non profit project that represents class members pro bono . thursday september 3 2015 did you know we have a fancier if not much better updated website now at classactionfairness.com . posted by ted frank at 6 24 am no comments email thisblogthis share to twittershare to facebookshare to pinterest friday may 8 2015 in re capital one tcpa litigation seventh circuit appeal litigation over whether capital one and its affiliates violated the telephone consumer protection act settled for 75.5 million about 4 for each of the 17.5 million class members who allegedly had a statutory claim for 500 or more . six law firms asked for 30 % of that or over 22.6 million . we objected on behalf of a class member jeffrey collins introducing evidence showing that something more in the 4.6 % range would more than fully compensate class counsel for the risk they incurred . the district court did not adopt our arguments but agreed with us that there should be a declining percentage as the fund grew larger and awarded only 15 668 265 . that s for 4 268 hours of work by six law firms including associates and paralegals or over 3 671 hour . other tcpa cases have awarded over 5 000 hour for similarly mediocre results . this award is not because the underlying tcpa action was extraordinarily risky the evidence showed that class counsel won settlements in 16 out of 38 tcpa class actions over the last four years and collected handsome fees for 64 % of the hours they devoted to tcpa litigation . moreover the court found only that this case was slightly more risky than typical tcpa litigation . nor did it reflect extraordinary litigation efforts the case settled immediately after the filing of the mdl complaint . nor did it reflect above average efficiency six firms claimed a right to fees though only three had been appointed in the district court s original rule 23 g order and the lodestar was substantially higher than in other tcpa cases . nor is this an extraordinary settlement as mentioned class members multiple 500 statutory claims were settled for about 4 class member before attorneys fees . we do not contend that a court can never award such a generous hourly rate . but the seventh circuit has held repeatedly that when deciding on appropriate fee levels in common fund cases courts must do their best to award counsel the market price for legal services in light of the risk of nonpayment and the normal rate of compensation in the market at the time . we do not believe a sophisticated arms length transaction would produce this sort of windfall for these sorts of results and we have appealed filing our opening brief monday . the case presents another interesting issue can class counsel agree not to compete for lead counsel status and then divvy up a lump sum fee request in a secret side agreement without approval or review of the court and the class we think rule 23 h and rule 23 e 3 do not permit that . daniel fisher has a great summary of the appeal on forbes.com . posted by ted frank at 11 53 am no comments email thisblogthis share to twittershare to facebookshare to pinterest labels capital one tcpa fee requests fees press coverage rule 23 h seventh circuit tuesday march 17 2015 in re online dvd antitrust litigation adverse decision and en banc petition you might recall the settlement approval in online dvd antitrust litigation we briefed back in 2012 . a district court held that the wal mart 12.03 gift cards the settlement awarded weren t coupons refused to apply the class action fairness act and awarded fees based on the face value of the coupons . on february 27 the ninth circuit in a judge sidney thomas opinion affirmed . wait a second careful readers exclaim didn t you already win that exact issue on appeal yep . appellees made the same arguments about settlement vouchers and attorney fee calculations in redman v. radioshack corp. 768 f. 3d 622 7th cir . 2014 and that court in a judge posner opinion rejected them in a lengthy and lively discussion that was widely discussed . so what did the ninth circuit say to reject the contrary seventh circuit case absolutely nothing . they didn t mention it once though we filed a rule 28 j letter in september . was there another appellate precedent that they followed instead nope . some district courts make the same mistake that redman criticized though some don t and the ninth circuit followed those cases without mentioning the others while creating a circuit split . what now well we ve asked for rehearing or rehearing en banc . if we don t get correction we have an interesting circuit split to put before the supreme court in a certiorari petition . posted by ted frank at 9 14 am no comments email thisblogthis share to twittershare to facebookshare to pinterest labels coupons ninth circuit redman v. radioshack wal mart dvd thursday january 8 2015 big cy pres victory in 8th circuit oetting v. green jacobson with new opinion from 8th circ tedfrank continues to reshape fed . judicial policy on giving class money to charity http t.co d1yy3bgju9 alison frankel alisonfrankel january 8 2015 for years parties have used cy pres the practice of giving settlement money to charity instead of the class in abusive ways . when proposed by defendants cy pres can be used to create the illusion of relief to justify greater attorneys fees at the expense of the class when in fact all that is happening is that the defendant is changing accounting entries on charitable donations it would have made anyway . when cy pres is used to justify attorneys fees it takes away the incentive of class