case—no paper discovery; no depositions; no substantive motion, just an early settlement after the filing of a complaint. The “paucity of effort” expended by class counsel justified the district judge award, which is a key distinction we believe pro-class practitioners will embrace in the future but also highlights that fees, in the end, must be reasonable.

Class Action: Ninth Circuit Decides To Rehear Hyundai Kia Fuel Economy Litigation Case En Banc

2-1 Circuit Decision Going For A Larger Viewing, Including Fee Relook Decision.

            On January 24, 2018, we posted on In re Hyundai & Kia Fuel Economy Litig., No. 15-56014 et al., where the Ninth Circuit had a 2-1 split over awarding class counsel $8.9 million in fees even though some merits determinations were involved. The big dispute was over fees. We can report that this case cannot be cited as precedent because, on July 27, 2018, the matter was ordered to be reheard en banc.

Appealability, Class Action: Class Representative’s Appeal Of Fee Award Against Her Counsel Was Dismissed

Class Representative Was Not Aggrieved To Have Standing To Appeal.

            A class representative in a misclassification wage/hour class action appealed a fee award against one of her attorneys. The appeal was dismissed because the class representative was not aggrieved, with the impacted attorney not appealing so as to preserve the issue for review.   The case is Flores v. Opus Bank, Case No. B278309 (2d Dist., Div. 6 July 25, 2018) (unpublished) for readers interested in the standing issue.

Class Action: Ninth Circuit Affirms VW “Clean Diesel” Settlement Approval, Addressing Whether Reversion Provision Showed Possible Collusion Between Defense/Class Counsel And Whether Timing Of The Fee Motion Was Fair To Class Members/Objectors

VW’s Exemplary Performance Of Settlement Terms And District Court’s Allowing Six Weeks For Fee Motion Challenges Were Big Factors Leading To Affirmance.

            Volkswagen reached a settlement in a class action where it admitted installing “defeat devices” in certain 2.0-liter diesel cars. Under the terms of the settlement (brokered by settlement master Robert Mueller, now special counsel in the Russian interference probe), VW promised to pay a little over $10 billion to car owners to remedy problems, including a buyback option for some eligible car owners. The district court approved the settlement, and then set a date for the filing of a fee/expense motion by class counsel, followed by a date six weeks later for class members or objectors to challenge the fee motion. Subsequently, the district judge awarded $175 million to class counsel out of a requested $333 million in fees and expenses (roughly half, the subject of some separate appeals). Several objectors filed a “hodgepodge of challenges” ultimately rejected by the district judge, prompting some of them to file a multi-pronged appellate challenge to the settlement agreement and timing of the fee motion in In re Volkswagen “Clean Diesel” Marketing, etc. Litig., Nos. 16-17157 et al. (9^th Cir. July 9, 2018) (published).

            The Ninth Circuit affirmed Northern California District Judge Charles R. Breyer’s judgments certifying the class, approving the settlement, and denying an opt out motion by one class member. By the time of the decision in this case, VW had removed 83.8% of the unsafe cars from the road and had paid $7.4 billion to 350,000 class members (with an indication that it would pay or would be paying $8.1 billion to 450,000 class members total). With respect to fee issues, two challenges were rejected by the Court of Appeals.

            The first challenge was to a reversion provision in the settlement, providing that any leftover money after the expiration of the claims deadlines went back to VW. Objectors argued that this showed a specter of collusion between VW and class counsel, because it lowered the amount to be paid by the defense in return for a higher common fund from which a higher percentage of fees could be claimed. Although theoretically true, the Ninth Circuit found no signs of collusion in this case, especially given VW’s exemplary performance in the class action settlement process (returning lots of money to car owners) and the fee order which was roughly half of what was asked for by class counsel.

            The second challenge was to the timing and notice of the fee motion by class counsel. Although FRCP 23(h) is silent on the timing of a fee motion, it implicitly dictates that objectors must have a chance to challenge the fee motion. However, nothing in Rule 23(h) indicates that the fee motion cannot be heard after the settlement final approval motion on the merits. In this instance, the district court gave objectors six weeks after the post-settlement approval fee motion was filed, more than enough time from a due process perspective. With respect to the fee motion notice issue, that was dispatched based on the fact that it dealt with the fee order (not the settlement approval order), which was the subject of other appeals.

           BLOG KUDOOS—We commend the Ninth Circuit panel for starting its opinion by quoting from Shakespeare, King Lear, act 2, scene 4: “Striving to better, oft we mar what’s well.”

Class Action: N.D. Cal. District Judge Approves $45 Million In Fees/Costs To Class Counsel In Antitrust Lithium Ion Battery Class Action

$139.3 Million Was The Settlement “Package” Amount.

             On May 8, 2018, U.S. District Judge Yvonne Gonzalez Rogers of the Northern District of California, in In re Lithium Ion Batteries Antitrust Litig., Case No. 13-md-02420-YGR (MDL No. 2420) (N.D. Cal.), approved an award of fees and costs to class counsel in the amount of about $45 million in an antitrust price-fixing class action against various lithium ion battery makers. She found that the amount was justified, after further briefing on reasonableness of the requests, in a $139.3 million settlement involving direct buyer class members.

Class Action: N.D. California District Judge Trims Class Action Counsel Payout In Fitbit Heart Rate Tracker Investor Lawsuit

25% Percentage Of Recovery Too Rich For This Case, Plus District Judge Earlier Required More Detail On Expenses.

            Federal district judges are the ultimate gatekeepers on class action settlements, making sure that any settlements are fair to the class and class counsel fees are reasonable in nature.

            Fitbit was sued in a class action by investors alleging that it hid problems with its heart rate monitoring trackers.  A $33 million settlement was reached, with class counsel requesting an attorney’s fees award of 25% (a percentage of recovery approach endorsed by the Ninth Circuit for the normal case) and reimbursement of $272,402 in expenses.

