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Article: Unusual Settlement Structure Leads to Fee Award Almost Double Judgment

November 1, 2020

A recent New York Law Journal article by Thomas E.L. Dewey, “Unusual Settlement Structure Leads to Approval of Fee Award Nearly Double the Payout,” reports on a recent New York class action were the attorney fee award exceeded the settlement amount.  This article was posted with permission.  The article reads:

Public policy generally prohibits class action settlements in which the attorney fee awards dwarf the amount awarded to the class.  But as a recent case in the U.S. District Court for the Southern District of New York illustrates, such a settlement may be approved if it is structured so that class counsel’s award does not come at the class’s expense.

In Hart v. BHH, No. 15-cv-4804, 2020 WL 5645984, at *2 (S.D.N.Y. Sept. 22, 2020), Judge Pauley approved over $4.6 million in fees and expenses for class counsel, even though the total payments to class members were expected to top out at less than $2.5 million.  However, the court balked at the inclusion of a “quick-pay” provision in an earlier draft of the settlement, which would have allowed class counsel to collect its fees before the class members were paid, and did not allow the parties to submit attorney fees to a separate arbitration.


The two named plaintiffs filed suit in in June 2015, alleging that “ultrasonic pest repeller” devices they had purchased from BHH LLC (branded Bell + Howell) were “ineffective and worthless.”  The complaint included claims under the federal Magnuson-Moss Warranty Act, multiple California consumer protection laws, and the implied warranty of merchantability. In May 2016, the court dismissed the federal statutory claim, but allowed the state law claims to proceed. An amended complaint then added a claim for fraud, citing representations made on the devices’ packaging and via the Home Shopping Network that they would rid homes of “ants, spiders, mice, roaches, rats and other pests.”

In July 2017, the court certified three classes of plaintiffs who had purchased the devices—a nationwide fraud class, a California-only class, and a multi-state breach of warranty class.  Each party then offered experts on the efficacy of the devices.  Judge Pauley began his Sept. 5, 2018, opinion on summary judgment with images from one of the expert reports, noting, “As the photographs show, mice can apparently relax comfortably under a Repeller and even appear to be so drawn in by its siren song that one would scale a wall just to snooze on it.”  Having thus found a disputed issue of fact regarding the efficacy of the devices, the court set jury trial for Sept. 9, 2019.  On July 16, 2019, the parties informed the court that they had reached a settlement, and on Sept. 3, 2019, the plaintiffs moved for preliminary approval of the agreement.

‘Quick-Pay’ Attorney Fees Provision Scuttles Preliminary Approval

The most notable feature of the proposed agreement in Hart was its so-called “quick-pay” provision, under which the plaintiff’s attorneys would be paid their fees within 10 days of final settlement approval.  Plaintiff contended the provision was necessary to discourage “the filing of baseless objections (and appeals), which can delay payment of class relief.”  Analyzing that provision in a July 17, 2020, opinion, the court wrote that it “strains credulity” that such a measure would deter baseless objections.  The court assured the litigants that such objections could be better discouraged by the threat of Rule 11 sanctions.

The court also found that, having reached a proposed agreement, the two parties had little incentive to pour any more resources into the case if valid objectors came forward.  The court noted that “money is the best way to keep lawyers engaged.”

Although plaintiffs’ counsel cited seven previous SDNY orders in which similar provisions had been granted preliminary approval, the court pointed out that none of those previous orders contained “an iota of analysis on ‘quick-pay’ provisions.”  Thus, in the first detailed analysis of such a provision in the Southern District, the court held that paying counsel “prior to compensating the class conflicts with Rule 23(e)’s mandate for fairness, reasonableness, and adequacy.”

Also as part of the preliminary agreement, the parties proposed to engage an arbitrator to determine the amount of attorney fees to be awarded to plaintiffs’ counsel.  The court ruled that such an arrangement was contrary to law, as it would usurp the court’s discretion and eviscerate its duty to “act as a fiduciary who must serve as a guardian of the rights of absent class members.”

The court thus denied preliminary approval of the settlement.  The plaintiffs quickly submitted a revised proposed settlement which no longer included the quick-pay provision or arbitration of attorney fees.  The court reviewed the revised settlement on Feb. 12, 2020, and granted preliminary approval, setting a hearing on final approval for September 2020.

