Amicus brief in Standard Fire Ins. Co. v. Knowles

As I've previously written:

The Class Action Fairness Act was intended to protect consumers against the unfair class action settlements rubber-stamped in state courts by creating federal jurisdiction in nationwide class actions with more than the $5 million jurisdictional minimum at stake. Some plaintiffs' lawyers have attempted to avoid federal court by purporting to limit the rights of their absent clients to less than $5 million, notwithstanding any claims they might be able to make, with the idea of negotiating an attorney-friendly settlement in state court. Most courts reject this tactic, most notably Judge Easterbrook in the 2011 Back Doctors decision, noting that any such disclaimer violates Rule 23(a)(4)'s adequacy requirement. The Eighth Circuit, however, has honored such forum-shopping attempts, resulting in numerous remands to the judicial hellhole of Texarkana, Arkansas.

[On August 31], the Supreme Court granted certiorari to an Eighth Circuit denial of an appeal of such a remand, The Standard Fire Insurance Co. v. Knowles. The Center for Class Action Fairness filed an amicus brief in support of certiorari, making us one for three in cases where we've filed amicus briefs in support of certiorari.

Monday, we filed an amicus brief in support of the merits with the generous pro bono help of McGuire Woods. Further information will eventually be posted at SCOTUSblog.

In other Supreme Court / Andrew Trask news, the Supreme Court denied certiorari to our former client, Kimberly Craven, who unsuccessfully appealed our unfortunate loss in the D.C. Circuit in the Cobell litigation. We can expect a denial of the weaker Good Bear petition next week.

May update

• A disappointing loss in Cobell v. Salazar, the first time I lost a federal appeal I've argued. We're still evaluating our options. Lots of links and analysis at Point of Law.
• Briefing and oral argument in Robert F. Booth Trust v. Crowley. I'm looking forward to the Seventh Circuit opinion.
• Odd shenanigans in Brazil v. Dell: see Point of Law; Reuters coverage; Reuters follow-up coverage.
• We completed Sixth Circuit briefing in the Pampers Dry Max case, and will discuss in a future post.
• The district court approved the Costco "hot fuel" settlement, though it at least refused to credit the junk economics expert; several other defendants are settling, and, if they're similar settlements where the benefits go entirely to the class counsel, we'll file objections there, too. Some objectors have appealed; we don't believe there's appellate jurisdiction yet. 

Reply brief filed in Cobell v. Salazar

Today, we filed our reply brief in the Cobell v. Salazar appeal (No. 11-5205 (D.C. Cir.)). Oral argument is scheduled for February 16.

mid-December update

• Wednesday, we filed our Second Circuit brief in Blessing v. Sirius XM Radio, Inc. 
• Appellees are filing response briefs in Cobell v. Salazar today. We'll put them up in our Cobell appeal update post when they make it onto the web. Oral argument is scheduled for February 16. If you're going to be in the DC area at the beginning of February, and I know you personally, let me know if you're interested in attending a moot.
• The district court approved the settlement in Barber Auto Sales v. UPS. I'm unhappy with the ruling, which I think is very wrong, but the case is both too small and too narrow to be worth appealing; we already have the larger Sirius case and pending HP Inkjet case in appellate courts to raise the Class Action Fairness Act issues that would have been central to this case. Devoting resources to appealing this case would preclude us from objecting in a couple of other cases, and stretch us pretty thin with the existing appellate schedule. Can't win 'em all, even if we only bring cases that should be won.
• The district court approved the settlement and the fee request in Trombley v. National City Bank. If it's not an abuse of discretion to approve a 28% fee and $3000/hour-of-paralegal recovery when a case settles without any risk on Docket Entry No. 5, it never is, so we're thinking long and hard about whether to appeal this one; one objector has already appealed, so our appeal wouldn't have any effect on when payouts occurred.
• The appalling refusal of Missouri appellate courts to do anything about the coupon settlement ripoff in Bachman v. AG Edwards earlier this year resulted in that state receiving attention in the annual Judicial Hellholes report earlier this week.
• It's not all bad news. Yesterday was the hearing in the second Classmates.com settlement. The parties agreed to modify the settlement to remove the Bluetooth kicker, and the court indicated it would reduce the $1.05M fee request, meaning that money will go to the class. The fee reduction alone might outstrip the original $117,000 settlement, which is now worth over $2.5M. If you're keeping track, that's the fifth time in a row we've won a case and/or fee reduction against Kabateck Brown Kellner; one hopes that this discourages them from continuing to bring bad class actions just to negotiate self-serving settlements. This time, they refrained from abusive ad hominem attacks against us in their briefs; they're learning.