            U.S. District Judge Susan Illston of the Northern District of California earlier had ordered that class counsel provide more detail on expenses to make sure no filet mignon dinners or first-class plane travel was involved.  Later, in an order issued May 3, 2018, she trimmed the $8.25 million request down to an award of $5.75 million, finding that the normal benchmark was too rich for this particular case.  She obviously took her gatekeeping duties seriously.

Cases Under Review/Class Actions: SCOTUS Grants Certiorari To Decide Whether Class Settlement Where $8.5 Million Was To Be Divided By Class Counsel And Cy Pres Recipients Was Fair In Nature

Certiorari Granted On April 30, 2018.

            In Frank v. Gaos, No. 17-961 (U.S. Supreme Court), certiorari was sought by objectors to a class action settlement in a plaintiff class action against Google for alleged federal privacy violations over its search engine.  The settlement provided that nothing would go to class members, but $8.5 million would be divided between class counsel and cy pres recipients (with the latter being third-party charities).  This settlement was approved by the N.D. California federal court, and that approval later was affirmed by the Ninth Circuit.  On April 30, 2018, SCOTUS granted certiorari, with the issue for resolution framed this way: “Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be ‘fair, reasonable, and adequate.’”

Class Action/Costs/Section 998: CSU Student Class Representatives Properly Assessed With Some Mandatory Costs After Class Action Loss Under CCP § 998, But Denial Of Expert Witness Fees To Defense Was Proper Given The Differences In Damages Among Subcla

End Result Was Four Class Representatives Were Hit With Routine Costs Of $123,134.94.

            Class action practitioners should read this next post on how CCP § 998 costs shifting can result in routine costs exposure to class representatives, especially where “pocketbook” financial evidence is not properly presented.

            In Keller v. Bd. of Trustees, Cal. State University (CSU), Case Nos. A147029/A147941 (1^st Dist., Div. 2 Apr. 19, 2018) (unpublished), plaintiff students, in an eventually certified subclass, lost an action where they sued for non-resident tuition fee increases by CSU.  CSU then sought $477,613.25 in routine costs, $329,981.44 of which happened to be expert witness fees after plaintiffs rejected a CCP § 998 offer by CSU.  The trial court refused to award the expert witness fees, reducing the costs request somewhat to eventually award $123,134.94 against four named class representatives.  Cross-appeals by both sides did not change the result on appeal.

            With respect to the $123,134.94 award against the class representatives, the appellate court found that the routine costs were mandatory in nature and the trial judge was not out of bounds to reject that there was unfairness to the representatives, especially given the lack of specific proof that they would be financially distressed by the award.  Here is what the appellate court said: “Plaintiffs have failed to provide authority that a court abuses its discretion in refusing to limit recoverable costs in a class action to either the named plaintiffs’ maximum potential recovery or to the amount of costs incurred defending against individual claims. In refusing to require absent class members to shoulder a proportionate share of costs, California authority has recognized that it may be appropriate to hold class representatives responsible for costs that may outstrip their personal potential recovery. “‘While imposition of the entire cost burden on the named plaintiffs may have a chilling effect on the willingness of plaintiffs to bring class action suits, this effect easily may be outweighed by the potential recovery. All potential litigants [i.e., the representative plaintiffs] must weigh costs of suit against likelihood of success and possible recovery before deciding to file suit. Those who choose to take the risks of litigation should be the ones who bear the cost when they are unsuccessful, not those who did not make the choice.’ (Van de Kamp v. Bank of America, [(1988)] 204 Cal.App.3d [819,] 869.)” (Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1433– 1434.) Plaintiffs’ arguments to the contrary are more properly addressed to the Legislature.”  [Keep in mind this award had no relationship to the rejected 998 offer.]

            Concern then shifted to CSU’s cross-appeal challenging the failure to award it expert witness fees based on the 998 offer.  The lower court did not err in declining expert witness fees because the plaintiff subclass members had different damages such that it was impossible to evaluate the defense offer on this specific issue—the offer was invalid based on the failure to apportion.

Class Action: N.D. California District Judge Appoints Special Master To Review Fee Requests By 331 Billers From 53 Law Firms In Anthem Data Breach Class Action Settlement

Class Attorneys Seeking $37.95 In Fees, 33% Of The $115 Million Settlement Fund.

            U.S. District Judge Lucy H. Koh of the Northern District of California recently issued an order in In re Anthem, Inc. Data Breach Litig., Case No. 15-MD-02617-LHK (N.D. Cal. Feb 2, 2018, Doc. 972) by which she appointed a special master to review the class attorney fee submissions in the case.  In this data breach privacy class action against Anthem, the parties reached a settlement with a $115 million settlement fund.  With respect to fee requests, 331 billers from 53 law firms requested a total of $37.95 million in fees, 33% of the settlement fund.  District Judge Koh, in issuing the special master order, expressed some concerns that there were unnecessarily duplicative or inefficient work based on so many billers and that close scrutiny was required given only 1.68% of the class submitted claims, although she did not argue that a bad result was obtained (in light of the act that this is the largest settlement reached in a U.S. data breach class action so far). 

            Here is a copy of her order for readers who want more detail.

Class Action: Hyundai Fuel Efficiency Class Action Settlement Remanded For Class Settlement Reconsideration, Including Fee Award

Ninth Circuit Also Gives Some Clues Relating To Approved Fee Settlement On Remand, In 2-1 Decision.

            The Ninth Circuit, in In re Hyundai & Kia Fuel Economy Litig., Case Nos. 15-56014 et al. (9^th Cir. Jan. 23, 2018) (published), faced an appeal of a class action settlement in the Hyundai fuel efficiency litigation.  Among other things, the district judge approved $8.9 million in fees to a series of class counsel, with a positive multiplier of 1.22 – 1.5521 depending on the counsel involved.  On appeal, the settlement got remanded mainly on settlement class certification merits bases, but the majority did have some guidance for the district court when relooking at the fee recovery—over a dissent by Circuit Judge Nguyen. 

