Did you know?

We have a fancier (if not much better updated) website now at classactionfairness.com.

In re Capital One TCPA Litigation Seventh Circuit appeal

Litigation over whether Capital One and its affiliates violated the Telephone Consumer Protection Act settled for $75.5 million—about $4 for each of the 17.5 million class members who allegedly had a statutory claim for $500 or more. Six law firms asked for 30% of that, or over $22.6 million. We objected on behalf of a class member, Jeffrey Collins, introducing evidence showing that something more in the 4.6% range would more than fully compensate class counsel for the risk they incurred. The district court did not adopt our arguments, but agreed with us that there should be a declining percentage as the fund grew larger, and awarded "only" $15,668,265. That's for 4,268 hours of work by six law firms, including associates and paralegals, or over $3,671/hour. Other TCPA cases have awarded over $5,000/hour for similarly mediocre results.

This award is not because the underlying TCPA action was extraordinarily risky: the evidence showed that class counsel won settlements in 16 out of 38 TCPA class actions over the last four years and collected handsome fees for 64% of the hours they devoted to TCPA litigation. Moreover, the court found only that this case was “slightly” more risky than typical TCPA litigation. Nor did it reflect extraordinary litigation efforts: the case settled immediately after the filing of the MDL complaint. Nor did it reflect above-average efficiency: six firms claimed a right to fees, though only three had been appointed in the district court’s original Rule 23(g) order, and the lodestar was substantially higher than in other TCPA cases. Nor is this an extraordinary settlement: as mentioned, class members’ multiple $500 statutory claims were settled for about $4/class member before attorneys’ fees.

We do not contend that a court can never award such a generous hourly rate. But the Seventh Circuit has “held repeatedly that, when deciding on appropriate fee levels in common-fund cases, courts must do their best to award counsel the market price for legal services, in light of the risk of nonpayment and the normal rate of compensation in the market at the time.” We do not believe a sophisticated arms-length transaction would produce this sort of windfall for these sorts of results, and we have appealed, filing our opening brief Monday.

The case presents another interesting issue: can class counsel agree not to compete for lead-counsel status, and then divvy up a lump-sum fee request in a secret side agreement without approval or review of the court and the class? We think Rule 23(h) and Rule 23(e)(3) do not permit that.

Daniel Fisher has a great summary of the appeal on Forbes.com.

In re Online DVD Antitrust Litigation: adverse decision and en banc petition

You might recall the settlement approval in Online DVD Antitrust Litigation we briefed back in 2012. A district court held that the Wal-Mart $12.03 "gift cards" the settlement awarded weren't "coupons," refused to apply the Class Action Fairness Act, and awarded fees based on the face value of the coupons.

On February 27, the Ninth Circuit, in a Judge Sidney Thomas opinion, affirmed.

Wait a second! careful readers exclaim, Didn't you already win that exact issue on appeal?!

Yep. Appellees made the same arguments about "settlement vouchers" and attorney-fee calculations in Redman v. RadioShack Corp., 768 F.3d 622 (7th Cir. 2014), and that court, in a Judge Posner opinion, rejected them in a lengthy and lively discussion that was widely discussed.

So what did the Ninth Circuit say to reject the contrary Seventh Circuit case?

Absolutely nothing. They didn't mention it once, though we filed a Rule 28(j) letter in September.

Was there another appellate precedent that they followed instead?

Nope. Some district courts make the same mistake that Redman criticized (though some don't), and the Ninth Circuit followed those cases without mentioning the others while creating a circuit split.

What now?

Well, we've asked for rehearing or rehearing en banc. If we don't get correction, we have an interesting circuit split to put before the Supreme Court in a certiorari petition.

Big cy pres victory in 8th Circuit: Oetting v. Green Jacobson

with new opinion from 8th Circ, @tedfrank continues to reshape fed. judicial policy on giving class money to charity http://t.co/D1Yy3BgJu9
— Alison Frankel (@AlisonFrankel) January 8, 2015

For years, parties have used cy pres—the practice of giving settlement money to charity instead of the class—in abusive ways. When proposed by defendants, cy pres can be used to create the illusion of relief to justify greater attorneys' fees at the expense of the class when in fact all that is happening is that the defendant is changing accounting entries on charitable donations it would have made anyway. When cy pres is used to justify attorneys' fees, it takes away the incentive of class counsel to prioritize direct recovery to the class: after all, it's much more satisfying to hold a ceremony giving away an oversized $3 million check to a local charity run by a friend than to issue a million $3 checks to ungrateful class members. And I've discussed other problems with cy pres in Congressional testimony and an article for the Federalist Society.

