PUBLIC HEARING ON

PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF CIVIL PROCEDURE

JUDICIAL CONFERENCE

ADVISORY COMMITTEE ON CIVIL RULES

Telephonic Hearing

February 16, 2017
List of Confirmed Witnesses for the

Public Hearing on Proposed Amendments to the

Federal Rules of Civil Procedure

Judicial Conference 

Advisory Committee on Civil Rules

Telephonic Hearing

February 16, 2017 – 1:00 P.M.

Witness Name Organization Testimony/Comments Received

1. Michael R. Pennington Bradley Arant Boult 

Cummings LLP 

Tab 1

Testimony dated 2/7/2017

2. Ariana J. Tadler Milberg, LLP Tab 2 

Outline of Testimony dated 2/16/2017

3. Timothy A. Pratt Boston Scientific Corporation No testimony or comment received

4. Steven Weisbrot Angeion Group Tab 3

Comment dated 2/6/2017

5. Eric Isaacson Law Office of Eric Alan 

Isaacson

Tab 4

Testimony dated 2/16/2017

6. Gerald L. Maatman, Jr. Seyfarth Shaw LLP Tab 5

Comment dated 2/15/2017

7. Professor Judith Resnik Yale Law School Tab 6

Comment dated 2/6/2017

8. Peter Martin State Farm Mutual Insurance 

Co.

No testimony or comment received

9. Theodore H. Frank Competitive Enterprise 

Institute

Tab 7

Outline of Testimony dated 2/6/2017 

Comment dated 2/15/2017

10. Richard Simmons Analytics LLC Tab 8

Comment dated 2/15/2017

11. Patrick J. Paul Snell & Wilmer LLP No testimony or comment received
TAB 1

TESTIMONY OF 

MICHAEL R. PENNINGTON OF

BRADLEY ARANT BOULT CUMMINGS LLP,

ON BEHALF OF DRI




TAB 2

OUTLINE OF TESTIMONY

ARIANA TADLER OF MILBERG LLP

TAB 3

COMMENT OF

STEVEN WEISBROT OF ANGEION GROUP
February 6, 2017

VIA E-Mail

Committee on Rules of Practice and Procedure

Thurgood Marshall Building

Administrative Office of the U.S. Courts

One Columbus Circle NE

Washington, DC 20544

rules_support@ao.uscourts.gov

Re: Comments on Proposed Notice Changes to Rule 23 

I am a Partner and Executive Vice President of Notice & Strategy at Angeion Group, a 

national class action notice and claims administration company. My notice work comprises a wide 

range of class action settlements, including settlements surrounding product defects, false 

advertising, fair labor standards, antitrust violations, tobacco, banking, insurance, and other 

statutory matters. 1 For several years, I have been instrumental in infusing digital and social 

media, as well as big data and advanced behavioral targeting, into class action notice programs. 

I have collectively reached hundreds of millions of people via a variety of media, including direct 

mail, e-mail, social media, and digital banner advertisements2. Notably, I am the only notice 

expert in the country who has fulfilled the professional certification program offered by the 

Interactive Advertising Bureau (IAB) in Digital Media Sales. The IAB certification program is 

accredited by the American National Standard Institute (ANSI) and is the only globally recognized, 

accredited, professional certification program created specifically for digital media sales 

professionals. 

I write in support of the proposed amendment to the notice portion of Rule 23, expanding 

individual notice to include “electronic means, or other appropriate means.” The new proposed 

rule is rooted in commonsense and progressive logic that mirrors the current media landscape, 

yet remains flexible enough to accommodate the changes in technology and media that currently 

shape, and will inevitably continue to inform, advertising performance for years into the future.

Historically, notification relative to class action lawsuits has employed traditional 

advertising and marketing models to reach class members. It is through this lens, in conjunction 

with relevant Supreme Court precedent, that the proposed rule should be evaluated. Just as 

each brand advertiser utilizes different advertising strategies to reach their desired customers, 

each settlement has its own unique media fingerprint that should guide the preferred 

dissemination of notice, including individual notice. This is particularly true given the breakneck 

 1 A list of Angeion Group’s representative cases can be viewed at http://www.angeiongroup.com/cases.htm

2 Attached as Exhibit “A” is a list of selected judicial recognition of my notice work.
speed with which advertising is changing vis a vis targeted e-mails, digital advertisements, social 

media and cross device tracking capabilities. Class notice cannot be an afterthought; nor can it 

have a "one size fits all" solution that ignores modern communication realities. Class notices 

should be tailored to the needs and interests of each particular case, and overseen by a judge 

with an understanding of the wealth of options that are available in that case. 

As advertising evolves, and the role of U.S. mail and e-mail changes, it is essential to 

maintain the level of flexibility that the new rule thoughtfully provides. It is however critical to 

note that the proposed amendment will be counterproductive without performance of a more 

rigorous judicial analysis of any proposed notice plan during the preliminary approval process. 

This new analysis should not be a one-dimensional, inquiry relying solely on a proposed media 

plan’s reach percentage3, nor should it rely solely on U.S. mail “because that is the way it has 

always been done”. Rather, each plan must be subject to a careful and holistic judicial review 

based upon the distinctive facts of the settlement under review, the currently available class 

member data, and other factors, including but not limited to, the type and amount of relief to 

which class members are entitled, the class members’ relationship to the defendant, as well as 

the scope of the underlying release. 

Recently, I met with representatives of the Federal Judicial Center, along with three 

prominent practicing class action attorneys (both plaintiff and defense) and an esteemed former 

Federal Judge. We offered our collective pro bono assistance regarding how to best inform the 

judiciary about the various tools that are available to disseminate notice (tools that include, 

among other things, both electronic means and U.S. Mail), and how notice programs need to be 

tailored on a case-by-case basis, using those tools, to achieve maximum effectiveness. We 

suggested a comprehensive approach to fashioning a robust class notice program at the 

preliminary approval stage of litigation – using guidelines and best practices that will likely 

increase efficiency and reduce grounds for objections, thereby improving the process for all 

stakeholders. 

I am confident that the proposed amendment, when combined with rigorous judicial 

analysis, will safeguard class members’ right to receive the best notice practicable. The new 

proposed rule will further aid in dismantling the cookie-cutter, reflexive approach to class action 

notification that has remain unchanged for decades.

The paradigm of class member notification is not easily expressed in rules of thumb; it 

contains myriad considerations and is reliant on informed research and sound methodology; 

however, the one constant, is that there is not just one objectively correct way to reach class 

members in all cases – just like there is no single “correct” way for advertisers to advertise for 

their brand. Notification should be approached as an art, rather than an exact science. Flexibility, 

 3 For an in-depth analysis of the practical realities of reach percentage analysis, please see my article “Is Digital the New Print in 

Class Action Notification Programs?” available at 

http://apps.americanbar.org/litigation/committees/classactions/articles/winter2015-0215-is-digital-the-new-print-in-class-actionnotification-programs.html
creativity, and critical thought are necessary to craft the proper notice program for the requisite 

class. 

U.S. mail is not always the gold standard as it relates to individual notice, nor is a digital 

campaign always a more cost-effective option to reach class members. Rather, the reality is that 

each class action settlement is unique, and possesses its own set of distinctive facts that should

affect what method of notice is most appropriate in each case. Failure to critically examine these 

factors, in favor of a one-dimensional rules-based system, will not ensure that class members 

receive the best notice practicable in this new media environment — in fact, it may have the 

opposite effect. While it is certainly true that means of communication will continue to change, 

and that one cannot today forecast the future, that is not a reason to continue with a notice 

standard that may be antiquated and thus, at times, only lends an ineffectual nod to due process.

Likewise, the committee need not be concerned that mass media communications will 

supplant individual notice, as the district court’s gatekeeper function will always be governed by 

Supreme Court precedents, including Mullane v. Central Hanover Trust & Bank Co.,

4 which 

astutely warned against notice as a “mere gesture.” To the contrary, judges will be armed with 

detailed expert reports, decades of supreme court precedent, and new educational opportunities

that will allow them to critically analyze modern, effective, and appropriate notice programs. The 

fact that there is novel, albeit ever-evolving, information available and a new media paradigm in 

place, is not a reason to delay modernizing class action notice. To the contrary, it is evidence 

that class action notification has remained inert for far too long and that the time is ripe to 

collectively reexamine how to effectuate the best notice practicable, considering all the tools 

currently available, with flexibility to accommodate inevitable future advancements in 

advertising technology.

The Current Media Landscape

We now live in a world where 24% of people in developed markets reach for their 

smartphone immediately after waking up; 49% within 5 minutes; 70% within 15 minutes, and 

93% within an hour.5 Additionally, 59% of US internet users profess that they are addicted to 

their digital devices.6 U.S. Consumers spend over 11 hours a week on average on their smart 

phone apps, and almost 7 hours each week on the internet via their computer7 Mobile advertising 

now influences 45% of all US shopping journeys and half of connected devices in U.S. homes are 

mobile devices.8 Notably, it is not just the Millennial generation at issue here. Adults aged 35 to 

 

4Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306 (1950)

5 Deloitte, “Global Mobile Consumer Trends: 1st Edition,” May 17, 2016.

6 CivicScience as cited in company blog, July 12 2016. 7 Nielsen, “The total Audience Report: Q! 2016” June 27, 2016.

8 comScore Inc., “Home Sweet Digital Home,” July 8, 2016.
49 were found to spend an average of 6 hours and 58 minutes a week on social media networks.

9

The average U.S. mother who is on Facebook checks the site 10.1 times a day10. Consumer 

Packaged Goods Manufacturers spent about $6 Billion in digital advertising in 2016 (U.S. Financial

Services Service Companies spent 8.37 Billion and Media and Entertainment brands spent 7.34 

Billion).11

The E-mail vs. Mail Debate

Critics of the proposed amendment argue that U.S. postal mail is the most reliable and 

effective methodology to effectuate individual notice — and, in some cases, they are correct. 

This is neither an absolute rule, nor is it a valid reason to enshrine postal mail as the legislativelyfavored method of class action notification. That being said, e-mail is not ideal in all notice 

situations and is subject to deliverability and open rate issues in certain circumstances.12 Yet, as

Mullane made clear in 1950, the policy behind why mail was considered “reasonably 

calculated”— at that time – was that the Court felt, “...the mails today are recognized as an 

efficient and inexpensive means of communication.” The same can obviously be said of e-mail 

communications today. Moreover, when endorsing individual notice over publication notice, the 

Court found in Mullane that “The trustee periodically remits their income to them, and we think 

that they might reasonably expect that, with or apart from their remittance is, word might come 

to them personally that steps were being taken affecting their interests.” In other words, the 

court endorsed using the means of communication then applicable between the parties.

As previously noted, consistent with Mullane, a flexible, dynamic approach to notice as 

promulgated in the proposed rule, will give judges the necessary discretion to make that 

determination on a case by case basis, including consideration of the parties’ business relations,

and with deference to what “inexpensive means of communication” currently exist. 

For example, in today’s media environment, cases involving defendants who routinely 

communicate with class members via e-mail, are particularly well suited for notice via e-mail. 

Consider cases where class members have signed up to use a software service, or downloaded 

an app, regularly receive e-mail billing statementsfrom a defendant, or purchased a product from 

an online retailer. Class members in those scenarios have come to rely on, and indeed expect, email communications from those defendants. Given their business relationship, class members 

are therefore more likely to receive and open those e-mails. Alternatively, cases involving 

financial transactions or insurance claims, may be better suited for direct mail than say, a food 

mislabeling case, because class members routinely receive U.S. mail relating to complex financial 

transactions from their bank, broker or insurance agent, and indeed, some may be wary of 

 9 The New York Times “Generation X More Addicted to Social Media Than Millennials, Report Finds”, Jan 27, 

2017.

10 Edison Research, “Moms and Media 2016” sponsored by Triton Digital, May 5 2016.

11 eMarket, March 2016

12 These issues can be minimized with proper planning, including utilizing professional, white-listed servers and 

proper e-mail design. 
communicating sensitive personal or financial information online. These are the precise types of 

issues that the judiciary is well suited to evaluate when determining whether a notice plan should 

be approved by the court.

It is important to remember that while U.S. mail has been a standard-bearer for years in 

class action notice, U.S. mail is becoming less customary in our society. The Postal Service’s own 

data confirms that both consumers and advertisers are consistently moving away from the use 

of U.S. postal mail. Specifically, there has been a steady decrease in total mail volume, from 2006-

2015; total mail volume was reported as 213.1B in 2006 and 154.2B in 2015. Likewise, during that 

time, First-Class volume dropped from 97.7B to 62.4B. Similarly, Standard Mail (advertising mail) 

dropped from 102.5B to 80B. One of the only categories to show an increase during the same 

period was online revenue, which increased from $454M to $1.05B.13 

Conversely, the use of e-mail over the same period has risen to the level of ubiquity, 

especially in relation to advertising. To illustrate this point, consider a recent worldwide 

marketing study that asked professional marketers what software and services they 

implemented in marketing campaigns — unsurprisingly, e-mail marketing was the single most 

common answer, being utilized by 88% of respondents.14 In another 2016 marketing study, 

respondents were asked to identify tactics that drove Customer Acquisition and Customer 

Retention in the retail space. Significantly, e-mail marketing led the responses in both categories 

with 81% and 80% respectively.15 

By way of example, on a recent national Telephone Consumer Protection Act (TCPA) 

settlement that Angeion Group is administering, with a potential damages award of 

approximately $15.00-$30.00, we are seeing a significantly higher claim filing rate amongst those 

who were noticed by e-mail (almost exactly double the claims rate than those who received 

traditional mail notice). I attribute this result to the relatively low value of the award. Whereas,

to claim this amount of money, class members are inclined to click through a relatively simple 

process from the e-mail notification to the claims filing webpage to finalize their claim (this can 

be effectuated via their mobile phone or computer in a matter of minutes.) Yet, many class 

members seem reluctant to take the extra steps required of them, when they are notified by 

postal mail, to make a claim to secure the same amount of damages. However, this result is 

certainly not universal; we often see increased amounts of paper claims filed when damages

amounts are high, or when large amounts of supporting documentation are required to submit

a claim.

Accordingly, I submit that it should be left to the Judge’s sound discretion, based on 

 

13 United States Postal Service — A Decade of Facts and Figures. Available at https://about.usps.com/who-weare/postal-facts/decade-of-facts-and-figures.htm 

14 Dotmailer, “The 2016 Marketing Technology Adoption Survey Report” May 24, 2016.

15 WBR Digital and emarsys “Adapting to the pace of omnichannel commerce,” June 7, 2016.
detailed reports from experienced notice experts, on how to effectuate the best notice 

practicable in each case, taking into consideration the following: 1 ) how the defendant typically 

communicates with the class members (e-mail, postal mail, fax, SMS, etc.); 2) class member 

demographics (such as class members’ likely gender, age, and education); 3) class member 

psychographics (consumers’ attitudes about social issues, known brand usage, personal

interests, and shopping habits); 4) the amount of the overall settlement in relation to the cost of 

the notice; and, 5) the age and media habits of the class member (the degree to which an 

audience uses a particular medium relative to the general population). In this realm, common 

questions that judges should be inclined to ask include some variation of the following: 1) Is this 

a class of young people who are likely to spend a lot of time on the Internet? 2) How does the 

defendant typically communicate with class members? 3) What type of information must be 

submitted to file a valid claim? 4) How much is a typical damages award? 5) Lastly, is the class 

member being asked to relinquish substantive rights? Such information is routinely available

through the parties’ own records, on the face of the settlement agreement, as well as through

syndicated data sources. All available information should be brought to the judge’s attention as 

part of the preliminary approval process to safeguard absent class member rights and craft the 

most appropriate notice.

However, to be clear, this is not an either/or proposition. Notice programs often use 

multiple, integrated, methods of direct notice, and these are frequently supplemented with 

publication notice, digital notice, and, in some cases, social media notice. Each case is unique, 

and the data available to the parties to effectuate notice varies widely relative to different 

settlements. 

In cases involving millions of class members, where both e-mail addresses and U.S. postal 

addresses are available, notice is often effectuated by a combination of e-mail and direct notice 

- and, in some cases, multiple times via each medium. Since the parties can monitor how many 

individual e-mail notices are ultimately delivered, they can sometimes reduce costs (which may 

be necessary in certain settlements) by only mailing to those class members to whom the e-mail 

transmission failed. To present the class notice options as an "either/or" situation does not 

account for the many well-planned integrated notice campaigns that are commonplace under 

today's notice rubric. Nor does it account for the fact that the number of available e-mail and 

mailing addresses in a settlement can vary wildly, even within a discrete class.

E-mail Notice is Not Just Sending an E-mail

As previously noted, notice is not a zero-sum game where you either e-mail or mail a class 

member a notice. Notice providers can initially mail a notice form to a class member and 

subsequently use e-mail as a point of constant contact providing reminders of impending 

deadlines, updates on the underlying litigation, and generally keeping class members informed 

for a fraction of the cost of a postage stamp. 

While the traditional benefits of e-mail are well known (cost, speed, personalization, 

frequency), some of the lesser known, strategic advantages of e-mail may not be as obvious, yet 
they have substantial implications under the proposed amended rule. There is a virtual treasure 

trove of data tied to an individual’s e-mail address as the individual travels across the web, 

reading webpages, searching the likes of Google, shopping online, researching products, 

watching videos, listening to podcasts, sharing on social media and “liking” on Facebook. This 

data can be mined and utilized to target custom audiences on varying media platforms, such as 

through Facebook or through programmatic digital banner ads. 

By way of example, in a recent Fair Credit Report Act (FCRA) settlement, we were 

provided a list of class member information, including e-mail address. The notification process 

in that case includes e-mailing to all available e-mail addresses, and creating a “custom audience” 

to serve Facebook advertisements. The custom Facebook audience is effectuated by manually 

uploading the list of class member e-mails to Facebook. Facebook then processes the e-mail list 

and can identify which e-mail addresses are linked to Facebook profiles. We can then serve a 

stream of advertisements reminding those class members, about the settlement. These 

advertisements can be monitored in real time for effectiveness. 

Furthermore, we can also tweak the message, the aesthetic, or any other variable to 

improve the ads, keep serving ads that are performing well, and remove underperforming ads, if 

the data shows they are not resonating with class members. We can also use that initial e-mail 

list to find those class members where they shop online, via twitter and across millions of web 

properties, and serve those class member ads on their computers and smart phones as they move 

along with their day. Keep in mind, we are not serving ads to individuals based on a demographic 

profile as a notice provider would do as part of a publication campaign, we are serving ads to

actual known class members. Therefore, we are increasing the frequency of known class 

members’ exposure to a message, thereby augmenting their likelihood to act, and all for less than 

a single U.S. mailing would cost. These are the exact type of technological advancements that 

will help propel notice into the 21st century, instead of relying exclusively on a single mailing to 

the last known address of a class member. 

Professional notice planners also can deduce (and update) e-mail addresses from known 

data points such as phone numbers and physical addresses by utilizing reputable data 

aggregation companies. This is valuable, for instance, in a TCPA case where the only records a 

defendant possesses are a spreadsheet of phone numbers that were, for example, automatically 

dialed in contravention of the statute. Instead of having to rely on a broad publication campaign 

to notify these class members, we can generate a list of affected e-mails and direct individual

notice to the class members at issue via e-mail, and reach those people on Facebook, Twitter,

and across thousands of popular websites. And, that is just the beginning.

Programmatic Digital Advertising

In my article, “Is Digital the New Print in Class Action Notification Programs? “I note that 

John Wanamaker, the namesake of the famous Philadelphia department store, is credited with 

uttering the famous ad-world aphorism: “Half the money I spend on advertising is wasted. The 

trouble is, I don’t know which half.” Given the advent of programmatic placement of digital 
banner ads, Wanamaker’s conundrum has effectively been solved, and notice providers have the 

tools at their disposal to determine what ultimately works and what doesn’t. This eliminates 

waste and improves efficacy.

The intricacies of behavioral advertising and programmatic internet purchasing are 

complex and likely beyond the scope of this comment. However, the committee would benefit 

from a brief account of some of the most common forms or targeting being used today to identify 

class members in class action settlements.

Keep in mind, currently, these targeting methodologies are overwhelmingly being 

implemented as part of publication notice geared towards unknown class members, not in lieu 

of direct notice to identifiable class members. To be clear, I do not suggest that they are 

necessarily an appropriate substitute for direct notice, today. However, as technology continues 

to develop, cross device marketing expands the identifiable device grid, and other data mining 

and probabilistic marketing models mature, it is likely that we will soon be able to reliably identify 

specific individuals via these methods, and provide them with direct notice. The language of the 

proposed rule would allow notice providers the flexibility to do so, when the technology has 

properly developed to the point where we can reliably reach identifiable class members as part 

of an individual notice campaign.

What follows is an extremely general primer as to some of the most important targeting 

methods being utilized today.

Behavioral targeting. Behavioral targeting looks at a user’s online behavior and 

creates an anonymous online profile for that user. These anonymous profiles (no 

names, addresses, e-mail addresses, or telephone numbers are stored) allow 

digital planners to deduce age, gender, and possible purchase interests, and to 

link that information to an Internet provider address. The information is 

aggregated and stored so that digital planners can access the data to target 

specific demographic profiles. So, if someone’s online behavior indicated that that 

person was viewing an abundance of new parent websites, purchased a bassinet, 

reviewed women’s maternity fashion online, and had purchased nail polish, it 

would be reasonable to assume the user is female and either a new parent or an 

expecting parent. That user’s Internet provider address would be stored per the 

user’s demographic profile and could be targeted in the future with banner ads 

should a class action involving baby products, for instance, require publication 

notice. This is similar to using targeted magazine advertisements but with the 

bonus of being able to tell if the notice was viewed. Currently there is an increasing 

amount of shopper data available to digital planners, so we are nearing the point 

where we can accurately target specific individual purchasers of class products.

Contextual Targeting. This breed of targeting ensures that content of a digital 

banner ad directly correlates to the content of the web page the user is viewing. 

This means that a user on a sports-related website could be served ads by, for 
example, a sports ticketing service, like Stub Hub. It has been reported that ads 

running on sites with related content were 61 percent more likely to be recalled 

than ads running on sites with unrelated content.

Geo-targeting. Much like it sounds, geo-targeting is a method of determining the 

geolocation of an Internet user and serving up ads relative to that user’s location. 

Like the information gathered via behavioral targeting, this information is also 

anonymous and linked to an Internet provider address. Consider the sports tickets 

example above---if geo-targeting was concurrently being employed, that ad would 

have offered up tickets for the specific team playing in the city where the user was 

located. So, for example, if a user was surfing the internet from his apartment in 

the Bronx, he would see an advertisement for available Yankees tickets. This 

technology is particularly useful in state-specific class actions or cases with statespecific subclasses.

Cross Device Tracking. Notice providers now have an increasing ability to connect 

a consumer’s activity across her smartphones, tablets, desktop computers, and 

other connected devices, which is particularly useful to advertisers and notice 

professionals. An archetypal example of this functionality is when a consumer 

purchases a pair of shoes on their work computer, and an advertiser shows an ad 

for a matching belt on her smartphone. Likewise, a consumer may purchase a 

ticket to Hawaii on her home computer and later see an ad for a Honolulu resorts 

on her tablet. Another example of cross device tracking, is when upon logging into 

one’s bank account on a public computer, the customer is required to receive an 

authentication code on another device (usually a smart phone) before being 

allowed to log in because that public computer is not recognized as being part of 

her unique device grid. One of the major implications this raises for class action 

notice, is that we can now track when a class member reaches a case website, and 

even track what pages they reviewed. If it is determined that they did not file a 

claim, we can cause ads to be served across all their different devices reminding 

them of the pendency of the settlement.
Conclusion

The proposed amendment will allow class action practitioners to effectively reach 

individual class members in the most targeted, rational and effective method possible. The rule 

provides the much-needed flexibility to account for the amorphous nature of technology and the 

speed with which it changes. The role of the judiciary will safeguard class member rights and 

ensure, through rigorous inquiry, that individual notice remains within the sound mandates of 

Mullane and its progeny.