            The majority decision faulted the district court with not making a finding regarding the settlement value given that various figures were reported – ranging from $44 million to $210 million, but with no express determination of valuation being made by the district judge.  Although the district judge found the matter was complex so as to justify a positive multiplier, the majority was not so sure given the belief the class action benefit was modest and given that the fees were to be paid separately such as to raise an inference of collusion.  Circuit Judge Nguyen, in her dissent, articulated that the majority determinations were interesting because (1) objectors below only challenged the awarded multipliers, (2) the majority used a $44 million claims-made number as of a certain date, ignoring $65 million in pending claims afterwards, and (3) the $8.9 million fee award was only 14% of the pending $65 million in claims, which was well below the presumptive 25% benchmark approved many times by the Ninth Circuit already.

Class Action: Plaintiff’s Class Action Specialist Offers Tips On Presenting Fee Petitions In Class Actions

David J. Goldsmith Does So In An Article Published In The December 2017/January 2018 Practical Law—The Journal.

            In the December 2017/January 2018 edition of Practical Law – The Journal (published by West), David J. Goldsmith, partner at Labaton Sucharow LLP and a plaintiff class action specialist, has written an article on class action settlement tips.  Among other things, he addresses the issue of what strategies class counsel should consider when seeking an award of attorney’s fees.  Here are his tips and ending comment:

• Class counsel should research the fee award decisions of the particular judge in previous class actions;
• If class attorneys believe that they have legitimate reasons to seek an award outside of a particular judge’s fee gestalt, they need to show why the settlement is unusual and why the fee request is reasonable/appropriate in the particular case;
• The fee submissions should show that requested fee requests fall within the range of fees awarded in similar cases by other courts within the relevant jurisdiction (through a nicely-designed chart) and by academic studies on class action fees outside the relevant jurisdiction (one study he found helpful is Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical Legal Stud. 811 (2010)); and
• “A small number of class counsel have espoused a strategy of seeking fees at the outer limits of reasonableness, on the theory that the court will never award more and can always award less. This ‘you don’t ask, you don’t get’ approach tends to draw objections and backfire with the court, and reflects badly on class counsel generally.  Reasonableness is the watchword not only for courts in determining an appropriate fee award, but also for class counsel in preparing an appropriate fee petition.”

            We would echo that the “reasonableness” watchword message, in our opinion, also relates to fee petitions submitted in federal and California state court cases in general.

Class Action: N.D. Cal. District Judge Approves NCAA/Student-Athlete Scholarship Class Action, Awarding About $45 Million In Fees, Costs, And Expenses To Class Counsel

Total Settlement Value Was $209 Million.

            On Friday, November 17, 2017, U.S. District  Judge Claudia Wilken of the Northern District of California gave final approval to the settlement reached in a class action involving the NCAA, 11 athletic conferences, and certain student-athletes over alleged anti-competitive caps on student scholarships.  Class counsel was awarded about $45 million in fees, costs, and expenses by District Judge Wilken. 

Class Action, Common Fund, Employment, Lodestar, Multiplier: N.D. Cal. District Judge Ilston Awards Wage/Hour Class Action Counsel $15,200,002.90 In Hybrid Statutory Fee/Common Fund Case Against Wal-Mart

District Judge Confronts Multiple Issues In Reaching Fee Award.

            U.S. District Judge Susan Ilston in Ridgeway v. Wal-Mart Stores, Inc., Case No. 08-cv-05221-SI (N.D. Cal. Sept. 14, 2017 Doc. #606) confronted numerous issues in deciding the appropriate award to class counsel in a truck driver employee class action case against Wal-Mart for wage hour violations, with a judgment producing a $60.8 million common fund available for distribution to class members.  Eventually, as we detail below, District Judge Ilston awarded $15,200,002.90, 25% of the common fund, although she did an analysis under both the fee-shifting statute (California Labor Code section 1194(a)) and the common fund doctrine.

            As an overview, District Judge Ilston characterized this as a “hybrid action,” involving potential fee recovery under a specific fee-shifting statute and the common fund doctrine.  Class counsel wanted a fee recovery of $20,266,670.50 (one-third of the common fund), while Wal-Mart argued that no more than $2,831,149.09 should be awarded—quite a discrepancy. 

            On the Labor Code fee-shifting front, she found that the hourly rates requested were acceptable, decided to make no reductions for vague time entries, and did not reduce for block billed entries under the circumstances.  District Judge Ilston also found that 64% time billing by higher level partners was appropriate for the case, determined that most of the time on lost or abandoned claims were interrelated to successful claims (doing a minor reduction for meal break claims), and put an imprimatur on continuing education work which aided class counsel in their work.  However, she did make reduction for these items:  (1) 30% reduction in travel time for class counsel from mainly Fresno to the San Francisco court venue; (2) a 5% across-the-board reduction proposed by class counsel for redundant work, plus a little more too [HINT TO PRACTITIONERS—class counsel was wise to propose this reduction even though they did not have to, the district judge accepting this as overall reasonable in nature]; and (3) no allowance for class counsel’s legislative lobbying efforts.  That brought the lodestar request down to $6,491,662.12 (down from the requested $7,320,454.75).  Class counsel requested a 2.71 positive multiplier and Wal-Mart advocated zero.  After agreeing that contingent risk, results obtained (each class member would likely get around $70,000), complexity, and preclusion of employment factors tilted in favor of a positive multiplier, District Judge Ilston granted a 2.0 positive multiplier, for a total statutory-fee award of $12,983,324.25. 

            That shifted things to fee recovery under the common fund doctrine.  She acknowledged that the Ninth Circuit has a 25% presumptive percentage-of-recovery award in common fund cases, although this had not been adopted conclusively by California state courts (given that diversity law applied).  Plaintiff asked for one-third, but District Judge Ilston decided to go with the 25% benchmark.  So, that meant that the total fee award based on the 25% was $15,200,002.90, with an offset allowed for the prior $12,983,324.25 statutory fee award, such that an additional $2,216,678.65 was added through the common fund doctrine.  When all the math is done, $15,200,002.90 is the result, plus some additional costs and litigation expenses.

Class Action: Seventh Circuit Reverses Fee Award In Subway Footlong Sandwich Class Action

Appellate Court Found Class Benefits Worthless, Meaning Case Should Have Been Dismissed Early On--$520,000 In Fees Go POOF!