Refunds for Class Members Found Fair

In its Sept. 22, 2020, opinion granting final approval of the settlement, the court devoted significant consideration to the structure of the awards to the class, which were styled as refunds for purchases of repeller devices.  By providing proof of purchase that included the price paid for each unit, a class member could receive a full refund for up to six units.  Without proof of the price paid, the amount of each refund was set at $15, which the parties chose as the best estimate of the purchase price.  Finally, class members who could not provide any proof of purchase could still receive $15 each for up to two units purchased.

As of August 24, class members had filed 82,503 claims for payment, and a total payout of $2,118,505 had been approved by the class administrator.  And crucially, no objections to the settlement had been received from notified class members.  The administrator expected a final payout between $2.1 million and $2.5 million.  BHH had agreed in the settlement to a total potential liability of over $57 million.

In evaluating the fairness of the settlement, the court noted that if the case had proceeded to a jury trial, class members might have received considerably less than full refunds—especially because plaintiffs “faced substantial risk in proving loss causation.”  The court found the settlement to be procedurally and substantively fair, and moved on to considering the fees to be awarded to class counsel.

Attorney Fees Exceed Amount Awarded to Class Members

The agreement allowed class counsel to seek up to $6.5 million in attorney fees and expenses—an amount almost triple the expected payout to class members.  That would typically pose a problem for a reviewing judge, who must “carefully scrutinize lead counsel’s application for attorneys’ fees to ensure that the interests of the class members are not subordinated to the interests of … class counsel.” Hart at 10, citing Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1078 (2d Cir. 1995).  But as the court explained, “This case provides one unique feature absent from most class-action settlements: rather than the class members sharing from a settlement pool, the recovery to the class will be claims based.  As a result, attorneys’ fees will not reduce the class recovery.” Hart at 10.

For such claim-based settlements, the court explained that its “fiduciary role in overseeing the award is greatly reduced, because there is no conflict of interest between attorneys and class members.” Id. citing McBean v. City of New York, 233 F.R.D. 377, 392 (S.D.N.Y.2006).  The opinion also noted that the attorney fees were negotiated after the parties had reached an agreement on class recovery, which “tends to eliminate any danger of the amount of attorneys’ fees affecting the amount of the class recovery.” Hart at 11, citing In re Sony SXRD Rear Projection Television Class Action Litig., 2008 WL 1956267, at *15 (S.D.N.Y. May 1, 2008).

Performing the Second Circuit’s preferred fee analysis from Goldberger v. Integrated Res., as checked by the lodestar method, the court awarded $3,976,762.50 in legal fees and $700,227.57 in litigation expenses.  It rejected plaintiffs’ argument that unclaimed funds should be used as the denominator to calculate the fee percentage, since in this instance, the unclaimed funds would revert to BHH instead of being distributed via cy pres, and therefore the unclaimed funds did not provide an actual benefit to the class.  That was significant, because by plaintiffs’ calculation, nearly 90 percent of the agreed $57 million settlement was expected to go undistributed.

Even so, the final fee award was substantially greater than the total award to the class.  The court considered this carefully. “On one hand, allowing lawyers’ recovery to dwarf the settlement is against public policy,” the court wrote.  Hart at 21. “On the other hand, Class Counsel should be rewarded for concentrating their time, effort, and resources in successfully representing the class on a contingent basis.  And, most importantly, the fee will be paid directly by Defendants and will not come at the class’ expense.”  The court ordered that the attorney fees may be paid when at least 75% of the settlement has been distributed.  The court also awarded each class representative a $5,000 incentive award.

Practice Tips

The Hart case is as a helpful illustration of the restrictions on attorney fee provisions in class action settlements.  Though courts will be skeptical of attorney fee provisions that approach or exceed the total benefit to class members, such skepticism may be overcome if the settlement is structured so that increasing class counsel’s payout does not decrease the benefit to the class.  Additionally, the Hart court’s reasoned disapproval of a quick-pay attorney fee provision may portend greater scrutiny of such provisions in future cases in the Southern District and elsewhere.

