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.

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

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

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.).

October 15

Tomorrow morning, the Supreme Court will announce orders relating to two cert petitions we filed (with substantial and critically necessary pro bono assistance) that it considered at its October 11 conference: Martin v. Blessing (which long-time readers remember as the Sirius XM case) and Marek v. Lane (the Facebook Beacon cy pres case). Both petitions made SCOTUSblog's "Petitions We're Watching" list, which means that the experts there think that those petitions have a better than average chance of being granted--but since "average" means "less than 1%," odds are still long.

I'll be speaking at the University of Chicago Law School at lunchtime, and hope to see some readers there.

Marek v. Lane cert petition in the Wall Street Journal

In The Wall Street Journal, David Rivkin and Lee Casey write about Marek v. Lane, arguing that it's time to end class-action settlements that only reward lawyers, not plaintiffs. Earlier.

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.

CCAF in today's New York Times

The Adam Liptak article also generously cites my Congressional testimony on cy pres. Earlier: Marek v. Lane; Dry Max Pampers.

We maintain a complete set of our press coverage. Have we forgotten something? Drop us a line.

In addition, when I started doing this in 2009, I joked that there were only a dozen cases worth reading. That number is way up in 2013. We'd like to take some credit, given seven precedential appellate victories under CCAF's belt, and a number of good district-court and appellate decisions based on our litigation or on precedents we created. We've started a web page on the subject (which will be helpful for others wanting to object or design courses on the subject); happy to take suggestions if we left something important out.

We'd like to make our website a little nicer. If you have a good design sense and happen to want to provide us some pro bono web work to set us up a system that we can easily maintain, drop us a line.

Our first cert petition, challenging Facebook Beacon cy pres settlement

We weren't involved in the 2-1 Lane v. Facebook cy pres decision disadvantaging consumers, and jumped at the opportunity to challenge it in the Supreme Court. On Friday (with generous pro bono work from BakerHostetler) we filed our first cert petition, and the first substantive request that the Supreme Court clarify the law of cy pres, a unique public-policy problem that both the Chamber of Commerce and Public Citizen agree upon. 

The Center has previously won such landmark cy pres decisions as In re Baby Products Antitrust Litigation and Nachshin v. AOL. I testified about the problem before a House Subcommittee in March, and will be speaking on an ABA panel on the subject in Boston in October. 

Why is Jaafar & Mahdi Law Group trying to squelch criticism of a bad class action settlement?

A class action accusing local McDonald's in Dearborn County of falsely advertising its chicken as "halal" was settled. A class member, Majed Moughni, an attorney, wrote a Facebook post complaining, inter alia:

McDonald's was going to pay $700,000 for selling "Haram" chicken sandwiches and labeling it as "Halal". The current lawyer on the case wants the the [sic] majority of the money to go to a medical center ($275,000) and a museum ($150,000), that lawyer Kassem Daklallah, wants to pocket $230,000 and the plaintiff, Ahmed Ahmed will keep $20,000. We think the money should go to you, the people who were lied to and bought and ate "Haram" chicken sandwiches, not a medical center or a museum who were not injured. ...

This seems a reasonable criticism: after all, the class is relatively small (observant Muslims who ate at the particular McDonald's restaurant), so distributing $425,000 to claimants is feasible. And, as Baby Products and the American Law Institute confirm, cy pres should be the last resort (rather than opening gambit) in a settlement. If Daklallah, his law firm, McDonald's, or their attorneys have preexisting relationships with the cy pres recipients, that would be even worse, because then the cy pres would be illusory relief. A $20,000 proposed payment to the class representative in a $0 settlement is further evidence of self-dealing.