Library of Congress.  Wm. C. Greene, photographer.  1946

        In In re Subway Footlong Sandwich Marketing and Sales Practice Litig., MDL No. 13-02439 (7^th Cir. Aug. 25, 2017), a lower court had approved a settlement over an objector’s challenge in a class action claiming that Subway did not provide customers with a footlong bun.  Along the way, the proof showed that minor variations in baking conditions sometimes produced an under footlong bun, but the customer still got all the meat and condiments in ordered sandwiches.  Given that some buns were a foot and some were under, individualized hearings would be required to show commonality as well as possibly materiality.  Class counsel then shifted from a damages class to an injunctive relief class.  The parties reached a settlement where Subway agreed to measure the sandwiches and undertake other protocols but admitted it could never guarantee that an exact foot bun would be the results.  It also agreed to class counsel fees capped at $520,000.

            The Seventh Circuit reversed and remanded with instruction to dismiss.  It found the action provided worthless benefits to the class such that it was a “racket” only providing fees to counsel. 

CLASS ACTION: $2.125 Million Fee Award To Class Counsel In Cy Pres-Only Settlement Was Proper

Award Was 25% Of Settlement Fund, Cross-Checked By Lodestar Totaling Ultimate Award.

            In re Google Referrer Header Privacy Litig., No. 15-15858 (9^th Cir. Aug. 22, 2017) (published) is a case involving approval of a class action settlement involving a cy-press only settlement with respect to Internet privacy claims.  There was a $8.5 million settlement fund, with $3.2 million set aside for attorney’s fees, administration costs, and incentive payments and with the remaining $5.3 million or so allocated to six cy pres recipients (certain organizations, law school divisions, and forums) given that each class member would only receive 4 cents (which made distributions unrealistic).  This case has a good discussion of cy pres-only settlements and whether the recipients’ connections with class counsel were disqualifying in nature (producing a 2-1 panel split).  However, over challenges by objectors, all three circuit judges agreed that the $2.125 million in awarded fees to class counsel was reasonable based on two factors:  (1) the fees were 25% of the settlement fund, closely hewed to amounts awarded in similar Internet privacy actions; and (2) the fees were close to class counsel’s $2.126 million lodestar calculation. 

Class Action: Seventh Circuit Court Of Appeals, In A Posner-Authored Decision, Reverses Class Counsel Fee Award To Lodestar Found Reasonable

Nixes A 1.75 Positive Multiplier Based On Complexity And Class “Return.

            Just to show you that class action fee awards are coming under increased appellate scrutiny, Circuit Judge Posner’s decision in In re Sears, Roebuck and Co. Front-Loading Washer Products Liability Litig., No. 16-3554 (7^th Cir. Aug. 14, 2017) (published) on behalf of a Seventh Circuit panel demonstrates this quite emphatically.

            The case involved allegations of control unit defects and mold problems associated with certain washers sold by Sears.  A class action settlement was reached, with the parties agreeing to a provision whereby class counsel would not seek fees in excess of $6 million.  Well, that is what they sought based upon a lodestar augmented by a 1.85 multiplier.  The magistrate judge assigned to determine fees awarded a $2.7 million lodestar augmented by a 1.75 positive multiplier, for a total award of around $4.8 million.  The judge credited that only about $900,000 would be received by the class and then gave puzzling indications of whether the case was really that complex so as to justify a multiplier.

            The Seventh Circuit found the fee award was too much.  After observing the equivocation on the complexity issue and the fact that a .88 multiplier is awarded nationwide for class recoveries less than $1.1 million, the federal appeals court determined that the $2.7 million lodestar awarded by the magistrate judge was the reasonable fee award—especially given that class counsel had to battle a large company.

Class Action: Seventh Circuit Court Of Appeals, In A Posner-Authored Decision, Reverses Class Counsel Fee Award To Lodestar Found Reasonable

Nixes A 1.75 Positive Multiplier Based On Complexity And Class “Return.

            Just to show you that class action fee awards are coming under increased appellate scrutiny, Circuit Judge Posner’s decision in In re Sears, Roebuck and Co. Front-Loading Washer Products Liability Litig., No. 16-3554 (7^th Cir. Aug. 14, 2017) (published) on behalf of a Seventh Circuit panel demonstrates this quite emphatically.

            The case involved allegations of control unit defects and mold problems associated with certain washers sold by Sears.  A class action settlement was reached, with the parties agreeing to a provision whereby class counsel would not seek fees in excess of $6 million.  Well, that is what they sought based upon a lodestar augmented by a 1.85 multiplier.  The magistrate judge assigned to determine fees awarded a $2.7 million lodestar augmented by a 1.75 positive multiplier, for a total award of around $4.8 million.  The judge credited that only about $900,000 would be received by the class and then gave puzzling indications of whether the case was really that complex so as to justify a multiplier.

            The Seventh Circuit found the fee award was too much.  After observing the equivocation on the complexity issue and the fact that a .88 multiplier is awarded nationwide for class recoveries less than $1.1 million, the federal appeals court determined that the $2.7 million lodestar awarded by the magistrate judge was the reasonable fee award—especially given that class counsel had to battle a large company.

Class Action/Lodestar: Recent 2017 Article Suggests N.D. Cal. Federal District Judges Are Using Lodestar Rather Than Percentage Of Recovery Fee Methodology In Class Action Mega Settlement Cases

Three Federal Judges Opted To Use Lodestar Method In Recent Cases.

        National Association of Legal Fee Analysis (NALFA) recently summarized a recent Reuters article suggesting that some federal judges in the Northern District of California have opted to use the lodestar approach to awarding fees, versus the percentage of recovery method, in mega-class actions with sizable settlements.