Thomas E.L. Dewey is a partner at Dewey Pegno & Kramarsky.  L. Lars Hulsebus, an associate at the firm, assisted in the preparation of the article.

Eleventh Circuit Bans Class Action Incentive Awards

September 22, 2020

A recent Law 360 story by Allison Grande, “11th Circ. Says Class Reps Can’t Get Incentive Awards,” reports that the Eleventh Circuit said a Florida federal judge made several errors that "have become commonplace in everyday class-action practice" when approving a $1.4 million settlement and $6,000 incentive payment for the lead plaintiff in a robocall suit, finding that U.S. Supreme Court precedent prohibits such routine incentive awards.

Jenna Dickenson, who was the lone objector to the deal that resolved a proposed class action accusing medical debt collector NPAS Solutions LLC of violating the Telephone Consumer Protection Act, brought her challenge to the Eleventh Circuit after U.S. District Judge Robin L. Rosenberg granted final approval to the settlement in May 2018.  Dickenson argued that the settlement amount should have been higher, that class counsel should not be permitted to recover 30% of the settlement fund and that class representative Charles Johnson shouldn't get a $6,000 incentive award.

The Eleventh Circuit panel held that the federal court had erred in awarding Johnson for his role in the litigation, in setting a deadline for class members to file objections that fell more than two weeks before class counsel had filed their fee petition and in offering only "rote, boilerplate pronouncements" in its order granting final approval to the proposed settlement and class counsel's fee request.

"The class-action settlement that underlies this appeal is just like so many others that have come before it.  And in a way, that's exactly the problem," U.S. Circuit Judge Kevin C. Newsom wrote for the panel in a partially divided published opinion.  "We find that, in approving the settlement here, the district court repeated several errors that, while clear to us, have become commonplace in everyday class-action practice."

The panel stressed that it didn't necessarily fault the federal court for its missteps, given that "it handled the class-action settlement here in pretty much exactly the same way that hundreds of courts before it have handled similar settlements."  "But familiarity breeds inattention, and it falls to us to correct the errors in the case before us," the panel held.

Michael L. Greenwald of Greenwald Davidson Radbil PLLC, who represents lead plaintiff Johnson, told Law360 that his side intends to seek en banc review from the full Eleventh Circuit, saying his client disagrees with the majority's opinion decision to strike down the incentive award.  "Incentive awards — when reasonable — are widely accepted as a means to recognize the effort it takes for consumers to bring class actions, the scrutiny and discovery to which they are subjected, and the ultimate benefits they obtain for others," Greenwald said.  "While class representatives necessarily put others before themselves when they bring a class action, this ruling, should it stand, could chill consumers' desire to bring meritorious cases against well-heeled corporations — cases that can take years to prosecute."

Debevoise & Plimpton LLP partner Maura Monaghan, counsel for NPAS Solutions, commented that the ruling demonstrates that courts are scrutinizing incentives that can lead to a proliferation of class actions.  "By eliminating the named plaintiff's incentive fee and questioning the attorney's fees, the Eleventh Circuit has made it significantly more challenging for plaintiffs' counsel to recruit plaintiffs to bring these actions," Monaghan added.

The contested deal stems from claims lodged by Johnson in 2017, when he filed a putative class action challenging NPAS Solutions' alleged practice of using an autodialer to call numbers that had originally belonged to consenting debtors but had since been reassigned to new owners who hadn't given the company permission to contact them.  Less than eight months after the suit was launched, the parties reached their $1.4 million settlement, which covered 9,543 class members who subsequently submitted claims for recovery.  No class member opted out, and Dickenson provided the only objection.

In a portion of its ruling that only two judges joined, the Eleventh Circuit agreed with Dickenson that the district court's approval of Johnson's $6,000 incentive award should be thrown out.  The majority held that such awards were prohibited by a pair of Supreme Court rulings from the 1880s, Trustees v. Greenough and Central Railroad & Banking Co. v. Pettus.