Cobell v. Salazar Indian trust appeal of Kimberly Craven, No. 11-5205 (DC Circuit)

• Kimberly Craven objection
• Craven Opposition to Final Approval (stricken by court)
• Fairness Hearing Transcript (pp. 70-82)
• No. 11-5205 Amended Statement of Issues
• No. 11-5205 Certificate of Parties, Rulings, and Related Cases

Update, September 1: The plaintiffs moved for an $8.3 million appeal bond to create a procedural barrier to prevent Ms. Craven from exercising her appellate rights. Unfortunately for them, such an excessive appeal bond is illegal. Their motion inexplicably failed to cite binding precedent and court rules that contradicted their position, and we have requested sanctions.

• Craven Opposition to Motion for Appeal Bond
• Frank Declaration in Opposition to Motion for Appeal Bond

• September 6 FRAP 30 letter from Frank to opposing counsel

Update, September 9: The indiantrust.com website has been updated with the plaintiffs' September 7 reply brief on the appeal bond briefing, but omits any link to Ms. Craven's response brief.

Update, September 14: We've reached an agreement with the appellees to expedite the briefing schedule for the appeal. Ms. Craven's opening brief will be due October 17; the appellees' response briefs will be due December 16; our reply brief will be due January 6. This will, one hopes, shave several months off the time for resolution of the appeal. The D.C. Circuit has agreed to this schedule. Coverage at BLT.

Update, October 6: class counsel's motion for appeal bond denied. Class counsel is ordered to produce a declaration explaining how its brief failed to cite binding precedent and misrepresented the law. Let's see how long it takes to get the district court opinion on the indiantrust.com website.

Update, October 17: Craven's opening brief was filed today. The appellees' briefs are due December 16. I expect some amicus briefs to be filed October 24.

Update, October 26: The Competitive Enterprise Institute filed an amicus brief this week in support of Ms. Craven's appeal. More coverage at BLT.

Update, December 1: We've moved for judicial notice of a government motion to dismiss a $400 million lawsuit over Indian trust mismanagement based on the Cobell settlement. The existence of this motion supports our argument that the class certification of (and settlement distribution for) the Trust Administration class was illegal. The indiantrust.com website took down all the briefing for the appeal bond issue rather than acknowledge the district court's ruling denying the bond and criticizing their briefing strategy, so this appears to be the first appearance of the affidavit required by the court that class counsel was required to file in November. The indiantrust.com website also fails to identify that the briefing schedule for the 11-5270 appeals has not been set yet; the settling parties have requested that that be expedited to conclude in March, well after Ms. Craven's appeal briefing concludes. Finally, the DC Circuit granted CEI's leave to file an amicus brief.

Update, December 15:

• Oral argument is scheduled for February 16, with a panel of Rogers/Tatel/Brown. 
• Plaintiffs' opposition to the motion to judicial notice.
• Monday, the government has filed a brief in Two Shields v. United States that essentially argues that class certification of the Trust Administration Class under Rule 23 was illegal for the same reasons we argued that it was illegal. We've made a second motion for judicial notice of that filing. That brief contradicts the position that the government took at the fairness hearing, so I'm curious to see what they do when they file their briefs tomorrow. Certainly, however, the Two Shields case demonstrates that this illegal settlement adversely affects more than just Kimberly Craven.

Update, December 16:

• Plaintiffs' Merits Brief
• Government Merits Brief

Interestingly, the plaintiffs' appendix was 446 pages. In their motion for the appeal bond, they had told the district court that they would incur $33,523.02 of photocopying costs, which appears to be off by a factor of at least 50.

Update, January 6. We filed our reply brief today. Oral argument is scheduled for February 16. Oral argument in the Good Bear appeal is scheduled May 15.