        Here are the specifics:

• District Judge Lucy Koh in a Disney/Dreamworks case awarded fees of $18.5 million (lodestar plus a “doubling” multiplier), although class action counsel had requested $31.5 (21% of the $150 million settlement);
• District Judge William Alsup used the lodestar approach in awarding fees in a $200 million settlement against Wells Fargo in 2015; and
• District Judge Charles Breyer, in the VW dealer wing of the clean diesel class action litigation, awarded $3 million to class counsel (using the $1.5 million lodestar, but doubling to $3 million) as opposed to the $28.6 million request based on a 2.4% recovery by dealers in a billion dollar settlement context.

        We will say that the California Supreme Court provided state court judges with flexibility to use either approach in the Lafitte decision, 1 Cal.5th 480 (2016) [one of our top 20 2016 Year-End decisions]. Looks like federal judges are using discretion to deviate from the normative practice of utilizing the percentage of recovery methodology at the federal level, depending on the case circumstances.

Common Fund/Class Action: What Happens When Class Action Fee Recovery Justified Under Both Common Fund And Contractual Fees Clause?

 

Eighth Circuit Court Of Appeals Gives Us Some Hints—Contractual Fee Recovery First, And Then Equitable Consideration Of Common Fund Recovery.

 

    Although outside of California, we do report on nationwide decisions which may have some impact on attorney's fees in different substantive areas of the law. McKeage v. TMBC, LLC, 847 F.3d 992 (8th Cir. 2017) is one of those cases.

 

    The issue presented in McKeage, in a class action context, is how does a district judge deal with a contract's fee-shifting provision when fee recovery is also allowable under a common fund doctrine. As we read the decision, unless there is some statutory scheme dictating otherwise, the district judge first awards under the contractual fees provision and then uses equitable discretion to see if any adjustment in fees is necessary under the common fund doctrine. Equity was the end result in this one.

Class Action/In The News . . . . Federal Judge Approves Hefty Fee For Class Counsel In 2.0 Liter Diesel Emissions Class Action

 

VW Plant, Wolfsburg, Germany. En.wikipedia. User: HighContrast. Creative Commons licnese.

 

    According to Law360, a California federal judge recently approved $167 million in fees and $8 million in costs to class counsel in the Volkswagen emissions class action, relating to the part of the case which involved 2.0 liter VW diesel cars. Stay tuned, there is likely more to come in this continuing saga.

Class Action: Special Master May Be Appointed In Class Action Where Media And Class Counsel Agreed That Issue Was Presented On Billings For Staff Attorneys

 

$75 Million Was The Tentative Class Counsel Fee Recovery, But $4 Million In Suspect Lodestar Billings Raised A Flag For Further Review.

 

    In Arkansas Teacher Retirement System v. State Street Bank and Trust Co., Case No. 11-cv-10230-MLW (D. Mass. Feb. 6, 2017) (Doc. #117) (Memorandum and Order), a Massachusetts federal district judge issued an interesting order in a class action case, one likely prompted by some media articles and lead class counsel sending a letter to the district judge admitting to an overstatement of the lodestar request.

 

    What happened here was that the district judge had approved a $300 million settlement and used the common fund method of recovery to tentatively award class counsel attorney's fee of almost $75 million, 25% of the common fund but critically cross-checked against a $41.323 million lodestar together with a 1.8 multiplier.

 

     But wait, the story does not end here as you likely surmised. After some media flurry, class counsel wrote a letter to the district judge indicating that the lodestar might have been inflated to the tune of $4 million because staff attorneys were paid very small rates but billed out at much higher rates. This brought into question the hourly rates that class counsel attributed to staff attorneys in calculating the "cross-check" lodestar. The district judge proposed to appoint a special master to examine the reasonableness of claimed fees, even proposing a judicial candidate who could be an appropriate special master if the parties got past one possible "conflict of interest."

 

    So, it looks there will be more examination of the fee issue …. but see our BLOG COMMENT BELOW.

 

    BLOG COMMENT—What we liked about this case, especially, is that the proposed special master did file an affidavit about the possible "conflict of interest" concern. However, we liked paragraph 15 of the proposed special master's affidavit, which said: "That this affidavit is made under pain and penalty of perjury." There you go—that may say it all!

    

    Dr. Smith's pain.

 

Class Action: N.D. Cal. Adopts Standing Order Requirement That Class Counsel Disclose Third Party Litigation Funding In Class Actions

 

Rule Came Down On January 23, 2017.

     U.S. District Judge Susan Illston, in Gbarabe v. Chevron Corp. (a class action relating to a gas explosion off the coast of Nigeria), ordered plaintiff to produce a funding agreement in the class action in a late 2016 order in response to a motion by Chevron.

     The disclosure did not end in just that case. On January 23, 2017, the Northern District of California Civil Rules Committee adopted a revision to the district court’s standing order (Civil LR 3-15) which states “[i]n any proposed class, collective, or representative action, the required disclosure includes any person or entity that is funding the prosecution of any claim or counterclaim.” There is a lot of debate on the pros and cons of such a disclosure, but looks like it is here to stay and may spread based on the Northern District’s deep experience with class actions.

Class Action: Objector In Separate Action Claiming Substantial Benefit Entitlement To Fees Denied Fees Because Fee Request Was Untimely And Objector Did Not Substantially Add Value To Class Action Settlement

 

$5 Million Fee Request Snubbed At Both Trial And Appellate Levels.

     Credit/Debit Card Tying Cases, Case No. A145891 (1^st Dist., Div. 4 Jan. 12, 2017) (unpublished) concerned an objector’s challenge to an award of fees and costs to class counsel in a main action, although objector was involved in a separate, more peripheral action. Objector sought to recover over $5 million in claimed fees based on the theory that he added benefit in a separate action, although class attorneys in the main class action obtained a $31 million settlement fund and were awarded about $9.3 million in fees/costs under a “clear sailing” class action settlement provision.

     The trial court denied objector’s fees request as untimely and as lacking merit because objector did not add any substantial benefit to the ultimate class action settlement fund recovery.

     Those determinations were affirmed on appeal.

     First of all, objector blew the deadlines set by two judges during the course of protracted proceedings to file fee applications in the class action case. The appellate court found it would be unfair to allow objector to ignore the deadlines because (1) it would allow objector to bypass the mandatory review process for fees applicable to all attorneys in the class action case, and (2) it would deprive the class of the opportunity to object to objector’s fees in belated junctures of the case.

