- Yikes: Nevada supreme court is nearly broke because it relies on traffic ticket revenue and cops are writing fewer [Las Vegas Review-Journal]
- Forced marriage in immigrant communities happening not just in places like English Midlands, but in U.S. as well; those who assist resistant teenage girls risk “aiding delinquent minor” charges [Washington Post]
- “Posner informs pro se litigant that the queen of England did not absolve him of need to pay taxes” [ABA Journal]
- Panel at Federalist Society on president’s power not to enforce the law [Randy Barnett, background on panel]
- Inside grand jury’s investigation of Pennsylvania Attorney General Kathleen Kane [Philadelphia Inquirer] “Referral fees paid to wife of former Pa. Supreme Court justice questioned” [Harrisburg Patriot-News]
- Have you or a loved one been attacked by a Zebra? [Arkansas Matters] “Louisiana Man on Trial for Murder Says He Thought the Victim Was an Alligator” [People]
- Sneaky Oregon law will divert unclaimed class action dollars to legal aid and not incidentally boost legal fees [Sen. Betsy Johnson, East Oregonian]
Former Overlawyered contributor Ted Frank, in his more recent capacity as class-action objector, has done much to direct judicial attention to the abuses and problems of cy pres settlement provisions that channel supposedly leftover settlement moneys to third parties, often nonprofits to which the parties, their lawyers, or the judge is sympathetic. Last month a split Eighth Circuit panel, agreeing with his arguments, disallowed a deal by which money from the settlement of a class action over the NationsBank/BankAmerica merger would be sent to Legal Services of Eastern Missouri [Ted Frank/CCAF; Alison Frankel/Reuters; David Oetting v. Green Jacobson, ruling in PDF; Bill McClellan, St. Louis Post-Dispatch in September (“Why should money belonging to the class members be given to a charity — no matter how much the judge and the class-action lawyers like the charity?”); Sean Wajert] Per James Beck:
The Court explained, “Because the settlement funds are the property of the class, a cy pres distribution to a third party of unclaimed settlement funds is permissible only when it is not feasible to make further distributions to class members, except where an additional distribution would provide a windfall to class members with liquidated-damages claims that were 100 percent satisfied by the initial distribution.” … The Court disagreed with the district court’s finding that further distributions (including the search for class members whose checks had been unreturned) would be too “costly and difficult”, emphasizing that “that inquiry must be based primarily on whether the amounts involved are too small to make individual distributions economically viable.” …
The Court also “flatly rejected” class counsel’s argument that further distribution would be inappropriate because “it would primarily benefit large institutional investors, who are less worthy than charities such as LSEM,” … In other words, class counsel can’t use legal French to take a class’ money.
Meanwhile, “despite the growing controversy, the Rules Advisory Committee is considering formalizing the use of cy pres” in Rule 23 class actions, a step that not all will welcome [Andrew Trask]
House Republicans want answers on how federal agencies’ mega-settlements with issuers of mortgage-backed securities came to include tens of millions of dollars in payments to “housing counseling” groups allied with the Obama Administration [DS News] Earlier on banks’ payments to activists here, here, etc.
“Judge Richard Posner of the Seventh Circuit Court of Appeals has unleashed another zinger at class-action attorneys, trashing a settlement over joint-pain pills that would have paid attorneys $2 million in fees, more than double what their clients got.” [Daniel Fisher, Forbes, whose own writing gets cited; opinion in Pearson v. NBTY] From the ABA Journal:
The opinion was a victory for Ted Frank of the Center for Class Action Fairness, who objected to the settlement as a class member. He told the Am Law Litigation Daily he will be citing the case in new objections to class-action settlements. So far, he says, his group has persuaded courts to wipe out $271 million in attorney fees in the 39 cases in which the center achieved some success.
“This is the best opinion out there” on class settlement issues, Frank told the Litigation Daily. “I think it will have a dramatic effect on class action settlements negotiated.”