counsel to prioritize direct recovery to the class after all it s much more satisfying to hold a ceremony giving away an oversized 3 million check to a local charity run by a friend than to issue a million 3 checks to ungrateful class members . and i ve discussed other problems with cy pres in congressional testimony and an article for the federalist society . so cy pres was one of the issues that provoked the founding of the center for class action fairness . the center has won a number of victories on the cy pres issue over the years most notably in the third and ninth circuits . a cert petition we filed in a case we didn t handle below got some attention . though it was ultimately denied a separate statement by justice roberts sent a strong message . and the rules committee is considering the issue . in 2013 a class representative in securities litigation in st. louis complained that class counsel was planning to give away 2.7 m of the class s money to local charities instead of to class members in a nationwide class . the district court signed off on the distribution and the center agreed to assist the class representative david oetting on the appeal to the eighth circuit . the argument resulted in an entertaining column by bill mcclellan . and today we won a landmark victory where a divided panel adopted our arguments in full . that s eight straight ccaf intermediate appellate wins since the begining of 2013 . the precedent will do much to protect class members against abusive cy pres in the future and if adopted by other courts may well moot the need for the rules committee to opine on the issue . we have a ninth circuit appeal on the cy pres problem scheduled for argument in pasadena february 2 . the case is david oetting v. green jacobson p.c. no. 13 2620 8th cir . jan. 8 2015 . press coverage reuters litigation daily alison frankel reuters . posted by ted frank at 5 10 pm no comments email thisblogthis share to twittershare to facebookshare to pinterest labels cy pres eighth circuit oetting v. green jacobson friday october 10 2014 cy pres you ll read this learn about the state of cy pres law without having to pay for a cle class today washington legal foundation published a short and useful working paper authored by james m. beck and rachel b. weil titled cy pres awards is the end near for a legal remedy with no basis in law the paper effectively summarizes recent litigation demonstrating courts skepticism of such awards wherein settlement funds are paid to third parties instead of to class members . beck and weil highlight some ccaf generated precedents such as chief justice roberts s statement in marek v. lane 134 s. ct. 8 2013 the third circuit s opinion in in re baby prods . antitrust litig . 708 f. 3d 163 3d cir . 2013 and the seventh circuit s opinion in redman v. radioshack corp. f. 3d 2014 u.s. app . lexis 18181 2014 wl 4654477 7th cir . sept. 19 2014 . credit is also due to bexis the blogging nom de guerre of mr. beck whose post sunsetting cy pres drew attention to the redman ratio s applicability to cy pres remedies just one day after redman v. radioshack was decided . the rationale for having a defendant settle class members claims by paying money to third parties is that it would be impossible to compensate the class members themselves . but it s a reverse robin hood wherein money that belongs to the aggrieved nationwide mass of class members is taken and funneled to well connected recipients like the plaintiffs lawyers preferred local charities and alma maters . sometimes it isn t even true that class members can t be located what do you think about cy pres how do you think it should be pronounced see pray or sigh pray leave your comments below . posted by jan at 11 32 am 1 comment email thisblogthis share to twittershare to facebookshare to pinterest labels baby products antitrust cy pres marek v. lane redman v. radioshack tuesday october 7 2014 oral argument in pearson v. nbty inc. are you trick and or treating in downtown chicago this halloween if so visit the united states court of appeals for the seventh circuit to watch oral argument in pearson v. nbty inc. no. 14 1198 7th cir . . that s 9 30 a.m. in the main courtroom on october 31 2014 at 219 s. dearborn street . ted frank will be arguing for appellants in full costume i.e. business formal court attire as the class action avenger . you can read the background about this settlement in our last post about it . basically it s under 900 000 for class members 1.1 million for third parties and 4.5 million for plaintiffs lawyers . class members also get some labeling changes to the sued over glucosamine bottles changes which are alleged by the plaintiffs lawyers to be worth 21 million . for example instead of saying osteo bi flex works by providing the nourishment your body needs to build cartilage lubricate and strengthen your joints the label could say osteo bi flex works by providing the nourishment your body needs to support cartilage lubricate and strengthen your joints italics added free of charge . see the opening brief for what is perhaps the best 13 000 word summary of ccaf philosophy . plaintiffs calling this settlement a tremendous result cross appealed when the district court awarded them 2.1 million in attorneys fees and expenses instead of 4.5 million . that 4.5 million after all was negotiated at arm s length by the parties and since the requested fees were only up to 2.56 times greater than the plaintiffs lawyers billing rate for the labor they expended the requested fees were certainly not excessive