"Although it's true that such awards are commonplace in modern class-action litigation, that doesn't make them lawful, and it doesn't free us to ignore Supreme Court precedent forbidding them," Judge Newsom wrote.  "If the Supreme Court wants to overrule Greenough and Pettus, that's its prerogative.  Likewise, if either the Rules Committee or Congress doesn't like the result we've reached, they are free to amend Rule 23 or to provide for incentive awards by statute.  But as matters stand now, we find ourselves constrained to reverse the district court's approval of Johnson's $6,000 award."

The full panel also took issue with the timing of the deadline to file objections in the lower court, even though they concluded that the error was ultimately "harmless," as well as the district court's failure to include "findings or conclusions that might facilitate appellate review" in its final approval order.  As a result, the circuit judges remanded the case "so that the district court can adequately explain its fee award to class counsel, its denial of Dickenson's objections and its approval of the settlement."

In her partial dissent, U.S. Circuit Judge Beverly B. Martin wrote that she disagreed with her colleague's decision to take the incentive award away from Johnson.  "In reversing this incentive award, the majority takes a step that no other court has taken to do away with the incentive for people to bring class actions," Judge Martin wrote, arguing that the majority's decision "goes too far in deciding this issue" and goes against the circuit's binding precedent "that recognizes a monetary award to a named plaintiff is not categorically improper."

She noted that, in addition to spending time and money, class representatives must endure "all the slings and arrows that accompany present day litigation" in order for the class action system to operate.  The judge expressed concern that by prohibiting named plaintiffs from receiving "routine" incentive awards, "the majority opinion will have the practical effect of requiring named plaintiffs to incur costs well beyond any benefits they receive from their role in leading the class."  "As a result, I expect potential plaintiffs will be less willing to take on the role of class representative in the future," Judge Martin wrote.

Article: Seventh Circuit Ruling Should Deter Class Objector Side Deals

August 11, 2020

A recent Law 360 article by Michael McTigue, Meredith Slawe, and Max Kaplan of Cozen O’Connor, “7th Circ. Ruling Should Deter Class Objector Side Deals,” report on a recent Seventh Circuit ruling on class action fee objectors.  This article was posted with permission.  The article reads:

On Aug. 6, the U.S. Court of Appeals for the Seventh Circuit issued an opinion addressing exploitation of the class action settlement process by individual objectors.  The first sentence of U.S. Circuit Judge David F. Hamilton's opinion in Pearson v. Target Corp. frames the issue: "We address here a recurring problem in class-action litigation known colloquially as 'objector blackmail.'"

This practice, in which objectors threaten to delay and unravel negotiated class resolutions absent payments to them, has occurred with greater frequency over the past few years.  Concerns with coercive objector side deals even prompted a change to the Federal Rules of Civil Procedure in 2018.


The underlying action, which challenged supplement labeling practices, was litigated over several years.  In March 2013, the parties reached a class settlement, which was approved by the U.S. District Court for the Northern District of Illinois over concerns raised by "serial objector" and activist Theodore Frank, among others.

Frank appealed and the Seventh Circuit reversed the district court's final approval order, finding the settlement plagued by "fatal weaknesses," amounting to a "selfish deal" between class counsel and defendants that "disserve[d] the class."  Frank was subsequently awarded $180,000 in attorney fees.

The parties renegotiated the settlement in April 2015, and proposed the creation of a $7.5 million common fund accompanied by permanent injunctive relief.  The district court approved the revised settlement over the objections of three individuals.

These objectors submitted brief statements to the district court, "light on citations to law and fact."  One submission contained irrelevant assertions regarding the defendant's failure to acknowledge liability under the Telephone Consumer Protection Act, a statute not at issue in the litigation.

The objectors challenged the district court's final approval order, but abandoned their appeals prior to briefing and after negotiating side payments with the settling parties.  On May 19, 2017, Frank moved to reopen the case and disgorge the funds paid to those objectors because, "with no benefit to the absent class," the objectors "received unjust payments for appeals that plaintiffs called 'vexatious' and 'bad faith.'”

The district court denied Frank's motion for lack of jurisdiction.  He again appealed, and the Seventh Circuit again reversed, finding that the district court had jurisdiction over Frank's motion.

On remand, the parties disclosed that they had paid a total of $130,000 to the objectors in exchange for the dismissal of their appeals.  The district court rejected Frank's motion for disgorgement of those funds, concluding that the objectors' actions: (1) did not constitute criminal blackmail and (2) otherwise did not harm the class.  Frank appealed a third time, and the Seventh Circuit reversed once again.

