Here's a wide-ranging opinion that disapproves a class action settlement -- alongside the award of attorney's fees therein. It should (and will) strike fear in the heart of class action attorneys who litigate in federal court.
It's not that Judge Trott's concerns are misdirected. It's not that they're unprecedented. But the truth is that the class action settlement here was better -- indeed, a lot better -- than many class action settlements that are routinely approved. And still failed. On appeal, no less.
If you're a consumer class action plaintiff's lawyer, that's scary.
Even in this particular case, the Ninth Circuit's holding isn't fatal. The parties will have to rework their agreement, and be more specific in places. But that's doable. Plus, Judge Trott catches only some of the tricks used in these types of agreements; others get let go. So, in the future, those will become even more pervasively employed.
The real losers here are plaintiffs' counsel. They may well have to take a lower fee. But, in the future, they'll just know that they'll have to churn the case. Something that's hardly unprecedented anyway. It's inefficient, to be sure, but it largely avoids the problem here.
I actually appreciate Judge Trott's inquiry here. It's refreshing. I'm not sure it gets to the heart of the problem, to be honest. And it's got its downsides.
But it's a start.
