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.

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.