- How legal doctrine changes in a state-based system: “The Diffusion of Innovations in Tort Law” [Kyle Graham]
- Are courts growing (appropriately) disillusioned with cy pres? [James Beck and Rachel Weil, WLF; Beck, D&DL, on Redman v. RadioShack]
- “Asbestos lawyers want $2.5 million for losing fight to keep Garlock records sealed” [@DanielDFisher on Legal NewsLine report] “Third Circuit rules against plaintiff who ‘just knew’ asbestos was used in Navy vessels” [Heather Isringhausen Gvillo, LNL]
- Eric Alexander on the runaway $9 billion Actos verdict [Drug and Device Law, citing Dr. David Kessler, former FDA chief, as “plaintiff’s mouthpiece”; earlier on Actos/Takeda case]
- “Third-Party Bad Faith Claims Add $800M to Florida Auto Insurance Costs: IRC” [Insurance Journal]
- Discussion of proposals to change contributory negligence for bicyclists in D.C., mucho comments [Greater Greater Washington]
- “Missouri Supreme Court Invalidates State’s Legislative Cap on Punitive Damages” [Mark Behrens]
- John McGinnis: As information technology disrupts the legal profession, will lawyers’ clout decline? [City Journal]
- Law schools, especially of the more leftward persuasion, collecting millions of dollars in cy pres lawsuit diversions [Derek Muller]
- Who’s still defending embattled medical examiner Steven Hayne? Mississippi attorney general Jim Hood, for one [Radley Balko, earlier here, here, here]
- Life in America will become more drab if Campaign for Safe Cosmetics gets its way [Jeffrey Tucker via @cathyreisenwitz, earlier on “CPSIA for soap”]
- LSAT settled with DoJ demands re: disabled accommodation back in 2002 and again just now, and the differences between the two settlements tell a story [Daniel Fisher, earlier] Some prospective students will be losers [Derek Muller]
- “‘Swoop and Squat': Staged car accidents, insurance fraud rise in L.A.” [Los Angeles Times]
- Toughen duty for California psychiatrists to inform on dangerous patients? Awaiting backfire in three, two, one… [Scott Greenfield]
The Supreme Court has declined review in Marek v. Lane, a case arising from the settlement of a privacy lawsuit against Facebook, which had presented questions about the proper use of cy pres distributions (in which money goes not to victims of the sued-over conduct, but to non-profits or other third parties). Writing in a separate statement, however, Chief Justice John Roberts indicated that the issues are of genuine concern to him, whether or not this case was the right one in which to address them. Excerpt:
I agree with this Court’s decision to deny the petition for certiorari. Marek’s challenge is focused on the particular features of the specific cy pres settlement at issue. Granting review of this case might not have afforded the Court an opportunity to address more fundamental concerns surrounding the use of such remedies in class action litigation, including when, if ever, such relief should be considered; how to assess its fairness as a general matter; whether new entities may be established as part of such relief; if not, how existing entities should be selected; what the respective roles of the judge and parties are in shaping a cy pres remedy; how closely the goals of any enlisted organization must correspond to the interests of the class; and so on. This Court has not previously addressed any of these issues. Cy pres remedies, however, are a growing feature of class action settlements. See Redish, Julian, & Zyontz, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis, 62 Fla. L. Rev. 617, 653–656 (2010). In a suitable case, this Court may need to clarify the limits on the use of such remedies.
[Adam Steinman, Civil Procedure and Federal Courts Blog, earlier here, here; see also Archis Parasharami, Mayer Brown “Class Defense”] Relatedly, “Taking on Class Action abuse: A conversation with Ted Frank, founder of the Center for Class Action Fairness” is a new podcast at Liberty Law.
- Books of the faraway past more likely to be available for purchase than books of the 1950s [David Post]
- “Is It Time for a Rule 11 for the Patent Bar?” [Ralph Clifford, SSRN via John Steele, Legal Ethics Forum]
- “Courts In Patent Suits Tell Turncoat Trial Lawyers To Take A Hike — Twice” [Mark Chenoweth, WLF; congratulations to Chenoweth, an old friend of this site, for his appointment as WLF’s new general counsel]
- Federal Circuit: “Model Order Would Cut Patent Fights Down to Manageable Size” [Sheri Qualters, NLJ]
- “Copyright Terms in the TPP: Too Long, or Way Too Long?” [Simon Lester, Cato]
- High tech cy pres and the copyright wars [Roger Parloff, Fortune]
- “The smartphone wars are ending, and nobody won (but the lawyers)” [Alison Frankel, Reuters]
- Now with more detailed program descriptions: reserve your seat now for Cato’s 12th annual Constitution Day Sept. 17 in Washington, D.C.;
- White House keeps losing SCOTUS cases 9-0, and there might be a lesson in that [Ilya Somin/USA Today, more]
- “Another big term for amicus curiae briefs at the high court” [ABA Journal] “The Chief’s dissent reads over long stretches like something from the Cato Institute” [Michael Greve, Liberty Law Blog, on the administrative law case City of Arlington v. FCC, which was in fact one of the three cases where Cato’s amicus position lost last term]
- Ilya Shapiro on misconceptions about last term’s Shelby County case on voting rights [USA Today] and on the pending Schuette affirmative action case from Michigan [Cato]
- “I count myself an originalist too.” — Justice Ruth Bader Ginsburg [CAC] Evaluating Ginsburg’s claim that the present Court is unusually activist [Jonathan Adler]
- In Bond v. U.S., the treaty power case, Solicitor General urges high court not to overrule Missouri v. Holland [Nicholas Quinn Rosenkranz, more, earlier]
- Cato seeks certiorari in cy pres (class action slush fund) case involving Facebook [amicus brief filed in Marek v. Lane, Ilya Shapiro]
We have often reported on controversies over cy pres class action settlements, in which part or all of a settlement fund goes to charities, universities, advocacy groups, or other unrelated institutions as opposed to actual victims of the sued-over conduct. Most appeals courts have agreed that cy pres raises distinctive issues that call for judicial oversight, yet the various federal circuits have marched off in different directions as to the appropriate nature and extent of such oversight, leading to inconsistency at least, and perhaps also to forum-shopping by lawyers seeking lenient standards.
Now figures well known to many of our readers — Ted Frank of the Center for Class Action Fairness, and David Rifkin and Andrew Grossman of Baker & Hostetler — have petitioned the Supreme Court for certiorari in a case arising from a privacy suit against Facebook over its Beacon program that eventuated in a cy pres settlement. “More than $6 million of [the] money was directed to the establishment of a new Internet privacy foundation with an advisory board that includes a Facebook representative and a plaintiffs’ lawyer from the case.” [Alison Frankel; Ted Frank/PoL; CCAF] Related: the “real problem with cy pres has never been that it is too costly. The real problem is that it creates an incentive for class counsel to act against the interests of the class.” [Andrew Trask]