class actions settlements

• Wednesday, I argued the case of Kazman v. Frontier Oil in Houston, which raises the issue of whether Texas law permits the "deal tax": the extortionate lawsuits over merger disclosures that get settled for pricy attorneys' fees and nothing of value to the shareholders that the attorneys are supposed to be representing. Thanks to client CEI attorney Sam Kazman, and to D. Wade Carvell, who was both extraordinarily generous and effective with his pro bono time on the case. [CEI press release; Kazman podcast; earlier on POL; more on POL]
• West Virginia medical monitoring settlement: $6.62 million for attorneys, up to $6.58 million in funding for medical examinations for class, but the money is likely to go to charity, and there will be no free exams after 2014. I'm quoted, after the West Virginia Record called me up for my analysis.
• Legal Newsline covers the Southwest Airlines drink voucher class action settlement. [Legal Newsline; earlier on POL]

Southwest gives away "premium drink" (i.e., "beer") coupons worth $5 to customers who buy a Business Select ticket. Of course, not everyone drinks, and half of the coupons are thrown away. After giving out 11 million or so of these coupons, Southwest changed its policy and held that the premium drink vouchers were only good on the day of the flight for which they were sold. A class action was born, alleging bait and switch. There's a lot of publicity over the settlement; Southwest Airlines is giving away new coupons, i.e., free beer. Press coverage accepts the claim of class counsel that the coupons, which will expire in a year, and are only good in flight, are worth "perhaps more than $29 million"; papers in support of the settlement go even further and ascribe a value of up to $58 million. Thus, the attorneys will ask for $7 million. [preliminary approval order; Chi Trib; L&S; h/t LAN3]

Thing is, we know from decades of history of coupon settlements that less than $1 million of these coupons are going to get used; heck less than $1 million are likely to be claimed. The settlement is worth "perhaps more than $29 million" only in the sense that "perhaps" the atoms in the chair you are sitting on will all simultaneously shift one foot to the left. Customers are getting notified by email, but the vouchers aren't being sent to them by email. That's because Southwest wants to limit its liability, but the attorneys want to maximize their payout; they both have the incentive to exaggerate the true value of the settlement. If they told the court the settlement was worth less than $1 million to the class, the court might ask questions why a disproportionate share is reserved for the attorneys; if they asked the court to follow the strictures of the Class Action Fairness Act, which requires attorney awards to be tied to the value of redeemed coupons, the attorneys would have no chance at $7 million.

One hopes a class member sees through this misleading unfairness, and finds pro bono counsel willing to object.

 The class consists of "All Southwest customers who purchased an Eligible Drink Voucher through the purchase of a Business Select ticket or otherwise, during the time period before August 1, 2010, but who did not redeem the Eligible Drink Voucher. The Class does not include Southwest customers who obtained drink vouchers or drink coupons through the Southwest Rapid Rewards program, unless those customers separately purchased, but did not redeem, Eligible Drink Vouchers through the purchase of a Business Select ticket or otherwise." The case is In re Southwest Airlines Voucher Litigation, No. 11-cv-8176 (N.D. Ill.).

A class member contacted me to complain about the settlement in Pearce v. Acosta. At first glance, it seems troubling: as described to me, the attorneys will get $425,000, and class members will get somewhere between $55,000 and $110,000. But the objection deadline is January 22, it's in Washington state court, and my attorneys and I are more than booked up between now and March with existing cases and obligations. We can't take the case, and don't have any insights beyond what's in this post; but if you're an attorney who might be interested in having this class member contact you, please E-MAIL me; leaving a blog post comment gives me no way to contact you and makes me question your judgment.

(Update: thanks to counsel who volunteered. The class member has opted out and been directed to the appropriate attorney running a parallel opt-in federal class action.)

In addition to the objection to the Citigroup Securities settlement, we were busy in December:

• Another bad coupon settlement: In re EasySaver Rewards Litig., No. 09-cv-2094 (S.D. Cal.). The $20 face value of the coupons is illusory, because the coupons preclude the use of the normal 20% offers on the defendant's website. Of course, the class counsel is seeking fees based on the face value; the settlement has illegal cy pres, too. We objected on behalf of a class member.
• Pecover v. Electronic Arts, Inc., No. 4:08-cv-02820 (N.D. Cal.) involves a settlement that will pay about $1 million to the class, but the attorneys are seeking $9.2 million for themselves. I'm a class member in an unfair video-game class action settlement? Of course I'm objecting!
• On December 20, the Second Circuit issued a disappointing summary order affirming the $0 Blessing v. Sirius XM settlement where the attorneys walked away with $13 million. [Reuters] We'll be filing a petition for rehearing and rehearing en banc today, and are looking for pro bono Supreme Court counsel for a cert petition if the Second Circuit doesn't correct its legal error.