So cy pres was one of the issues that provoked the founding of the Center for Class Action Fairness. The Center has won a number of victories on the cy pres issue over the years, most notably in the Third and Ninth Circuits. A cert petition we filed in a case we didn't handle below got some attention. Though it was ultimately denied, a separate statement by Justice Roberts sent a strong message. And the Rules Committee is considering the issue.

In 2013, a class representative in securities litigation in St. Louis complained that class counsel was planning to give away $2.7M of the class's money to local charities instead of to class members in a nationwide class. The district court signed off on the distribution, and the Center agreed to assist the class representative, David Oetting, on the appeal to the Eighth Circuit. The argument resulted in an entertaining column by Bill McClellan. And today, we won a landmark victory where a divided panel adopted our arguments in full. (That's eight straight CCAF intermediate appellate wins since the begining of 2013.) The precedent will do much to protect class members against abusive cy pres in the future—and, if adopted by other courts, may well moot the need for the Rules Committee to opine on the issue. We have a Ninth Circuit appeal on the cy pres problem scheduled for argument in Pasadena February 2.

The case is David Oetting v. Green Jacobson, P.C., No. 13-2620 (8th Cir. Jan. 8, 2015).

Press coverage: Reuters, Litigation Daily, Alison Frankel @ Reuters.

Cy Pres You'll Read This

Learn about the state of cy pres law without having to pay for a CLE class!

Today, Washington Legal Foundation published a short and useful working paper authored by James M. Beck and Rachel B. Weil titled "Cy Pres" Awards: Is the End Near for a Legal Remedy With No Basis in Law? 

The paper effectively summarizes recent litigation demonstrating courts' skepticism of such awards, wherein settlement funds are paid to third parties instead of to class members.

Beck and Weil highlight some CCAF-generated precedents, such as Chief Justice Roberts's statement in Marek v. Lane, 134 S. Ct. 8 (2013), the Third Circuit's opinion in In re Baby Prods. Antitrust Litig., 708 F.3d 163 (3d Cir. 2013), and the Seventh Circuit's opinion in Redman v. Radioshack Corp., ___ F.3d ___, 2014 U.S. App. LEXIS 18181, 2014 WL 4654477 (7th Cir. Sept. 19, 2014). (Credit is also due to Bexis, the blogging nom de guerre of Mr. Beck, whose post "Sunsetting Cy Pres" drew attention to the Redman ratio's applicability to cy pres remedies just one day after Redman v. Radioshack was decided.)

The rationale for having a defendant settle class members' claims by paying money to third parties is that it would be impossible to compensate the class members themselves. But it's a reverse Robin Hood, wherein money that belongs to the aggrieved nationwide mass of class members is taken and funneled to well-connected recipients, like the plaintiffs' lawyers' preferred local charities and alma maters. Sometimes, it isn't even true that class members can't be located!

What do you think about cy pres? How do you think it should be pronounced: see pray, or sigh pray?

Leave your comments below.

Oral Argument in Pearson v. NBTY, Inc.

Are you trick-and/or-treating in downtown Chicago this Halloween?

If so, visit the United States Court of Appeals for the Seventh Circuit to watch oral argument in Pearson v. NBTY, Inc., No. 14-1198 (7th Cir.). That's 9:30 a.m. in the Main Courtroom on October 31, 2014, at 219 S. Dearborn Street.

Ted Frank will be arguing for appellants in full costume (i.e. business formal court attire) as The Class Action Avenger.

You can read the background about this settlement in our last post about it. Basically, it's under $900,000 for class members, $1.1 million for third parties, and $4.5 million for plaintiffs' lawyers. Class members also get some labeling changes to the sued-over glucosamine bottles, changes which are alleged by the plaintiffs' lawyers to be worth $21 million. For example, instead of saying "Osteo Bi-Flex works by providing the nourishment your body needs to build cartilage, lubricate, and strengthen your joints," the label could say "Osteo Bi-Flex works by providing the nourishment your body needs to support cartilage, lubricate, and strengthen your joints" (italics added free-of-charge). See the opening brief for what "is perhaps the best 13,000-word summary of CCAF philosophy."