In sum, I am confident that the proposed amendment, when combined with rigorous 

judicial analysis, will not only safeguard class members’ right to receive the best notice 

practicable, it will also increase efficacy and efficiency, to the collective benefit of all 

stakeholders.

Respectfully Submitted,

/s/Steven Weisbrot, Esq.

Angeion Group

11555 Heron Bay Boulevard, Suite 200

Coral Springs, Florida 33076

Steve@angeiongroup.com
Exhibit A
Selected Judicial Recognition

IN RE LG FRONT LOADING WASHING MACHINE CLASS ACTION LITIGATION- Civil Action 

No. 08-Sl(MCA)(LDW)

Honorable Madeline Cox Arleo (June 17, 2016) This Court further approves the proposed methods for 

giving notice of the Settlement to the Members of the Settlement Class, as reflected in the Settlement 

Agreement and the joint motion for preliminary approval. The Court has reviewed the notices attached as 

exhibits to the Settlement, the plan for distributing the Summary Notices to the Settlement Class, and the 

plan for the Publication Notice's publication in print periodicals and on the internet, and finds that the 

Members of the Settlement Class will receive the best notice practicable under the circumstances. The 

Court specifically approves the Parties' proposal to use reasonable diligence to identify potential class 

members and an associated mailing and/or email address in the Company's records, and their proposal 

to direct the ICA to use this information to send absent class members notice both via first class mail and 

email. The Court further approves the plan for the Publication Notice's publication in two national print 

magazines and on the internet. 

FENLEY V. APPLIED CONSULTANTS, INC.—CIVIL ACTION NO. 15-259

Honorable Mark R. Hornak (June 16, 2016) The Court would note that it approved notice provisions of 

the settlement agreement in the proceedings today. That was all handled by the settlement and 

administrator Angeion. The notices were sent. The class list utilized the Postal Service's national change 

of address database along with using certain proprietary and other public resources to verify addresses. 

the requirements of Fed.R.Civ.P. 23(c)(2), Fed.R.Civ.P. 23(e)(l ), and Due Process....

The Court finds and concludes that the mechanisms and methods of notice to the class as identified were 

reasonably calculated to provide all notice required by the due process clause, the applicable rules and 

statutory provisions, and that the results of the efforts of Angeion were highly successful and fulfilled all 

of those requirements.

FUENTES, et al. v. UNIRUSH, LLC d/b/a UNIRUSH FINANCIAL SERVICES et al. 15-CV-8372 

(JPO)

Honorable J. Paul Oetken (May 16, 2016) The Court approves, as to form, content, and distribution, the 

Claim Form attached to the Settlement Agreement as Exhibit A, the Notice Plan, and all forms of Notice 

to the Settlement Class as set forth in the Settlement Agreement and Exhibits B-D, thereto, and finds that 

such Notice is the best notice practicable under the circumstances, and that the Notice complies fully with 

the requirements of the Federal Rules of Civil Procedure. The Court also finds that the Notice constitutes 

valid, due and sufficient notice to all persons entitled thereto, and meets the requirements of Due Process. 

The Court further finds that the Notice is reasonably calculated to, under all circumstances, reasonably 

apprise members of the Settlement Class of the pendency of the Actions, the terms of the Settlement 

Agreement, and the right to object to the settlement and to exclude themselves from the Settlement Class. 

The Parties, by agreement, may revise the Notices and Claim Form in ways that are not material, or in 

ways that are appropriate to update those documents for purposes of accuracy or formatting for 

publication.

IN RE: WHIRLPOOL CORP. FRONTLOADING WASHER PRODUCTS LIABILITY LITIGATIONMDL NO. 2001

Honorable Christopher A. Boyko (May 12, 2016) The Court, having reviewed the proposed Summary 

Notices, the proposed FAQ, the proposed Publication Notice, the proposed Claim Form, and the 

proposed plan for distributing and disseminating each of them, finds and concludes that the proposed 

plan for distributing and disseminating each of them will provide the best notice practicable under the 

circumstances and satisfies all requirements of federal and state laws and due process.
SATERIALE, ET AL. V R.J. REYNOLDS TOBACCO CO., CASE NO. CV 09 08394 CAS

Honorable Christina A. Snyder (May 3, 2016) The Court finds that the Notice provided to the Settlement 

Class pursuant to the Settlement Agreement and the Preliminary Approval Order has been successful, 

was the best notice practicable under the circumstances and (1) constituted notice that was reasonably 

calculated, under the circumstances, to apprise members of the Settlement Class of the pendency of the 

Action, their right to object to the Settlement, and their right to appear at the Final Approval Hearing; (2) 

was reasonable and constituted due, adequate, and sufficient notice to all persons entitled to receive 

notice; and (3) met all applicable requirements of the Federal Rules of Civil Procedure, Due Process, 

and the rules of the Court.

FERRERA ET AL. V. SNYDER’S-LANCE, INC., CASE NO. 0:13-CV-62496.

Honorable Joan A. Lenard (February 12, 2016) The Court approves, as to form and content, the LongForm Notice and Short- Form Publication Notice attached to the Memorandum in Support of Motion for 

Preliminary Approval of Class Action Settlement as Exhibits 1 and 2 to the Stipulation of Settlement. The 

Court also approves the procedure for disseminating notice of the proposed settlement to the Settlement 

Class and the Claim Form, as set forth in the Notice and Media Plan attached to the Memorandum in 

Support of Motion for Preliminary Approval of Class Action Settlement as Exhibits G. The Court finds 

that the notice to be given constitutes the best notice practicable under the circumstances, and constitutes 

valid, due, and sufficient notice to the Settlement Class in full compliance with the requirements of 

applicable law, including the Due Process Clause of the United States Constitution.

IN RE: POOL PRODUCTS DISTRIBUTION MARKET ANTITRUST LITIGATION MDL NO. 2328

Honorable Sarah S. Vance (December 31, 2014): To make up for the lack of individual notice to the 

remainder of the class, the parties propose a print and web-based plan for publicizing notice. The Court

welcomes the inclusion of web-based forms of communication in the plan....The Court finds that the 

proposed method of notice satisfies the requirements of Rule 23(c)(2)(B) and due process.

The direct emailing of notice to those potential class members for whom Hayward and Zodiac have a 

valid email address, along with publication of notice in print and on the web, is reasonably calculated to 

apprise class members of the settlement.

Moreover, the plan to combine notice for the Zodiac and Hayward settlements should streamline the 

process and avoid confusion that might otherwise be caused by a proliferation of notices for different 

settlements. Therefore, the Court approves the proposed notice forms and the plan of notice.

SOTO, ET. AL. V THE GALLUP ORGANIZATION, INC. CASE NUMBER 0:13-61747-CIVMGC/EGT

Honorable Marcia G. Cooke (June 16, 2015): The Court approves the form and substance of the notice of 

class action settlement described in ¶ 8 of the Agreement and attached to the Agreement as Exhibits A, C 

and D. The proposed form and method for notifying the Settlement Class Members of the settlement and 

its terms and conditions meet the requirements of Fed. R. Civ. P. 23(c)(2)(B)and due process, constitute 

the best notice practicable under the circumstances, and shall constitute due and sufficient notice to all 

persons and entities entitled to the notice. The Court finds that the proposed notice is clearly designed to 

advise the Settlement Class Members of their rights.

OTT V MORTGAGE INVESTORS CORPORATION OF OHIO, INC., NO. 3:14-CV-00645-ST

Honorable Janice M. Stewart (July 20, 2015) The Notice Plan, in form, method, and content, fully 

complies with the requirements of Rule 23 and due process, constitutes the best notice practicable under 

the circumstances, and is due and sufficient notice to all persons entitled thereto. The Court finds that the 

Notice Plan is reasonably calculated to, under all circumstances, reasonably apprise the persons in the 

Settlement Class of the pendency of this action, the terms of the Settlement Agreement, and the right to 
object to the Settlement and to exclude themselves from the Settlement Class.
TAB 4

COMMENT OF 

ERIC ISAACSON OF

LAW OFFICE OF ERIC ALAN ISAACSON
1

Written Testimony of Eric Alan Isaacson*

Concerning Proposed Revisions to Federal Rule of Civil 

Procedure 23(e)(5): 

“A Real-World Perspective on Resolving Objections to ClassAction Settlements and Attorneys’ Fee Awards”

Presented to the Advisory Committee on Civil Rules

February 16, 2017**

I. Introduction

The Advisory Committee is proposing certain amendments to Rule 

23(e)(5) to deal with problems believed to surround objections to 

proposed class-action settlements and their withdrawal by objectors in 

exchange for payments from class counsel.1 I seek to address the

proposed amendments in light of my practical knowledge from decades 

of legal practice as a member of the plaintiffs’ class-action bar.2 

 

* Member of the California bar; J.D., 1985, Duke University School of Law. 

** This written testimony was submitted on February 15, 2017, in advance of the 

Advisory Committee’s February 16, 2017, hearing at which Mr. Isaacson is 

scheduled to testify.

1 See Memorandum re Report of the Advisory Committee on Civil Rules from John D. 

Bates, Chair of the Advisory Committee on Civil Rules, to Hon. Jeffrey S. Sutton, 

Chair of the Committee on Rules of Practice and Procedure (May 12, 2016, revised 

July 1, 2016), and Proposed Amendments to the Federal Rules of Civil Procedure, in 

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF 

THE UNITED STATES, PRELIMINARY DRAFT OF PROPOSED AMENDMENTS TO THE 

FEDERAL RULES OF APPELLATE, BANKRUPTCY, CIVIL, AND CRIMINAL PROCEDURE at 

193-232 (August 2016) (hereafter cited as “PRELIMINARY DRAFT”). The proposed 

revisions to Rule 23(e)(5) appear at pages 215-17 of the PRELIMINARY DRAFT, and 

the corresponding Advisory Committee Notes at pages 228-31. 

2 See infra at 4-14 (describing my background in the plaintiffs’ class-action bar). 
2

It appears to me that the Advisory Committee may be operating 

under the impression that patently meritless objections to proposed 

class-action settlements often are filed solely for the purpose of noticing 

frivolous appeals from orders overruling those objections, and with the 

intention of “extorting” payments from plaintiffs’ class-action counsel in 

return for voluntarily dismissing the appeals.3 I do not believe this is a 

serious real-world problem. In my 26 years of practice in the plaintiffs’ 

class-action bar not a single case came to my attention in which class 

counsel paid objectors to withdraw frivolous objections or appeals. 

When class counsel pay objectors to drop an appeal it is not because 

they believe the appeal is frivolous, but because class counsel fear the 

objection and appeal may in fact have substantial merit.4 

The current requirement that district courts approve the 

withdrawal of an objection to a proposed settlement is extraordinarily 

ineffective, mainly because it provides no standard for district courts to 

apply.5 But neither do the proposed amendments currently under 

consideration.6 And they may, in certain respects, make things even 

worse. 

I fear the proposed revision eliminating judicial review under Rule 

23(e)(5) when objections are withdrawn without the payment of any 

consideration will be an invitation to harassment of objectors by class 

 

3 See Memorandum re Report of the Advisory Committee on Civil Rules from John D. 

Bates, Chair of the Advisory Committee on Civil Rules, to Hon. Jeffrey S. Sutton, 

Chair of the Committee on Rules of Practice and Procedure (May 12, 2016, revised 

July 1, 2016), in PRELIMINARY DRAFT at 194 (“the amendments respond to 

widespread concern about the behavior of some objectors or objector counsel”); see 

also infra at 21-22, 38. 

4 See infra at 25-31. 

5 See infra at 31-33.

6 See infra at 37-38. 
3

counsel – who even now employ deposition subpoenas to harass and 

bully absent class members into withdrawing good-faith objections.7

Moreover, though the proposed revisions to Rule 23(e)(5) would 

require district-court approval of any payments made in exchange for 

the withdrawal of an objection or the voluntary dismissal of an 

objector’s appeal, the proposed rule neither provides nor references any 

standards to guide the district court.8 One judge might conclude that it 

is wrong to reward objectors who withdraw ostensibly meritless appeals 

in exchange for payments, and therefore withhold approval. Another 

court might on identical facts conclude that it is best to approve such 

payments in order to obviate whatever delays and costs extended 

appellate proceedings might entail. Even more problematic – what 

standards should govern an objector’s dismissal, for payment, of appeals 

that may have merit? It might make sense for a district judge asked to 

approve a large payment in exchange for dismissing an objector’s appeal 

to stop and reconsider settlement approval in light of the proposed 

transaction. But the proposed revisions do not permit this.9

I close with several recommendations. I believe review of 

objections withdrawn without the payment of consideration should be 

strengthened, not abandoned, and that class counsel who bully and 

harass absent class members should be checked. Clear standards 

should be articulated to govern the withdrawal or dismissal of 

objections and appeals in return for consideration – recognizing that 

frivolous objections and appeals are not the real problem. The real 

problem is that class counsel pay objectors to drop objections and 

appeals that may have real merit and could benefit the class. Currently 

court-appointed class representatives and class counsel have a duty to 

act as fiduciaries for the class, but objectors and their counsel do not. If 

the Advisory Committee intends to change the rules to require that 

 

7 See infra at 19, 35-37 & n.110. 

8 See infra at 37-39. 

9 See infra at 38-39. 
4

objectors and their counsel act for benefit of the class, it should say so 

clearly. 

II. My Professional Background and Experience with 

Class-Action Litigation 

A. My Experience as a Member of the Plaintiffs’ ClassAction Bar

I speak from my experience of 26 years as a member of the 

plaintiffs’ class action bar, first as an attorney with Milberg Weiss 

Bershad Hynes & Lerach LLP from 1989 to 2004, and then as a 

founding partner of Lerach Coughlin Stoia Geller Rudman & Robbins 

LLP, known since 2010 as Robbins Geller Rudman & Dowd LLP. 

Those two firms, though at times subjects of considerable 

controversy, are major players in the securities class-action plaintiffs’ 

bar. Before its West Coast partners departed in 2004 to form the firm 

now known as Robbins Geller, the Milberg Weiss firm was generally 

recognized as the “largest plaintiffs’ firm specializing in complex field of 

securities and derivative litigation,” being dubbed by FORTUNE 

MAGAZINE the “‘king of the class action domain.’”10 Robbins Geller 

subsequently took Milberg Weiss’s place as the leading plaintiffs’ 

securities class-action firm.11 

 

10 John C. Coffee, Jr., The Unfaithful Champion: The Plaintiff as Monitor in 

Shareholder Litigation, 48 LAW & CONTEMP. PROB. 5, 20 n.49 (1985) (quoting 

Lawsuit Fever, FORTUNE, Nov. 26, 1984, at 151); see also James P. McDonald, 

Milberg’s Monopoly: Restoring Honesty and Competition to the Plaintiffs’ Bar, 58 

DUKE L.J. 505, 506 (2008); Lonny Hoffman & Alan F. Steinberg, The Ongoing 

Milberg Weiss Controversy, 30 Rev. Litig. 183, 184 (2011) (“Milberg was . . . the top 

securities class action firm in the country (so far ahead of its competitors that for 

many years there was not a close second to speak of)”). 

11 See ELLEN M. RYAN & LAURA E. SIMMONS, SECURITIES CLASS ACTION 

SETTLEMENTS: 2011 REVIEW AND ANALYSIS 17 (Boston: Cornerstone Research, 2012) 

(noting that in the field of securities class actions, Robbins Geller “was the most 

active firm for the period from 2010 to 2011, involved in 35 percent of settled cases” 
5

I began working as an associate at Milberg Weiss in 1989, and 

became a partner in 1994. In 2004, in the midst of a federal criminal 

investigation concerning the firm’s under-the-table incentive payments 

to named plaintiffs, most of Milberg Weiss’s West Coast partners left to 

form Lerach Coughlin Stoia Geller Rudman & Robbins LLP, of which I 

was a founding partner.12 The new firm’s name changed to Coughlin 

Stoia Geller Rudman & Robbins LLP in 2007, when our leading partner,

William S. Lerach, left the practice of law to deal with criminal charges

related to the Milberg Weiss scheme of concealed payments to named 

plaintiffs.13 Lerach, after pleading guilty to a federal felony charge, was 

barred from practicing law.14 In addition to a two-year prison sentence, 

he agreed to pay a $250,000 fine and $7.5 million forfeiture, which 

barely put a dent in his personal net worth, then estimated at “upward 

of $700 million,” which was of course derived mainly from courtapproved class-action attorneys’ fee awards.15 In all, four former 

 

and “is likely to continue to maintain the largest market share for settlements in 

future years”).

12 See JOHN C. COFFEE, JR., ENTREPRENEURIAL LITIGATION: ITS RISE, FALL, AND 

FUTURE 76 (Cambridge, Mass.: Harvard University Press, 2015) (noting that “in 

2003-2004, a longstanding federal criminal investigation of Milberg, Weiss and its 

partners intensified”); Troy Wolverton, Securities Lawyer Lerach Departs Firm, THE 

MERCURY NEWS, June 1, 2007. 

13 See Jenny Anderson, Lawyer Quits Firm to Focus on Inquiry, NEW YORK TIMES, 

Aug. 29, 2007; Molly Selvin, Lawyer under Cloud to Retire: William Lerach says 

he’s stepping down to focus on the fraud case that implicates him, LOS ANGELES 

TIMES, Aug. 29, 2007. 

14 See PATRICK DILLON & CARL M. CANNON, CIRCLE OF GREED: THE SPECTACULAR 

RISE AND FALL OF THE LAWYER WHO BROUGHT CORPORATE AMERICA TO ITS KNEES

164-65, 307, 393-94 (New York: Broadway Books, 2010) 

15 See id. at 3, 451; see also JOHN C. COFFEE, JR., ENTREPRENEURIAL LITIGATION: ITS 

RISE, FALL, AND FUTURE 71 (Cambridge, Mass.: Harvard University Press, 2015)

(noting that by 2007, when Lerach pleaded guilty to felony obstruction of justice and 

was disbarred, he had “by some estimates . . . amassed a personal fortune of over 

$700 million”); Ann Woolner, Convicted King of Class Actions Builds Aviary, Regrets 

Nothing, BLOOMBERG BUSINESS, Oct. 11, 2011 (“The San Diego Business Journal 

estimated in 2007 that he was worth $900 million.”). 
6

Milberg Weiss partners served time in prison and were disbarred for 

their part in their secret scheme.16 

In 2008 Lerach’s firm, whose name had changed to Coughlin Stoia

upon his departure, nonetheless collected a $688 million attorneys’ fee 

award from settlements in the Enron securities litigation, a substantial 

portion of which the firm’s Executive Committee passed on to Mr. 

Lerach despite his felony conviction and disbarment.17 The firm’s name 

thereafter changed again, to Robbins Geller Rudman & Dowd LLP in 

early 2010, following Patrick J. Coughlin’s departure from active 

management.18 It remains, I think, America’s largest securities-fraud

class-action law firm.19

Although I worked on some state-court proceedings,20 my decades 

of practice with these firms focused primarily on federal civil appeals in 

securities and other class actions. In the course of 26 years I personally 

 

16 See COFFEE, ENTREPRENEURIAL LITIGATION, supra note 12, at 76 (noting that four 

“partners of Milberg, Weiss – [Melvyn I.] Weiss, [William S.] Lerach, [David] 

Bershad, and [Steven] Schulman – went to prison”). The judge who sentenced 

Lerach found it “painfully evident that the paid plaintiffs were motivated to 

abandon their fiduciary duties to the absent class members and take actions or 

make decisions in [their class-action] cases in order to maximize the award of 

attorneys’ fees, all at the expense of the absent class.” DILLON & CANNON, CIRCLE 

OF GREED, supra note 14, at 450 (quoting Judge John F. Walte’s remarks at Lerach’s 

sentencing hearing). 

17 See infra at 11-12. 

18 Petra Pasternak, Firm Name Changing at Coughlin Stoia, The Recorder, Feb. 25, 

2010; Zach Lowe, Coughlin Stoia Changes Name as Coughlin Steps Down, The 

AmLaw Daily, Feb. 24, 2010. 

19 See RYAN & SIMMONS, supra note 11, at 17. 

20 See, e.g., Mangini v. R.J. Reynolds Tobacco Co., 7 Cal. 4th 1057, 31 Cal. Rptr. 2d 

358, 875 P.2d 73 (1994); Mirkin v. Wasserman, 5 Cal. 4th 1082, 23 Cal. Rptr. 2d 101, 

858 P.2d 568 (1993); Kuykendall v. State Board of Equalization, 22 Cal. App. 4th 

1194, 27 Cal. Rptr. 2d 783 (1994). 
7

briefed and argued appeals before the First,21 Second,22 Third,23 Fifth,24

Sixth,25 Seventh,26 Eighth,27 Ninth,28 Eleventh,29 and District of 

 

21 See Plumbers’ Union Local No. 12 Pension Fund v. Nomura Asset Acceptance 

Corp., 632 F.3d 762 (1st Cir. 2011).

22 See, e.g., Fait v. Regions Financial Corp., 655 F.3d 105 (2d Cir. 2011), overruled 

by Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, 135 S.Ct. 

1318 (2015); Staehr v. Hartford Financial Services Group, Inc., 547 F.3d 406 (2d Cir. 

2008); In re NYSE Specialists Securities Litigation (California Public Employees’ 

Retirement System (CalPERS) v. New York Stock Exchange, Inc.), 503 F.3d 89 (2d 

Cir. 2007); In re Elevator Antitrust Litigation (Transhorn, Ltd. v. United 

Technologies Corp.), 502 F.3d 47 (2d Cir. 2007); In re WorldCom Securities 

Litigation (California Public Employees’ Retirement System (CalPERS) v. CabotoGruppo Intesa, BCI), 496 F.3d 245 (2d Cir. 2007).

23 See, e.g., In re Constar International Inc. Securities Litig., 585 F.3d 774 (3d Cir. 

2009); Alaska Electrical Pension Fund v. Pharmacia Corp., 554 F.3d 342 (3d Cir. 

2009); California Public Employees’ Retirement System (CalPERS) v. The Chubb 

Corp., 394 F.3d 126 (3d Cir. 2004). 

24 See, e.g., Owens v. Jastrow, 789 F.3d 529 (5th Cir. 2015); Fener v. Operating Eng. 

Constr. Ind. and Misc. Pension Fund (Local 66), 579 F.3d 401 (5th Cir. 2009). 

25 See, e.g., Indiana State District Council of Laborers and Hod Carriers Pension 

and Welfare Fund v. Omnicare, Inc., 719 F.3d 498 (6th Cir. 2013), vacated sub nom. 

Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, No. 13-435, 

2015 U.S. LEXIS 2120 (U.S., Mar. 24, 2015); In re Vertrue Inc. Marketing and Sales 

Practices Litig., 719 F.3d 474 (6th Cir. 2013); Indiana State District Council of 

Laborers and Hod Carriers Pension and Welfare Fund v. Omnicare, Inc., 583 F.3d 

935 (6th Cir. 2009); Fidel v. Farley, 392 F.3d 220 (6th Cir. 2004), overruled in part, 

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); New England 

Health Care Employees Pension Fund v. Ernst & Young, LLP, 336 F.3d 495 (6th Cir. 

2003). 

26 See, e.g., City of Livonia Employee Retirement System v. Boeing Co., 711 F.3d 754 

(7th Cir. 2013); Beck v. Dobrowksi, 559 F.3d 680 (7th Cir. 2009); Illinois Municipal 

Retirement Fund v. CitiGroup, Inc., 391 F.3d 844 (7th Cir. 2004); Albert v. Trans 

Union Corp., 346 F.3d 734 (7th Cir. 2003). 

