October 15

Tomorrow morning, the Supreme Court will announce orders relating to two cert petitions we filed (with substantial and critically necessary pro bono assistance) that it considered at its October 11 conference: Martin v. Blessing (which long-time readers remember as the Sirius XM case) and Marek v. Lane (the Facebook Beacon cy pres case). Both petitions made SCOTUSblog's "Petitions We're Watching" list, which means that the experts there think that those petitions have a better than average chance of being granted--but since "average" means "less than 1%," odds are still long.

I'll be speaking at the University of Chicago Law School at lunchtime, and hope to see some readers there.

Marek v. Lane cert petition in the Wall Street Journal

In The Wall Street Journal, David Rivkin and Lee Casey write about Marek v. Lane, arguing that it's time to end class-action settlements that only reward lawyers, not plaintiffs. Earlier.

August and September update

We've been very busy!

• In Fraley v. Facebook, the district court adopted our theory of attorneys' fees (zero value for injunctive relief and for settlement money paid to administrators); the parties, perhaps in response to our objection, upped the class-member award to $15 from $10. So a fee reduction of $2.5 to $3 million, with several million more available for the class. Not a bad day's work, and enough of an improvement that we're not going to appeal the parts of the decision the court got wrong.


• Speaking of whether class counsel should get a commission on money paid to the settlement administrator... You may recall the Ninth Circuit throwing out a bad settlement (in an opinion later modified) over Frosted Mini-Wheats that paid $800,000 to consumers, $2 million to lawyers, and some unknown figure to unknown cy pres. On remand, the parties set up a $4 million settlement fund—but $900,000 or so is earmarked for settlement administration. Is that a $4 million settlement, or is it really a $3.1 million settlement, because that's all the class can hope to get? Class counsel is "only" seeking $1 million this time, which is still disproportionate to actual class relief; meanwhile, the objectors who turned the $800,000 in class relief into over $2 million of class relief aren't being given anything. This morning, I'll be at the fairness hearing in San Diego, presenting the CCAF objection of Chicago Law professor Todd Henderson. Class counsel's main argument against us is that we're funded by the Koch brothers (not remotely true), and therefore we should be ignored. 


• We filed a cert petition appealing our Second Circuit loss in Sirius. I'll write a longer post about that, plus our amicus support.


• Another case that merits a longer post is a fascinating Eighth Circuit brief we filed last week in an appeal of a $2.6 million cy pres award.


• Speaking of bad cy pres (and bad coupon settlements), we filed our opening Ninth Circuit brief in EasySaver Rewards ($8.85 million for attorneys, $3 million for local cy pres, $225,000 and worthless coupons for the class) in July.
   
• CCAF attorney Adam Schulman filed an objection to the horrendous settlement in Berry v. LexisNexis, which is like Dry Max Pampers, but far worse, with a larger class and the attorneys asking for $5.5 million. This merits a longer post, but we were honored that a passel of very highly-paid attorneys representing a competing class action and their objectors saw fit to adopt so many of our arguments.


• In Pearson v. Target Corp., class counsel is seeking $4.5 million for a settlement over glucosamine sales likely to pay less than half of that to the class. I am a class member, and CCAF attorney Melissa Holyoke filed an objection on my behalf.


• In the Southwest Drink Voucher case, the court approved the settlement, but hasn't ruled on the attorneys' fees yet. We're deciding whether to appeal.


• Cato filed an amicus in support of our cert petition in the Facebook Beacon case.


• More press coverage than you can shake a stick at. And I did a lengthy "Liberty Law Talk" podcast with Richard Reisch about class action abuse generally.

Given that one of our attorneys is pregnant, another is getting married, and a third is moving, we're being very productive, though of course, we've had help from pro bono counsel.

Our first cert petition, challenging Facebook Beacon cy pres settlement

We weren't involved in the 2-1 Lane v. Facebook cy pres decision disadvantaging consumers, and jumped at the opportunity to challenge it in the Supreme Court. On Friday (with generous pro bono work from BakerHostetler) we filed our first cert petition, and the first substantive request that the Supreme Court clarify the law of cy pres, a unique public-policy problem that both the Chamber of Commerce and Public Citizen agree upon. 

The Center has previously won such landmark cy pres decisions as In re Baby Products Antitrust Litigation and Nachshin v. AOL. I testified about the problem before a House Subcommittee in March, and will be speaking on an ABA panel on the subject in Boston in October. 

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.

Amicus brief in AT&T Mobility v. Concepcion

The Ninth Circuit’s holding in Concepcion v. AT&T Mobility, barring an arbitration clause that prohibits class actions as "unconscionable," rests upon a belief in the exceptionalism of class actions, namely, that they are a uniquely superior form of dispute resolution the availability of which is necessary to vindicate consumer rights. But, as the Center’s experience indicates, class actions are far from an exceptional vehicle for providing consumers with meaningful access to justice.  Yesterday, the Center filed an amicus brief in the Supreme Court case of AT&T Mobility v. Concepcion (No. 08-893) in support of the petitioners.  O'Melveny & Myers attorneys Brian Brooks, Charles Borden, and R. Seth Davis did a phenomenal job with the brief, and we're grateful for their help.  Public Citizen, which ironically represents the anti-consumer/anti-arbitration/pro-trial-lawyer side in the name of paternalism, has a page devoted to the case with links and resources, though the weight of those links and resources is pro-paternalism; the left side of the blogosphere has paid far more attention to this case than the right side.  Among the briefs is one filed by a number of law professors I know and admire, including (but not limited to) Randy Barnett, Henry Butler, Richard Epstein, Michael Krauss, Geoff Manne, Michael Moreland, Larry Ribstein, and Josh Wright; it raises important points about unconscionability and freedom of contract.