A recent Inside Counsel story, “Pampers Settlement Thrown Out Over Excessive Attorney Fees,” reports that the Sixth Circuit Court of Appeals threw out a class action settlement plaintiffs reached with Proctor & Gamble Co. (P&G), saying the attorneys who brought the action were receiving too high a share.

In 2011, P&G agreed to a $3 million settlement after a few dozen plaintiffs had claimed that Pampers Dry Max diapers caused rashes on babies.  The attorneys that brought the suit were to receive $2.73 in attorney fees and each class member would receive $1,000.  The settlement was approved by US District Judge Timothy S. Black in Cincinnati.

“The settlement in this case is not fair,” Judge Raymond Kethledge wrote for the appeals court.  “And the district court abused its discretion in finding the contrary.  “The signs are not particularly subtle here,” Kethledge wrote in the 2-1 majority opinion.  “The settlement agreement awards a fee of $2.73 million—this, in a case where the lawyers did not take a single deposition, serve a single request for written discovery, or even file a response to P&G’s motion to dismiss.”

In a dissenting opinion, Judge R. Guy Cole Jr. of the appeals court wrote that he considered the settlement fair – and that the district court judge hadn’t abused his discretion.  Cole also cast doubt on the claims against P&G.  “Although the relief offered to the unnamed class members may not be worth much, their claims appear to be worth even less,” Cole wrote.  “Nobody disputes that the class’s claims in this case had little to no merit.  In the absence of this settlement, class members would have almost certainly gotten nothing.”

The Pampers "Dry Max" Class Action is Daniel Greenberg v. Procter & Gamble Company et al, Case No. 11-4156 in the U.S. Court of Appeals for the Sixth Circuit.