Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partner Jerry Maatman and associate Nick Baltaxe with their analysis of settlement approval issues highlighted in class action litigation of 2022.
Episode Transcript
Jerry Maatman: Hello blog readers and thank you for welcoming us this week. I’m joined by my colleague and associate Nick Baltaxe and today we’re going to talk about settlement approval in the class action context. Nick, thanks so much for joining us on this week’s podcast.
Nick Baltaxe: Thank you for having me Jerry, you know it’s always a pleasure.
Jerry: Well, Rule 23 does many things and one of the things that regulates is the process by which a court must approve a settlement. In general litigation I think probably 98% of cases are disposed of either in motions to dismiss or by settlement. What about in the class action context – how are cases handled and how do they exit the court system?
Nick: So similarly, there’s very rarely trials to verdicts in the class action context. The reason for that is trials are not just very financially expensive in terms of legal fees, but present a large amount of financial exposure and a large possibility of an adverse verdict that could be very, very financially harmful and present unacceptable risks. So because of those risks, class actions are typically resolved before or on the heels of class certification order. As you stated, Rule 23 not only provides a process for the certification of a class action, but also provides the procedure for the settlement of the class action. Specifically, Rule 23(e) lays out a three-part settlement approval process that includes preliminary approval, which is approval that provides notice to the putative class, notice the class members, and finally, final settlement approval.
Jerry: Well, our Duane Morris Class Action Review has a chapter in and of itself with respect to key settlements as well as settlement approval issues, and as general counsel that I deal with often say, ‘if I’m going to settle a class action I only want to settle it once, I want a broad settlement bar’ – what are some of the positive attributes or reasons to settle a class action?
Nick: Yes, so there’s benefits to both sides of the aisle for settling these class actions on an early basis. From the plaintiffs’ point of view and a reason that you see a lot of plaintiffs’ attorneys and plaintiffs being willing to settle these sorts of cases at an early stage – you get payment quicker and even with the class approval, the class settlement approval process – that can take a longer period of time, so you want plaintiffs generally want to settle this on an early side so that they can get the money quicker. However, on the side of the employers, of the defendants, as indicated before getting the trial in these cases is usually a very expensive process in terms of legal fees, so settling early avoids the high costs including all the burdensome discovery related costs that come from having to defend class actions that you don’t see in other non-class related litigation. You also see benefits to the court system by avoiding needless litigation that clogs court dockets, especially in the context of these class actions or these cases, depending on the size of the putative class and issues with manageability and other class certification issues can take multiple weeks. Additionally, although class action settlements are matters of public record, they generally contain provisions where a defendant will not admit liability, which can also be positive for the publicity for that defendant. Finally and importantly, a settlement will bar anyone who is in that class and receives remuneration – in other words, does not opt out – from bringing claims, and those settlements can be crafted to be as broad as possible to eliminate as many claims assuming that the named plaintiff is agreeable and the court approves.
Jerry: Thank you for that overview of the process. Chapter 20 of the Duane Morris Class Action Review analyzes the significant settlement approval decisions rendered in state and federal courts. Briefly based on your analysis and review of an array of those decisions, what are some of the common obstacles or objections that judges in reviewing class action settlements focus upon in terms of issues where settlements are not approved?
Nick: In order to secure the court’s approval to send notice to the class regarding that settlement, there must be sufficient information provided to the court in order to determine whether or not it will be likely to approve the settlement and certify the class purely for the purpose of the judgment. Rule 23(e) itself actually includes a detailed list of factors that must be considered before the final approval of the class settlement. Those factors include things like the quality of class representation, whether the negotiations took place at an arm’s length, the adequacy of class relief, and the equitable treatment of class members. So you’ll see a lot of discussion on whether or not the negotiations were fair, whether the agreed-upon number provides proper relief for all the class members, and those are some of the bigger obstacles that you’ll see facing approval and also mostly the reasons that a court is going to push back and not approve of a proposed class action settlement.
Jerry: I think one of the common myths in the class action space is that once you settle the class action, it’s pretty much a rubber stamp approval process – and I think nothing could be further from the truth. The law is different in every jurisdiction and the practice locally is different in front of every court, but if there is one trend it seems to me that in California, more so than in any other geographic venue, judges are very strict in reviewing class action settlements and are more apt to deny approval probably than in any other jurisdiction. What does this mean overall for both plaintiffs’ counsel and defense counsel in terms of the practice, of how they craft a settlement, what it should look like, and how it’s presented to a court?
Nick: So the settlement process being as non-rubber stamped as it is and a court-by-court basis applying these standards on non-identical fashions presented a lot of strategic dilemmas for both parties when they’re crafting a settlement agreement. For example, for a defendant you have to consider how much you’d be willing to concede in the settlement agreement without losing your ability to defend the case to the extent the settlement falls through or the settlement is not approved by the court. You also have to consider if a settlement is going to be viewed as not sufficient – potentially too cheap by a court or deemed inadequate or unfair when reviewed and considering all of the putative class members, and also as indicated, you have to consider how broad you attempt to make the release. It is a strategic positive for a defendant to make as broad of a release as possible, secure as much protection for class claims coming from those class members, but too broad of a release might get push back from the court.
We saw a lot of these issues in a more recent case that has been continuing to develop over the past few months which was Lusk, et al. v. Five Guys Enterprises LLC, et al. As you indicated, in California there seems to be a very stringent class action approval process. In the Eastern District of California, Lusk v. Five Guys is now on its fifth attempt to have class certification approved from that district court; they had chances in December 2019, October 2020, June 2021, and in a recent denial in 2022 the court looked at things such as the willingness to pay one million dollars to settle claims that it’s discredited in its briefs as a perverse set of circumstances, the court looked to cautiously and rigorously scrutinize the attempt to settle the class action, and even warned the parties to carefully consider how they would like to proceed before fighting another notion of this kind, and it would not consider a new motion that merely tinkers with the same details that the previous motions have already presented. So as indicated by you know this rule and as you mentioned with California, it’s a strict process, it’s not a very simple rubber stamp – you don’t see most cases get to a fourth or a fifth go around, but you do see courts really scrutinize what the parties are bringing forward in their class action approval motions.