Update, August 22. On June 27, Kimberly Craven replaced us as counsel in this litigation. We are no longer counsel to Kimberly Craven in this case. We could not respond to inquiries about the litigation under normal circumstances, but there's even less reason to contact us now that we have nothing to do with it.

Some updates

• Yesterday, we filed the opening brief in our HP Inkjet Ninth Circuit appeal. Details at Point of Law.

• The district court approved the $0 settlement in Pampers. The attorneys will receive $2.7 million. We've appealed to the Sixth Circuit.

• The district court approved the Brazil v. Dell settlement. There have been about $0.5 million of claims, and the attorneys are to receive $6 million. We're going to appeal to the Ninth Circuit, since this pretty clearly contradicts Bluetooth. Thanks to Kyle Graham for covering the fairness hearing.

• The plaintiffs have asked for a $200,000 appeal bond in Blessing v. Sirius XM, the case we've appealed to the Second Circuit where the attorneys got $13 million and the class got worthless coupons that the court refused to call coupons. We filed an opposition to the motion for appeal bond. The motion is entertaining: the plaintiffs complain that I've previously objected in several other cases, but if you look at their list, we won most of those objections. 

• Blogosphere coverage of yesterday's Wall Street Journal article: Ribstein; Overlawyered; Mass Tort Litigation Blog; WSJ Law Blog.

• Business Law Daily covers the CEI amicus in Cobell v. Salazar.

June 20 was a busy day

The growth of the Center for Class Action Fairness LLC can be shown just by the breadth of its activities on Monday, June 20:

• There were twelve objectors at the Cobell v. Salazar fairness hearing, and I was the only attorney representing an objector. Unfortunately, the district court overruled our objections, and approved the $3.4 billion settlement. There was some good news: if one takes the plaintiffs' request for $224 million in a fee and expense award seriously, rather than as a tactical maneuver to give the judge room to award high fees while appearing to cut the request, then the judge's decision to award $99 million in fees (and reject another $11 million in expense requests by the class representatives) means that there will be another $136 million available for class members when and if distribution takes place.
  
• Dan Greenberg was at the fairness hearing in the Central District of California for Stetson v. West Publishing which drew some extra blogosphere attention because it involved BarBri expenses for many many recent law-school graduates. The court, from the bench, rejected the coupon settlement, which entailed over $1.8 million in attorney-fee requests. It's the second win from the bench in a row for Dan; we're still waiting for the official opinion in the coupon settlement rejection in Sobel v. Hertz (D. Nev.).
  
• And Adam Schulman, our local counsel Chris Arfaa, and I helped file Dan's reply brief in the McDonough v. Toys "R" Us (E.D. Pa.) baby products class action settlement, where the attorneys are requesting about $14 million though the class is likely to receive less than $20 million. The fairness hearing will be July 6 in Philadelphia.

The Center for Class Action Fairness represents class members pro bono when they are treated unfairly by class action settlements. Please contact me if you get notice of a class action settlement that you are concerned might be unfair, and I will evaluate it for free.

Briefing in Cobell v. Salazar Indian trust class action

Details at Point of Law.

Cobell v. Salazar

Today the Center for Class Action Fairness filed an objection to the $3.4 billion taxpayer-funded Cobell Indian trust settlement on behalf of Sisseton-Wahpeton Ovate tribe member and class member Kimberly Craven.

Congress recently held hearings in response to the class attorneys' fee request of $223 million, which was over twice the $99.9 million they promised Congress they would limit their request to. [BLT]

The fee request includes one $925/hour attorney who claims to have billed over 28,000 hours in seven years, including a 28.5-hour day. The class representatives have also requested an unprecedented $13 million payment for themselves, raising conflict-of-interest questions that could preclude settlement approval.

Ms. Craven's objection, among other issues, challenges the "upside-down" allocation methodology, where class members who have suffered the most mismanagement of their trust accounts will receive less money than equally situated class members whose trust accounts were administered appropriately.

The settlement and objection present interesting legal issues of whether Congress can constitutionally abrogate class action certification requirements and whether a mandatory class action for injunctive relief can involuntarily waive class members' rights to relief already won in court in exchange for one-size-fits-all cash payments.

The case is Cobell v. Salazar, No. 1:96-cv-1285 (TFH) (D.D.C.).