class actions settlements

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.

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.

You may recall that I was not pleased with an Apple settlement that provided for $2.5 million to go to a series of universities and law schools with "corporate governance" programs (two of which were affiliated with the lead plaintiffs' counsel) instead of to the purportedly injured class members. (See also coverage from Ira Stoll, Jim Copland, John Carney, and Lyle Roberts.) Such "cy pres" awards are a breach of class counsel's fiduciary duty to the class by putting the interests of unrelated third parties ahead of their putative clients.

After I sent a letter to class counsel and counsel for Apple notifying them that I had a client who was going to object, the parties quickly rushed to court and submitted a modified settlement. Now, class members have first bite at the $2.5 million, an approximately 15% increase in what shareholders can recover in the settlement; Harvard, Columbia, and the University of Delaware will not get any of it.

This is definitely a material improvement (and one that would entitle the Center to attorneys' fees), but it's still not good enough; I've asked the court to refuse preliminary approval until the settlement guarantees that the class gets the entirety of the $16.5 million settlement fund.

Notice went out today, and five separate people have emailed me in the last hour about the Google Buzz settlement, which I've been tracking since it was first announced a couple of weeks ago.  It flunks Rule 23, but, believe it or not, is not the worst settlement in the world (we have four cases pending in Ninth Circuit courts alone that are worse, including one in in Judge Ware's court).  In addition, this case is going to attract attention from a lot of privacy advocates whether or not the Center for Class Action Fairness gets involved, so I don't know how much value-added we provide by being the n-th objection.  And I'm a class member, so if we do get involved, I can do so pretty quickly.

Anyway, this is just to say that yes, CCAF is aware of the Google Buzz settlement; we haven't decided yet whether to get involved because we have six or seven other briefs due between now and Christmas; if you're interested in getting involved without waiting for that decision, take a look at our Ninth Circuit briefs in the Bluetooth (09-56683) and AOL (10-55129) cases that we filed earlier this year.