Plaintiffs, calling this settlement a "tremendous result," cross-appealed when the district court awarded them $2.1 million in attorneys' fees and expenses instead of $4.5 million. That $4.5 million, after all, "was negotiated at arm's-length by the parties" and, since the requested fees were only up to 2.56 times greater than the plaintiffs' lawyers' billing rate for the labor they expended, the requested fees were "certainly not excessive."

The briefing proceeded as follows:

• Opening Brief of Objectors-Appellants
• Response Brief of Plaintiffs-Appellees/Cross-Appellants (1 of 2) (2 of 2)
• Response Brief of Defendants-Appellees
• Response and Reply Brief of Objectors-Appellants
• Reply Brief of Plaintiffs-Appellees/Cross-Appellants (1 of 2) (2 of 2)

Oral argument audio will be available at this link on October 31 or November 1: follow our blog for updates.

Opening Brief in Gascho v. Global Fitness Holdings

Candy corn, pumpkin pie, egg nog . . . no wonder that three months from now we'll all be joining gyms.

So let's inaugurate the 2014 Holiday Season with the opening brief in this appeal of an unfair settlement over gym memberships: Gascho v. Global Fitness Holdings, LLC, No. 14-3798 (6th Cir.). (You might remember this settlement from November 2013, when it was winding its way through the district court.)

Joshua Blackman, a class member, Texas citizen, law professor, former Sixth Circuit clerk, current client of CCAF, blogger, and author, objected to this settlement, which paid $2.4 million to class counsel and representatives, yet only $1.6 million to the class: a Redman ratio¹ of 60%.

Main Question: Is it fair for a settlement to so privilege attorneys with "preferential treatment" over their clients? Sixth Circuit law suggests the answer is, "No."

Bonus Question: What is the value to the class of a settlement that pays the class $1.6 million? The answer: $8.5 million, according to the magistrate judge below, who literally split the difference between the amount that class members actually received and the $15.5 million they would have received if every single one of them--even those who hadn't been notified of the settlement--submitted a claim. Respectfully, CCAF and Professor Blackman believe that's a legally erroneous approach.

--

¹"The ratio that is relevant to assessing the reasonableness of the attorneys’ fee that the parties agreed to is the ratio of (1) the fee to (2) the fee plus what the class members received." Redman v. Radioshack Corp., -- F.3d --, 2014 U.S. App. LEXIS 18181, *16, 2014 WL 4654477 (7th Cir. Sept. 19, 2014) (Posner, J.). The higher the ratio, the worse the settlement.

Victory! Redman v. Radioshack

CCAF won a tremendous victory for class members in Redman v. Radioshack, just eleven days after oral argument!

Judge Richard Posner, a legal authority renowned worldwide, wrote an excellent and accessible opinion, explaining that class action plaintiffs' attorneys' fees must be proportionate to the benefit they've realized for their clients, and that a coupon is a coupon regardless of the percentage discount that it represents.

You can read more about the underlying case here. The oral argument made headlines last week, and is also a fun listen. (Ted Frank appears at 9:40 and 54:55.)

Redman v. RadioShack, Inc. / oral argument today

As we discussed earlier, class counsel agreed to a settlement over RadioShack credit-card receipt legality that would have paid themselves $1 million, but the 16-million-member class 83 thousand coupons with a face value of $10. The district court approved the settlement because (1) it held the $2.25 million spent to distribute those coupons was a class benefit and (2) the coupons weren't "coupons." Oral argument is scheduled this morning in the Seventh Circuit. Some time this afternoon or tomorrow, a recording of the argument will be available online.

• Opening brief
• Plaintiffs-appellees' brief
• Defendant-appellee's brief
• Reply brief

The reply brief was fun, as plaintiffs were forced to defend an indefensible argument. From pages 5-6:

1.                  Plaintiffs rely on a logical fallacy.

It is not unfair to summarize plaintiffs’ proposed syllogism as follows:

1.         There exist websites that offer coupons where each coupon provides only a partial discount. PB26.

2.         There exists legislative history that criticizes a coupon settlement where the coupons offered provided only partial discounts. PB24-25; PB28.

