class actions settlements

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.

Class members getting a notice for this case have been writing me. Dudes: I made my name in the Grand Theft Auto class action, of course I bought Madden and am a class member here.

This is a class action certification, rather than a settlement, so there isn't an easy way for me to get involved at this stage. At the moment, the problem is one of antitrust law, rather than class action law: as the defendant, Electronic Arts already has every incentive to litigate for a reasonable interpretation of antitrust law (and, more particularly, law geeks, the Aspen Skiing or bottleneck doctrine) without me butting in. Given my limited resources and heavy caseload (five cases have filings due in the next seven days!), I prefer to save my powder for cases—like class action settlements—where none of the parties before the court have the proper incentive to ensure the right questions get before the court unless I speak up. I would like to see more courts consider Rule 23(a)(4) in antitrust cases, since many class actions involve legal theories that would make the putative clients/consumers worse off, and a class certification is effectively a merits decision that a class member would prefer to endorse the class attorney's theory of the case. And some day in some case where the conflict is clearer and the defendant hasn't alienated me with poor customer service and buggy products, I'll make that argument. But given that courts have never considered this question before, I want the first time I make the argument to be a better test case than this one.

Rest assured, however, that I'm monitoring the case, and will not hesitate to get involved if class counsel tries to pull a fast one on their clients. (I'm naively hoping that, if I'm doing my job right, my vocal presence in the class will deter class counsel from negotiating a settlement I would object to in the first place.) If you're asking me what you should do, I can't give you individual legal advice if we don't have an attorney-client relationship, but I would note that there is no reason to ever opt out of a class action unless you plan to be suing the defendant yourself. If you're still in the class when it settles, you can always object later if the lawyers turn out to be settling the case for their benefit rather than yours.

The case number is 08-cv-2820-CW (N.D. Cal.).