Wednesday, October 27, 2010

"Cy Pres: A Not So Charitable Contribution to Class Action Practice"

I'm honored that Skadden's John Beisner, one of the world's leading class action attorneys, Jessica Miller, and Jordan Schwartz today released a new paper on cy pres that heavily relies upon my work and the work of the Center for Class Action Fairness in the AOL case, even singling out that case as an example of abusive cy pres. We'll be sure to cite it in a couple of upcoming objections involving improper cy pres.  (And welcome to all the O'Melveny attorneys reading this site since my letter to counsel for Apple regarding the improper cy pres settlement in that case!)

Thursday, October 21, 2010

The illegal Apple backdating class action settlement

Did you buy Apple stock between 2001 and 2006?

Ira Stoll and Jim Copland have discussed the outrageous Apple backdating lawsuit resulting in the outrageous Apple backdating settlement. The magnitude of the settlement compared to the original claims demonstrates that it is an extortionate nuisance settlement, being made because it would cost more to defend the suit than to pay the attorneys to go away.

But it should be noted: the settlement is not just outrageous, it is illegal. Under the Ninth Circuit's Six Mexican Growers precedent, a court should not be issuing cy pres that is not likely to benefit the class members. And as the Center for Class Action Fairness noted in recent Ninth Circuit briefing, the American Law Institute has said that cy pres is inappropriate where class members are readily identifiable. Given that the class attorneys are negotiating money for third parties instead of their own putative clients (for their own benefit, no less), there is also a breach of fiduciary duty that raises questions whether the class attorneys meet the Rule 23(a)(4) standard. The settlement is further problematic in that the vast majority of class members are entitled to zero compensation; it is far from clear that the sole lead plaintiff is a member of this subclass.

The Center for Class Action Fairness would love to object to such a blatantly illegal settlement. But it can't do so in a vacuum: it can only do so on behalf of a class member who is being ripped off by these attorneys. Class members are those who bought Apple stock (AAPL) between August 24, 2001 and June 29, 2006—but only people who bought the stock between November 2005 and May 2006 are entitled to recover any money under the settlement, and their recovery is being diluted by the diversion to cy pres. We'd be happy to represent you pro bono if you agree that the settlement is objectionable and wish to object: please contact me. If you're not in the class, but know people or institutions who might be, spread the word.  (Update: we have one objector, and are talking to a couple of others. Isn't crowd-sourcing great?)

The case is In re Apple Inc. Securities Litig., No. C-06-5208-JF (N.D. Cal.).

Thursday, October 14, 2010

$0 settlement in Breyers "Smooth & Dreamy" class action

Russell Jackson adds to my workload by drawing my attention to Ercoline v. Unilever United States, Inc., Civ. A. No. 2:10-cv-01747-SRC-MAS (D.N.J.), a settlement of $0 for the class, and $200,000 for the attorneys.  This runs into the Murray v. GMAC problem we've repeatedly discussed in other objections.

Because I'm a member of the class of purchasers of Breyers Smooth & Dreamy ice cream products, I will be objecting; to deter objections, the attorneys have threatened objectors with intrusive depositions and require illegal hoops before permitting objectors to object, despite the plain statement of Rule 23 that class members are permitted to object, period.  If you're a class member, and you're willing to risk a deposition, and you independently think this settlement is unfair, you're welcome to contact me; you are also welcome to contact me if you're a class member and don't wish to risk a deposition, and we can discuss your options.

Tuesday, October 12, 2010

Appeal bond briefing in Dewey v. Volkswagen

Trial lawyers often say that they care about access to justice, but that principle seems to go out the window when it comes to objectors to unfair class action settlements that might interfere with attorneys' fees.

In Dewey v. Volkswagen, currently pending on appeal in the Third Circuit (10-3618, consolidated with 10-3506, 10-3617, 10-3798, and cross-appeals 10-3651 and 10-3652), the plaintiffs' attorneys have asked for an oversized appeal bond explicitly to prevent the appeal from taking place.