     On the merits, the appellate court, as did the trial court, agreed that objector’s work did not contribute to the creation or augmentation of the settlement fund, such that the “substantial benefit” basis for fee entitlement was not satisfied.

Class Action: S.D.N.Y. Federal Judge Chops Billing Rates For “Temporary Associates” And Partner-Heavy Billing Activities

Judge Believed Charging Standard Rates For Contract Attorneys Was Not Right.

     Class counsel in the Bank of America class action litigation was dealing with an investor lawsuit where $51.6 million in fees were being sought in a case producing a $335 million settlement. Class counsel had 42 lawyers working on the case, including “temporary associates” hired in 2013 and 2014 who were billed out at a blended associate rate of $362 per hour. Also, the law firm prosecuting the class action devoted 11 partners to doing substantive work relating to motion practice and mediation, with four partners attending mediation sessions in the case.

     U.S. District Judge William Pauley (S.D.N.Y.) awarded $41.3 million in fees, which were to be paid out when 75% of the settlement fund was distributed. He was critical of billing the temporary associates, who he deemed to be contract attorneys, at higher rates as well as overstaffing the substantive legal work with high-priced partners.

Class Action: October/November 2016 Issue Of “Practical Law” Contains Discussion About Appealability, Standing, and Review Standards For Class Action Fee Awards

 

Article Covers A Gamut Of Class Action Fee Issues.

    In the October/November 2016 issue of Practical Law, there is a nice article summarizing a gamut of issues relating to class action fee awards.  Here are the major points made in this article:

•    Appealability – Decisions on fee awards may be appealable, separate and apart from the underlying disposition or settlement of the class action.
•    Standing to Appeal – A class member generally has standing to appeal, but must independently satisfy Article III standing requirements.  In a common fund settlement, class members generally have standing to appeal.  Class members might have standing to appeal a fee award if class counsel obtained an excessive fee in exchange for accepting an inadequate class settlement (with the fee award and class recovery considered to be a “constructive” common fund in these situations).  However, if fees are paid by the defendant independently, class members usually lack standing unless there is evidence of collusion.  A class member not participating in the settlement process (not filing a claim) might not have standing to appeal, although an objector can appeal a denial of his own fee claim.  Usually, defendants do not have standing to appeal unless they have to pay fees individually or unless awarded under a statute allowing fees absent an agreement between the parties.  Class counsel generally has standing to appeal the amount (or lack) of a fee award. 
•    Standard of Review—The usual standard of review is for abuse of discretion, including the methodology of the fee award (district judge’s use of the lodestar or a percentage of fund recovery method).

Class Action: One-Third Percentage Of Recovery Fee Award To Class Counsel Found No Abuse Of Discretion

 

Trial Judge Properly Approved Class Action Settlement And Attendant Fee Award To Class Counsel.

     Russell v. EF International Language Schools, Inc., Case No. B263612 (2d Dist., Div. 1 Oct. 27, 2016) (unpublished) involved a trial judge’s approval of a wage/hour class action settlement, which approval was appealed by several objecting class members (objectors). The total settlement was for $575,000, with 67% of the class members submitting claims for recovery. The lower court awarded one-third of the settlement value, or $191,666.67, in fees to class counsel. Objectors claimed that using the percentage of recovery method was an abuse of discretion, but the 2/1 DCA observed that use of this type of methodology was expressly validated by the California Supreme Court in its recent decision of Laffitte v. Robert Half International Inc., 1 Cal.5^th 480, 503 (2016) [discussed in our August 15, 2016 post].

Class Action: Sixth Circuit Decision On Whether Counsel Fees Should Be Based On Actual “Claims Made” Results, Parting Company With The Seventh And Other Circuits, Has Certiorari Petition Pending For Action By SCOTUS

 

Split Among Circuits At Issue On Class Counsel Fee Valuation Issue.

     In Blackman v. Gascho, 822 F.3d 269 (6^th Cir. 2016), a 2-1 panel of the Sixth Circuit Court of Appeals parted company with other federal circuits in awarding class counsel $2.4 million in attorney’s fees even though only $1.6 million in actual claims were made (versus a hypothetical class action value of $15.5 million if all class members made claims). Blackman diverged from the results in other circuits which have looked at the actual value received from a “claims made” class action settlement, principally Circuit Judge Posner’s decision in Pearson v. NBTY, Inc., 772 F.3d 778, 782 (7^th Cir. 2014), rather than the hypothetical maximum value of a class action case.

     A certiorari petition was filed in Blackman on September 19, 2016 (U.S. Supreme Court No. 16-364), noted by SCOTUS.blog as being one of the recent pending petitions to keep an eye on. We will.

Class Action/Common Fund: Percentage Fee Approach For Class Fee Recovery Is Reasonable In True Common Fund Cases

Lodestar Check Or Other Means Can Be Used To “Cross Check” Reasonableness of Percentage Fee Numbers Chosen By The Trial Judge In Common Fund Cases.

     In a much awaited decision, the California Supreme Court in Laffitte v. Robert Half International Inc., Case No. S222996 (Cal. Supreme Court Aug. 11, 2016) gave trial judges considerable discretion in fashioning fee awards to class counsel in common fund cases. 

    Our state Supreme Court’s basic holding was that it is reasonable for trial judges to use the percentage fee approach for purposes of awarding fees in a common fund case.  However, it was careful to note this only applies to “true” common fund cases, not cases where a fund is created by the defendant’s agreement to pay claims made by class members and to separately pay class counsel a reasonable fee as determined by the trial court.   The Court further encouraged trial judges to utilize a lodestar “cross check” on percentage fee reasonableness, but did not rule out that other means could be used to ultimately determine the reasonableness of this approach.

             So, in the end, lots of flexibility is given to trial judges, but there is an eloquent discussion of federal cases preferring the percentage fee approach.  Justice Werdegar wrote the 7-0 opinion, with Justice Liu penning a concurring opinion suggesting practices to promote transparency in awarding class action fees (such as review of preliminary fee agreements early on in the case and appointment of a class guardian “devil’s advocate” to make arguments for/against the reasonableness of a fee arrangement before the trial judge).