3.         Therefore all “coupons” provide only partial discounts.

4.         Therefore a voucher for a free product is not a “coupon.” PB29-31.

The formal fallacy in plaintiffs’ logic is even more apparent in the following analogy:

1.         There exists a dog racing track where each racing dog is a greyhound.

2.         Actor Leonard Nimoy owns a dog that is a greyhound.

3.         Therefore all dogs are greyhounds.

4.         Therefore a collie is not a dog.

Nimoy’s most famous character had a catchphrase for this.[5]

---

[5] Cf. Leonard Nimoy, Highly Illogical on Two Sides of Leonard Nimoy (Dot Records 1968). Or, as Woody Allen once said, “All men are mortal. Socrates is a man. Therefore all men are Socrates.” Love and Death (United Artists 1975).

Ted Frank speaking in Trenton September 16

The New Jersey Civil Justice Institute is saying really nice things about my scheduled luncheon talk September 16 in Trenton. Come say hi if you're in the neighborhood.

Oetting v. Green Jacobson / Oral argument September 10 in 8th Circuit on cy pres

Bank of America settled a nationwide securities class action in the E.D. Mo. for hundreds of millions of dollars. For some reason, the district court judge ordered that $2 million or so of the settlement fund not be distributed immediately. By a few years later in 2013 (after interest and restitution from a settlement administrator employee that had embezzled from the settlement fund), there's $2.7 million left over. At the behest of St. Louis class counsel, but over the objection of the class representative, the district court distributes that money not to the class, but to a local St. Louis charity. Class counsel rushes to hold a ceremony delivering the check notwithstanding the automatic stay on such things.

The class representative, David Oetting, retained us to take the lead on the appeal to the Eighth Circuit in a fascinating case where just about everything we complain about in the world of cy pres abuse took place. Oral argument is scheduled for the morning of September 10, and will be available at this link that afternoon or the next day. Law360 ($) coverage.

• Opening brief
• Appellee brief
• Reply brief

Laguna v. Coverall N.A.

Coverall N.A. settled a class action over janitorial franchises by paying a $1M attorney fee and setting up a claims-made process that would pay about $56,625 to the class. The parties justified this settlement by pointing out injunctive relief that some class members would be eligible for; if the maximum number of class members took advantage of the injunctive relief, they said, it would be worth $20 million. Wait a second, complained an objector: most class members will never take advantage of the injunctive relief because they're not eligible for it, and the court should get that data from the defendant to find out the true value of the injunctive relief before approving a settlement that might run afoul of Bluetooth. The district court approved the settlement without engaging in the inquiry: meh, maybe the injunctive relief isn't worth $20 million, but if it were worth $4 million, the settlement would be fair. (After all, perhaps the settling parties might exaggerate the value of injunctive relief by 400%, but what monster would ever exaggerate the value of injunctive relief by 20-fold or 100-fold?)

The objector (not represented by us) appealed. On June 3, the day after Eubank v. Pella Corp. was decided, the Ninth Circuit affirmed on abuse-of-discretion grounds, over a fervent dissent that pointed out the decision contradicted both Pampers and existing Ninth Circuit precedent. 

Now here's where it gets interesting. The objector petitioned for en banc review. While the petition was pending, Coverall paid him $15,000 to drop his appeal (more than a quarter of the cash relief paid to the class), and the objector did so. But Ninth Circuit judges can request a vote for en banc review sua sponte, and the Ninth Circuit issued an order demanding a response to the petition. That order granted leave to amici to file briefs on the subject, and how could the Center for Class Action Fairness resist? The appellant's en banc petition focused on conflicts with Ninth Circuit law, so our amicus focused on the circuit split created by Laguna, as well as the interesting and largely unresolved jurisdictional issues. 

Allen v. Dairy Farmers of America

What happens when class counsel wants to settle and the class representatives do not? Rule 23(a)(4) and the Constitution require adequate class representation before individual class members can be bound. If class counsel can hijack a class and force a settlement when no class representative approves, it would seem to unconstitutionally abrogate the Rule 23(a)(4) inquiry. If class representatives have limited power to bind a class (as the Supreme Court has held in Standard Fire Ins. Co. v. Knowles and Smith v. Bayer Corp.), how can a class without any representation do so? And if a zombie class can proceed and settle without any class representatives, why have the Rule 23(a) requirements at all, and not just allow attorneys to sue on behalf of a class without any individual standing?