27 See Romine v. Acxiom Corp., 296 F.3d 701 (8th Cir. 2002).

28 See, e.g., Makaeff v. Trump University, LLC, 715 F.3d 254 (9th Cir. 2013), en banc 

rehearing denied, 736 F.3d 1180 (9th Cir. 2013); Sanford v. MemberWorks, Inc., 625 
8

Columbia Circuits.30 I took part in the merits briefing of several cases 

before the United States Supreme Court.31 I wrote and filed numerous 

amicus curiae briefs on behalf of institutional investors, academics, and 

others, addressing critical issues in class-action litigation.32 I also was 

 

F.3d 550 (9th Cir. 2010); Hatfield v. Halifax PLC, 564 F.3d 1177 (9th Cir. 2009); 

Sanford v. MemberWorks, Inc., 483 F.3d 956 (9th Cir. 2007); Sanchez v. County of 

San Diego, 464 F.3d 916 (9th Cir. 2006), en banc rehearing denied, 483 F.3d 965 

(9th Cir. 2007) (with eight judges dissenting); In re Daou Systems, Inc., Sec. Litig. 

(Sparling v. Daou), 411 F.3d 1006 (9th Cir. 2005); Deutsch v. Turner Corp., 324 F.3d 

692 (9th Cir. 2003); Chaset v. Fleer/Skybox Int’l, 300 F.3d 1083 (9th Cir. 2002); 

DSAM Global Value Fund v. Altris Software, Inc., 288 F.3d 385 (9th Cir. 2002); 

Ronconi v. Larkin, 253 F.3d 423 (9th Cir. 2001); Hertzberg v. Dignity Partners, Inc.,

191 F.3d 1076 (9th Cir. 1999); Yourish v. California Amplifier, Inc., 191 F.3d 983 

(9th Cir. 1999); Chappell v. Robbins, 73 F.3d 1078 (9th Cir. 1995).

29 See Local 703, I.B. of T. Grocery & Food Employees Welfare Fund v. Regions 

Financial Corp., 762 F.3d 1248 (11th Cir. 2014).

30 City of Harper Woods Employees’ Retirement System v. Olver, 589 F.3d 1292 (D.C. 

Cir. 2009).

31 See Brief for Respondents, Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. 

Pension Fund, 135 S.Ct. 1318 (2015) (Counsel of Record); Brief for Respondents, 

Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309 (2011); Brief for Respondents, 

Dura Pharmaceuticals, Inc., v. Broudo, 544 U.S. 336 (2005). 

32 See, e.g., Brief for Amicus Curiae NECA-IBEW Welfare Trust Fund in Support of 

Respondent, Campbell-Ewald Corp. v. Gomez, 136 S. Ct. 663 (2016); Brief for Amici 

Curiae Civil Procedure and Securities Law Professors in Support of Respondent, 

Amgen Inc. v. Connecticut Retirement Plans & Tr. Funds, 568 U.S. 2 (2013); Brief 

for Employees' Retirement System of the Government of the Virgin Islands as 

Amicus Curiae Supporting Respondent, Janus Capital Group, Inc. v. First 

Derivative Traders, 564 US 135 (2011); Brief for Amici Curiae MN Services 

Vermogensbeheer, B.V., et al., in Support of Petitioners, Morrison v. National 

Australia Bank, Ltd., 561 U.S. 247 (2010); Brief for Amici Curiae Change to Win 

and the Change to Win Investment Group in Support of Respondents, Merck & Co. 

v. Reynolds, 559 U.S. 633 (2010); Brief for Amici Curiae Legal Scholars, et al., in 

Support of Respondent, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (law 

professors’ brief); Brief for Amicus Curiae National Association of Securities and 

Commercial Law Attorneys (“NASCAT”) in Support of Respondent, Central Bank v. 

First Interstate Bank, 511 U.S. 164 (1994); Brief for National Association of 

Securities and Commercial Law Attorneys (“NASCAT”) in Support of Petitioners, 

Musick, Peeler & Garrett v. Employers Insurance of Wausau, 508 U.S. 286 (1993); 
9

responsible for several pro bono amicus curiae briefs filed on behalf of

religious organizations supporting equal rights for LGBT people and 

religious liberty for all.33 In my spare time, I also author or coauthored

articles relating to issues in securities class actions,34 and even a few

concerning civil rights and religious liberty.35 

 

Brief for Amicus Curiae Amalgamated Bank, as Trustee for the Longview Funds, in 

Support of Plaintiff-Appellee, Teamsters Local 445 Freight Division Pension Fund v. 

Dynex Capital Inc., 531 F.3d 190 (2d Cir. 2008); Brief for Amicus Curiae The 

Regents of the University of California, in support of Plaintiffs-Appellants, Simpson 

v. AOL Time Warner, Inc., 452 F.3d 1040 (9th Cir. 2006), vacated and remanded for 

reconsideration, sub nom. Avis Budget Group, Inc. v. California State Teachers’ 

Retirement System, 552 U.S. 1162 (2008), on remand sub nom. Simpson v. 

Homestore.com, Inc., 519 F.3d 1041 (9th Cir. 2008).

33 See, e.g., Brief for Amici Curiae California Council of Churches, et al., Obergefell v. 

Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015) (California religious organizations’ 

brief supporting marriage equality); Brief for Amici Curiae California Council of 

Churches, et al., Hollingsworth v. Perry, __ U.S. __, 133 S. Ct. 2652 (2013) (same); 

Brief of Amici Curiae California Faith for Equality, et. al., Perry v. Brown, 671 F.3d 

1052 (9th Cir. 2012); Amicus Curiae Brief of California Faith for Equality, et al., 

Perry v. Brown, 52 Cal. 4th 1116, 265 P.3d 1002 (2011) (California religious 

organizations’ brief on question of standing certified by the Ninth Circuit); Brief of 

Amici Curiae Unitarian Universalist Legislative Ministry California, et al., Perry v. 

Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (California religious 

organizations’ brief supporting marriage equality); Brief of Amici Curiae California 

Council of Churches, et al., Strauss v. Horton, 46 Cal. 4th 364, 377-78, 207 P.3d 48, 

93 Cal. Rptr. 3d 591 (2009) (California religious organizations’ brief opposing 

Proposition 8); Brief of Amici Curiae Unitarian Universalist Association of 

Congregations, et al., In re Marriage Cases, 43 Cal. 4th 757, 773-78, 183 P.3d 384, 

76 Cal. Rptr. 3d 683 (2008) (Interfaith brief supporting marriage equality); Brief for 

Amici Curiae California Faith for Equality, et al., Pickup v. Brown, 728 F.3d 1042 

(9th Cir. 2013) (religious organizations’ brief supporting constitutionality of 

California statute barring healthcare professionals from subjecting minors to 

“Sexual Orientation Change Efforts”); Brief for Amici Curiae Forum on the Military 

Chaplaincy, et al., Log Cabin Republicans v. United States, 658 F.3d 1162 (9th Cir. 

2011) (opposing “Don’t Ask Don’t Tell”); Amici Curiae Brief of the Unitarian 

Universalist Association of Congregations, et al., Winkler v. Gates, 481 F.3d 977 

(7th Cir. 2007) (opposing government support for the Boy Scouts of America’s 

discriminatory program). 

34 See, e.g., Eric Alan Isaacson, The Roberts Court and Securities Class Actions: 

Reaffirming Basic Principles, 48 AKRON L. REV. 923 (2015); Patrick J. Coughlin, 
10

In my 26 years as a member of the plaintiffs’ class-action bar, I 

frequently consulted on proceedings involving class counsel’s attorneys’ 

fee applications.36 I also frequently consulted with my colleagues 

concerning formal objections filed against our firms’ class-action 

settlements and attorneys’ fee applications.37 I personally defended 

appeals that were filed by objectors to class-action settlements or that 

 

Eric Alan Isaacson & Joseph D. Daley, What’s Brewing in Dura v. Broudo? The 

Plaintiffs’ Attorneys Review the Supreme Court’s Opinion and its Import for 

Securities-Fraud Litigation, 37 LOYOLA U. CHIC. L. J. 1 (2005); William S. Lerach & 

Eric Alan Isaacson, Pleading Scienter Under Section 21D(b)(2) of the Securities 

Exchange Act of 1934: Motive, Opportunity, Recklessness and the Private Securities 

Litigation Reform Act of 1995, 33 SAN DIEGO L. REV. 893 (1996); Patrick J. Coughlin 

& Eric Alan Isaacson, Securities Class Actions in the United States, in LITIGATION 

ISSUES IN THE DISTRIBUTION OF SECURITIES: AN INTERNATIONAL PERSPECTIVE

(William G. Horton & Gerhard Wegen, eds.; London: Kluwer 

International/International Bar Association, 1997); Alan Schulman, Eric Isaacson & 

Jennifer Wells, Pleading Standards Under the Private Securities Litigation Reform 

Act of 1995: The Central District of California’s Chantal Decision, CLASS ACTIONS &

DERIVATIVE SUITS, Summer 1996, at 14; Patrick J. Coughlin & Eric Alan Isaacson, 

Commencing Litigation Under the Private Securities Litigation Reform Act of 1995 

(“PSLRA”), in SECURITIES LITIGATION 1996 (Jay B. Kasner & Bruce G. Vanyo, eds.; 

New York & San Francisco: Practicing Law Institute 1996).

35 See, e.g., Eric Alan Isaacson, Free Exercise for Whom? – Could the ReligiousLiberty Principle that Catholics Established in Perez v. Sharp Also Protect SameSex Couples’ Right to Marry?, 92 U. DET. MERCY L. REV. 29 (2015); Eric Alan 

Isaacson, Goodridge Lights A Nation’s Way to Civic Equality, BOSTON BAR JOURNAL, 

Nov. 15, 2013; Eric Alan Isaacson, Are Same-Sex Marriages Really a Threat to 

Religious Liberty?, 8 STAN. J. C. R. & C.L. 123 (2012); Eric Alan Isaacson, Assaulting 

America’s Mainstream Values: Hans Zeiger’s Get Off My Honor: The Assault on 

the Boy Scouts of America, 5 PIERCE L. REV. 433 (2007) (review essay); Eric Alan 

Isaacson, Traditional Values, or a New Tradition of Prejudice? The Boy Scouts of 

America vs. the Unitarian Universalist Association of Congregations, 17 GEO.

MASON U. C.R.L.J. 1 (2006); Eric Alan Isaacson, The Flag Burning Issue: A Legal 

Analysis and Comment, 23 LOYOLA L.A. L. REV. 535 (1990). 

36 See, e.g., In re Washington Public Power Supply System Litig., 19 F.3d 1291 (9th 

Cir. 1994) (attorneys’ fee appeal). 

37 See, e.g., Powers v. Eichen, 229 F. 3d 1249 (9th Cir. 2000). 
11

otherwise involved class-action attorneys’ fee awards.38 I also 

represented institutional investors who opted out of a federal securities 

class action in the belief that individual litigation would better serve 

their interests.39 

Some of the matters involving objections to settlements and 

attorneys’ fee awards on which I worked, or with which I was otherwise 

familiar, were resolved on undisclosed terms with appeals voluntarily 

dismissed by the objectors.40 The Enron securities-fraud class action 

was one such matter.

 

38 See, e.g., Fidel v. Farley, 534 F.3d 508 (6th Cir. 2008) (objector’s appeal 

concerning class notice and attorneys’ fees); Morris v. Lifescan, Inc., 54 F. App’x 663, 

664 (9th Cir. 2003) (objector’s appeal concerning attorneys’ fees); see also In re 

Trans Union Corp. Privacy Litig., 664 F.3d 1081 (7th Cir. 2011) (fee dispute); In re 

Trans Union Corp. Privacy Litig., 629 F.3d 2011 (7th Cir. 2011) (earlier fee dispute). 

39 In re WorldCom Securities Litigation (California Public Employees’ Retirement 

System (CalPERS) v. Caboto-Gruppo Intesa, BCI), 496 F.3d 245 (2d Cir. 2007) 

(briefed & argued for pension funds that opted out of WorldCom class action to file 

individual suits; successful appeal from ruling that the pension funds’ individual 

actions were untimely filed), rev’g In re WorldCom Inc. Sec. Litig. (State of Alaska 

Dept. of Revenue v. Ebbers), 294 F. Supp. 2d 431 (S.D.N.Y. 2003), and In re 

WorldCom Inc. Sec. Litig. (California Public Employees’ Retirement System 

(CalPERS) v. Ebbers), 308 F. Supp. 2d 214 (S.D.N.Y. 2004); Illinois Municipal 

Retirement Fund v. CitiGroup, Inc., 391 F.3d 844 (7th Cir. 2004). 

40 See, e.g., Newby v. Enron Corp., No. 08-20648 (5th Cir. Sept. 16, 2009) (stipulated 

dismissal of objectors’ appeal from $688 million attorneys’ fee award representing a 

multiplier of 5.2 times the lawyers’ claimed reasonable hourly rates: “Pursuant to 

the joint stipulation of the parties this appeal is dismissed this 16th day, September, 

2009, see Fed. R. App. P. 42(b).”); N.Y. State Teachers’ Ret. Sys. v. Alaska Elec. 

Pension Fund, No. 07-1197, Rule 42(b) Mandate (11th Cir. Feb. 22, 2008) 

(stipulated dismissal of objector’s appeal from $17,625,000 attorneys’ fee award 

representing a multiplier of six times the lawyers’ claimed reasonable hourly rates); 

Schwartz v. TXU Corp., Nos. 06-10040, 06-10041, 01-10042, Entry of Dismissal (5th 

Cir. June 11, 2007) (stipulated dismissal of objectors’ appeals from settlement 

approval and $33,244,500 attorneys’ fee award: “Pursuant to the joint motion of the 

parties this appeal is dismissed this 11th day of June, 2007, see FED. R. APP. P.

42(b).”). 
12

In 2008 my firm, by then known as Coughlin Stoia Geller Rudman 

& Robbins LLP, given William S. Lerach’s departure,41 collected a $688 

million attorneys’ fee award from class-action settlements in Enron – a 

substantial portion of which the firm’s Executive Committee passed on 

to Mr. Lerach despite his felony conviction and disbarment.42 I cannot 

say how much, as the firm’s partnership agreement prohibited ordinary 

equity partners such as myself from reviewing the firm’s financial 

records or learning how its revenues and profits are distributed.43 

 

41 See Jacqueline Bell, Enron Plaintiffs Want Lerach Off the Docket, Law360, Oct. 2, 

2007) (“Plaintiffs in the multidistrict securities litigation over the implosion of 

Enron Corp. have asked a federal judge to withdraw former powerhouse plaintiff's 

lawyer William Lerach as attorney of record after he left his firm and pleaded guilty 

to conspiring to obstruct justice. . . . In pleading guilty, Lerach, a former name 

partner at Milberg Weiss, admitted that he and other partners at the firm secretly 

paid individuals to serve as lead plaintiffs in class action suits. Lerach also 

admitted that the plaintiffs who received the payments lied under oath about the 

existence of the kickback arrangement.”).

42 In re Enron Corp. Sec. Litig., 586 F. Supp. 2d 732, 814 n.94, 828 (S.D. Tex. 2008) 

(rejecting objection to awarding fees to “awarding fees to convicted criminal William 

Lerach” on the basis of “more than adequate briefing demonstrating the propriety of 

any fee sharing with Mr. Lerach before and after he left the firm and after his 

indictment, guilty plea, and sentencing” and then awarding attorneys’ fees of 

“approximately $688 million, plus interest accrued”). 

43 See Partnership Agreement of Lerach Coughlin Stoia & Robbins LLP, May 1, 

2004, §3.02(a) (“none of the books or records of the Partnership shall at any time be 

available for inspection by any Partner (other than members of the Executive 

Committee”) (copy on file with the author). A similar provision in the Milberg 

Weiss partnership agreement is, I believer, what enabled that firm’s Executive 

Committee members to pay themselves secret bonuses and make under-the-table 

payments to class representatives, without disclosing the scheme to the rest of the 

firm’s partners. See DILLON & CANNON, CIRCLE OF GREED, supra note 14, at 164-65 

(New York: Broadway Books, 2010) (“[David] Bershad and [Melvyn I.] Weiss 

devised the scheme. Those who were part of it, the inner circle of very senior 

partners (and Lerach was one of them), would award themselves annual bonuses. 

The bonuses would more or less match the amount the firm spent on referrals and 

indierectly reward the serial plaintiffs in their stable. . . . [I]t meant that in order 

to pay for plaintiffs, all the attorneys at Milberg Weiss would contribute, directly or 

indirectly, whether they knew it or not.”); see also id. at 307 (noting that because of 

a federal criminal investigation, “a painstakingly meticulous federal prosecutor 

would soon know more about Milberg Weiss’s complicated and long-standing system 
13

Some Enron class members thought the $688 million attorneys’ 

fee award, representing more than five times the attorneys’ claimed 

reasonable hourly rates, was just a bit too much, so they filed objections 

– which the district court ultimately rejected.44 Eleven objectors then 

noticed an appeal that was resolved in September 2009 with a 

“Stipulated Dismissal of Appeal Pursuant to Federal Rule of Appellate 

Procedure 42(b).”45 The “Stipulated Dismissal” recited that the 

objectors’ appeal was being dismissed by agreement among the parties, 

“with an agreed upon amount in fees and costs to be paid to [the 

Objector-]Appellants as provided in a letter agreement separately 

entered into” on behalf of the Lead Plaintiff and Objector-Appellants,46

but that was not attached to the “Stipulated Dismissal” or otherwise 

include in the public record. 

We can only guess what its terms might have been. I had worked 

on some other aspects of the case.47 But I was not privy to the terms of 

that letter agreement. And given the confidentiality that currently 

surrounds mediated settlements of federal appeals, I could not in any 

 

of kickbacks to named plaintiffs than all but a handful of the firm’s senior 

partners”). 

44 See id., at 803-28.

45 Stipulated Dismissal of Appeal Pursuant to Federal Rule of Appellate Procedure 

42(b), Newby v. Enron Corp., No. 08-20648 (5th Cir. Sept. 10, 2009).

46 Id. at 1. 

47 See, e.g., The Regents of the University of California v. Credit Suisse First Boston,

482 F.3d 372, 376 (5th Cir. 2007) (class-certification appeal), cert. denied sub nom.

The Regents of the University of California v. Merrill Lynch, Pierce, Fenner & 

Smith, Inc., 552 US 1170 (2008) (petition for a writ of certiorari); In re Barclays 

PLC, et al., Nos. 03-20178, 03-20185, 03-20187 (5th Cir. Mar. 6, 2003) (consolidated 

opposition to defendants’ three mandamus petitions); see also DILLON & CANNON,

CIRCLE OF GREED, supra note 14, at 411 (regarding a motion to recuse a Fifth 

Circuit judge in the class-certification appeal: “Speed was essential, and Isaacson 

finished in two days.”). 
14

event say whether or how much the objectors might have been paid to 

drop their appeal from the $688 million fee award.48

I do, however, think I have a good idea of how and why such 

agreements most often are entered by class counsel in order to secure 

the dismissal of objectors’ appeals. And it most certainly is not because

class counsel believe the objections are frivolous, as some judges and 

commentators seem to assume.49

B. My Recent Experience on the Objectors’ Side of 

the Table

I also have some experience on the class-action objectors’ side of 

the table. 

After more than two decades in the plaintiffs’ class-action bar, in 

March of 2016 I struck out on my own, seeking to establish an 

independent class-action and appellate practice. Since then have 

represented objectors in several matters.50 I also have personally 

 

48 See generally Robert J. Niemic, Mediation & Conference Programs in the Federal 

Courts of Appeals 12 (Federal Judicial Center, 2d ed., 2006) (“All of the [mediation] 

program offices operate with confidentiality . . . . Local rules usually prohibit 

mediators, the parties, and the parties’ attorneys from disclosing the substance of a 

conference to any judge or non-party. Generally not considered confidential, 

however, are the fact that the mediation took place and the bare results of the 

mediation (for example, settled, not settled, or continued).”); see, e.g., First Circuit 

Rule 33.0(c); Second Circuit Rule 33.1(e); Third Circuit Rule 33.5(c); Fourth Circuit 

Rule 33; Fifth Circuit General Order Governing the Appellate Conference Program; 

Sixth Circuit Rule 33(b)(4)(D); Eighth Circuit Rule 33A(c); Ninth Circuit Rule 33-

1(c); Tenth Circuit Rule 33.1(D); Eleventh Circuit Rule 33-1(c)( 3). 

49 See, e.g., John E. Lopatka & D. Brooks Smith, Class Action Professional Objectors: 

What To Do About Them?, 39 FLA. ST. U. L. REV. 865, 865 (2012) (“Professional 

objectors are attorneys who, on behalf of nonnamed class members, file specious 

objections to class action settlements and threaten to file frivolous appeals of 

district court approvals merely to extract a payoff.”). 

50 See, e.g., Chieftain Royalty v. Enervest, Nos. 16-6022, 16-6025 (10th Cir.) (appeal 

challenging class counsel’s attorneys’ fee award; argued Jan. 17, 2016, before the 

Honorable Judges Hartz, Gorsuch & Holmes, Cir. JJ.); In re BioScrip, Inc. Sec. 
15

appeared as an objector in one proceeding, challenging a proposed classaction settlement and fee award in a case alleging that Godiva 

Chocolatier violated the Fair and Accurate Credit Transaction Act 

(“FACTA”) by printing too many digits of customers’ credit-card 

numbers on their receipts.51 

Although the statutory violations were undisputed in that case, 

and although Godiva’s potential exposure exceeded $300 million, a 

named plaintiff with a criminal record for fraud who had alleged no 

injury to himself entered a class-action settlement purporting to release 

other class members’ claims for their actual damages – in return for 

just $6.3 million. His lawyers, who had conducted no formal discovery 

and who refused to say how much time they had devoted to the case let 

alone what their hourly rates might be, requested a third of that sum as 

common-fund attorneys’ fees. They asked the district court to award 

their class-representative client, who had himself suffered no injury and 

who had declined to sit for a deposition, an incentive award of $10,000 

as compensation for his personal services in securing a class action 

settlement barring other class members’ ability to seek relief for their

actual damages.52

My objection in the Godiva case focused first on the failure to 

comply with the rule of Mercury Interactive Corp. Securities Litigation53

and Redman v. RadioShack Corp.,54 which hold that Rule 23(h) requires 

 

Litig., No. 13-cv-6922 (S.D.N.Y.) (objection to class counsel’s attorneys’ fee award; 

argued June 13, 2016). 

51 Muransky v. Godiva Chocalatier, Inc., No. 0:15-cv-607-WPD (S.D. Fla.), appeal 

pending No. 16-16486 (11th Cir.). 

52 See Motion for Final Approval of Class Action Settlement, Muransky v. Godiva 

Chocolatier, Inc., No. 15-cv-60716-WPD, DE74 (S.D. Fla. Sept. 12, 2016); Plaintiff’s 

Motion for Award of Attorneys’ Fees and Expenses, Muransky v. Godiva Chocolatier, 

Inc., No. 15-cv-60716-WPD, DE76 (S.D. Fla. Sept. 12, 2016). 

53 618 F.3d 988 (9th Cir. 2010).

54 768 F.3d 622 (7th Cir. 2014). 
16

the deadline for filing objections to attorneys’ fee applications to be 

placed after rather than before the date when class counsel will file the 

fee motion that the objections challenge.55 It seems pretty obvious: 

class members and their lawyers should be able to see class counsel’s

fee application before being required to frame whatever objections to it 

they might have. I further objected that the proposed $2.1 million 

attorneys’ fee award to class counsel, who apparently had devoted little 

time to the case and who refused to provide any information concerning 

their hours or billing rates, was inadequately supported and excessive.