At plaintiff's request, the Michigan state court enjoined Moughni, and forced a change to the Facebook page to put forward Ahmed's preferred view of the case. This is a scary First Amendment violation, and that the court signed off on it makes one wonder whether the court can fairly adjudicate objections to the settlement. Public Citizen is on the right side in this one, and, along with the ACLU, is litigating in favor of the objector's rights. [Public Citizen; Dan Fisher @ Forbes; Detroit Free Press]

(Of course, there are certainly strong arguments against using the consumer fraud laws to mediate a religious dispute. If the lawsuit reflects a disagreement over what constitutes "halal," courts shouldn't be adjudicating the religious question. If the lawsuit reflects an objectively false claim that a particular organization certified the food as "halal," then that's a legitimate complaint. But even if the possibly fatal flaw in the lawsuit means the settlement is necessarily small, that is no excuse for the attorneys, class representative, and unrelated third parties to capture the entirety of the value of the settlement.)

Public Citizen and the ACLU are taking no position on the fairness of the settlement, which makes sense for the strategic purpose of focusing on the First Amendment issues. Since we're not involved in the case, and will not be representing any clients in the Michigan proceedings, I hope that even the attorneys who negotiated this awful settlement will concede I have the right to speak about what I think is a breach of fiduciary duty to their clients.

Third Circuit win

We won reversal of the settlement approval in the Baby Products Antitrust Litigation, No. 12-1165 (3d Cir. Feb. 19, 2013). The settlement had paid $14M to the attorneys, but less than $3M to the class. The opinion isn't yet online, but I discuss it a bit at a post at Point of Law, which will be updated as events require.

In re Bayer

Fewer than 20,000 class members have bothered to go through the arduous claim procedures in the Bayer Corp. class action, which caps recovery for most of those class members at $4 unless they saved several-year-old receipts for aspirin products. The class will ultimately receive well under $500,000.

But the attorneys—led by Hagens Berman—are asking for $5.1 million for themselves. The fee is supposedly justified because about $8-$9 million will end up in the hands of cy pres recipients such as the American Heart Association. Of course, Bayer already gives money to the AHA (and the AHA returns the favor by endorsing Bayer aspirin over other brands of aspirin), so this is really just a change in accounting entries rather than any sort of class benefit.

I'm a class member and I have objected through my attorney Adam Schulman of the Center for Class Action Fairness. The case is In re Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Pract. Lit., No. 09-md-2023 (BMC) (E.D.N.Y.).

In re Baby Products update

Briefing is complete, and oral argument will be some time in the second half of September. Details at Point of Law.

Cy pres in the First and Third Circuits

On Tuesday, the First Circuit issued a landmark decision on cy pres, In re Lupron Marketing. Though odd litigation decisions by the objectors led to affirmance in that case, the First Circuit (quoting CCAF's victory in Nachshin v. AOL) made clear that it had "unease" with cy pres, and set a precedent generally requiring compliance with §3.07 of the ALI Principles of the Law of Aggregate Litigation. [Legal Newsline; FindLaw]

Coincidentally, the same day, the Center for Class Action Fairness filed its opening brief relating to the yet-to-be-proposed multi-million-dollar cy pres distribution in In re Baby Products, asking the Third Circuit to adopt §3.07; the district court held that the class wasn't even entitled to an opportunity to object to the as-yet-to-be-proposed recipients. Baby Products presents the additional problem of the sort of settlement where class members were artificially deterred from making claims to expand the amount available for cy pres; indeed, under the district court's order, the class counsel will walk away with over $14 million of the $35.5 million fund, and the class millions of dollars less, likely less than half of what the attorneys got.