Class Action: $864,342 Fee Award In Healing Cream Consumer Class Action Affirmed As Reasonable In Coupon Settlement Valued At A Total $2.4 Million

 

72% Of Fee Request Approved Under Clear Sailing Provision.

    In Choi v. Restaino, Case No. B257480 (2d Dist., Div. 3 June 21, 2016) (partially published; fee discussion unpublished), a class of healing cream purchasers sued defendant under the Consumer Legal Remedies Act, among other claims, based on overpaying for creams based on inadequate ingredient disclosures.  A settlement was reached under which defendant agreed to not sell creams without disclosing all ingredients, agreed to provide each class member with an allowable claim a $45 certificate for use to buy another product within 180 days/nontransferable, conditioned the settlement upon there being no release of any personal injury claims, and conditioned the compromise upon the defense’s agreement to a “clear sailing” provision under which the defense would not challenge an attorney’s fees request of no more than $1.2 million (which was the request made by class counsel).  The lower court approved the settlement, and awarded $864,342 in fees—72% of the $1.2 million request.

    The Second District, Division 3, in an opinion authored by Justice Aldrich, affirmed.  In so doing, in an unpublished section, the panel showed some of the factors used in looking at a fee award and also rejected appellants/objectors’ only challenge that the “clear sailing” provision was excessive/collusive (on this latter point, observing there is no absolute prohibition and such settlement provisions are common, citing Consumer Privacy Cases, 175 Cal.App.4th 545, 553 (2009)).  The factors considered on reasonableness were these:  (1) there were 86,000 potential class members, and the claim rate was 14%, more than 3 times the normal 5% rate in these type of consumer cases; (2) the total value of the settlement was around $2.4 million (with the value including the $895,365 in allowed claims, settlement administration/expenses, and class counsel fees of potentially $1.2 million); and (3) the trial judge did reduce the fee request, allowing a lodestar hourly rate of $600/hour and a multiplier of 1.8 on the lodestar work effort.

Class Action/Costs: 25% Allocated Routine Costs Award To Partially Prevailing Class Representative Plaintiff Affirmed On Appeal

 

Both Sides Appealed, But No Difference.

    In Kirk v. First American Title Co., Case No. B257508 (2d Dist., Div. 5 June 22, 2016) (unpublished), plaintiff class representative lost a majority of claims involving title charges, but did win one Insurance Code violation.  The lower court awarded costs to plaintiff under the routine costs discretionary provision, Code of Civil Procedure section 1032(a)(4), but only gave plaintiff 25% of costs.  Both sides appealed to no avail.

    As far as plaintiff’s claims to mandatory costs for all subclass members, this did not go very far given that absent class members are not technically parties to the action.

    Then, with respect to a discretionary award of costs, the record showed that representative plaintiff only obtained success on behalf of 19% of the subclass as far as the one “win,” such that the 25% apportionment was no abuse of discretion.

Class Actions: Illinois Appellate Court In Telephone Consumer Protection Act Class Actions Suggests Fee Recoveries Will Have To Await Determination Of Benefits Received By Class

 

Some Commentators Suggest This Is Death Knell Of TCPA Class Actions.

    In the last few years, “junk fax” class actions apparently have proliferated under the Telephone Consumer Protection Act (TCPA).  This proliferation has irked the Illinois Court of Appeal, First Judicial District, prompting some reasoning which class action lawyers likely will deplore in First Mercury Insurance v. Nationwide Security Services, Inc., No. 1-14-3924 (Ill. Ct. App., 1st Jud. Dist. May 18, 2016).

    After discussing some insurance issues relating to TCPA matters, the appellate court expressly noted the proliferation of junk fax cases and observed that the matters are not about ruinous liability but instead compensating class action lawyers involved in these cases.  The appellate panel noted that response rates in the claim process are low, suggesting in the future that fee requests would have to await the results of the claim process before fee recoveries could be set.  Some commentators have suggested that this procedure might be the death knell of TCPA class actions.

Class Action: Sixth Circuit Court Of Appeals, In 2-1 Published Decision, Approves $2.39 Million In Fees To Class Counsel

 

Majority And Concurring Opinions Have Interesting Discussions On Valuing Settlement Benefit Of Class, Degree Of Fee Substantiation Necessary, And Propriety Of “Clear Sailing” And “Kicker” Settlement Provisions.

     A recent decision from the Sixth Circuit, Gascho v. Global Fitness Holdings, LLC, No. 14-3761/3798 (6^th Cir. May 13, 2016) (published), is an interesting one for class practitioners and other courts because it produced “split” thoughts and highlighted differing circuit approaches to issues such as valuing the benefit of a class action settlement to a class, the level of fee substantiation necessary under the lodestar approach, and the propriety of “clear sailing” and “kicker” settlement clauses. (“Clear sailing” clauses are ones where the defense will not challenge a fee award at a specified, capped level and “kicker” provisions are ones where a lower fee award means the defense obligation for fee recovery is satisfied in full.)

     The case involved a settlement in a consumer class action involving allegations of improper gym membership charges, with the defendant agreeing to a “claims made” settlement which could have resulted in a total payout of $15.5 million if every class member made monetary claims. (The payout was a $5 discount plus some other benefit rebates, which could total up to $75 per class member.) Class counsel sought $2.3 million in attorney’s fees. Objectors argued that the real value of the settlement was closer to 10% of the total payout number based on “redemption” statistics, with the district court choosing a “midpoint” number of $8.546 million as the valuation. Class counsel did not submit detailed fee billings, but the district judge found “under penalty of perjury” and generalized descriptions sufficient for lodestar purposes. The district judge did not find the clear sailing/kicker clauses sufficiently demonstrated collusion, approving the total fee request.

     The Sixth Circuit affirmed over a robust, but respectful, dissent by Circuit Judge Clay.