This issue is about to arise in Allen v. Dairy Farmers of Am., Inc., No. 5:09-CV-00230 (D. Vt.), where class counsel moved for preliminary approval of a settlement without a single class representative agreeing to the settlement. Unfortunately for the class representatives, the Second Circuit permits this shenanigan; unless the district court steps in, they will need to persuade the Second Circuit to reverse itself and join circuits like the Seventh that hold that class representation requires class representatives, or eventually take the case to the Supreme Court. The district court has so far withheld preliminary approval, so the class representatives may be able to prevail on the merits without need for resort to the niceties of constitutional law and procedural protections for absent class members, but this will someday be an issue that the Supreme Court resolves, and almost certainly resolves against current Second Circuit law.

Letter to Chicago Lawyer Magazine

To the editor:

Your June 2014 article "Cy pres success" contains a material misstatement of the law, when it implies that giving the class's money to legal services organizations is invariably a "recognized approach to avoid granting awards to dubious organizations." A number of decisions, including Ira Holtzman, CPA v. Turza, 728 F.3d 682 (7th Cir. 2013), have held such cy pres recipients to be inappropriate, rejecting the reasoning of the article for such distributions. 

One might overlook this statement as an excusable oversimplification of a complex area of the law, except that the author's firm, McDermott Will & Emery, currently represents the National Legal Aid and Defender Association in at least two pending appeals (including one adverse to one of my clients, Oetting v. Green Jacobson, No. 13-2620 (8th Cir.)) where it is arguing for affirmance of cy pres awards against existing precedent. This conflict is nowhere disclosed in the article.

Very truly yours,

Theodore H. Frank

Center for Class Action Fairness

Washington, DC

Eubank v. Pella Corporation (7th Cir. 2014)

Judge Posner writes a very interesting Seventh Circuit opinion reversing a settlement approval on multiple grounds. A lot of friends forwarded the decision to me. I got to write back that I had argued it.

This wasn't a Center for Class Action Fairness case; the Center is a non-profit and restricted by federal tax law to cases where the client would not be able to retain a private attorney. But an objector's counsel retained my private solo law practice to assist with the briefing for one of the objectors; I then argued the appeal in Chicago in April along with counsel for the class representatives frozen out of the deal.

But even if it's not a CCAF case, it's worth discussing here. The opinion is going to be very helpful to class members, including several CCAF cases pending on appeal. While a lot of the press coverage has focused on the scathing remarks Judge Posner had for the unique conflicts of interest of class counsel, the opinion more importantly also singled out as improper several practices the Center has repeatedly complained about: the use of separate funds for attorneys' fees with reversion to the defendant; the use of imaginary hypothetical valuations of settlements based on bogus assumptions about the number of claims that would be made; grouping disparate sets of class members (in this case, thirteen or so different categories of settlement relief) into a single settlement class; and "quickpay" provisions where class counsel takes its check early in the proceedings while the class is not entitled to relief until years down the road. And more.

Brian Wolfman points out that the opinion notes the silliness of approving settlements based on low opt-out rates.

The opinion also had kind words for the important role played by objectors in policing abusive class-action settlements. And as I joked to friends, this victory was particularly special for me, because the client wrote me a check.

Coverage: Forbes; Overlawyered; Chicago Daily Law Bulletin; Litigation Daily ($); Legal Newsline/Washington Examiner; ABA Journal; National Law Journal; law.com; law.com; Workplace Class Action Blog; Blawgletter.

Opening brief in Redman v. RadioShack

RadioShack committed the sin of printing credit-card receipts with expiration dates on them, which exposed it to possible liability of $100 a receipt ($1000 if willful), a bankrupting sum. Class counsel settled for coupons. Our clients objected that the settlement did not comply with CAFA's limitations on coupon settlements, and was structured so that class counsel's benefit would outstrip that of the class. As is typical in coupon settlements these days, the settling parties denied that the coupons were coupons. For some reason, the district court bought the argument, and awarded $1M in attorneys' fees while the 16-million-member class will receive 83 thousand coupons with a face-value of $10, give or take. We've appealed, and filed our opening brief April 16.

May 8 debate in Washington DC

I'll be debating Professor Brian Fitzpatrick in Washington, DC, the morning of Thursday, May 8. Registration and details at the e21 site.