Seventh Circuit Emphasizes the Fiduciary Role of Objectors

The Seventh Circuit ruled that equity required the disgorgement of all funds paid to these objectors.  The court characterized the objectors' conduct as "[f]alsely flying the class's colors," to extract substantial monetary benefits for themselves with no benefit to the class.  Specifically, the court held that "settling an objection that asserts the class's rights in return for a private payment to the objector is inequitable and that disgorgement is the most appropriate remedy."

In reaching this conclusion, the court primarily relied on a 1945 U.S. Supreme Court case — Young v. Higbee Co.  In Young, the Supreme Court held an accounting of profits was appropriate where a bankrupt entity purchased preferred stock from two of its shareholders at a premium in exchange for the shareholders abandoning their appeal from approval of the rehabilitation plan.

By appealing as they did, the Supreme Court reasoned, these shareholders purported to act on behalf of all preferred shareholders, to reshape the company's rehabilitation to better their common fate.  "This control of the common rights of all the preferred stockholders imposed on [appellants] a duty fairly to represent those common rights," and it was therefore a breach of this duty to "trade in the rights of others for their own aggrandizement."  Any profits individually gained thus belonged in equity to benefit all preferred shareholders.

The Seventh Circuit characterized the payments to the three objectors in Pearson as "not meaningfully different" from the transactions in Young.  These objectors, like those in Young, raised alleged settlement defects that purportedly injured all class members, and if corrected would benefit all class members; indeed, it was this protection of the common interest that enabled the objectors to bring their appeals under Federal Rule of Civil Procedure 23(e)(5).

Thus, the court reasoned, as an objector "temporarily takes 'control of the common rights of all' the class members" by appealing the overruling of an objection, the objector thereby assumes a "limited representative or fiduciary duty ... 'fairly to represent those common rights.'"  Here, however, while the objectors "were ... 'bound to protect' the common interests of the class," they "'sacrifice[d] those interests' to their own advantage by selling their appeals without benefit to the class."

The Seventh Circuit made clear that objectors may properly seek a personal benefit, whether in the form of attorney fees or incentive payments, so long as such benefits are earned in bettering the class as a whole.  The Pearson objectors, however, abandoned any attempt to better the class — which received nothing as a result of their efforts — for what was in effect a premium worth almost 100 times what other class members could receive.

As the objectors would have received such a benefit had they succeeded in their appeals, the court viewed the abandonment thereof as evidence the objectors either "sold off [a] genuine chance of improving the entire class's recovery" or otherwise asserted meritless objections to leverage the class interest.  In either case, the funds obtained should rest with the class and not with the individual objectors.

Given the posture of the settlement, the Seventh Circuit found the most appropriate manner to distribute the ill-gotten gains was to divert the funds to the organization designated by the parties as the cy pres recipient in the settlement agreement.

2018 Amendment to Rule 23(e)(5)

The Pearson objectors predate, and were not subject to, the 2018 amendment to Federal Rule of Civil Procedure 23(e)(5).  This amendment addressed the improper use of "objections to obtain benefits for [objectors] rather than assisting in the settlement-review."

To that end, Rule 23(e)(5) now requires objectors to "state with specificity the grounds for the objection" and prohibits an objector from "forgoing, dismissing, or abandoning an appeal" in exchange for "payment or other consideration" without court approval.  This change has already proved somewhat effective.

The Seventh Circuit noted that neither its decision nor the 2018 amendment should deter good faith objectors who are compensated for successfully improving the position of the class.


The Seventh Circuit's opinion sends a powerful message to objectors who seek to take advantage of the class action settlement process for personal gain, and should serve to deter such efforts.  In this case, the improper activities took the form of frivolous appeals that threatened to delay and disrupt the distribution of settlement benefits to class members and burden the court by multiplying proceedings.

This happens all too often at the expense of all parties, except for the objectors.  When a fair settlement is reached and approved, compelling interests support having the proceeds be distributed to the class, which also enables the parties to gain finality.