Eleventh Circuit precedents governing common-fund fee awards 

mandate that even in setting a percent-of-fund attorneys’ fee award, the 

district court first consider “the time and labor required,” starting with 

the “hours claimed or spent on a case” which “are a necessary 

ingredient to be considered” in any award of common-fund attorneys’ 

fees.56 As for the $10,000 incentive bonus to a class representative with 

a criminal record who had suffered no injury and who refused to be 

deposed in the case, I observed that the Supreme Court’s seminal 

common-fund precedents appear to flatly proscribe such payments to 

class representatives for personal services that they rendered in 

securing a common fund.57 

 

55 Objection to Proposed Settlement and Notice of Intent to Appear, Muransky v. 

Godiva Chocolatier, Inc., No. 0:15-cv-60716-WPD, DE59 (S.D. Fla. Aug. 21, 2016); 

see Redman, 768 F.3d at 638-39 (“There was no excuse for permitting so irregular, 

indeed unlawful, a procedure.”); Mercury Interactive, 618 F.3d at 994-95 (“a 

schedule that requires objections to be filed before the fee motion itself is filed 

denies the class the full and fair opportunity to examine and oppose the motion that 

Rule 23(h) contemplates”); accord In re National Football League Players 

Concussion Injury Litig., 821 F.3d 410, 446 (3d Cir. 2016) (“We have little trouble 

agreeing that Rule 23(h) is violated in those circumstances.”) (dictum). 

56 Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974); see

Camden I Condominium Ass’n v. Dunkle, 946 F.2d 768, 771 & n.3, 775 (11th Cir. 

1991) (noting that application of the Johnson factors starts with an evaluation of 

“the time and labor required,” and then holding that “the Johnson factors continue 

to be appropriately used in evaluating, setting, and reviewing percentage fee 

awards in common fund cases”).

57 The seminal common-fund decisions, allowing for payment of attorneys’ fees from 

recoveries benefitting a class, are two late nineteenth-century class actions 

prosecuted for the benefit of bondholders: Trustees v. Greenough, 105 U.S. 527 
17

 

(1882), and Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885). The 

common-fund doctrine established by these decisions permits an award of attorneys’ 

fees to a representative plaintiff whose efforts created a common fund benefitting a 

larger class, but they hold that an award for the class representative’s personal 

services was wholly unwarranted and “illegally made,” as the Court explained in 

Greenough:

But there is one class of allowances made by the court which we 

consider decidedly objectionable. We refer to those made for the 

personal services and private expenses of the complainant. . . . . The 

reasons which apply to his expenditures incurred in carrying on the 

suit, and reclaiming the property subject to the trust, do not apply to 

his personal services and private expenses. We can find no authority 

whatever for any such charge by a person in his situation. . . . It 

would present too great a temptation to parties to intermeddle in the 

management of valuable property or funds in which they have only the 

interest of creditors, and that perhaps only to a small amount, if they 

could calculate upon the allowance of a salary for their time and of 

having all their private expenses paid. Such an allowance has neither 

reason nor authority for its support.

We are of opinion, therefore, that the allowance for these 

purposes was illegally made, and that to this extent the orders should 

be reversed. We refer to the allowance in the last order, of $15,003.35 

for private expenses, and of $34,625 for personal services.

105 U.S. at 537-38. The Court reiterated the point in Pettus, when Justice Harlan 

wrote for the Court: 

In Trustees v. Greenough, 105 U.S. 527, we had occasion to 

consider the general question as to what costs, expenses and 

allowances could be properly charged upon a trust fund brought under 

the control of court by suits instituted by one or more persons suing in 

behalf of themselves and of all others having a like interest touching 

the subject-matter of the litigation. That suit was instituted by the 

holder of the bonds of a railroad company, on behalf of himself and 

other bondholders, to save from waste and spoliation certain property 

in which he and they had a common interest. It resulted in bringing 

into court or under its control a large amount of money and property 

for the benefit of all entitled to come in and take the benefit of the final 

decree. His claim to be compensated, out of the fund or property 

recovered, for his personal services and private expenses was rejected 

as unsupported by reason or authority. “It would present,” said Mr. 
18

The last time I checked, the Supreme Court’s decisions on a point 

of law are binding on lower courts until revisited and overruled by the 

Supreme Court itself.58 I was under the impression, moreover, that

class counsel have a duty to call such authority to the district court’s 

attention.59 I also was troubled by the notion that a class 

representative who suffered no injury should be able to evade the 

burden of demonstrating his own Article III standing under Spokeo Inc. 

v. Robins60 when entering a class-action settlement that purports to 

release other class members’ claims for actual damages. It seems to me 

that a litigant who invokes federal jurisdiction to settle and bar other 

 

Justice Bradley, speaking for the court, “too great a temptation to 

parties to intermeddle in the management of valuable property or 

funds in which they have only the interests of creditors, and that, 

perhaps, only to a small amount, if they could calculate upon the 

allowance of a salary for their time and having all their private 

expenses paid.”

Pettus, 113 U.S. at 122. 

58 See, e.g., Bosse v. Oklahoma, No. 15-9173, slip op. at 2, 580 U.S. ___ (Oct. 11, 

2016) (reiterating the rule that it is the Supreme Court’s “prerogative alone to

overrule one of its precedents’”) (quoting United States v. Hatter, 532 U.S. 557, 567 

(2001) (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997))); Hohn v. United States,

524 U.S. 236, 252-53 (1998) (“Our decisions remain binding precedent until we see 

fit to reconsider them, regardless of whether subsequent cases have raised doubts 

about their continuing vitality.”); Rodriguez de Quijas v. Shearson/Am. Express, 

Inc., 490 U.S. 477, 484 (1989) (even if a Supreme Court precedent “appears to rest 

on reasons rejected in some other line of decisions, the Court of Appeals should 

follow the case which directly controls, leaving to [the Supreme] Court the 

prerogative of overruling its own decisions”); see generally, BRYAN A. GARNER, ET AL.,

THE LAW OF JUDICIAL PRECEDENT 28-33 (St. Paul: Thomson Reuters, 2016). 

59 See ABA Model Rule of Professional Conduct 3.3(a)(2) (“A lawyer shall not 

knowingly: . . . (2) fail to disclose to the tribunal legal authority in the controlling 

jurisdiction known to the lawyer to be directly adverse to the position of the client 

and not disclosed by opposing counsel;”); see generally Elaine Bucklo, The 

Temptation Not to Disclose Adverse Authority, 40:2 LITIG. 1 (2014).

60 136 S. Ct. 1540 (2016). 
19

people’s claims should have to satisfy the requirements of Article III 

jurisdiction. Such are my contentions as an objector in Godiva.61 

To my surprise class counsel, who had served no merits discovery 

at all in the case, responded to my objection with a deposition subpoena 

– making me the first and only person deposed in the litigation. 

Although my membership in the class was not contested, and although 

my objections related to questions of law and the existing record in the 

case, class counsel insisted that being an absent class member who had 

filed an objection, I was obligated to produce documents from other 

cases and to sit for a deposition. Mind you, my personal stake in the 

Godiva class action was rather small – the statutory damages sought 

came to just $1,000 per class member, and although the class notice 

falsely informed class members that we could expect to receive $235

apiece from the proposed settlement, class counsel’s subsequent filings 

admitted that the real recovery per class member would be far less –

maybe forty dollars, if I was lucky.62 Though it was a waste of 

everyone’s time, I in fact sat for the first and only deposition that class 

counsel bothered to take in the case. 

When I later filed a notice of appeal from the district court’s order 

rejecting my objections and granting settlement approval and attorneys’ 

 

61 See Objection to Proposed Settlement and Notice of Intent to Appear, Muransky v. 

Godiva Chocolatier, Inc., No. 0:15-cv-60716-WPD, DE59 (S.D. Fla. Aug. 21, 2016);

Class Member Eric Alan Isaacson’s Supplemental Brief, Muransky v. Godiva 

Chocolatier, Inc., No. 0:15-cv-60716-WPD, DE88 (S.D. Fla. Sept. 16, 2016); 

Objection to Magistrate’s Report and Recommendation on Attorneys’ Fees, 

Muransky v. Godiva Chocolatier, Inc., No. 0:15-cv-60716-WPD, DE92 (S.D. Fla. Sept. 

26, 2016); Fairness Hearing Transcript, Muransky v. Godiva Chocolatier, Inc., No. 

0:15-cv-60716-WPD, DE115, at 30--56 (S.D. Fla. Nov. 30, 2016). 

62 Compare Postcard Notice of Class Action Lawsuit and Proposed Settlement, 

Muransky v. Godiva Chocolatier, Inc., No. 1:15-cv-60715-WPD, DE59-1 (S.D. Fla. 

Aug. 21, 2016) (“Class Counsel estimate that a Settlement Class Member who 

submits a valid claim form . . . may receive a payment of around $235 subject to pro 

rata distribution.”), with Motion for Final Approval of Class Action Settlement, 

Muransky v. Godiva Chocolatier, Inc., No. 1:15-cv-60715-WPD, DE74 at 7 (stating 

class members “will receive approximately $60,” before deducting a third for 

attorneys’ fees). 
20

fees, class counsel naturally filed a motion asking the court to require 

the posting of “an appeal bond totaling $115,934.00” should I desire the

Eleventh Circuit to consider my objections.63 The district court thought 

that was excessive. But even though an appellee’s taxable costs seldom 

exceed a few hundred dollars,64 the district court ultimately required a 

$2,500 bond to appeal – which was itself many times my stake in the 

case as an absent class member.65 

This, I have learned, is how things are done in many consumer 

class actions. Class counsel far too often put more effort into harassing 

objectors, and into seeking exorbitant bonds as a condition for appeal,

than they do into actually litigating claims on behalf of the class. 

III. The Problem Posed by “Professional Objectors” and 

by Offers to Pay Objectors to Drop Objections or to Forego 

Appeals

Based on my experience as a longtime plaintiffs’ class-action 

lawyer, I wish first to address concerns that “professional objectors” 

 

63 Amended Motion to Require Posting of Appeal Bond and Incorporated 

Memorandum of Law, Muransky v. Godiva Chocolatier, Inc., No. 1:15-cv-60715-

WPD, DE107 at 2 (S.D. Fla. Nov. 2, 2016). 

64 See MARY LEARY, THE COMPARATIVE STUDY OF THE TAXATION OF COSTS IN THE 

FEDERAL CIRCUIT COURTS OF APPEALS UNDER RULE 39 OF THE FEDERAL RULES OF 

APPELLATE PROCEDURE 3-4 (Federal Judicial Center, April 2011) (“Leaving out the 

larger awards that were identified as outliers in several circuits, the data show that 

across all circuits average costs awarded to appellees under subsection 39(a)(1) 

ranged from $84.15 to $198.08 ($153.68 median average award); under subsection 

39(a)(2) average costs awarded to appellees ranged from $18.20 to $345.04 ($219.06 

median average costs) . . . .”); In re MagSafe Apple Power Adapter Litig., 571 Fed. 

Appx. 560, 563 (9th Cir. Apr. 24, 2014) (unpublished) (in appeal of class-action

settlement, vacating bond of $15,000 because appeal costs “rarely exceed more than 

a few hundred dollars when taxed against an appellant”). 

65 See Muransky v. Godiva Chocolatier, Inc., No. 1:15-cv-60715-WPD, Order 

Adopting Report of Magistrate Judge; Overruling Objections; Requiring Posting of 

Appeal Bond, DE121 at 4 (S.D. Fla. Jan. 9, 2017). 
21

present a serious problem by filing frivolous objections and appeals, and 

then “extorting” money from class counsel in return for withdrawing the

objections and dismissing the appeals. In my 26 years in the plaintiffs’ 

class-action bar, I never saw that happen. Not once did I witness 

payments made in return for the withdrawal of a frivolous objection or 

appeal. My own experience as a member of the plaintiffs’ class-action 

bar strongly corroborates the Public Citizen Litigation Group’s 

observation: “Our experience leads us to believe that objectively 

frivolous objections are not a serious problem.”66

Thus, to the extent that proposed revisions of Rule 23 are 

designed to deal with the problem of “professional objectors” who file 

frivolous objections in order extort money from class counsel, they are 

apt to be seriously misdirected. 

The view seems, however, to be fairly widespread that frivolous

objections and appeals currently present a serious challenge to efficient 

class-action litigation. Professor Brian T. Fitzpatrick paints the picture 

of lawyers working as “professional objectors” who induce “class 

members to file wholly frivolous objections and appeals for no other 

reason than to induce . . . payments from class counsel,” noting that 

“[c]ourts and commentators believe that [such] objector blackmail is a 

serious problem.”67 As Professor John E. Lopatka and Chief Judge D. 

Brooks Smith of the United States Court of Appeals for the Third 

Circuit describe the problem: 

Professional objectors are attorneys who, on behalf of 

nonnamed class members, file specious objections to class 

action settlements and threaten to file frivolous appeals of 

 

66 Scott L. Nelson & Allison M. Zieve, Comment to the Rule 23 Subcommittee of the 

Civil Rules Advisory Committee on Behalf of Public Citizen Litigation Group, at 3 

(April 9, 2015). 

67 Brian T. Fitzpatrick, The End of Objector Blackmail?, 62 VAND. L. REV. 1624, 

1624 (2009). 
22

district court approvals merely to extract a payoff. Their 

behavior amounts to a kind of lawful extortion.68

Professor William Rubenstein suggests that this view of 

“professional objectors” was behind the 2003 addition to Rule 23 of 

subdivision (e)(4)(A)’s current mandate that “an objection may be 

withdrawn only with the court’s approval.”69 It appears to be 

motivating the currently proposed further revisions, requiring court 

approval for whenever payments are made for an objector either to 

withdraw an objection or to voluntarily dismiss or otherwise forego an 

appeal.70 

Strange as it may seem, however, in my 26 years of practice in the 

plaintiffs’ class-action bar, no instance ever came to my attention of a 

payment made in return for the withdrawal of a clearly meritless

objection, or the voluntary dismissal of a frivolous appeal. I have to 

agree with the conclusion of the Public Citizen Litigation Group: “Truly 

frivolous objections are unlikely to impede settlement approval or to be

appealed.”71 

Frivolous objections by definition have little prospect of success, 

either before the district court in the first instance, or before the court 

 

68 John E. Lopatka & D. Brooks Smith, Class Action Professional Objectors: What 

To Do About Them?, 39 Fla. St. U. L. Rev. 865, 865 (2012). 

69 4 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS §13:34 (St. Paul: 

Thomson Reuters, 5th ed., 2014). 

70 See Memorandum re Report of the Advisory Committee on Civil Rules from John 

D. Bates, Chair of the Advisory Committee on Civil Rules, to Hon. Jeffrey S. Sutton, 

Chair of the Committee on Rules of Practice and Procedure (May 12, 2016, revised 

July 1, 2016), in PRELIMINARY DRAFT at 194 (“the amendments respond to 

widespread concern about the behavior of some objectors or objector counsel since 

the 2003 amendments to Rule 23 went into effect”). 

71 Scott L. Nelson & Allison M. Zieve, Comment to the Rule 23 Subcommittee of the 

Civil Rules Advisory Committee on Behalf of Public Citizen Litigation Group, at 3 

(April 9, 2015). 
23

of appeals.72 After a genuinely frivolous objection is rejected by s

district court, a resulting appeal can typically be resolved without 

expenditure of much time or effort. “This is so because appellate courts 

may on motion dismiss frivolous claims at the outset (that is, before

substantial fees are incurred).”73 Indeed, “[t]he traditional 

countermeasure for an appeal thought to be frivolous is a motion in the 

appellate court to dismiss, which is available at the outset of the appeal 

and before expenses thereon begin to mount.”74 “Moreover, upon 

sustaining such a challenge, an award of fees and double costs would be 

warranted,”75 since Federal Rule of Appellat Procedure 28 provides: “If 

a court of appeals determines that an appeal is frivolous, it may, after a 

separately filed motion or notice from the court and reasonable 

opportunity to respond, award just damages and single or double costs 

to the appellee.”76

 

72 See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“an appeal on a matter of law is 

frivolous where ‘[none] of the legal points [are] arguable on their merits’”) (quoting 

Anders v. California, 386 U.S. 738 744 (1967); Chevron U.S.A. Inc. v. M&M 

Petroleum Servs., 658 F.3d 948, 952 (9th Cir. 2011) (“A frivolous case is one that is 

groundless ... with little prospect of success . . . .”) (quoting Rodriguez v. United 

States, 542 F.3d 704, 709 (9th Cir.2008)); Orr v. Bank of America, 285 F.3d 764, 784 

n.34 (9th Cir. 2002 (“An appeal is frivolous ‘if the result is obvious or the appellant’s 

arguments are wholly without merit.’”) (citation omitted); Cash v. United States, 

261 F.2d 731, 745 (D.C. Cir. 1958) (“‘Frivolous’ has a colloquial meaning of trifling 

or silly. It also has an established meaning in law, when applied to appeals, of 

‘manifestly insufficient or futile,’ ‘without merit and futile.’”) (citations omitted); 

Robert G. Bone, Modeling Frivolous Suits, 145 U. Pa. L. Rev. 519, 533 (1997) (“A 

suit is frivolous (1) when a plaintiff files knowing facts that establish complete (or 

virtually complete) absence of merit as an objective matter on the legal theories 

alleged, or (2) when a plaintiff files without conducting a reasonable investigation 

which, if conducted, would place the suit in prong (1).”).

73 Pedraza v. United Guaranty Corp., 313 F.3d 1323, 1333 n.14 (11th Cir. 2002). 

74 In re American President Lines, Inc., 779 F.2d 714, 717 (D.C. Cir. 1985). 

75 Pedraza, 313 F.3d at 1333 n.14 (citing Geaneas v. Willets, 911 F.2d 579, 582 (11th 

Cir. 1990)). 

76 Fed. R. App. P. 38; see, e.g., Wachovia Securities, LLC v. Loop Corp., 726 F.3d 899, 

910 (7th Cir. 2013); Gallop v. Cheney, 642 f.3d 364, 370 (2d Cir. 2011); Horoshko v. 
24

In the Ninth Circuit frivolous appeals from orders approving 

settlements also may be dealt with by means of motions for summary 

affirmance – which are regularly granted when objectors’ appeals fail to 

present genuinely substantial issues.77 Although orders dismissing 

such appeals typically are unpublished, their existence is well 

publicized and widely known to members of the plaintiffs’ class-action 

bar.78 The National Law Journal, for example, reports that class 

counsel employing motions for summary affirmance have been “able to 

effectively dispose of” appeals asserting insubstantial objections 

“without expending significant resources or incurring substantial 

delay.”79

In truth, however, relatively few objections are genuinely frivolous. 

Far more raise serious issues that are quite serious, but that given the 

 

Citibank, N.A., 373 F.3d 248, 250 & n.1 (2d Cir. 2004); Grove Fresh Distributors, Inc. 

v. John Labatt, Ltd., 299 F.3d 635, 642 (7th Cir. 2002). 

77 See, e.g., Klee v. Khosravi, No. 15-56201, DE176, Order (9th Cir. Dec. 9, 2015) 

(summary affirmance in objectors’ appeal in the Nissan Leaf class-action litigation: 

“A review of the record and the opposition to the motion for summary affirmance 

indicates that the questions raised in this appeal are so insubstantial as not to 

require further argument.”); Dennings v. Clearwire Corp., No. 13-35038 (9th Cir. 

Apr. 22, 2013) (summary affirmance in objector’s appeal from settlement approval 

in Clearwire Internet-service class action); In re Wal-Mart Wage & Hour 

Employment Practices Litig., Nos. 09-17648, 09-17682, 09-17683 (9th Cir. Aug. 10, 

2010) (summary affirmance in three consolidated objectors’ appeals from settlement 

of employment-practices class action). 

78 See, e.g., Anna C. Haac, Ninth Circuit Grants Summary Affirmance In Objectors’ 

Appeal from Class Action Settlement: A Case Study in Dealing with Serial Objectors,

THE NATIONAL LAW REVIEW, December 12, 2013 (“One tool that can be used against 

such serial objectors on appeal is the motion for summary affirmance, which asks 

the appellate court to affirm the final approval of the settlement quickly, without 

the delay that normally accompanies full appellate briefing and argument. 

Proceedings following a recent settlement of three class actions against Clearwire, 

which was approved by the United States District Court for the Western District of 

Washington, demonstrate the effectiveness of the summary affirmance procedure.”). 

79 Id. 
25

abuse-of-discretion standard of review to which orders approving 

settlements or attorneys’ fee awards generally are subject, still may be

unlikely to prevail on appeal. In my experience, however, class counsel 

have little to gain by paying objectors off to drop such appeals, and are 

quite willing to defend them through oral argument and judgment – as 

I indeed have.80 The prospect of defending such appeals is a cost of 

doing business, and of honoring due process that allows class members 

to present objections to judgments that will bind them.

Any notion that weak appeals somehow engender systematic 

“extortion” by objectors and their counsel of payments from class 

counsel is quite simply preposterous. Class counsel have little incentive 

to pay for the voluntary withdrawal of objections, or the dismissal of 

objectors’ appeals, that they believe are meritless. Well-capitalized 

class counsel – that is to say, any counsel who are equipped to 

adequately represent a class – generally will have the financial 

wherewithal to negotiate “so-called ‘quick-pay’ provisions in their 

settlement agreements so that counsel receive their fees at final 

judgment, not after all appeals, taking the sting out of counsel’s having 

to defend objector appeals.”81 “With the consent of the defendants, class 

counsel insert provisions into class action settlements that permit 

counsel to receive whatever fees district courts award them as soon as 

those courts approve the settlements, regardless of whether the 

settlements are appealed,” with class counsel to refund the fees if the 

award is reversed on appeal.82 Thus, as Professor Brian T. Fitzpatrick 

explains, “objectors who bring meritless appeals can no longer delay the 

point at which class counsel receive their fees” and “class counsel have 

 

80 See, e.g., Fidel v. Farley, 534 F.3d 508 (6th Cir. 2008) (objector’s appeal 

concerning class notice and attorneys’ fees); Morris v. Lifescan, Inc., 54 F. App’x 663, 

664 (9th Cir. 2003) (objector’s appeal concerning attorneys’ fees).

81 4 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS §13:34 (St. Paul: 

Thomson Reuters, 5th ed., 2014); see generally id., §13:8 (discussing quick-pay 

provisions); Brian T. Fitzpatrick, The End of Objector Blackmail?, 62 VAND. L. REV.

1623 (2009) (same). 

82 Fitzpatrick, supra note 81, at 1625. 
26

little incentive to pay objectors a premium to avoid this delay.”83 

“Quick-pay provisions are not only already in use,” Professor 

Fitzpatrick adds, “they are already in wide use.”84

For class counsel who choose to pay nuisance value to obtain the 

dismissal of weak appeals, moreover, the payments are just that – a 

mere nuisance, rather than a serious problem requiring much attention. 

Focusing on such payments misses the greater problem: Class counsel 

who pay objectors to drop meritorious objections and to abandon 

appeals having a strong chance of success. In my twenty-six years in 

the plaintiffs’ class-action bar, I never became aware of a case in which 

class counsel paid objectors to dismiss appeals that they believed to be 

frivolous or of insubstantial merit. The payments I knew of all were 

made to induce objectors to abandon appeals that class counsel feared 

the objectors were apt to win. 

