In the news

• Forbes.com: interviewed discussing warning labels
• Los Angeles Times: quoted on the future feeding frenzy around Toyota
• Triangle Business Journal: commenting on a story where a judge reduced attorneys' fees in a nuisance class action by $1 million, I note the common tactic of strike suits against mergers

You may have noticed that we've been posting less recently; we're not any less busy, but we're changing the posting schedule to put up briefs after a fairness hearing, rather than immediately after we file, so we're still in that gap now. We filed notices of appeal in the AOL and Yahoo cases, so we have three appeals pending in the Ninth Circuit that will likely be argued late this year or early next year.

Forbes on Redish on class actions

Excellent article in Forbes on liberal professor Martin Redish's take on class actions.

Redish sees similar constitutional difficulties with so-called cy pres (pronounced "see pray") awards, where judges accept the fact that nobody is going to spend 20 minutes filling out a form to receive a $2 settlement check and award the money to a charity instead. Some argue this doctrine has a noble lineage going back to Norman times (the term is Old French for "as near as possible"). But Redish traces its use in class actions to a student article in the University of Chicago Law Review in 1972, which gave lawyers and judges the idea for how to dispose of money nobody would claim.

Cy pres awards are troubling because they raise the specter of favoritism. Is the judge approving payment to the Red Cross because it's the right thing to do, or because it's the pet charity of the admissions director at a school he wants his kids to attend? They also bring a party into the litigation that doesn't belong there. "The law doesn't say anything about the charity," Redish says. "The charity hasn't been injured."

Rubber stamps for two settlements

Judge Snyder has (all but literally) rubber-stamped the objectionable settlements in the AOL e-mail footer and Yahoo advertising cases. We are likely to appeal.

Lonardo v. Travelers Indemnity

A lawsuit against two home insurance companies settled for $8.69/policy year for class members who submit a claim by mail—and $6.6 million for the attorneys. CCAF has objected on behalf of a class member. The fairness hearing is in Cleveland January 27.

Roundup

• I'm speaking at NYU Law January 21 on class action issues.


• I'm quoted in Legal Newsline on Schwarzenegger's proposed class action reforms.


• Aside from the NYU panel I'm sharing with her, I apparently have something else in common with Elizabeth Cabraser.


• Not class-action related, but I believe that this may be the first time I've been listed in the index of a book.

Coverage at the Volokh Conspiracy

Todd Zywicki at the Volokh Conspiracy writes about the Center for Class Action Fairness, and commenters debate the issue.

Fairchild v. AOL briefing

Additional issues arise in the response to the motion for settlement.

1) Is an email notifying subscribers of a pre-existing policy substantive injunctive relief meriting attorneys' fees?
2) Is a request for attorneys' fees of 75% of the total financial settlement "fair" simply because its severable--when severability simply means that a reduction in fees reverts to the defendant, rather than to the class?
3) Is "cy pres" really cy pres when the designated charities are either local, related to the mediator, and/or related to the plaintiff?
4) Is apathy about a bad settlement judicial evidence of affirmative support?

The hearing is in Los Angeles December 28.