Further, courts should not be saddled with contrived appeals brought for the sole purpose of benefiting individuals who have no genuine interest in securing additional relief for or otherwise elevating the position of the class as a whole.

The court's opinion in Pearson, along with the 2018 amendment to Rule 23(e)(5), should be instructive for parties that are engaged in the settlement approval process.  The parties should consider objectors' motives and actions prior to negotiating separately with them.  Objectors should be mindful of their duties to class members.

Finally, courts should be vigilant in addressing illegitimate objector activity and may wish to consult the frank discussion of what it means for objectors to represent the interests of a class in this opinion.  Collectively, all parties can combat abuse in connection with class action settlements.

This ruling also highlights increasing awareness in the courts of exploitive conduct in the context of modern class action practice. Indeed, the cottage industry of presuit demand letters — often invisible to federal court judges — threatening class action litigation absent quick stealth payouts bears similarity to the so-called objector blackmail portrayed by the Seventh Circuit.

Additionally, mass litigation tactics by serial plaintiffs and their counsel have prompted some judges to engage in diligence and hold parties and their counsel accountable.  As putative class actions continue to flood the court dockets, judicial awareness of incidents of abuse and self-serving conduct become of heightened importance.

Michael W. McTigue Jr. is a partner and co-chair of the class actions practice at Cozen O'Connor.  Meredith C. Slawe is a partner and co-chair of the class actions practice at the firm.  Max E. Kaplan is an associate at the firm

The Nation’s Top Attorney Fee Experts of 2020

June 24, 2020

NALFA, a non-profit group, is building a worldwide network of attorney fee expertise. Our network includes members, faculty, and fellows with expertise on the reasonableness of attorney fees.  We help organize and recognize qualified attorney fee experts from across the U.S. and around the globe.  Our attorney fee experts also include court adjuncts such as bankruptcy fee examiners, special fee masters, and fee dispute neutrals.

Every year, we announce the nation's top attorney fee experts.  Attorney fee experts are retained by fee-seeking or fee-challenging parties in litigation to independently prove reasonable attorney fees and expenses in court or arbitration.  The following NALFA profile quotes are based on bio, CV, case summaries and case materials submitted to and verified by us.  Here are the nation's top attorney fee experts of 2020:

"The Nation's Top Attorney Fee Expert"
John D. O'Connor
O'Connor & Associates
San Francisco, CA
"Over 30 Years of Legal Fee Audit Expertise"
Andre E. Jardini
KPC Legal Audit Services, Inc.
Glendale, CA

"The Nation's Top Bankruptcy Fee Examiner"
Robert M. Fishman
Cozen O'Connor
Chicago, IL

"Widely Respected as an Attorney Fee Expert"
Elise S. Frejka
Frejka PLLC
New York, NY
"Experienced on Analyzing Fees, Billing Entries for Fee Awards"
Robert L. Kaufman
Woodruff Spradlin & Smart
Costa Mesa, CA

"Highly Skilled on a Range of Fee and Billing Issues"
Daniel M. White
White Amundson APC
San Diego, CA
"Extensive Expertise on Attorney Fee Matters in Common Fund Litigation"
Craig W. Smith
Robbins LLP
San Diego, CA
"Highly Experienced in Dealing with Fee Issues Arising in Complex Litigation"
Marc M. Seltzer
Susman Godfrey LLP
Los Angeles, CA

"Total Mastery in Resolving Complex Attorney Fee Disputes"
Peter K. Rosen
Los Angeles, CA
"Understands Fees, Funding, and Billing Issues in Cross Border Matters"
Glenn Newberry
Eversheds Sutherland
London, UK
"Solid Expertise with Fee and Billing Matters in Complex Litigation"
Bruce C. Fox
Obermayer Rebmann LLP
Pittsburgh, PA
"Excellent on Attorney Fee Issues in Florida"
Debra L. Feit
Stratford Law Group LLC
Fort Lauderdale, FL
"Nation's Top Scholar on Attorney Fees in Class Actions"
Brian T. Fitzpatrick
Vanderbilt Law School
Nashville, TN
"Great Leader in Analyzing Legal Bills for Insurers"
Richard Zujac
Liberty Mutual Insurance
Philadelphia, PA