When class counsel make substantial payments to induce

objectors to withdraw objections and appeals they do so, in truth, not 

because the objections are frivolous, but because class counsel fear that 

the objections have substantial merit and may well be sustained on 

appeal. In so doing, class counsel place their own interests over those of 

the class whose interests they purport to represent, paying objectors to 

drop appeals that threaten to benefit the class but that could reduce

class counsel’s fee awards, or even eliminate them altogether – as in 

cases where class counsel labors under an irresolvable conflict of 

interest, or has obtained class certification in violation of fundamental 

principles of due process, or in violation of Article III standing 

requirements. The fault, when such payments are made, lies not with 

objectors who owe no duty to the class, or with objectors’ counsel whose 

ethical obligations run to their own clients (the objectors), but with class 

counsel who do in fact have fiduciary duties running to the class whose 

interests they purport to represent.85 

 

83 Id.

84 Id. at 1626. 

85 See generally Katherine Iketa, Silencing the Objectors, 15 GEO. J. LEGAL ETHICS

177, 196-200 (2001) (arguing that class counsel who pay objectors to drop 
27

Class counsel place the objectors’ lawyers in a box by offering 

payments far beyond the value of the objecting class members’

individual claims. When a class member whose individual claim in a 

class action might be worth a few dollars is offered thousands, or tens of 

thousands, or even hundreds of thousands of dollars to drop her 

objection, she may well be tempted to do so. Her counsel can advise

against it, and urge her to pursue her objection through appeal in order 

to benefit the class – but the decision whether to press the objection or 

withdraw it is the client’s, not the lawyer’s. Rules of professional 

conduct command: “A lawyer shall abide by a client’s decision whether 

to settle a matter.”86 And the objector, in all likelihood, has bills to pay. 

She may have a mortgage or educational debt; her parents may have 

medical bills; she may hope to finance her own children’s college 

education so that they may avoid the specter of crushing educational 

debt. Such considerations are apt to weigh heavily when an objecting 

class member is told that class counsel has offered to pay her a large 

sum to abandon her objection in a case where her personal stake, as a 

member of the class, is by comparison quite modest. And there is little 

to that the objector’s lawyer can do to stop her. 

If class counsel offers cash in return for withdrawing an objection 

or dismissing an appeal, the objector’s counsel must of course 

communicate class counsel’s offer to his or her client, the objector.87 If 

the client decides to accept the payment, then class counsel who made it 

can be expected to revile the objector’s counsel – who may well have 

 

substantial objections or appeals thereby breach their fiduciary duties to the class 

they were appointed to represent). 

86 ABA Model Rule of Professional Conduct 1.2(a); accord, e.g., Attorney Grievance 

Comm’n v. Thaxton, 415 Md. 341, 1 A.3d 470, 471 n.1, 477, 480 n.12 (Md. 2010); 

Rizzo v. Haines, 555 A.2d 58, 500-01 & n.9 (Pa. 1989). 

87 See ABA Model Rule of Professional Conduct 1.4, comment [2] (“a lawyer who 

receives from opposing counsel an offer of settlement in a civil controversy . . . must 

promptly inform the client of its substance”); accord, e.g., see, e.g., Attorney 

Grievance Comm’n v. Thaxton, 415 Md. 341, 1 A.3d 470, 471 n.4, 478, 481-82 & n.14 

(Md. 2010); Rizzo v. Haines, 555 A.2d 58, 500-01 (Pa. 1989).
28

advised his client against accepting the payment yet was powerless to 

stop the transaction – for filing the objection in order to “extort” the 

payment. This has given objectors’ counsel a very bad name in some 

circles.88 But any fault lies, in truth, with class counsel who offer 

objectors large sums to drop objections and appeals because they are 

likely to benefit the class at the expense of class counsel’s fees. 

As things currently stand, such payments are for the most part 

invisible and undocumented – most often made under the auspices of 

appellate-court mediation programs whose rules typically prohibit 

public disclosures concerning the substance of any communications or 

agreements entered in the course of the mediation.89 This gives class 

counsel the opportunity to offer, and objectors the opportunity to accept, 

substantial payments without fear of public disclosure. But a 

declaration that Theodore (“Ted”) Frank and his nonprofit Center for 

Class Action Fairness filed in the Seventh Circuit Capital One appeal 

provides a glimpse of how class counsel too often operate. 90 Even

Frank and the Center have had to abandon objectors’ appeals that they 

 

88 Professor Edward Brunet notes that some in the plaintiffs’ bar revile objectors 

and their counsel as “warts on the class action process” and “bottom feeders.” 

Edward Brunet, Class Action Objectors: Extortionist Free Riders or Fairness 

Guarantors 2003 U. CHIC. L. FORUM 403, 409.

89 See generally Robert J. Niemic, Mediation & Conference Programs in the Federal 

Courts of Appeals 12 (Federal Judicial Center, 2d ed., 2006) (“All of the [mediation] 

program offices operate with confidentiality . . . . Local rules usually prohibit 

mediators, the parties, and the parties’ attorneys from disclosing the substance of a 

conference to any judge or non-party. Generally not considered confidential, 

however, are the fact that the mediation took place and the bare results of the 

mediation (for example, settled, not settled, or continued).”); see, e.g., First Circuit 

Rule 33.0(c); Second Circuit Rule 33.1(e); Third Circuit Rule 33.5(c); Fourth Circuit 

Rule 33; Fifth Circuit General Order Governing the Appellate Conference Program; 

Sixth Circuit Rule 33(b)(4)(D); Eighth Circuit Rule 33A(c); Ninth Circuit Rule 33-

1(c); Tenth Circuit Rule 33.1(D); Eleventh Circuit Rule 33-1(c)( 3). 

90 See Declaration of Theodore Frank in Support of Motion to Intervene, In re 

Capital One Telephone Consumer Protection Act Litig., Nos. 15-1400 & 15-1490, 

DE60-2, ¶¶17-18, 80-81 (7th Cir. June 10, 2015) (hereafter cited as “Frank Decl.”).
29

earnestly desired to press, but that their clients directed them to drop 

when class counsel offered large sums of money.91

 Frank’s Capital One declaration explains that the Center is a 

nonprofit public-interest group organized to provide legal 

representation for objectors, so that it “cannot and does not settle its 

objections for quid pro quo cash payment to withdraw.”92 That is a fine 

aspiration. But the rules of professional ethics say that it is up to the 

client, not the attorney, to decide whether to accept a settlement offer.93 

The result is that class counsel, who wish to dispose of strong appeal 

based on a meritorious objection often can induce the objecting class 

member to abandon the appeal against his or her lawyer’s wishes. 

Frank’s declaration in Capital One explains: 

In a 2010 case, I represented a client with a meritorious 

Ninth Circuit appeal of approval of a settlement where the 

attorneys received $4 million and the class received zero. 

The appeals court ordered mediation, though I indicated to 

the mediator that my clients did not want to settle. After we 

filed our opening brief, class counsel offered an extraordinary 

sum to my clients to dismiss their appeals. (Unfortunately, 

the offer was confidential, and I cannot disclose it absent a 

court order.) One of my clients, an attorney friend, 

apologetically indicated that the offer was too good to refuse. 

I withdrew as attorney for the two appellants, and they 

settled and dismissed the appeal. Neither the Center nor I 

received any compensation as part of that settlement.94

As a consequence of that experience, Frank’s declaration explains,

the Center now insists on retainer agreements in which objecting class 

members pledge not to take payments in return for abandoning 

 

91 See id. 

92 Frank Decl. ¶15.

93 See supra at 26-27 & nn.86-87

94 Frank Decl. ¶¶17. 
30

objections.95 Even with these provisions in its retainer agreements, 

however, the Center cannot control clients who decide to accept 

payments from class counsel – as demonstrated by what happened in 

Capital One itself, where an objector who retained the Center to 

represent him and who agreed not to abandon his objections in return 

for an individual payment, nonetheless ultimately accepted a class 

counsel’s offer of $25,000 to dismiss his appeal.96

 

95 See id., ¶18. Frank’s Capital One declaration explains: 

Since that time, the Center’s retainer agreements contain 

multiple clauses relating to the motivations of the Center’s clients and 

the possibility of settling objections for money. Among other provisions, 

the Center discloses that retaining the Center might deprive clients of 

the most financially advantageous outcome; clients promise that they 

are not seeking to settle their objections for money; and clients 

authorize the Center to move for an injunction prohibiting them from 

doing so. The Center also very carefully screens its clients to ensure 

their good faith in objecting and, when possible, uses Center attorneys 

or board members who are class members to object. We do not 

represent clients who do not agree to these terms. 

Frank Decl. ¶18. 

96 See id., ¶¶34-82. Frank’s declaration explains that in Capital One a class 

member and objector (Jeffrey Collins) who had initially appeared pro se retained the 

Center to represent him in objection to class counsel’s attorneys’ fee application. 

“The objection was partially successful, and the district court reduced the $22.6 

million attorney-fee request of class counsel by about $7 million.” Frank Decl. ¶43; 

see In re Capital One Tel. Consumer Protection Act Litig., 80 F. Supp. 3d 781, 794-

809 (N.D. Ill. 2015). Believing the attorneys’ fee award should be further reduced, 

the Center filed a notice of appeal on behalf of Mr. Collins. With the matter on 

appeal, class counsel communicated an offer: “Mr. Collins must dismiss his appeal 

by close of business June 8, 2015, with $25,000 payable to Mr. Collins upon the 

appeal’s dismissal.” Frank Decl. ¶74. Under the settlement offer from Lieff 

Cabraser Partner Jonathan D. Selbin, class counsel would pay Collins $25,000 in 

return for dismissing his appeal and withdrawing his pending fee petition in the 

district court. Frank Decl. ¶80. Frank was in a pickle, for when the offer was 

communicated to his client, an objector who had agreed not to accept such payments 

in return for withdrawing his objection,

Mr. Collins indicated to me that he now wished to accept the offer 

notwithstanding his earlier agreement and statements. Research 
31

When class counsel offer a substantial sum to an objecting class 

member whose individual claim is worth only a few dollars, or even 

several hundred dollars, the objector’s lawyer is at his or her client’s 

mercy. Though the plaintiffs’ class-action bar may rant about 

“extortion” by “professional objectors,”97 when the truth is that class 

counsel seek to buy off objectors even when – indeed, especially when –

the objector’s counsel would rather press the objection for the benefit of 

the class. 

The lawyers whose objector clients accept such payments, though 

denigrated as so-called “professional objectors” and “extortionists,” are 

not at fault in these transactions. Their duty runs to their client, not to 

the class, however much they may wish to press an objection for the 

benefit of the class.98 It is class counsel who have a fiduciary duty to 

the class – a duty they breach by making self-interested payments in 

order to do away with objections and appeals that, if successful, stand to 

benefit the class.99 

 

indicated that legal ethics rules required me to accept an unethical 

settlement offer, notwithstanding the retainer agreement and my 

reliance upon it . . . and I wrote Mr. Selbin to indicate that Mr. Collins 

accepted the offer. 

Frank Decl. ¶81. 

97 See Edward Brunet, Class Action Objectors: Extortionist Free Riders or Fairness 

Guarantors, 2003 U. CHIC. L. FORUM 403, 409 (2003) (noting that some in the 

plaintiffs’ class-action bar revile objectors and their counsel as “warts on the class 

action process” and “bottom feeders”); Bruce D. Greenberg, Keeping the Flies Out of 

the Ointment: Restricting Objectors to Class Action Settlements, 84 ST. JOHN’S L. REV. 

949, 987 n.150 & 994 (2010) (complaining of “groundless objections” and objectors’ 

“motives of extortion,” and denouncing “the scourge of extortionate and dilatory 

objections”). 

98 See supra at 26-27 & nn.86-87, 29-30 & n.96 

99 See generally Katherine Iketa, Silencing the Objectors, 15 GEO. J. LEGAL ETHICS

177, 196-200 (2001) (arguing that class counsel who do this breach fiduciary duties 

to the class they were appointed to represent).
32

IV. Dealing with Class Counsel’s Payments to Objectors –

The Current Framework and Proposed Revisions to Rule 

23(e)(5)

As currently framed Rule 23 is, without doubt, extremely 

ineffective in dealing with payments to objectors in exchange for their 

withdrawal of objections. Rule 23(e)(5) currently states that “[a]ny class 

member may object to the proposal if it requires court approval under 

this subdivision (e); the objection may be withdrawn only with the 

court’s approval.” Yet no standard is stated in the rule, or anywhere 

else for that matter, to guide the district court’s determination. And, as 

things currently stand, “[o]nce an objector appeals, control of the 

proceeding lies in the court of appeals,” placing it beyond the district 

court’s power to monitor.100

The current rule’s greatest shortcoming is that it establishes no 

standard at all for approving the withdrawal of an objection – a 

shortcoming that the revision currently under consideration does 

nothing to correct.101

 

100 Fed. R. Civ. P. 23(e), 2003 Advisory Committee Note. The Advisory Committee 

Note adds: “The court of appeals may undertake review and approval of a 

settlement with the objector, perhaps as part of appeal settlement procedures, or 

may remand to the district court to take advantage of the district court's familiarity 

with the action and settlement.” Id. But in practice, the appellate courts have not 

done this. 

101 The proposed amendment now under consideration would strike Rule 23(e)(5)’s 

current requirement that an objection to settlement approval “may be withdrawn 

only with the court’s approval,” to instead provide, with respect to objections to 

settlement approval:

(A) In General. Any class member may object to the proposal if it 

requires court approval under this subdivision (e). . . . 

(B) Court Approval Required For Payment to an Objector or Objector’ s 

Counsel. Unless approved by the court after a hearing, no payment or 

other consideration may be provided to an objector or objector’s counsel 

in connection with: 
33

Should a district judge approve payment for withdrawal of an 

objection that it believes is meritless in order to avoid the delay that the 

objection’s full prosecution might otherwise cause? Or should the court 

refuse to approve withdrawal of an apparently meritless objection in 

return for a payment from class counsel – thereby inducing the objector 

to file and prosecute a presumptively meritless appeal? What is the 

standard for withdrawal of an objection that the district court is 

inclined to reject, but that an appellate court may find has substantial 

merit? Should withdrawal of such an objection ever be approved? 

Under what circumstances? 

Rule 23(e)(5) currently provides no answers to any of these 

questions. Neither do the Advisory Committee Notes to the 2003 

Amendments that created it. The leading treatise on class actions 

advises: “‘The Rule itself does not set forth the circumstances under 

which such approval may be given, nor is there any controlling 

authority on the issue.’”102 Perhaps that is why, in practice, the 

requirement of court approval for withdrawal of objections to

settlements generally is ignored – although many objections are 

withdrawn, one seldom sees district courts actually passing on the 

propriety of the withdrawals. The paucity of meaningful precedent, 

given the large number of objections that are withdrawn, is truly 

remarkable. 

 

(i) forgoing or withdrawing an objection, or

(ii) forgoing, dismissing, or abandoning an appeal from a 

judgment approving the proposal. 

(C) Procedure for Approval After an Appeal. If approval under Rule 

23(e)(5)(B) has not been obtained before an appeal is docketed in the 

court of appeals, the procedure of Rule 62.1 applies while the appeal 

remains pending.

Proposed Rule 23(e)(5), in PRELIMINARY DRAFT, supra note 1, at 215-17.

102 4 William B. Rubenstein, Newberg on Class Actions §13:34 (Thomson Reuters, 

5th ed., 2014). 
34

Rule 23’s loophole for objections to attorneys’ fees is even more 

remarkable. Rule 23(h) authorizes class members to object to an 

attorneys’ fee application, just as Rule 23(e)(5) authorizes objections to 

settlement approval. But where Rule 23(e)(5) requires court approval 

for withdrawal of an objection to a settlement, Rule 23(h) contains no 

parallel requirement of court approval for withdrawal of an objection to 

class counsel’s attorneys’ fee application.103 Thus, it appears that class 

counsel may freely pay objectors to drop objections to attorneys’ fee 

awards without disclosure to, let alone approval from, the district court. 

The proposed amendment to Rule 23(e)(5) does little, if anything, 

to help.

Rule 23(e)(5)’s current requirement that an objection to approval 

of a settlement “may be withdrawn only with the court’s approval,” 

would be stricken and replaced with a new requirement of approval 

only when an objector or objector’s counsel receives payment in return 

for the withdrawal of an objection to approval of a settlement; it would 

further provide that if such an objection is withdrawn after an objector’s 

appeal has been docketed, the required approval can be sought 

pursuant to the provisions of Rule 62.1, allowing for limited remands 

for district courts to entertain a motion over which a pending appeal 

would otherwise deprive it of jurisdiction.104 Yet the amendments still 

 

103 Rule 23(e)(5) currently provides: “Any class member may object to the proposal 

if it requires court approval under this subdivision (e); the objection may be 

withdrawn only with the court's approval.” Fed. R. Civ. P. 23(e)(5). In contrast, 

Rule 23(h)(2) currently authorizes objections to attorneys’ fee awards without 

requiring court approval for withdrawal of such objections. It simply states: “A 

class member, or a party from whom payment is sought, may object to the motion.” 

Fed. R. Civ. P. 23(h)(2). 

104 Rule 62.1 provides: 

(a) Relief Pending Appeal. If a timely motion is made for relief that the 

court lacks authority to grant because of an appeal that has been 

docketed and is pending, the court may:

(1) defer considering the motion;
35

would not require court approval for the withdrawal of objections to 

attorneys’ fees that are authorized by Rule 23(h)(2).

I see at least two fundamental problems with this proposal. First, 

by striking the requirement that district courts approve all withdrawals 

of objections, it invites class counsel’s harassment of objectors.105 

Second, it provides no guidance at all as to what standards a district 

court should apply in determining whether or not to approve the 

withdrawal of an objection or appeal in return for a payment.106

A. Dispensing with Court Approval when No 

Consideration is Paid for an Objection’s Withdrawal May 

Encourage Harassment of Objectors by Class Counsel

The proposed amendment under consideration would strike Rule 

23(e)(5)’s current requirement that “the objection may be withdrawn 

only with the court’s approval,” while adding new text requiring judicial 

approval only if payment or consideration is provided to the objector or 

 

(2) deny the motion; or

(3) state either that it would grant the motion if the court of appeals 

remands for that purpose or that the motion raises a substantial issue.

(b) Notice to the Court of Appeals. The movant must promptly notify 

the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the 

district court states that it would grant the motion or that the motion 

raises a substantial issue.

(c) Remand. The district court may decide the motion if the court of 

appeals remands for that purpose.

Fed. R. Civ. P. 62.1. 

105 See infra at 35-37. 

106 See infra at 37-39. 
36

its counsel.107 The Committee Note explains that with respect to 

objections to settlement approval: 

The rule is amended to remove the requirement of court 

approval for every withdrawal of an objection. An objector 

should be free to withdraw on concluding that an objection is

not justified. But Rule 23(e)(5)(B)(i) requires court approval 

of any payment or other consideration in connection with 

withdrawing the objection.108 

Striking the general requirement of judicial approval for the 

withdrawal of any objection to the approval of a settlement is apt to 

encourage abuse. While it is true that an objector should be free to 

withdraw on concluding an objection is in fact not justified, a district 

court still should inquire to ensure that this really is the reason the 

objector seeks to withdraw the objection. 

Far too often, objections are withdrawn not because objectors 

believe they lack merit, but on account of bullying and harassment by 

unscrupulous class counsel. In most class-action cases the great 

majority of class members have rather small stakes. Yet objectors with 

small claims who take the trouble to inform the court of concerns about 

a proposed settlement or fee award may find themselves swiftly 

subpoenaed to produce documents and be deposed – as I was when I 

had the audacity to object to the proposed settlement and attorneys’ fee 

award in the Godiva FACTA litigation.109 The costs of complying with 

such subpoenas are apt in many instances to greatly exceed objectors’

stake in a class action, inducing them to drop even sincere and likely 

meritorious objections. 

 

107 See supra at 32-33 & note 101.

108 Adv. Comm. Note to Subd. (e)(5)(A), in PRELIMINARY DRAFT, supra note 1, at 228. 

109 See supra at 19. As noted above, my deposition as an objector turned out to be 

the only deposition that was taken in the case, in which class counsel had served no 

formal merits discovery at all on the defendants.
37

The practice of bullying objectors with subpoenas and discovery 

has become widespread in consumer class-action litigation. 110 As 

things currently stand, district courts are asking too few questions 

about objections withdrawn without the payment of any consideration, 

rather than too many. They should be required to review every

withdrawal of an objection – though under the current rule, they seldom 

really do so, very likely because no standards currently exist to guide 

their review. 

 

110 Consider, for example, the withdrawal of an objection to the proposed settlement 

and attorneys’ fee award in Home Depot Breach Litig., No. 1:14-md-02583-TWT 

(N.D. Ga.), Docket Entry 255, entered Aug. 2, 2016), in which the pro se objector 

informed Judge Thomas Thrash: 

I withdraw my objection to the proposed settlement of Case No. 

14-md-02583-TWT (The Home Depot, Inc. Customer Security Breach 

Litigation). I still believe that my objection has merit, but wish to 

avoid the cost and inconvenience of a deposition (including travel and 

missing work). As discussed with Mr. Theodore Maya of Ahdoot & 

Wolfson, PC, (1) I am notifying him by e-mail and the court by U.S. 

mail, (2) he will withdraw the subpoena that was delivered to me, and 

(3) he will cancel the deposition that had been scheduled for August 5, 

2016. I am receiving no money or other consideration for withdrawing 

my objection. 

Home Depot Breach Litig., No. 1:14-md-02583-TWT (N.D. Ga.) Docket Entry 255, 

Aug. 2, 2016); see also Docket Entry 245-3, Declaration of John R. Bevis in Suppport

of Final Approval ¶4, July 29, 2016 (“On July 28, 2016, Mr. Weinstein represented 

to Consumer Counsel that he is withdrawing his objection and is sending a copy of 

his withdrawal to the Court.”). Mr. Weinstein probably was not the only objector 

harassed by class counsel into withdrawing his objection. The case drew multiple 

objections from class members who complained that notice was inadequate, because 

they received it only after the time for filing objections had run – but who then 

withdrew their objections without explanation: “At the final approval hearing, the 

parties informed the Court that the following untimely objectors wished to 

withdraw their objections and opt-out of the Settlement; and pursuant to the 

parties’ stipulation they will be included in the opt-out list and not bound by the 

terms of the Settlement: Michael Dwyer, Timothy Haley, and Peter Scoolidge.” 

Home Depot Breach Litig., No. 1:14-md-02583-TWT (N.D. Ga.) Docket Entry 260, at 

12 (filed Aug. 23, 2016). 
38

B. Requiring District Court Approval for Payments 

while Providing No Standards for Approval, and Without 

Permitting Reconsideration of a Settlement Previously 

Approved, Likely Will Not Do Much Good

The proposed revision to Rule 23(e)(5) would require district-court 

approval not only for payments made in return for the withdrawal of an 

objection to a settlement, but also for payments made the withdrawal of 

any appeal from the denial of such an objection. But, much like the 

current Rule 23(e)(5), the proposed revision provides no guidance at all 

concerning what the appropriate standard for approval might be.

 Should the court approve of a modest payment to be made in 

return for the withdrawal of a relatively weak appeal? Should it 

approve a large payment? Or should it withhold approval, and insist 

that the objector proceed with the weak appeal? 

On the one hand, the Advisory Committee Note to the proposed 

revision of Rule 23(e)(5) seems to suggest that district courts should 

approve payments made for the dismissal of weak appeals simply in 

order to avoid the delay that appellate proceedings may cause: 

“Because an appeal by a class-action objector may produce much longer 

delay than an objection before the district court, it is important to 

extend the court approval requirement to apply in the appellate 

context.”111 On the other hand, the Advisory Committee Note also 

appears to say that the amendments are motivated by the view that 

such payments are to be condemned: “At least in some instances, it 

seems that objectors – or their counsel – have sought to extract tribute 

to withdraw their objections or dismiss appeals from judgments 

approving class settlements.”112 So what is a district judge to do? 

Approve a payment for dismissal of a really weak appeal in order to 

avoid the delay occasioned by full appellate proceedings? Or deny 

approval because the payment is some taboo “tribute”? Neither the 

 

111 Advisory Committee Note to Proposed Rule 23(e)(5)(B)(i), in PRELIMINARY DRAFT, 

supra note 1, at 230. 

112 Id. at 229. 
39

proposed revisions nor their Advisory Committee Notes provide clear 

guidance. 