     The majority determined that there were pros and cons to using the lodestar/percentage of recovery for fee recoveries and differing appellate standards on how to value class action settlements (with respect to the latter, whether unused benefits should be counted or not). Ultimately, it concluded that a “case by case” approach needed to be used for valuing a class action settlement. The majority further agreed that the fee billings should have been more detailed, but there were enough indicia of authenticity such that the district court did not abuse its discretion in approving the total settlement inclusive of fees. Clear sailing/kicker provisions were found not be per se unlawful, although it did cause for heightened scrutiny.

     Circuit Judge Clay saw things quite differently. He found the settlement infirm because (1) only 8.2% of class members made claims, (2) there was a lack of detailed fee substantiation, (3) the true value of the settlement was only $1.59 million, meaning 60% of the payout was to attorneys and 40% to the class—not a great overall deal, (4) the “midpoint” valuation calculus by the district court was flawed, and (5) the clear/sailing/kicker clauses were suspect under the circumstances. In the end, he found that the settlement “should have flunked any fairness inquiry” under F.R.Civ. P. 23(e).

Class Action: Nonparticipating Class Member Objector Has No Standing To Appeal Fee Award To Class Counsel And 70% Reduction In Class Counsel Fee Request Remanded For Better Articulation Of Haircuts

 

Ninth Circuit Even Takes Unusual Step Of Assigning To A Different District Judge On Remand.

    Stetson v. Grissom, Case Nos. 13-57061/13-57159 (9th Cir. May 11, 2016) (published) is a case where a nonparticipating class member objector challenged an award of fees to Class Counsel and appealed the district judge’s failure to award fees to the objector (who asked to be awarded 20% of any fee reduction), even though the district judge slashed Class Counsel’s requested fees of $1.9 million by 70% in awarding only $585,000, prompting an appeal by Plaintiffs on the fee reduction.  The case involved a class action settlement with a gross common fund of $9.5 million, with the Class Counsel fee request being 20% of the common fund.  The district judge concluded that a lodestar analysis should be utilized, but found that only $450 per hour in rates was justified (not the higher rates requested), that hours had to be reduced for redundancy/inefficiencies, and that a multiplier was not justified. 

    The Ninth Circuit gave something to everybody, but then took an extraordinary step we have seldom seen.

    With respect to the objector’s appeal, the federal appeals court reasoned that a nonparticipating class member objector has no standing to appeal the fee award to Class Counsel, although the result would be different if the class member actually participated in the settlement.  (The Ninth Circuit also made clear that the nonparticipating objector did have district court standing to challenge the fee award at the fairness hearing.)  However, the objector did have standing to appeal the denial of his fees motion, which had to be reconsidered given the reversal of the reduction in Class Counsel fee award.

    The Class Counsel fee award was reversed because the district judge did not specifically articulate why the $450 hourly rate was appropriate given that the district judge relied on a 1996 outdated decision in doing so, did not indicate with particularity what redundancies/inefficiencies were at issue in light of a substantial 70% haircut, and did not indicate why a multiplier was not justified given some risk and inadequate analytical exploration of the Kerr factors.  However, reliance on the lodestar methodology was within the district court’s discretion.

    But, at the end of the opinion, the Ninth Circuit reassigned the matter to a different district judge on remand after concluding that the deciding jurist, the Hon. Manuel L. Real, might have a jaded perspective on future proceedings.

Class Action Two-Fer: Class Counsel Fee Recovery Affirmed In Face Cream Class Action And Plaintiff Class Action Representative Suffers Adverse Fee Award Under The Consumers Legal Remedies Act For Bad Faith Prosecution

 

#1: Choi v. Mario Badescu Skin Care, Case No. B257480 (2d Dist., Div. 3 Apr. 29, 2016) (Unpublished).

     Caption: “Testing cosmetics. Washington D.C. July 10, 1937. The department of Agriculture is making tests everyday in order to get cosmetics under the Pure Food and Drug Act, Mrs. C.W. West seated is helping Mrs. R. Goodman make a test on cold cream and other facial creams.”  Library of Congress.

     In this class action, defendants agreed to settle a nationwide class of face cream purchasers claiming that not all the ingredients were disclosed (which could lead to certain physical injuries). The settlement gave class members a $45 certificate discount, valued at around $2.4 million and excepted out from releases any personal injury claims. Class counsel requested $1.2 million based on a “clear sailing” clause (a clause saying the defense would not challenge such a request), and the lower court awarded $864,324 (which involved a 1.8 multiplier and was 72% of the requested amount). Nine objectors challenged the fee award to no avail on appeal. California has no prohibition on “clear sailing” agreements (Consumer Privacy Cases, 175 Cal.App.4^th 545, 553 (2009)), and no evidence of fraud/collusion was present in the settlement process. Given that there were 80,000 class members, the fee amount was reasonable also.

#2: Roehrig v. Area 55, Inc., Case No. D066790 (4^th Dist., Div. 1 Apr. 29, 2016) (Unpublished).

     This decision is a rare one, where a plaintiff class representative was hit with attorney’s fees for prosecuting a false labeling wine aerator class action—claiming the aerator was not made in the U.S.A.—in bad faith, which can give rise to fee exposure under Civil Code section 1780(e) of the Consumer Legal Remedies Act. The appellate court first delineated that the “not in good faith” language of section 1780(e) encompasses a subjective test, not an objective speciousness test. (Corbett v. Hayward Dodge, Inc., 119 Cal.App.4^th 915, 922-924 (2004).) Now, we recite the facts which sealed the deal for plaintiff class representative: (a) plaintiff owned and purchased numerous consumer goods made in whole or in part outside the U.S., with no problem in making such purchases; (b) plaintiff talked to a friend about the aerator before he purchased it, failing to look at other aerators for “where made” information and seemingly did so in an attempt to “buy” a lawsuit to help the friend; (c) plaintiff tried to change deposition testimony to hide the involvement of his friend; and (d) plaintiff abandoned his claim—leading to an involuntary dismissal—because he failed to list it in his bankruptcy filings before even seeking class certification. Ouch!