Plaintiffs claim that such an appeal bond is necessary to prevent "extortion" on appeal, the problem where a "professional objector" seeks to hold up the payment of the settlement attorneys' fees with a meritless appeal in the hopes that the class attorney will pay some fraction of the time value of money to get the objector to drop the appeal.

The Center for Class Action Fairness took the plaintiffs at their word, and, in our brief opposing the appeal bond, cross-moved for a different remedy: an injunction against extortionate settlements of the objection. Such an injunction, by requiring court approval of any withdrawal of the appeal, would do far more than an appeal bond to deter the attempt to settle a case for a quid pro quo payment to the objector without any benefit to the class. We suggested, however, that the plaintiffs' attorneys weren't really concerned about extortionate appeals (which permit them to escape appellate scrutiny at relatively low cost) so much as the fact of appeal.

Sure enough, the class counsel opposed the Center's cross-motion for injunction, though on remarkably flimsy grounds that insultingly presuppose a lack of intelligence on behalf of the magistrate; surely they don't expect that the judge will be confused by the difference between a merits injunction and an injunction regarding the conduct of the parties on appeal? You'll also note that the plaintiffs completely changed their theory behind the reasoning of the appeal bond without ever addressing the Center's arguments in their reply brief, but one hopes the district court isn't so easily fooled by sandbagging.

Relatedly, on September 22, the Third Circuit decided In re Community Bank of N. Va., which all but guarantees that we will win our appeal, given that the Dewey settlement suffers from the same fatal defect of a prejudiced subclass being unrepresented.

Saturday, October 9, 2010

The class action settlement rip-off

You may have been one of the millions of people to receive a settlement notice regarding a class action against; the settlement notice implied that class members would receive $9.5 million (though only $2-$3 per person, and that mostly in coupons) and the attorneys would ask for $1.3 million.

You then probably received a supplemental notice saying that the attorneys were generously only asking for $1.05 million, and that, if you sent four letters to four different addresses, you could object to the fee request.

You probably didn't object: it's hardly worth your time to spend $1.76 in postage over a $2 or $3 settlement.

What you won't see on either of the settlement notices or the settlement website is how much the class is actually recovering: out of millions of class members, there were fewer than 50,000 claims made. The class will receive only $117,374 (see page 4 of PDF). The attorneys are asking for a 895% contingency fee.

Professor Michael Krauss of George Mason Law School will be objecting to the fee award (and an attempt to rip off the class by diverting $500,000 to an unrelated charity instead of to class members); the Center for Class Action Fairness is proud to represent him.

The fact that an Internet company didn't make it possible to object over email is just an attempt to limit the number of objections. But CCAF is willing to help: we won't represent you, but if you submit a conforming objection to me over email to in a pdf by November 15, CCAF will do the mailing for you. Here is an MS Word document to make the process easier; fill in the blanks, keep or delete or add to the paragraphs as you see fit, sign, scan, e-mail (or mail yourself to the addresses indicated). (CCAF is not your attorney if you choose to have us mail your objection for you; we reserve the right not to mail any pdf that is offensive or seems to be fake.)

The trial lawyers are arguing that the low number of objections means that this is a good settlement. That's clearly false given how hard they made it to object and the fact that class members weren't told the full truth about how bad the settlement was, but let's try to take away that argument by sending the court a few dozen more objections. And tell your friends.

Note that the class attorneys in this case are Kabateck Brown Kellner, who were the attorneys in the $0 AOL Footer settlement; in that case, they took the position that it was okay to hide conflicts of interest to the court and to the class in a class notice. So we're not just objecting, we're asking for the discovery that KBK said we should have done in the AOL case.

Update, September 4: Google is leading lots of people to this page, but this post is referring to a 2010 settlement, which we successfully objected to. If you came to this page from a search engine, you are probably looking for the revised 2011 settlement.