What if class counsel has offered an objector a very large payment 

in return for abandoning a supposedly “meritless” appeal? Should the 

district court perhaps reconsider whether the objection has merit, so 

that it should be sustained rather than withdrawn? That might make 

sense, if the interest of the class were what mattered – but the proposed 

amendments do not appear to permit such reconsideration. 

By its terms, a new Rule 23(e)(5)(C) requires judicial approval of 

payments made to induce the dismissal of a pending appeal by 

providing: “If approval under Rule 23(e)(5)(B) has not been obtained 

before an appeal is docketed in the court of appeals, the procedure of 

Rule 62.1 applies while the appeal remains pending.”113 But Rule 62.1 

provides that “[i]f a timely motion is made for relief that the [district] 

court lacks authority to grant because of an appeal that has been 

docketed and is pending, the [district] court may: (1) defer considering

the motion, (2) deny the motion; or (3) state either that it would grant 

the motion if the court of appeals remands for that purpose or that the 

motion raises a substantial issue.” And then: “The district court may 

decide the motion if the court of appeals remands for that purpose.”114

Thus, it appears that the district court receives jurisdiction to 

decide only “the motion” in question – concerning to approve a payment 

proposed to be made in exchange for voluntary dismissal of an objector’s 

appeal. The proposed revision does not authorize the district court to 

consider anything more than this. While a large payment might signal 

that the appeal has merit, and that the district court should perhaps 

reconsider the objection to settlement approval itself, the court would 

lack authority to do so. 

 

113 Proposed Fed. R. Civ. P. 23(a)(5)(C), in PRELIMINARY DRAFT at 216-17. The 

Advisory Committee Note to this revision adds: “Because the court of appeals has 

jurisdiction over an objector’s appeal from the time that it is docketed in the court of 

appeals, the procedure of Rule 62.1 applies.” Id. at 231. 

114 Fed. R. Civ. P. 62.1(c). 
40

Of course, the district court that originally rejected an objection 

probably is not the best judge of whether an appeal from its own order 

has merit. Responsibility for approving such transactions would be 

better vested in the appellate court or another district judge, who can 

evaluate the matter more objectively, than remanded to the judge who 

personally rejected the objection in the first instance. 

V. Recommendations

I think it makes sense to require searching judicial inquiry and 

approval before any class members’ objection is withdrawn or 

compromised. Thus, the current requirement of judicial approval for 

any withdrawal of an objection should be retained and strengthened, 

rather than abandoned whenever no consideration is paid. 

District courts should be wary when good-faith objections are 

withdrawn without the payment of consideration, and they should be 

swift to punish class counsel who serve subpoenas on objectors for 

purposes of harassment and intimidation.115 Class counsel who 

engage in such programs of harassment clearly do not have the class’s 

best interests at heart – they likely should be disqualified as incapable 

of adequately representing a class in all future cases. 

Unfortunately, district courts cannot be expected to engage in 

productive inquiries concerning withdrawals of objections when there 

are no clear standards to be applied. Currently there are none. Top 

priority should be given to study of how the system currently works, in 

order to frame standards that will operate to benefit class members by 

facilitating potentially meritorious objections and appeals while barring 

 

115 See, e.g., In re Classmates.com Consol. Litig., 2012 WL 3854501 at *9-11 (W.D. 

Wa. 2012) (reducing class counsel’s attorneys’ fee award by $100,000 on account of 

aggressive behavior towards an objector and his counsel, which included serving 

subpoenas on the objector, and was “conduct that was plainly not in the interests of 

the class”). 
41

class counsel from paying money to terminate them. The real problem 

is not that objectors secure payments from class counsel in order to 

abandon frivolous objections and appeals. It is that class counsel pay 

objectors to drop objections and appeals that have merit and could 

benefit the class. 

Expanding the requirement of district-court approval to 

encompass voluntarily dismissal of appeals without first providing clear 

standards could well produce chaos. Disclosure and transparency are 

surely are to be desired, and class counsel who seek to pay objectors to 

withdraw appeals should not be able to hide behind letter agreements 

and appellate-mediation confidentiality rules. But clear standards 

should be developed before the requirement of judicial approval is 

expanded. 

Rhetoric condemning objectors, and their counsel, for pursuing

their own interests rather than those of the class, raises serious 

questions about whether objectors and their lawyers are deemed to 

have any duties running to the class. The Advisory Committee Note to 

the proposed revisions to Rule 23(e)(5)(B) say that “[g]ood-faith 

objections can assist the court in evaluating a proposal under Rule 

23(e)(2). . . . But some objectors may be seeking only personal gain, 

and using objections to obtain benefits for themselves rather than 

assisting in the settlement-review process.”116 The Advisory Committee 

Note further states that if consideration paid for the withdrawal of an 

objection or voluntary dismissal of an appeal “involves a payment to 

counsel for an objector, the proper procedure is by motion under Rule 

23(h) for an award of fees.”117 

As things currently stand class representative, and its lawyers, 

are supposed to act as fiduciaries to the class they represent. An 

objector, as an absent class member, currently owes no such duty. And 

an objector’s counsel, as Ted Frank learned, is obligated to represent its 

 

116 Advisory Committee Note to Proposed Rule 23(e)(5)(B), in PRELIMINARY DRAFT, 

supra note 1, at 229. 

117 Id. at 230. 
42

objector client’s interests rather than those of the class in the event that 

the objector client to chooses to abandon the class’s interests in order to 

pursue its own.118 If the Advisory Committee wishes to change the rules, 

and to impose fiduciary duties running to the class on objectors’ and 

their counsel, it should say so clearly. 

Once clear standards have been promulgated, transparency and 

full disclosure of class counsel’s payments to secure the withdrawal of 

objections should be expanded to encompass objections to attorneys’ fees 

authorized by Rule 23(h)(2), as well as objections to settlement approval 

authorized by Rule 23(e)(5). The existing loophole for objections to 

attorneys’ fee awards should be closed. 

Finally, recognizing that objectors’ counsel may be influenced by 

financial self-interest, it would be helpful to promulgate rules under 

which objectors’ counsel can expect to be paid at least as much for 

successfully prosecuting an objection benefitting the class as they can 

expect when an objection is instead abandoned or an appeal dismissed. 

Financial incentives should be structured to encourage assertion of 

objections for the benefit of the class, rather than their abandonment in 

return for a payment by class counsel that benefits only the individual 

objectors and their counsel. 

VI. Conclusion

The proposed amendments to Rule 23(e)(5) fail to take account of 

the practical realities of class-action practice. In my 26 years in the 

plaintiffs’ class-action bar, I have never seen class counsel make a 

payment in return for the withdrawal of a frivolous objection. But class 

counsel will pay large sums to induce objectors to drop potentially 

meritorious objections that could well benefit the class. Any fault in 

such transactions rests with class counsel, who owe a fiduciary duty to 

the class as such, rather than to the objector’s counsel who owes no such 

duty but is, to the contrary, obligated to represent the objector’s interest 

as an individual should he or she decide to accept a settlement offer. 

 

118 See supra at 29-30 & n.96. 
43

Judicial review of the withdrawal or compromise of an objection 

should be strengthened, whether or not consideration is paid to the 

objector. But most of all, clear standards are needed to guide district 

courts’ review when consideration is offered. The currently proposed 

amendments offer none. 
TAB 5

COMMENT OF 

GERALD MAATMAN, JR. OF SEYFARTH SHAW LLP








TAB 6

COMMENT OF 

PROFESSOR JUDITH RESNIK OF

YALE LAW SCHOOL
1

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

Rule 23 Proposed Revisions, 2017

Comments for the

Telephonic Hearing on Proposed Amendments

to the Federal Rules of Civil Procedure

Advisory Committee on Civil Rule

of the

Judicial Conference of the United States

February 16, 2017

Professor Judith Resnik1

Arthur Liman Professor of Law,

Yale Law School

submitted electronically, February 6, 2017

to the Rules Committee Support Office

Administrative Office of the United States Courts
2

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

I appreciate the opportunity to provide commentary on the 

proposed revisions of Rule 23. My focus is on proposed changes 

to Rule 23(e), addressing the role of judges in the settlement 

of class actions. I support the Advisory Committee’s 

consideration of new rulemaking to improve the settlement 

process. I believe the current proposals are steps in the right 

direction, but that more needs to be done.

My concern – and hence the reason to add to the comments that 

have been posted and to the discussion in the transcripts of the 

two earlier hearings – is about the relationship of litigants to 

the court after class action settlements are approved. At the 

time of settlement, a good deal of information about the 

challenges of implementation of both injunctive and monetary 

relief may not be available. The Rule ought to add to the tasks 

it has assigned to judges by obliging them, after settlements 

are approved, to oversee implementation and to respond to 

problems that may arise during the remedial phase.

The reasons to do so are to respect both the participatory 

and distributional interests of litigants and of the public. 

During the past century, the constitutional commitment to due 

process has been interpreted as central to enabling those whose 

interests are affected by court judgments to have means of 

participating in decisions adjudicating those interests. In 

practice, this aspiration is complex to instantiate but remains 

important to recognize. Moreover, as the law has permitted 

aggregation (as well as dealt with sets of claimants through 

administrative adjudication), concerns have emerged about how to 

ensure fair distribution of remedies across similarly-situated 

litigants.2 Further, the legitimacy of judicial decision-making 

is embedded in its long historical practice of welcoming public 

access through the open doors of courthouses.

These are the basic values that inform my view of why Rule 23 

needs to look forward to the post-settlement implementation 

phase, and to detail the ongoing obligations of both litigants 

and judges. To preview what is explained below, I suggest that 

the Rule 23 (e) revisions require litigants to provide more 

information on the proposed remedy. Rule 23’s text should 

require parties to inform courts about the mechanisms being 

considered for the implementation of the relief provided through 

settlement. That requirement ought not be used as a back-end 

method of imposing “ascertainability” at certification or as a 

way to derail approval of a settlement.3
3

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

Rather, the request for information and opportunities to 

return to court respect the fact that, at settlement, not all 

relevant information is likely available. As we have learned 

most vividly in the context of structural injunctions in civil 

rights litigation, lawsuits do not end with court approval of 

settlements. Time is needed to implement decrees, whether they 

be seeking reforms of prison conditions or distributing funds

when monetary relief is ordered. Further, at settlement, the 

parties and the court may well not know whether notice to class 

members will reach them and whether allocations of remedies for 

various sets of claimants are keyed to fair and workable 

criteria. To respond, the rule should require periodic 

reporting, post approval, to obtain information on the progress 

made when injunctive relief is provided and on the distribution 

process when monetary remedies are put into place. Adjustments 

of settlement terms, in the appropriate cases, may well have to 

follow.

Subject to appropriate limitations related to individuals’ 

privacy, reports related to post-settlement implementation 

processes and outcomes should become part of court records, 

accessible as “judicial documents” to the public. Further, 

because issues may emerge about the differential impact of 

remedies after a settlement has been approved, the rule should 

be clear that, in addition to whatever internal dispute 

resolution mechanisms are provided in settlements, courts retain 

jurisdiction to address disputes involving categories of 

claimants.

I am mindful that, as Committee members have raised in the 

hearings to date, proposals to alter the circulated draft could 

require a new opportunity for the public to comment. I believe 

that my proposals on Rule 23(e) build on what the Committee has 

said in its suggested text and note and therefore fall within 

the scope of what the Committee has circulated. Given that this 

Committee has received submissions arguing for restrictions

class actions, I have prefaced my discussion of Rule 23(e) with 

an overview of the role played by class actions in the federal 

courts today. In 1966 and in 2003, the revisions of Rule 23 

responded to problems in the world at large. As I detail below, 

class actions make vital contributions to the federal courts

themselves, constitutionally authorized to respond to 

allegations of unlawful action falling within their 

jurisdiction. Indeed, given the number of pending cases and the 

limited resources of many litigants, the federal courts need

class actions and other forms of aggregation to ensure that, in 

some cases, lawyers with resources are able to clarify the 
4

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

claims advanced and that both sides of disputes have the ability 

to respond constructively to redress the harms identified.

One other word by way of introduction is in order. My

suggestions are informed by my understanding of the challenges 

that the federal courts currently face, the criticisms leveled 

against class actions, my research on the history and use of 

Rule 23, and my participation in class action litigation. In the 

1980s, when writing articles addressing Rule 23 and federal 

adjudication more generally, I reviewed files, then housed in 

the National Records Center, on the history of the 1966 

revisions.4 More recently, I have used both the microfiche, which 

the Congressional Information Service compiled from the National 

Archive Records,5 and Benjamin Kaplan’s papers, which became 

available in 2014 at the Harvard Law Library. Further, I have 

functioned as a lawyer in class actions and in multi-district 

litigation and as a court-appointed expert.

I. The Federal Courts Rely on Aggregation to Respond to 

Docket Demands

As I noted, rule-makers write in the context of problems to 

be solved. A brief overview of structural aspects of the current 

docket makes plain the contribution of rule revisions to 

reinforcing the ability of litigants to use class actions and to 

improving class-based settlements. Hence, a bit of data is in 

order on filings, pending cases, the expanded use of multidistrict litigation, the increasing use of dispute resolution 

through mechanisms such as alternative dispute resolution (ADR),

and the law limiting class actions.

First, filings in the federal court system, which had more 

than doubled between 1970 and 1985, have experienced little 

growth in the last three decades. The details are in Figure 1, 

U.S. District Court Filings, 1970-2015,6 below.
5

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

Looking at the past fifteen years, civil and criminal filings 

ranged from about 300,000 to 360,000 cases per year. In 2015, 

279,036 civil cases were filed, and the federal government 

brought more than 60,000 criminal cases,7 a significant 

proportion of which involved multiple defendants.8

Second, a remarkable amount of civil litigation in the 

federal courts is clustered together, consolidated under the 

1968 “multi-district litigation” (MDL) statute9 and distributed 

in an uneven pattern to specific district court judges around 

the United States. In contrast to flattened filings in the last 

decades, the number of pending civil cases, tracked in Figure 2, 

has grown — more than tripling between 1970 and 2015 and 

increasing from about 300,000 cases in 2010 to 341,813 cases in 

2015.

0

50,000

100,000

150,000

200,000

250,000

300,000

350,000

400,000

1970 1975 1980 1985 1990 1995 2000 2005 2010 2015

Civil Criminal

U.S. District Court Filings: 1970-2015
6

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

But thousands of these cases are not dealt with individually. 

Rather, as of the fall of 2015, almost forty percent of federal 

civil cases were part of MDLs,10 created when the statutory 

criteria for pre-trial aggregation were met. As you know, in 

1968, Congress enacted the MDL statute, and authorized the Chief 

Justice to designate seven jurists to form the MDL panel, which, 

in turn, decides to grant MDL status and selects a district 

court judge to preside over the group of cases. As long as that 

panel concludes that MDL status is appropriate because the 

statutory criteria (“civil actions involving one or more common 

question of fact . . . pending in different districts”) are met, 

litigants become part of mandatory, non-opt out, pre-trial 

aggregates, which are run by court-appointed lead lawyers

(Plaintiff Steering or Plaintiff Executive Committees (PSC/PEC)) 

functioning as ad hoc law firms that speak for claimants who had 

filed individual lawsuits.11

This Committee’s focus is, of course, on Rule 23. But 

thinking about the interaction between class actions and MDLs is 

useful, not only because many MDLs include class actions, but 

also because the revisions of the class action rule will become 

101,032

341,813

50

100

150

200

250

300

350

400

1970 1975 1980 1985 1990 1995 2000 2005 2010 2015

Thousands

Total Civil Cases Pending in U.S. District Courts:

1972-2015
7

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

an important benchmark against which to think about MDLs. Rule 

23 revisions will contribute to “best practice” models, the 

Manual on Complex Litigation, and case law developments.

The growth in the aegis of MDL is significant, as is charted 

in Figures 3 and 4. In 1991, fewer than 2,232 cases (or about 

one percent of the civil docket) were part of MDL proceedings.12

By September 2015, of 341,813 federal civil cases pending,13

132,788 were concentrated in 247 proceedings, each aggregated 

before a single judge.14 The practice of random assignment of 

cases to individual district judges (and in some districts also 

to magistrate judges “on the wheel”), which has been in place 

for several decades,15 is undone for this large segment of the 

docket.16 In 2015, more than 150 judges were assigned one MDL, 

twenty-eight had two MDLs each, and ten had three or more, some 

of which involved different manufacturers of a product alleged 

to be harmful.17

1,590

132,788

0.0%

5.0%

10.0%

15.0%

20.0%

25.0%

30.0%

35.0%

40.0%

45.0%

1972 1977 1982 1987 1992 1997 2002 2007 2012

The Percentage of the Pending Federal Civil Docket

in Multidistrict Litigation: 1972-2015
8

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

As is also familiar, the 1966 note to Rule 23 stated that 

“a ‘mass accident’ . . . is ordinarily not appropriate for a 

class action . . . .”18 But in the decades that followed, federal 

judges certified some of what we now call “mass torts” as class 

actions, and bankruptcy proceedings involving asbestos and the 

Dalkon Shield made plain the need for the contributions to be 

made by aggregation in tort. Moreover, while in its first few 

decades, the MDL panel shared the Rule 23 1966 Committee’s 

skepticism about tort aggregation (with the five rejections of 

proposed MDLs for asbestos as the exemplar),19 that approach was 

abandoned.

Product liability cases were, as of July 2015, about

twenty-four percent of the 287 then-pending MDLs; adding air 

crashes brings the total proportion of tort MDLs to 

approximately a quarter of the MDL portfolio. Moreover, as 

Figure 5 (with thanks to Professor Sam Issacharoff for 

permitting me to use it20) details, when moving from the level of 

the MDL to the cases within them, mass torts represented more 

than ninety percent of the pending MDL cases.

101,032

341,813

1,590 37 37 43 53 48 52.5294 40 4038394564697677

10288716661

89

128

132, 788

50

100

150

200

250

300

350

400

1972 1977 1982 1987 1992 1997 2002 2007 2012

Thousands

Total Federal Civil Cases Pending Cases Pending in Multidistrict Litigation

Pending Cases in the Federal Civil Docket 

and in Multidistrict Litigation: 1972-2015
9

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

Another distinction drawn in the 1960s - between class 

actions as enabling new cases and MDLs as only expediting cases 

already filed - has also dissipated.21 Under the MDL, the 

practice has emerged of what are called “direct filings,” in 

which a case is brought into an MDL after the MDL exists, thus 

cutting the administrative costs of going to another “transfer” 

court first and then “tagging along.”22 For example, in February 

of 2012, the MDL panel assigned a federal district judge in West 

Virginia some 150 cases related to failures of transvaginal 

mesh, used for pelvic surgery repairs. By the fall of 2015, some 

70,000 pending cases were part of the seven transvaginal mesh 

MDLs (organized by product manufacturer), of which thousands had 

been filed directly in that court.23

The third structural fact about the federal courts, 

illustrated in Figure 6, is the absence of lawyers in a 

significant portion of the federal docket. More than twenty-five 

percent of the plaintiffs filing civil cases in federal courts 

do so without counsel at the trial level.24 On appeal, more than 

fifty percent of litigants do.25 Disaggregated by circuits, the 

range runs from about a third to sixty-four percent of the 

Products Liability, 

120215, 92%

Employment 

Practices, 32, 0% Intellectual 

Property, 158, 0%

Miscellaneous, 

5292, 4%

Common 

Disasters, 2967, 

2%

Antitrust, 1595, 

1%

Air Disaster, 40, 

0%

Sales Practices, 

858, 1%

Securities, 305, 0%

Contract, 107, 0%

Distribution of Pending MDL Actions

by Type as of July 15, 2015
10

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

filings.26 These numbers include both thousands of prisoner 

filings and many cases brought by people who are not 

incarcerated.27

2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

0

50,000

100,000

150,000

200,000

250,000

300,000

350,000

Filings

Total Civil Filings Pro Se Civil Filings

0

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

Total Filings Pro Se Filings

Pro Se Civil Filings in the U.S. District Courts:

2004-2015

Pro Se Filings in the U.S. Courts of Appeals:

1995-2015
11

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

Fourth, the oft-cited fact of the “vanishing trial” is but 

a piece of a larger phenomenon of the privatization of process, 

in which the methods by which cases and disputes are resolved 

move them outside the public purview. As of 2015, about one in 

one hundred civil lawsuits filed began a trial before either a 

judge or a jury.28 In terms of numbers, 2,852 civil bench and 

1,882 civil jury trials were completed in 2015; the count on the 

criminal side was 5,027 bench trials and 1,807 jury trials.29

(Data on dispositions in almost a million civil cases in state 

courts put the rate of civil trials as the mode of disposition 

in about four percent of the cases analyzed.30)

Which cases make it to trial in the federal system is not 

readily knowable. I am in the midst of a research project to try 

to understand more about the 2,000 to 3,000 cases that are tried

yearly — in terms of whether the litigants are pro se or 

represented, in classes or MDLs, the subject matter and stakes 

of the claims, and their distribution across the United States.31

Many assume that no class actions go to trial, and that for 

cases that are tried, lawyers are a prerequisite. But an initial 

evaluation of the 2,973 cases identified as terminating with a 

trial (in a database provided to me by the Federal Judicial 

Center)32 between October 1, 2014 and September 30, 2015, fortythree (or under two percent of tried cases) were identified as 

class actions.33 Of these, at least twenty-nine cases actually 

proceeded to trial as class actions, and some concluded with 

bench or jury verdicts, while others ended with a settlement 

after some phase of trial had begun.

If this one-year picture is not aberrational, then the 

image of class actions as “too big to try” needs to be tempered 

with the fact that some cases make their way to that form of 

adjudication. (The size of the subset is not known, as public 

data do not track what cases are styled or certified as class 

actions.)34 At the other end, about 450 (or more than fifteen

percent of) cases in this one-year snapshot of trial data were 

categorized as having at least one party pro se, and eighteen

(0.6 percent) had at least one party on both sides 

unrepresented.35

Of course, judges do a good deal of adjudication without 

trials. Thus, another measurement is what some researchers call 

“bench presence,” the hours that judges spend in court. After 

reviewing statistics gathered by the AO of the U.S. Courts, 

researchers reported a “steady year-over-year decline in total 

courtroom hours” from 2008 to 2012 that continued into 2013, 

resulting in less than two hours a day on average in the 
12

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

courtroom, or about “423 hours of open court proceedings per 

active district judge.”36 To the extent judges are interacting 

with litigants and their lawyers in chambers in forms of 

alternative dispute resolution, those exchanges are generally 

outside the public realm.37

The rarity of trials makes all the more important the 

attention that the Committee has given to Rule 23(e), for it is 

the all-too-unusual opportunity for the public adjudication. 

Indeed, the distinction drawn in the 1960s between aggregation 

for trial (class actions) and aggregation for pretrial (MDL) has 

dissipated. The “pretrial” is now what federal litigation is, 

and aggregate resolutions are the route for almost everyone. As 

of 2015, about nineteen out of twenty cases in an MDL closed 

before being remanded to a district for trial.38

Turn then to the non-trial functions of the federal courts. 

Rule 23 is a lone example of the civil rules providing direction 

to judge and litigants about the procedures for settling cases. 

(A proposal for another time is to commend that this Committee 

draft rules to elucidate the process for settlement in non-class 

actions and go beyond the language of Rule 16 and Rule 68 to 

explain to parties and judges how, under Rules 41 and 58, to do 

so.) What Rule 23(e) offers contrasts to local rules and 

standing orders on alternative dispute resolution. Courts have 

promulgated hundreds of rules governing ADR and, unlike Rule 23,

those rules rarely protect rights of the public to know much 

about either the processes or the results. As I discuss below, 

my hope is that Rule 23(e) will be amplified to provide more 

public access to information.

