Oral argument scheduled in the Bluetooth case

The Ninth Circuit has scheduled oral argument in the Bluetooth case for Monday, February 7, 9 a.m., in the federal courthouse in Pasadena. (Five other cases are on the calendar, so I probably won't get my fifteen minutes until after 10 a.m.) I'm undefeated (well, ok, 1-0) in that courthouse.

The first time I ever visited the Pasadena courthouse was in the fall of 1992, when a memorable young law clerk in Alex Kozinski's chambers named Eugene Volokh quizzed me about the issue of toughening evidentiary standards for expert witnesses in what I think was the first law-clerk interview of the season for 1994-95. (That was the first attempt of the judiciary and the legal academy to create a cartel for the hiring of law clerks, and I unwittingly caused it to break down when I sent my resume out without consulting with the law school, and Judge Kozinski started calling people in for interviews, causing a chain reaction that unraveled everyone's plans.) Eugene, of course, went on to bigger and better things.

If you're in the DC area, and you're interested in putting in a few hours reading briefs and throwing questions at me on a moot court later this month, please drop me an email. (Friends from Kirkland & Ellis: sorry, you're adverse to me in this case, so you're not invited.)

In re HP Inkjet Printer Litigation class action settlement objection

If I were to buy a three-pack of color ink for my inkjet printer today, it would cost me $42.99 at HP.com and $36.99 at Amazon.com. That's not a big deal—unless HP is trying to settle a class action by giving class members $2 coupons that can only be used at HP.com (and can't be transferred or stacked, and expire in six months). And even if the coupon was larger (some class members get $7 coupons) HP makes much more money selling ink at HP.com than at Amazon.com, all else being equal: this is a marketing program for them. And the attorneys are claiming that they're entitled to $2.9 million for such a lame settlement because the coupons are "worth" $5 million. And even if one attributed full face value to the coupons (which the parties try mightily hard to not call coupons), I strongly suspect far less than $5 million of coupons will be claimed or redeemed.

The Center filed an objection today in the Northern District of California. Kabateck Brown Kellner, who we've seen before in the $0 AOL settlement and the $117k Classmates.com settlement, are among the lead attorneys in this ripoff as well.

Objections are due January 3. If you're a class member (and most people who purchased HP inkjet printers in the last nine years are, and there are tens of millions of them out there), you can file a claim or object at the settlement website; this settlement nicely permits emails if you prefer objecting that way.

Objection in Ercoline v. Unilever (Breyers Smooth & Dreamy) class action

We had to mail it to the court rather than electronically file it so it may not immediately show up in the docket, but today the District of New Jersey will receive my objection to the $0 settlement in Ercoline v. Unilever, No. 10-cv-1747. Earlier.

Kellogg's Frosted Mini-Wheats class action settlement

In the Kellogg's Frosted Mini-Wheats class action settlement, class members (those who purchased the cereal on certain dates in 2008 and 2009) who submit claims will receive $5/box for up to three boxes of purchased Frosted Mini-Wheats, with claims pro-rated if there are more than $2.75 million in claims. If there is less than $2.75 million in claims, money goes to a charity that has yet to be named. In addition, Kellogg's will donate "$5.5 million" in food to charity (that also has yet to be named), though there is no indication how that valuation will be determined. For this, six law firms are requesting $2 million in fees, though:

• That amount of fees is disproportionate to the class relief;
• the settlement provides for cy pres relief even though there might be more than $8.25 million in claims, demonstrating that the attorneys put the interest of the third-party charities ahead of their clients' interest; and
• the class notice is defective for failing to identify the charitable recipients of the cy pres, giving the class no opportunity to object to an improper recipient.

If you're a class member and you're unhappy with attorneys improperly making millions in your name, do contact me at the Center for Class Action Fairness to discuss your options.

Press coverage

• Not often that you see class actions discussed on ESPN.com, but Tuesday Morning Quarterback gave us a shout-out for our objection in the Classmates case.
• Karen Lee Torre (of Ricci fame) writes a very complimentary piece in the Connecticut Law Tribune about CCAF's work in the Apple settlement.
• We're even getting praise from the trial-lawyer site "Lawyers and Settlements."

In re Classmates.com class action settlement objection

We filed our objection late Thursday, and submitted ten other pro se objections that people took the trouble to send us for forwarding.  Is a settlement that pays class members $117 thousand worth $117 thousand or, as the plaintiffs claim, $9.5 million?  We invoke Wile E. Coyote in exploring what seems to be an obvious answer.  The attorneys are asking for $1.05 million for a settlement that Gregg Easterbrook describes as "shafting the plaintiffs."

Records on appeal

Under Fed. R. App. Proc. 30(b), appellants and appellees are to coordinate the production of a joint record on appeal, the appendix of the relevant filings and transcripts from the lower court proceedings to assist the appellate court in their review of the case. A number of courts of appeal, including the Seventh and Ninth Circuits, have very common-sense approaches to this: they've established local rules whereby each side submits their own appendix.  Others haven't caught on to the game-playing that can go on, and go with the default federal rule.  So, I, as an appellant, negotiate with the appellee settling parties about what appears in the record.

Time after time, I see the appellees asking to kill countless trees by burying the record on appeal with paper from the lower court. One might think they're doing this to just increase the costs of litigation for the other side, since the appellants are required to prepare the record on appeal—except Rule 30(b)(2) permits the appellant to take the position that the additional material is unnecessary, and ask the other side to advance the costs of providing the designated material. The real reason is, I would imagine, an insulting one: to persuade the judge that there's so much work to be done that the judge should just be lazy and throw up their hands and ignore the issues rather than dig through all the paper. This certainly never fooled the judges I clerked for, but it must work often enough to be worth the death of all these trees. There aren't any real sanctions with any bite for making appellate judges' lives harder like that, notwithstanding the clear command of Rule 30(a)(2) not to be pointlessly including material, so we have this wasteful game.

I'm seeing this now in one of my pending appeals; the appellees are trying to bury the record in meaningless paper that has nothing to do with the issues on appeal. I can't stop them, so I shrug my shoulders and ask for the payment that Rule 30(b)(2) requires. That should be the end of it, but for some reason the lawyers—often the same lawyers that have made me write a check to post an appeal bond to ensure they could recover their costs in the unlikely event they won on appeal—want to argue with me that the material is essential to the record on appeal and it's up to me to pay for including the material in the record on appeal. I generally don't play this game, but I recently had cause to write the following paragraph in a letter to defense counsel regarding the copying costs of one small three-page slice of the hundreds of pages they wanted included (material redacted to protect the guilty):

Docket No. [yyy]. [This docket entry] applies to the 10-[xxxx] cross-appeal and is not relevant to [my appeal]. I agree that if you decide to prosecute the cross-appeal, you will be required to advance the costs for us to include this docket entry in Volume 1 of the Record. Should you prevail in [the cross-appeal], you can petition to receive the approximately $5 to $20 in costs from the plaintiffs' appeal bond, but I understand if you wish to bill another $100 to your client to argue about this some more.