Jerry: That’s a fascinating case and case study, it reminds me of kind of the counter-intuitive notion that defense counsel is bargaining for the lowest possible settlement, and that’s true, but also the lowest possible settlement that a court will approve and kind of evidence of that is the famous or infamous, depending on how one looks at it, Facebook BIPA settlement where the parties presented a $550 million settlement to the court and the court said ‘that’s inadequate, that’s a not enough of a payment to the class,’ and sent them into the room so to speak to renegotiate the deal, and months later the deal was sweetened is $650 million and then the court approved it. So certainly not a rubber stamp process and certainly there are situations where a court may force the parties back to the negotiating table to change, sweeten, revise the deal to the extent the court may feel it’s unfair.
Another area of concern is not the plaintiffs’ lawyer or the named plaintiff, but class members who may register an objection, and there is a process in Rule 23 for the court to undertake and hear and rule upon objections to class action settlements. How does that work in this space?
Nick: So objections are very common in the class action settlement sphere and on certain occasions objections can even be successful in overturning the settlement or getting it vacated on appeal. One really interesting example from the last year was Saucillo, et al. v. Peck. In that case plaintiffs brought a class action and representative claim under PAGA based on different alleged violations of the California Labor Code. Several years of litigation passed and the parties reached a settlement. The district court overruled the objection of an objector who had filed a separate PAGA claim in a different case but was not a party to the underlying PAGA claim. In this decision Ninth Circuit opined that the objector had no right to appeal in the action to which he was not a party. However, with respect to the class action settlement at issue in the appeal, a different objector argued that in evaluating the proposed pre-certification settlement the district court erroneously applied a presumption of fairness. The district court considered that the parties engaged in an arm’s length, serious, informed, and non-conclusive negotiation, both counsels were experienced and knowledgeable, and therefore applied a presumption of fairness. However, the Ninth Circuit reasoned that in the pre-certification context the district court should have employed a higher standard of fairness and put in a more probing inquiry into what would normally be required under Rule 23(e). It remanded the case for further proceedings based on that language.
Jerry: Another area of concern are attorney’s fees, where the court in the final approval hearing has to adjudicate the petition for attorneys’ fees and award of costs filed by class counsel, and this is an area where there are both objections and where courts want to make sure that plaintiffs’ counsel are not getting rich off the backs of the class, and they tend to be very noteworthy rulings where a court will measure the lodestar and the amount of hours and fees that go into the class action settlement. In terms of the past 12 months were there are some notable rulings in this space that would bear upon ideas about how to negotiate settlements?
Nick: Attorneys’ fees awards and the requests that come with them are heavily scrutinized in the class action context, not only because of the money that’s at risk but because of the fairness that underlies the entire class action settlement process. This sort of calculation in the request for attorneys’ fees will often lead to very heavy-handed disputes especially when they come at the end of an already hard-fought class action with the settlement at risk. Nonetheless, you see a lot of class counsel attempting to recover for their time attributable and leading to disputes that, as you said, come quite often to these sorts of cases.
One of the most recent ones was found in the Fifth Circuit in Fessler, et al. v. Porcelana Corona De Max, S.A. This was a punitive class of consumers who sued for Porcelana, who was a toilet manufacturer, for providing or in manufacturing the detective toilet tanks. They settled the case in two parts, first entering into a partial settlement over certain models that Porcelana manufactured in a specific plant, the Benito Juarez plant, between 2007 and 2010. At this point the plaintiffs sought to certify the claims that were not settled and the district court denied the motion. The parties then subsequently reached a class-wide settlement agreement for the second portion and filed a motion for an awards of attorneys’ fees for the two classes. Porcelana then challenged the amount sought, arguing that the recovery by plaintiffs’ counsel should be limited to the hours spent on behalf of the successful class claims only. The district court granted that motion, finding it “practically impossible” to identify which hours should be removed from the attorneys’ fee award and be allocated to either one class claim or the other class claim. Instead, it simply reduced the lodestar amount that it was going to award to the attorneys. Upon appeal by Porcelana, the Fifth Circuit reversed the district court’s order on the fee award. It held that specifically when attorneys’ fees requested by class counsel is supported by time spent on both successful and unsuccessful claims, the district court “must address the ‘common core of facts’ and the ‘common legal theories’ sufficiently so that no fees are awarded on unsuccessful theories.” The Fifth Circuit therefore vacated the attorneys’ fee award and remanded the case back to the district court to “consider the amount of damages and non-monetary relief sought compared to what was actually received by the class.” So a case like this goes to show that even in an approved settlement the attorneys’ fees can be a point of dispute and that parties have to very seriously consider what could be attributed to successful class claims, what could be attributed to non-successful class claims, and how those sorts of splits could potentially lead to significant disputes in the class action settlement approval processes.
Jerry: Those are great insights from the Fifth Circuit. I know that a lot of people are sometimes unaware that actually in California in the Ninth Circuit, the benchmark and attorneys’ fees is 25% and in many areas of the country they’re 33% and there are some instances where courts have awarded 35% up to 40% or 42% percent, so location, location, location is everything when it comes to settlement approval, as well as awards of attorneys’ fees.
Well, thank you Nick for joining us on this week’s podcast, the Class Action Weekly Wire, and signing off for Nick and myself – Jerry Maatman here at Duane Morris. Have a great day.