Fifth, as is familiar, the use of class actions has been 

limited by interpretations of Rule 23, by federal statutes, and 

by decisions about the 1925 Federal Arbitration Act (FAA) which 

permit enforcement of consumer and employee documents that 

prohibit the use of aggregate procedures.39 Legal services 

lawyers are precluded from bringing class actions, and 

certification has become more difficult in light of rulings such 

as Amchem, Ortiz, and Wal-Mart. Thus, an irony of the class 

action “wars” (as some term the intensity of debates on class 

actions40) is that the federal judiciary should be included in an 

accounting of those “injured” by the imposition of such limits 

on class actions. Simply put, in the twenty-first century, the 

courts are reliant on collectivity in a segment of their docket 

in order to function.
13

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

II. Additional Articulation of the Obligations of Judges and 

of Litigants, Post-Settlement

A classic rationale for class and MDL litigation has been 

to conserve the time of lawyers and judges. But more time, not 

less, is needed during the remedial phase of aggregates to make 

the outcomes effective, to ensure that decisions are tied to 

legal entitlements, that relief is fairly distributed across a 

set of claimants and, therefore, that the courts’ decisions are 

legitimate exercises of judicial authority. A significant 

portion of that work belongs rightly to judges under whose watch 

large-scale relief is provided.

Given the low likelihood of exiting (if ever it was an 

option41) from group-based resolutions, we need to find ways to 

fulfill obligations to individuals within the aggregate so as to 

honor due process and First Amendment values even as forms of 

litigation and the modes of disposition shift. Doing so entails 

articulating a role for judges to superintend both plaintiff and 

defense counsel who ought to be charged with making sure that 

settlements achieve their goals and redound to the benefit of 

those found entitled to relief. Judicial oversight at class 

certification and again at settlement is familiar, even as both 

phases are replete with challenges.42 Yet, judges – and oversight

– are needed thereafter, as remedies are made material.

Fifty years of experience with class actions and MDLs provide 

instruction, for it is plain that effectuating relief is a 

challenge in both the context of injunctions and damages. Civil 

rights class actions have generally relied on special masters 

and compliance monitors and on repeated trips to court. Indeed, 

the Prison Litigation Reform Act of 1996 required plaintiffs’ 

lawyers to remain (exhaustively) involved; the statute licenses 

an array of individuals to challenge the need for continuing 

court authority — potentially returning cases every two years to 

court.43

Money class actions have likewise spawned a retinue of 

actors. Escrow agents and claims facilities have, however, been 

subjected to less public scrutiny, in part because defendants, 

who have tried to buy “peace” (if not always global) have few 

incentives to raise questions about the distribution of 

remedies. In some cases (securities litigation provides an 

exemplar), distribution may be relatively easy, as the records 

of the sales and losses are accessible, and technology can lower 

the transaction costs of disbursing sums.
14

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

Yet in other kinds of cases, the complexity of distribution 

results in some instances when plaintiffs do not recoup, either 

because the time and effort required to do so are greater than 

the likely recovery, or the information demanded to obtain 

relief is unlikely to be readily accessible, let alone kept. 

More generally, the lack of court involvement in the phase after 

settlement has resulted in a paucity of information on the 

public record about the success of class action notice, the ways 

in which remedies have been implemented, the personnel involved, 

and the costs of administration. These problems are evident from 

the submissions to the Committee; individuals have adverted to 

their personal use of electronic media and of the U.S. Postal 

Services, as well as to their practices of their children. But 

little systematic information informs the discussion.

Thus, while judges have long described themselves in class 

actions as serving as “fiduciaries” for the absentees,44 they 

have not (outside the context of structural injunctions) taken 

that obligation past the approval of settlements into the 

implementation phase. Nor have courts insisted on public 

mechanisms for responding to conflicts that emerge during 

distributions or for documenting the remedies provided. Indeed, 

in some instances, such as in the Dalkon Shield litigation, coclaimants were barred from learning what others had received.45

As some of the materials submitted to this Committee reflect, 

class action critics use the challenges of implementation as 

arguments to prevent certification.46 Various claims are advanced 

arguing that class actions provide little or no benefit to class 

members.47 Not surprisingly, such commentary has elicited sharp 

disagreement.48 Recent new empirical work, for example, comes 

from a 2015 publication by the Consumer Financial Protection 

Bureau (CFPB), which focused on 419 federal consumer financial 

class action settlements from 2008 through 2012; the CFPB 

concluded that the settlements resulted in benefits for at least 

160 million consumers, providing $2.0 billion in cash relief and 

$644 million in in-kind relief.49 The CFPB study found an average 

claims rate of twenty-one percent across 105 settlements,50 as 

well as 133 of the 419 settlements reporting automatic 

distributions.51 Academics have likewise sought to document the 

impact, such as an analysis by Brian Fitzpatrick that identified 

evidence of payouts of seventy percent in some class action 

settlements.52

Yet, despite such efforts, systematic information deficits 

shadow the analyses. Nicholas Pace and Bill Rubenstein have 

described the “veil of secrecy” falling over class action 
15

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

litigation that begins “the moment the judge signs off on the 

agreement.”53 Their research, based on court records in thirtyone class settlements and on interviews with participants in 

fifty-seven cases, identified data in “fewer than one of five 

closed cases.”54 While the information was known to parties or 

claims administrators, it was not available to the public. More 

recently, Lynn Baker, Michael Perino, and Charles Silver 

recounted the work entailed in opening the “black box” of 

federal court class action securities settlements, numbering 

seventy to eighty yearly.55 Likewise, Deborah Hensler has 

detailed how little we know about class actions in general, from 

filing to disposition and remedies.56

I believe rule-drafting can respond. The practice of 

aggregate settlement should be put into the context of both 

First Amendment and due process obligations. Distributional 

debates inside a claims resolution system should, as a matter of 

the rules not be left to the private decision-makers authorized 

under such settlements without a subsequent opportunity for a 

return to public courts. A line of cases recognize a First 

Amendment right to have access to government proceedings, from 

criminal to civil litigation.57 But the doctrine needs to be 

amplified to govern post-decision implementation, to clarify 

that those rights apply to filings that should be required about 

the distributions made through class and MDL settlements. Lower 

courts have debated, for example, whether reports by monitors 

appointed to oversee injunctions are “judicial documents” to 

which access is constitutionally obliged.58

Rulemaking can and should provide guidance. This Committee’s 

proposals direct judges, when considering approval of class 

settlements, to consider whether class members are “treated 

equitably relative to each other”;59 to assess “the effectiveness 

of the proposed method of distributing relief to the class, 

including the method of processing class-member claims, if 

required”;60 and to require some form of disclosure about “side

settlements,” which can be used to buy off potential objectors.

The suggested text is a step forward but, as currently 

drafted, it only calls for judges to learn about the proposed 

system of “distributing relief” rather than tasking them 

expressly with requiring information on implementation, 

permitting post-settlement that subsets of litigants could

petition the court for assistance. Further, the current draft 

does not create a presumption of disclosing on the record 

underlying agreements; instead, parties seeking approvals of 

settlements are only to “file a statement identifying any 
16

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

agreement made in connection with the proposal.”61 Moreover, 

while the proposed note comments that it “may be important to 

provide that the parties will report back to the court on the 

actual claims experience,”62 the draft rule does not put the onus 

on either the parties or the court to gather and to put such 

experiences or distribution data on the record. Thus, proposed 

revisions do not organize a system of oversight of distribution, 

create mechanisms for litigants to bring claims to court if 

conflicts emerge, or require that data on implementation become 

public.

Hence, I suggest that the current proposal be edited to

require, before courts approve settlements, that settlement 

agreements provide regular reporting about distribution 

decisions and that, if conflicts about distribution across sets 

of claimants emerge, the settlement should include a method of 

returning to court. The Rule should mandate periodic reports 

(without naming individuals when appropriate) about the 

remedies, from structural relief to dollars and how parties

receive distributions and the sums paid.

Guidance for doing so could be drawn from some cases – such 

as the BP and VW litigations – in which websites have been 

created to share (without charge) some information about 

distributions.63 Decisions under the Fair Labor Standards Act

(FLSA) provide another model. Courts have concluded that 

employees are not authorized to waive others’ rights to the 

statute’s remedies, that either the Department of Labor or 

judges ought to oversee settlements,64 and some judges prohibit 

the sealing of FLSA settlements.65 Agencies may also offer useful 

models, even as some are criticized for their opacity.66 When the 

Securities and Exchange Commission settles cases entailing 

recoveries for individuals, its distribution process includes a 

set of publicly-accessible forms.67 And the Federal Trade 

Commission has a “Class Action Fairness Project,” which in 2016 

ordered eight claims facilities to report data on 

distributions.68

The data that I provided above on the numbers of pro se 

litigants in the courts serve as a reminder that any new 

procedural aspirations need to be accompanied by provisions for 

lawyers. Getting lawyers involved, in turn, requires creating 

incentives to do more work on behalf of clients, post 

resolution. One could borrow from the practice of paying “peace 

premiums” to settle by imposing sliding-scale fee awards, with 

higher percentages paid to lawyers who distribute funds 

successfully and economically. In addition, given that some 
17

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

class actions overlap with MDLS, one could use the individually 

retained plaintiffs’ attorneys (IRPAs, as Denny Curtis, Deborah 

Hensler, and I once called them69) as a resource in the postsettlement phase. These lawyers could be used as a means of 

recognizing the individual needs of litigants. The time spent 

building relationships with them could be acknowledged and 

rewarded through structured fee awards that link fee payments to 

IRPAs to work done in implementing remedies.

Further, one could extrapolate from congressional interest 

in regulating lawyers in securities litigation through the 

Private Securities Litigation Reform Act of 1996. The statute 

aims to link lawyers’ fees to the amount actually distributed to 

class members. Congress stated that the fees for plaintiffs’ 

lawyers “shall not exceed a reasonable percentage of the amount 

of any damages and prejudgment interest actually paid to the 

class.”70

But the problem with the congressional approach is that it 

is one-sided, putting the onus on plaintiffs’ attorneys rather 

than structuring a system in which the settling parties have a 

mutual obligation to make the settlement effective. In addition 

to realizing that plaintiffs’ attorneys may need interim fees 

and a sequence of payments keyed to performance on 

implementation, some method of enlisting defendants and their 

counsel is needed. In the materials submitted to this Committee, 

for example, the Honorable William Young is described as 

insisting on direct payments to consumers in a case involving a 

pharmaceutical company and having the parties find methods to 

identify the relevant recipients.71

III. The Need for Enabling Revisions

Neither judges, litigants, nor the public fare well in a 

lawyer-less world, where economic disparities among disputants 

vitiate the potential for access to a fair process, or access to 

any process at all. What the federal docket, circa 2017, teaches 

is that federal courts themselves benefit from class and other 

forms of aggregate proceedings. But the individuals affected and 

the public at large have too attenuated a relationship with the 

resulting remedies. Moreover, information about process and 

results has been impoverished because of the lack of a developed 

practice of post-settlement class action court-based public 

activities.
18

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

In the 1950s, the Supreme Court paved the way to revise our 

understanding of what due process required. In Mullane v. 

Central Hanover Bank & Trust Company,72 the Court approved 

aspects of N.Y. State Banking Law, providing for trustees to 

obtain judicial clearance of potential claims through settling 

the accounts of beneficiaries of pooled trusts in the aggregate. 

Not only did the Court permit binding individuals whose 

“whereabouts could not with due diligence be ascertained,”73 but 

the Court also revised its jurisdictional rules to permit a 

state to close off the rights of individuals from other states. 

Moreover, the Court structured its notice requirements so as not 

to impose an undue burden that would make provision too costly. 

As Justice Jackson explained,

“[t]he vital interest of the State in bringing any 

issues as to fiduciaries to a final settlement can be 

served only if interests or claims of individuals who 

are outside of the State can somehow be determined. A 

construction of the Due Process Clause which would place 

impossible or impracticable obstacles in the way could 

not be justified.”74

In the 1960s, a new substantive “vital interest” -

facilitating civil rights and small consumer claimants - came to 

the fore, and aggregate litigation was again enlisted through 

revisions of Rule 23 as a mechanism for doing so. Now, fifty 

years later, the questions are what “vital interests” of the 

state require revisiting Rule 23. Rulemaking is again in order 

to enable, to constrain, and to legitimate the decision-making 

process that occurs after settlements are approved in class 

actions. Responding entails ambitions comparable to those 

shaping the 1966 revisions through elaborating different 

understandings of both what due process and the First Amendment 

require of courts when presiding over the settlement of 

aggregates.

The need for aggregation is plain. Yet the forms that it 

could take to honor constitutional obligations of openness in 

courts, of litigant involvement with processes determining their 

rights, of accountability of judges, and of equal treatment of 

litigants have only begun to be developed. I appreciate this 

Committee’s leadership and hope that it will expand its efforts 

to illuminate the decision-making in class action settlements 

and the results.
19

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 

1 My institutional affiliation is provided for identification only, as these 

remarks are my own views. Thanks are due to a wonderful group of Yale Law 

students with whom I have learned a great deal – Matt Butler, David Chen, 

Kyle Edwards, Clare Kane, Marianna Mao, Urja Mittal, Heather Richard, Regina 

Wang, and Emily Wanger; and to Bonnie Posick, for her expert editorial 

assistance.

2 See generally Judith Resnik, Fairness in Numbers: A Comment on AT&T v. 

Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 HARV.L. REV. 78 

(2011).

3 This Committee appropriately did not go forward with proposals to add new 

impediments to certification, for the problem is not that courts ought, ex 

ante, to require (as members of Congress have suggested) “that each proposed 

class member suffered the same type and scope of injury as the named class 

representative or representatives.” Fairness in Class Action Litigation Act, 

H.R. 1927, 114th Cong. (2015). Indeed, that approach would, as Geoffrey Shaw 

has detailed, undermine the very purpose of the class action — gathering 

those who do not themselves know that legal harms may have occurred. See 

Geoffrey C. Shaw, Note, Class Ascertainability, 124 YALE L.J. 2354 (2015). 

Rather, as this Committee has identified, revisions are needed ex post, when 

remedies are provided.

4 See Record Group No 116, Accession No 82-0028. I did so with the help of 

James Macklin and Ann Gardner of the AO; the unpublished materials were then 

located in boxes housed at the National Records Center in Maryland.

5 Thereafter, the AO put a subset of materials from the rules committees on 

its website. See Records and Archives of the Rules Committees, ADMIN. OFF. U.S.

CTS., http://www.uscourts.gov/rules-policies/records-and-archives-rulescommittees. These records include the agenda books, rules comments, rules 

suggestions, committee reports, Federal Judicial Center (FJC) studies and 

related publications, meeting minutes, past members of the rules committees, 

special projects of the rules committees, style resources, superseded rules 

pamphlets, and transcripts. The database, which includes appellate, 

bankruptcy, civil, criminal, evidence, and standing committee materials, is

searchable by committee and by year. Currently, the database includes Civil 

Rule Committees’ agenda books (with memos) beginning in 1992; rule comments 

beginning in 2001; rule suggestions beginning in 2000; committee reports 

beginning in 1937, meeting minutes beginning in 1935; past members beginning 

in 1964 (with an additional list from 1961); superseded rules pamphlets 

beginning in 2004; and transcripts beginning in 2013. The database also 

includes rules committee, AO, and FJC studies and publications on a variety 

of issues and links to four special projects: the September 9, 2011 Dallas 

Conference on Preservation/Sanctions, the 2010 Civil Litigation Conference, 

the Mini-Conference on Waiver of Attorney-Client Privilege and Work-Product 

Doctrine, and the September 11, 2015 Dallas Civil Rule 23 Mini-Conference.

6 Figure 1, Federal District Court Filings, 1970-2015, is drawn from data in 

Tables C & D of the respective yearly reports accessible at Admin. Office of 

the U.S. Courts, Federal Judicial Caseload Statistics (Jan. 4, 2016), 

http://www.uscourts.gov/statistics-reports/analysis-reports/federal-judicialcaseload-statistics. While the number of filings is a function of multiple 
20

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 variables, based on the increase in population and new federal causes of 

actions, one would expect an increase in filings. The stagnancy instead 

observed therefore suggests a decline in federal filing, a phenomenon other 

scholars have noted, alongside a shift in the mix of cases. Patricia W. 

Hatamyar Moore, The Civil Caseload of the Federal District Courts, 2015 U.

ILL. L. REV. 1177 [hereinafter Moore, The Federal Civil Caseload]; cf. Marc 

Galanter, The Life and Times of the Big Six, or, The Federal Courts Since the 

Good Old Days, 1988 WIS. L. REV. 921 (1988).

7 Table D, U.S. District Courts — Criminal Cases Commenced, Terminated, and 

Pending (Including Transfers) During the 12-Month Periods Ending September 

30, 2014 and 2015, Judicial Business of the United States Courts, ADMIN. OFFICE 

OF THE U.S. COURTS (2015).

8 Aggregation is prevalent in criminal prosecutions. In 2015, the U.S. 

government commenced prosecutions against 80,069 defendants, meaning that at 

least 24% of all defendants were prosecuted in a multi-defendant case. Table 

D-1, U.S. Courts — Criminal Defendants Commenced, Terminated, and Pending 

(Including Transfers), During the 12-Month Period Ending September 30, 2015, 

Judicial Business of the United States Courts, ADMIN. OFFICE OF THE U.S. COURTS

(2015).

9 28 U.S.C. § 1407 (2012).

10 Specifically, 132,788 cases out of 341,813 pending cases were in MDLs. 

Annual Reports of the Judicial Panel on Multidistrict Litigation, 

http://www.jpml.uscourts.gov/statistics-info. Data are from the year ending 

on June 30.

11 See Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 NYU L. 

Rev. 71 (2015); Elizabeth Chamblee Burch, Monopolies in Multidistrict 

Litigation, 70 VAND. L. REV. (forthcoming 2017); Howard M. Erichson, Symposium: 

Multidistrict Litigation and Aggregation Alternatives: Foreword, 31 SETON HALL 

L. REV. 877 (2001); Judith Resnik, Dennis E. Curtis & Deborah R. Hensler, 

Individuals Within the Aggregate: Relationships, Representation, and Fees, 71 

N.Y.U. L. REV. 296 (1996).

12 The data for Figure 4 come from Annual Report of the Judicial Panel on 

Multidistrict Litigation, available at http://www.jpml.uscourts.gov/statistic

s-info. Data are from year ending on June 30.

13 See TABLE C-1. U.S. DISTRICT COURTS—CIVIL CASES COMMENCED, TERMINATED, AND PENDING 

DURING THE 12-MONTH PERIOD ENDING SEPTEMBER 30, 2015, ADMIN OFFICE OF THE U.S. COURTS

(Sept. 30, 2015), http://www.uscourts.gov/file/19511/download. The pending 

cases use the end date of September 30, while the MDL reports on the 

fifteenth of each month.

14 MDL STATISTICS REPORT—DISTRIBUTION OF PENDING MDL DOCKETS BY DISTRICT, U.S. JUD.

PANEL ON MULTIDIST. LITIG. (Sept. 15, 2015), http://www.jpml.uscourts.gov/sites/

jpml/files/Pending_MDL_Dockets_By_District-September-15-2015.pdf. See also

Thomas E. Willging & Emery G. Lee III, From Class Actions to Multidistrict 

Consolidations: Aggregate Mass-Tort Litigation After Ortiz, 58 KAN. L. REV. 775 

(2010); Emery G. Lee, III, Catharine R. Borden, Margaret S. Williams, & Kevin 

M. Scott, Multidistrict Centralization: An Empirical Examination, 12 JELS 211 

(2015).
21

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 15 The image of assignments as random — at both trial and appellate levels —

is not always reflected in practice in other areas. See Adam S. Chilton & 

Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal 

Courts of Appeals, 101 CORNELL L. REV. 1, 8 (2015).

16 It should be noted that a few MDLs have played a disproportionate role in 

contributing both to the federal docket and to the number in MDL. 

Specifically, the asbestos MDLs, at their height, numbered 59,227 in 2007.

Statistical Analysis of Multidistrict Litigation Fiscal Year 2007, U.S. JUD.

PANEL ON MULTIDIST. LITIG. (2007), http://www.jpml.uscourts.gov/statistics-info.

In 2015, the product liability litigation on transvaginal mesh — in seven 

MDLs before the Honorable Joseph R. Goodwin in the Southern District of West 

Virginia — numbered 73,080. Statistical Analysis of Multidistrict Litigation 

Fiscal Year 2015, U.S. JUD. PANEL ON MULTIDIST. LITIG. (2015), 

http://www.jpml.uscourts.gov/statistics-info. Each of the seven MDLs 

corresponded to a different defendant: In re: C.R. Bard, Inc., Pelvic Repair 

System Products Liability Litigation, MDL-2187; In re: American Medical 

Systems, Inc., Pelvic Repair System Products Liability Litigation, MDL-2325;

In re: Boston Scientific Corp., Pelvic Repair System Products Liability, MDL2326; In re: Ethicon, Inc., Pelvic Repair System Products Liability 

Litigation, MDL-2327; In re: Coloplast Corp. Pelvic Support Systems Products 

Liability Litigation, MDL-2387; In re: Cook Medical, Inc., Pelvic Repair 

System Products Liability Litigation, MDL-2440; and In re: Neomedic Pelvic 

Repair System Products Liability Litigation, MDL-2511. If, as of 2015, one 

were to remove asbestos (numbering 856 pending cases) and vaginal mesh 

litigation from both the numbers of MDL cases and the federal civil docket, 

the number of pending federal civil cases would be 267,877 and the number of 

pending cases in an MDL 58,852. Thus, the percentage of the federal pending 

cases that fall under the MDL rubric would be 17.2%, rather than almost 40 

percent.

17 To calculate the number of MDLs per judge, we relied on the Summary By

Docket of Multidistrict Litigation Pending as of September 30, 2015, Or 

Closed Since October 1, 2014. Statistical Report, Statistical Analysis of 

Multidistrict Litigation Fiscal Year 2015, U.S. JUDICIAL PANEL ON MULTIDIST.

LITIG.(2015), http://www.jpml.uscourts.gov/statistics-info. After tabulating 

the numbers presented in the Report in an Excel spreadsheet, we were 

then able to generate a Pivot Table wherein we could filter the data for 

active MDLs only and then calculate the number of MDLs each judge was 

assigned. One judge was assigned seven cases involving mesh used in pelvic 

surgeries.

18 1966 Advisory Committee Note to Rule 23(b)(3), 39 F.R.D. 69, 103. The 1966 

Advisory Committee note (and the memos circulated among the committee members 

during 1963 when they were working on Rule 23) also made reference to the 

predecessor of MDL, “the Coordinating Committee on Multiple Litigation in the 

United States District Courts,” which in the 1960s was “charged with 

developing methods for expediting” cases involving damages (mass accidents as 

well as antitrust cases seeking damages). Id. The 1966 Advisory Committee 

stated that work by such committees — rather than changes in the federal 

rules — should be the vehicles for dealing with the burdens that mass 

accidents placed on federal court caseloads.

Additional details can be found in the Kaplan papers, which are 

archived at the Harvard Law Library. In a memo co-authored by Al Sacks in 

December of 1963, Kaplan wrote that “no single device . . . [would] `solve’ 
22

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 the question of questions of procedure and management posed by massive 

litigation affecting numerous parties.” Rather, “a variety of devices” needed 

to be invented, and rather than “stiff rules,” “play in the joints” was 

“imperatively required.”

19 Hon. Eduardo C. Robreno, The Federal Asbestos Product Liability 

Multidistrict Litigation (MDL-875): Black Hole or New Paradigm?, 23 WIDENER 

L.J. 97, 111 (2013).

20 Figure 5, Distribution of Pending MDL Actions by Type as of July 15, 2015, 

was provided by Prof. Issacharoff. Samuel Issacharoff, Snapshot of MDL 

Caseload Statistics (Oct. 8, 2015).

21 See Judith Resnik, From “Cases” to “Litigation,” 54 LAW & CONTEMP. PROBS. 5

(1991).