Ninth Circuit win in Apple MagSafe case

The Apple MagSafe settlement paid the attorneys $3.1 million, but the class less than a quarter of that, yet the district court rubber-stamped settlement approval without addressing the objection to the self-dealing by class counsel, and, worse, imposed an illegal $15,000 bond to appeal the case. We posted the bond and appealed. (Briefing and oral argument here.) Thursday, the Ninth Circuit reversed and remanded for consideration under the appropriate legal standards, and was especially critical of the abusive appeal bond. The most comprehensive coverage is by Daniel Fisher at Forbes.com. There are also stories at The Recorder and Law360 behind subscription paywalls.

I'll note that three times now federal courts have imposed excessive appeal bonds on Center appeals on the non sequitur of a ground that the appeal had little chance of success, and we're two for two in such cases, with the third one pending.

We're also four for four in Ninth Circuit cases, and nine for eleven in intermediate federal courts (eight for ten as appellants).

Wasserman on cy pres

University of Pittsburgh Law Professor Rhonda Wasserman has a paper on cy pres forthcoming in the USC Law Review, "Cy Pres in Class Action Settlements." The paper discusses in detail two CCAF cases, In re Baby Products Antitrust Litig., and Marek v. Lane.

Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions – they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.” 

Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the class. Class counsel often lacks a personal financial interest in maximizing direct payments to class members because its fee is just as large if the money is paid cy pres to charity. And if the judge has discretion to select the charitable recipient of the unclaimed funds, she may select her alma mater or another favored charity, thereby creating an appearance of impropriety.

To minimize over-reliance on cy pres distributions and to tailor them to serve the best interests of the class, the Article makes four pragmatic recommendations. First, to align the interests of class counsel and the class, courts should presumptively reduce attorneys’ fees in cases in which cy pres distributions are made. Second, to ensure that class members and courts have the information they need to assess the fairness of a settlement that contemplates a cy pres distribution, class counsel should be required to make a series of disclosures when it presents the settlement for judicial approval. Third, to inject an element of adversarial conflict into the fairness hearing and to ensure that the court receives the information needed to scrutinize the proposed cy pres distribution, the court should appoint a devil’s advocate to oppose it. Finally, the court should be required to make written findings in connection with its review of any class action settlement that contemplates a cy pres distribution.

The first two proposals are arguments we make regularly; the second two are matters for a rule-making body or legislature, but are not going to be enforced in the absence of class action objectors; similar protections for class members in coupon settlements are routinely ignored.

Opening brief in Pearson v. NBTY, Inc., No. 14-1198 (7th Cir.)

In a settlement of several class actions over the labeling of glucosamine supplements, class counsel settled for a claims process that paid the class under $900,000, and token injunctive relief that tweaked the labels, while leaving much of the supposedly fraudulent labeling language in place (and precluding class members from ever suing on that language again). For this, class counsel asked for $4.5 million, claiming that the settlement was really worth tens of millions because 4.7 million class members could have made $3 claims. (In reality, the postcards mailed to ascertainable class members failed to inform them that they were actually class members, and the claims process demanded they provide receipts or other information already in the defendants' possession. Little wonder no money was actually distributed to the class.) Defendant NBTY was really only on the hook for $2 million, of which $1.1 million went to cy pres, though it would have been possible to distribute that money to class members.

To top it all off, the fee request was subject to a clear-sailing clause and reversion to the defendant, the sort of self-serving fee-protection clauses condemned in our Bluetooth victory.

As a class member, I objected, represented by CCAF attorney Melissa Holyoak. The district court approved the settlement, but partially agreed with us that the fee request was excessive, knocking the Rule 23(h) award down to $1.9 million.

We've appealed: we don't think that the Rule 23(e) and Rule 23(h) fairness inquiries are to be done sequentially. NBTY put $6.5 million on the table; class counsel structured the settlement so the class got only a tiny fraction of that money, and ended up costing the class $2.6 million when their excessive fee request reverted to the defendant. We filed our opening brief last week. Because this settlement has so many of the features of bad settlements we object to, it is perhaps the best 13,000-word summary of CCAF philosophy.

• Pearson v. NBTY, Inc. opening brief

Entertainingly, class counsel has cross-appealed: not satisfied with their abusive $1.9 million fee, they want the full $4.5 million.

The case is Pearson v. NBTY, Inc., No. 14-1198 (7th Cir.).