Festivus update

• In the Toys "R" Us baby products antitrust case, the E.D. Pa. approved a settlement and fee request that pays $14M to attorneys and $8.1M to class members over our objection. Law.com describes it as a "24% recovery for the class"; if that's accurate, that raises the question why there will be another $13 million of payments to cy pres recipients not disclosed to the class instead of to the class. Aside from the fact of attorneys getting nearly twice as much as class members.
• We also lost in the Franklin Templeton Mutual case, where the judge approved a settlement and fee request where the attorneys are getting $2.142 million and the class $2.27 million. To me, that effectively reads the attorneys' fees restrictions directly out of the PSLRA, but we'll wait for a more egregious abuse to take that legal question up on appeal.
• With all that bad news, we'll take a small partial victory in the Fogel v. Farmers case, where the court reduced an outrageous fee request of $90 million (for a $159 million class recovery) to a merely ginormous $73.7 million award. The judge praised our objection as helpful and invited us to make a fee request. We requested between $10,500 and $33 thousand in fees and expenses, and the court awarded us over $47 thousand. Awkward. We'll try to put the money to good use for class members in other cases, though with appeals, we aren't going to see it for some time. The settlement had Bluetooth problems and the fee disposition is a gigantic windfall that could have been more appropriately directed at the class, but it's in California state court (a legacy pre-CAFA case), there are other objectors who will appeal, and we'll defer to what they're doing, with perhaps an amicus instead of a direct appeal; the long-term precedential value of this case, with even a successful appeal, is pretty close to zero.
• I forgot to mention a similar small partial victory in the HP Laserjet case back in August; the court approved the settlement after valuing the coupon relief at zero, but did reduce the attorney award from $2.75M to $2M. Close enough for government work; we didn't appeal.
• We've been invited to make a fee request in another case where we objected in the District Court of Maine a while back, the New Vehicles Canadian Export Antitrust Litigation, MDL No. 1532; our objection resulted in an improper $500,000 cy pres being returned to the class common fund. We haven't decided whether to request a token amount of that. 
• Appellee briefs are in in the Inkjet case in the Ninth Circuit. I'll post about that after the new year if you don't want to look it up on PACER yourself.

Yes, the Ticketmaster class action settlement is appalling

Yes, we know about the Ticketmaster class action settlement, which over a dozen class members have emailed us about. There's no question that this coupon settlement (complete with questionable cy pres) would be illegal in federal court. Unfortunately, the case is pending in California state court. This limits the precedential value of the case (it's only a jurisdictional accident that it's not in federal court; if it were brought today it would be), and I'm sufficiently discouraged by the last few ventures into state court that I'm reluctant to devote limited resources to it. Including objections and a notice of appeal we've committed to file but haven't yet, we have nineteen cases pending, including eight appeals where the briefing isn't finished.

However, many of the class members who have written us are attorneys. So a possibility is that sufficiently angry attorney class members volunteer to write the briefs (working off of briefs we've previously filed on these issues). Then someone based in California (or me) could attend the fairness hearing. Other class members could submit their objections saying they're joining that one. We're going to try to coordinate that over the course of this month; if you've written to me, and I haven't emailed you yet on this, I will this weekend.

Wherein CCAF is "justly lauded"

More coverage of the AOL victory in a Washington Examiner op-ed. And Reuters Legal does a lengthy story.

AOL's attorney's comment is revealing: all they cared about was whether they were able to get rid of the frivolous claims against them in a nuisance lawsuit. But the Center cares more about establishing precedents and rules governing the long-term fairness of class actions than any individual result. That larger issue was irrelevant to AOL, so they think they have a victory, but we do, too. Reuters, through Professor Brian Fitzpatrick, questions whether it makes a difference: it does. Class actions are supposed to benefit the class first, rather than the attorneys. When the attorneys have carte blanche to choose cy pres recipients, they effectively get double-payment. To the extent Professor Fitzpatrick cares about defendant deterrence as a reason for class actions, he should be pleased that the defendant would not be allowed to dictate illusory cy pres that goes to their preferred charitable donee.

Interestingly, Kabateck Brown Kellner, whose attorneys had written a dishonest op-ed criticizing CCAF's defense of class members in cy pres settlements without revealing they were adverse to us in four cases (all four of which have now resulted in CCAF court victories), couldn't even be bothered to file a Ninth Circuit brief making a public-policy argument for their preferred tactic of abusive cy pres.