22 Much of this is done via stipulations (via case management orders, or by 

parties and especially by defendants who need to waive defenses of wrong 

jurisdiction/venue). See Andrew D. Bradt, The Shortest Distance: Direct 

Filing and Choice of Law in Multidistrict Litigation, 88 NOTRE DAME L. REV. 759, 

795-801 (2012).

23 As of end of fiscal year 2015, 28,939 cases were filed directly in the 

transferee court. U.S. Judicial Panel on Multidist. Litig., Statistical 

Analysis of Multidistrict Litigation Fiscal Year 2015 at 3 (2015), available 

at http://www.jpml.uscourts.gov/statistics-info.

24 The federal district court database details pro se filings back to 2005. 

Every year with data has seen at least 25 percent of civil cases filed by pro 

se plaintiffs. See Judicial Business, U.S. COURTS, 

http://www.uscourts.gov/report-names/judicial-business?tn=C-13&pt=All&t=All&m 

%5Bvalue%5D%5Bmonth%5D=&y%5Bvalue%5D%5Byear%5D (last visited May 23, 2016).

25 U.S. COURTS, U.S. COURTS OF APPEALS JUDICIAL FACTS AND FIGURES, PRO-SE CASES FILED, BY 

NATURE OF PROCEEDING tbl.2.4 (Sept. 30, 2014), 

http://www.uscourts.gov/statistics/table/24/judicial-facts-and-figures/2014/

09/30. In 1995, about 40 percent of the total of about 50,000 appeals were 

pro se. In 2014, 51 percent of some 55,000 appeals were pro se. Thus, more 

than 28,000 appeals were lawyer-less on at least one side, and about 12,000 

of those appellants were not prisoners. Prison petitions remained relatively 

stable with about 13,000–14,000 in 1995 and in 2014. Hence the rise in pro se 

cases in 2014 comes from non-prisoner petitions.

26 As of September 30, 2015, fifty-one percent of cases commenced in the U.S. 

courts of appeals were pro se at the time of filing. Table B-9. U.S. Courts 

of Appeals — Pro Se Cases Commenced and Terminated, by Circuit and Nature of 

Proceeding, During the 12-Month Period Ending September 30, 2015, Admin. 

Office of the U.S. Courts (2015), http://www.uscourts.gov/ 

statistics/table/b-9/judicial-business/2015/9/30. Disaggregating by circuit, 

the D.C. Circuit had the lowest percentage of pro se filings (thirty-three 

percent), while the Fourth Circuit had the highest percentage (sixty-four 

percent).

27 About eight percent of the twenty-five to thirty percent of the pro se 

filings at the district court level during the last decade were not 

prisoners. In 2014 and 2015, non-prisoners filed 24,274 and 25,117 cases pro 
23

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 se, respectively. See Judicial Business, tbl.C-13, ADMIN. OFFICE OF U.S. COURTS

(Feb. 25, 2016), http://www.uscourts.gov/report-names/judicial-business?tn=C13&pt=All&t=All&m%5Bvalue%5D%5Bmonth%5D=&y%5Bvalue%5D%5Byear%. The categories 

of cases for which pro se filers are recorded were “Criminal, U.S. Prisoner 

Petitions, Other U.S. Civil, Private Prisoner Petitions, Other Private Civil, 

Bankruptcy, Administrative Agency Appeals, Original Proceedings and 

Miscellaneous Applications.” On appeal, non-prisoner, non-criminal cases 

consisted of forty-four percent of all pro se cases filed. See Table B-9. 

U.S. courts of Appeals—Pro Se Cases Commenced and Terminated, by Circuit and 

Nature of Proceeding, During the 12-Month Period Ending September 30, 2015, 

Admin. Office of the U.S. Courts (2015), http://www.uscourts.gov/statistics/

table/b-9/judicial-business/2015/9/30. Non-prisoner, non-criminal cases 

consist of the following categories, “Other U.S. Civil,” “Other Private 

Civil,” “Bankruptcy,” “Administrative Agency Appeals,” and “Original 

Proceedings and Miscellaneous Applications."

28 In arriving at this figure, we examined data released by the Federal 

Judicial Center on all civil cases. Federal Judicial Center, Federal Court 

Cases: Integrated Data Base (2015), available through 

http://www.icpsr.umich.edu/icpsrweb/NACJD/studies/36110. This dataset tracks 

4.6 million civil cases brought between 1996 and 2015. Within this dataset, 

we counted 69,200 cases commencing a jury or bench trial by picking cases 

with values 6, 7, 8, 9 in the “PROCPROG” column. See Federal Judicial Center, 

Civil Codebook at 21 (explaining the “PROCPROG” field). Therefore, 1.5 

percent of cases in the dataset proceeded to trial.

29 Table T-1. U.S. District Courts—Civil and Criminal Trials Completed, by 

District, During the 12-Month Period Ending September 30, 2015 (2015), Admin. 

Office of the U.S. Courts (2015), http://www.uscourts.gov/sites/default/files

/data_tables/B09Sep15.pdf

30 See NAT’L CTR. FOR STATE COURTS & STATE JUSTICE INST., THE LANDSCAPE OF CIVIL LITIGATION 

IN STATE COURTS 20-22 (2015).

31 Thanks are due to Emery Lee for providing access to a data set from the 

Federal Judicial Center, to Jonah Gelbach for directing us to this and 

another data set, and to Deborah Hensler, as all advised us on how to access 

and use the materials. That set, to be posted sometime in 2017 on a new 

www.fjc.gov website, is hereinafter referenced as FJC FY 2015 Termination 

Data. Caveats are immediately in order. The information comes from court 

clerks, who use civil cover sheets and other materials prepared by lawyers 

and complete forms (JS5 and JS6) transmitted at least quarterly to the AO. 

Apparently, various useful kinds of data, such as motions made and decided, 

are not routinely collected. Moreover, no independent methods of verifying 

uniformity or accuracy are undertaken centrally. More caveats about the FJC 

Termination Data are detailed below.

32 FJC FY 2015 Termination Data, supra note 31. To identify cases on class

actions, we filtered the civil cases database for cases with a value of 1 in 

the “CLASSACT” field. To obtain cases with pro se parties, we filtered the 

civil cases database for cases with a value of 1, 2, or 3 in the “PROSE” 

field.

33 Id. We learned that the labeling did not always correspond to the 

individual cases tracked down thereafter. Moreover, records are incomplete in 

some instances. For example, an initial review identified 50 cases but with 
24

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 subsequent analyses, we learned that 43 class actions in FY 2015 appeared to 

have gone to trial.

34 In the FJC FY 2015 trial data set, another 14 (0.5 percent) of the cases 

had a tag denoting that they were remanded from MDL proceedings. To obtain 

cases with recorded MDL docket numbers, we filtered the civil cases database 

for cases with some recorded MDL docket number in the “MDLDOCK” column. See 

Federal Judicial Center, Civil Codebook. To obtain information about MDLs, we 

examined data released by the Federal Judicial Center on all civil cases.

Federal Judicial Center, Federal Court Cases: Integrated Data Base (2015), 

available through http://www.icpsr.umich.edu/icpsrweb/NACJD/studies/36110. 

For each case, a multidistrict litigation docket number may be recorded. See 

Federal Judicial Center, Codebook for Civil Terminations Data With Docket 

Numbers, PLT and DEF Containing Original Values, available at 

http://www.icpsr.umich.edu/cgi- bin/file?comp=none&study=36110&ds=4&file_id=

1192536&path=NACJD [hereinafter Federal Judicial Center, Civil Codebook].

35 Understanding agency adjudication is challenging. See Judith Resnik, 

Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of 

Declining Trial Rates in Courts, 1 J. EMPIRICAL LEGAL STUD. 783 (2004). Efforts 

are underway to understand more about that work, where tens of thousands of 

trial-like proceedings take place, some of which are aggregated. See Federal 

Administrative Adjudication Home, Adjudication Research (January 22, 2017),

https://acus.law.stanford.edu/; Michael Sant’Ambrogio & Adam Zimmerman, 

Inside the Agency Class Action, 126 YALE L. J. (forthcoming 2017).

36 Jordan M. Singer & Hon. William G. Young, Bench Presence 2014: An Updated 

Look at Federal District Court Productivity, 48 NEW ENG. L. REV. 565, 565–66 

(2014).

37 Details can be found in Judith Resnik, The Contingency of Openness in 

Courts: Changing the Experiences and Logics of the Public’s Role in CourtBased ADR, 15 NEV. L.J. 1631 (2015).

38 In the twelve months ending in September 30, 2015, 1,934 cases were 

remanded, while 30,695 cases were closed by the transferee court. U.S. 

Judicial Panel on Multidist. Litig., Statistical Analysis of Multidistrict 

Litigation Fiscal Year 2015 (2015), http://www.jpml.uscourts.gov/statisticsinfo. In 2010, the numbers were parallel; 99 out of 100 MDL cases terminated 

before remand. U.S. Judicial Panel on Multidist. Litig., Statistical Analysis 

of Multidistrict Litigation Fiscal Year 2010 (2010), 

http://www.jpml.uscourts.gov/statistics-info.

39 Obtaining data on the use of class actions over the years is difficult, 

particularly the numbers of proposed class actions as compared to cases in 

which a class is certified. For some research done as a “snapshot” by the 

FJC, see Emery G. Lee, III & Thomas E. Willging, Fourth Interim Report to the 

Judicial Conference Advisory Committee on Civil Rules, FEDERAL JUDICIAL CENTER

(Apr. 2008), file:///Users/reginawang/Downloads/fourth_interim_ report_ 

class_action_1.pdf]. For a more comprehensive effort, see DEBORAH R. HENSLER,

NICHOLAS M. PACE, BONNIE DOMBEY-MOORE, ELIZABETH GIDDENS, JENNIFER GROSS & ERIK MOLLER,

CLASS ACTION DILEMMAS: PURSUING PUBLIC GOALS FOR PRIVATE GAIN (2000), 

http://www.rand.org/pubs/monograph_reports/MR969.html.], and for an arenaspecific inquiry, see Margo Schlanger, Trends in Prisoner Litigation, as the 

PLRA Enters Adulthood, 5 U.C. IRVINE L. REV. 153 (2015), on prisoner class 

actions.
25

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 

40 This imagery was used in 1979 by Arthur Miller, a defender of class 

actions, describing a “holy war” being waged against class actions. Arthur R. 

Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the 

“Class Action Problem,” 92 HARV. L. REV. 664, 664 (1979).

41 See John Fabian Witt & Samuel Issacharoff, The Inevitability of Aggregate 

Settlement: An Institutional Account of American Tort Law, 57 VAND. L. REV. 571 

(2007).

42 The difficulties of evaluating classes and settlements has spawned a 

substantial literature. Indeed, judicial authority to do so is its own 

puzzle. See Judith Resnik, Judging Consent, 1987 U. CHI. LEGAL F. 43. After the 

Court’s ruling in Amchem and Ortiz, questions of certification and settlement 

returned to the fore. See, e.g., Judith Resnik, Litigating and Settling Class 

Actions: The Prerequisites of Entry and Exit, 30 U.C. DAVIS L. REV. 835 (1997).

43 See 18 U.S.C. § 3626(b)(1)(A)(i).

44 Judges often invoke that term when considering whether to approve 

settlements. See, e.g., Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 

F.3d 646, 652–53 (7th Cir. 2006) (In the past, we have gone so far as to 

characterize the court's role as akin “to the high duty of care that the law 

requires of fiduciaries.”); Rodriguez v. Disner, 688 F.3d 645, 655 (9th Cir. 

2012) (“In serving this ‘fiduciary role for the class,’ the district court 

must consider whether class counsel has properly discharged its duty of 

loyalty to absent class members.”).

45 A $2.3 billion settlement fund was established through the A.H. Robins 

bankruptcy to compensate those injuries from that intrauterine device. The

Trust and Claims Resolution Facility decided not to disclose awards, and 

argued that it did so because of claimants’ privacy interests. See Georgene 

M. Vairo, The Dalkon Shield Claimants Trust: Paradigm Lost (or Found)?, 61 

FORDHAM L. REV. 617, 617-18 (1992); Kenneth R. Feinberg, The Dalkon Shield 

Claimants Trust, L. & CONTEMP. PROBS. (Autumn 1990) at 105-10.

46 See, e.g., Do Class Actions Benefit Class Members? An Empirical Analysis of 

Class Actions, MAYER BROWN LLP 1-2 (Dec. 2013), 

http://www.mayerbrown.com/files/uploads/Documents/PDFs/2013/December/DoClass 

ActionsBenefitClassMembers.pdf [http://perma.cc/DT6J-T2YE] [hereinafter Mayer 

Brown Review of Selected Cases].

47 Id. Using information drawn from 148 putative class actions filed during 

2009, the Mayer Brown review described its “empirical study” as aiming to 

replace “anecdotes” with analyses, through selecting 2009 federal court 

consumer and employee class actions that had closed by 2013. The report 

stated that 33% of the class actions studied resulted in settlement, “half 

the average settlement rate” for individual litigation. Id. at 2. Of the 148, 

the review chose an odd subgroup to support its claim of almost no benefit to 

class members (the term “sample” would not be apt from an empirical research 

perspective); picked eighteen cases resolved by “claims-made settlement,” and 

reported it has found “meaningful data” on six. Id. at 7. (Not discussed 

among class action beneficiaries were members of settlements with automatic 

distributions, which had accounted for thirteen of the forty cases identified 

as settled. Id. at 8.) The report’s “bottom line” was that class actions did 

not “provide anything close to the benefits claimed by proponents,” while 
26

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 lawyers were “enrich[ed].” Id. at 2. Thus, Mayer Brown concluded that “for 

practical purposes,” lawyers were “the only real beneficiaries of the class 

actions.”

48 The National Association of Consumer Advocates and the American Association 

for Justice analyzed the same class actions described in the Mayer Brown 

materials and drew very different conclusions. National Association of 

Consumer Advocates and American Association for Justice, Class Actions Are a 

Cornerstone for our Civil Justice System: A Review of Class Actions Filed in 

2009 (February 27, 2015), http:// 

www.consumeradvocates.org/sites/default/files/Class%20Action%CC20Report%202-

27-15.pdf (last visited Oct. 10, 2016). That report cited class action 

returns provided of $219 million to retirement funds devastated by Bernie 

Madoff’s Ponzi scheme, awards of $27.8 million to property owners who 

suffered damages due to a 2008 spill of coal ash sludge from the Tennessee 

Valley Authority coal plant, and a $4.8 billion provision of debt relief for 

consumers victimized by the National Arbitration Forum, among others. Id. at 

4-5, 9. Further, the report argued that, given the ongoing relations between 

financial institutions and class members, direct payments were and could be 

relatively easy. Id. at 25.

49 Arbitration Study: Report to Congress, Pursuant to Dodd-Frank Wall Street 

and Consumer Protection Act § 1028(a), Consumer Fin. Protection Bureau § 1, 

at 11; § 8, at 4, 16 (2015), http://files.consumerfinance.gov/f/201503_cfpb_

arbitration-study-report-to-congress-2015.pdf [http://perma.cc/P5B9-JPSZ]. Of 

the 251 settlements reporting data, $1.1 billion had been paid or was 

scheduled to be paid in cash, debt forbearance, and cy pres payments for the 

benefit of class members. Id. at § 8, at 4 n.5.

50 Id. at § 1, at 17.

51 Id. at § 8, at 20.

52 See, e.g., Brian T. Fitzpatrick & Robert C. Gilbert, An Empirical Look at 

Compensation in Consumer Class Actions, 11 N.Y.U. J.L. & BUS. 767 (2015) 

(finding that between 1% and 70% of class members received compensation in 

settlements in fifteen related small-stakes consumer class action lawsuits, 

and that the settlements with the highest compensation rates automatically 

disbursed payments without requiring class members to file claim forms); 

Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and 

Their Fee Awards, 7 J. EMPIRICAL LEGAL STUD. 811 (2010) (finding that of $33 

billion in class action settlements in 2006 and 2007, $5 billion was awarded 

to class action lawyers). In work from 1999, Deborah R. Hensler, joined by 

Nicholas M. Pace, Bonnie Dombey-Moore, Elizabeth Giddens, Jennifer Gross, and 

Erik Moller found that between 30 and 100 percent of settlements funds were 

paid to class members in ten illustrative class action settlements. 

See CLASS ACTION DILEMMAS, supra note 39, at 21.

53 See Nicholas M. Pace & William B. Rubenstein, How Transparent are Class 

Action Outcomes? Empirical Research on the Availability of Class Action 

Claims Data at 3, RAND INSTITUTE FOR CIVIL JUSTICE WORKING PAPER (July 2008), 

billrubenstein.com/Downloads/RAND%20Working%20Paper.pdf. See Stephen Yeazell, 

Transparency for Civil Settlements: NASDAQ for Lawsuits?, in CONFIDENTIALITY,

TRANSPARENCY AND THE U.S. CIVIL JUSTICE SYSTEM 143 (Joseph Doherty, Robert Reville, & 

Laura Zakaras eds., 2012).
27

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 54 Pace & Rubenstein, supra note 53, at v.

55 Lynn A. Baker, Michael A. Perino & Charles Silver, Is the Price Right? An 

Empirical Study of Fee-Setting in Securities Class Actions, 115 COLUM. L. REV.

1371, 1375-81 (2015). They examined 431 securities class action settlements 

from January 1, 2007 to December of 2012. Id. at 1380.

56 Forthcoming, U. PA. L. REV., Rule 23 Symposium, Happy 50th Anniversary, Rule 

23! Shouldn’t We Know You Better After All This Time? (2017).

57 See, e.g., Delaware Coalition for Open Government, Inc. v. Strine, 733 F.3d 

510 (3d Cir. 2013), cert. denied 134 S.Ct. 1551 (2014); N.Y. Civil Liberties 

Union v. N.Y. City Transit Auth., 684 F.3d 286, 290 (2d Cir. 2011).

58 Compare U.S. v. Erie County, 763 F.3d 235 (2d Cir. 2014) (requiring access 

to a monitor’s report related to jail conditions), to IDT Corp. v. eBay, 709 

F.3d 1220, 1224, n.1 (8th Cir. 2013) (declining to require access) and SEC v. 

American International Group, 712 F.3d 1 (D.C. Cir. 2013) (holding that 

reporters had no common law or First Amendment right of access to reports 

ordered to be provided by an independent consultant, dispatched pursuant to a 

court decree).

59 Committee on Rules of Practice and Procedure of the Judicial Conference of 

the United States, Preliminary Draft of Proposed Amendments to the Federal 

Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, Rule 

23(3)(2)(D), ADMIN. OFF. U.S. COURTS (Aug. 2016), http://www.uscourts.gov/rulespolicies/proposed-amendments-published-public-comment [hereinafter Proposed 

2016 Amendments to Federal Rule 23].

60 Id. at Rule 23(e)(2)(C)(ii).

61 Id. at Rule 23(e)(2)(C)(iv).

62 Id. at Rule 23 Comm. Note.

63 The Deepwater Horizon Economic & Property Damages Settlement responded to 

economic loss and property damage claims related to what is commonly called 

the BP oil spill in the Gulf of Mexico. Compensation is paid to claimants in 

twelve categories (the Seafood Compensation Program, Individual Economic 

Loss, Individual Periodic Vendor or Festival Vendor Economic Loss, Business 

Economic Loss, Start-up Business Economic Loss, Failed Business Economic 

Loss, Coastal Real Property Damage, Wetlands Real Property Damage, Real 

Property Sales Loss, Subsistence Loss, VoO Charter Payment, and Vessel 

Physical Damage). The website for the settlement provides notice to all 

potential and actual class members about the terms of the settlement and 

includes copies of all of the public court documents associated with the 

settlement. While all claims information was to be confidential, status 

reports, including the claims filed in categories and the proportion 

resolved, as well as whether appeals were had and compensation changed) were 

filed by the claims administrator and were made available on the settlement 

website.

A parallel court-authorized website exists for the Medical Benefits 

Class Action Settlement, which compensates qualifying individuals who were 

clean-up workers or residents in certain defined beachfront areas and 
28

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 wetlands during certain time periods around the oil spill. See Deepwater 

Horizon Claims Center: Economic & Property Damage Claims (Official CourtAuthorized Website), http://www.deepwaterhorizoneconomicsettlement.com; 

Seafood Compensation Program Residual Distribution, Deepwater Horizon Claims 

Center: Economic & Property Damage Claims (Official Court-Authorized 

Website), 

http://www.deepwaterhorizoneconomicsettlement.com/docs/DHECC_Alert_Residual_F

inal_Portal_note.pdf.; “Court Documents,” Deepwater Horizon Claims Center: 

Economic & Property Damage Claims (Official Court-Authorized Website) 

http://www.deepwaterhorizoneconomicsettlement.com/docs.php; Deepwater Horizon 

Medical Benefits Claims Administrator (Official Court-Authorized Website), 

https://deepwaterhorizonmedicalsettlement.com.

In 2016, the German automaker Volkswagen (VW) entered into settlements 

with owners and lessees of its cars and with the government. Under its 

settlements with the EPA, FTC, and State of California and a class action, 

Volkswagen agreed to buy back, terminate leases, or provide approved 

emissions modifications for nearly 475,000 diesel cars in the United States, 

provide cash payments to owners and lessees, pay for environmental 

remediation, and promote zero emissions vehicle technology. The website for 

the settlement provides copies of the court documents related to the 

litigation, including the class action settlement agreement, the company’s 

consent decree with the Department of Justice, the FTC consent order, and 

reports by the claims administrator. As of this writing, an initial report by 

the claims supervisor has been filed and provides aggregate statistics about 

the number of consumers who have submitted claims, VW’s compliance and 

response rate to consumers who have filed claims, and the remedies chosen by 

these consumers. The website also permits a car owner to identify the exact 

payment s/he can receive for his/her VW car by entering his/her Vehicle 

Identification Number. Again, individuals are not identified. Volkswagen/Audi 

Diesel Emissions Settlement Program (Official Informational Website), 

https://www.vwcourtsettlement.com/en.; First Report of Independent Claims 

Supervisor on Volkswagen’s Progress and Compliance Related to Resolution 

Agreements Entered October 25, 2016 (Nov. 25, 2016), 

https://www.vwcourtsettlement.com/en/docs/Reports/Independent%20Claims%20Supe

rvisor%20-%20First%20Report%2011.29.16.pdf.; Settlement Payments to Owners, 

Volkswagen/Audi Diesel Emissions Settlement Program (Official Informational 

Website),https://www.vwcourtsettlement.com/en/docs/PO/Settlement%20Payment%20

Table%20for%20Owners.pdf.

64 See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 (1945); Lynn’s Food Stores, 

Inc. v. United States, 679 (F.2d 1340 (11th Cir. 1982). See generally

Elizabeth Wilkins, Silent Workers, Disappearing Rights: Confidential 

Settlements and the Fair Labor Standards Act, 34 BERKELEY J. EMP. & LAB. L. 109 

(2013).

65 See, e.g., Stalnaker v. Novar Corp., 293 F. Supp. 2d 1260, 1263-64 (M.D. 

Ala. 2003).

66 See Adam S. Zimmerman, Distributing Justice, 86 NYU L. REV. 500 (2011).

67 For example, after JPMorgan Chase & Co. paid $200 million in civil 

penalties, the SEC established a fund for investors, and provided a claims 

mechanism system. See, e.g., http://jpssecfund.com/frequently-askedquestions.
29

Rule 23 proposed revisions comments, distribution, Judith Resnik, February 6, 2017

 68 In 2002, the Chair, Tim Muris, of the Federal Trade Commission created a 

“Class Action Fairness Project,” described as including amicus briefs when 

settlements were proposed in class actions that identified concerns for 

consumers. See Joshua D. Wright, Commissioner, Federal Trade Commission, 

Remarks at The Economics of Access to Civil Justice: Consumer Law, Mass 

Torts, and Class Actions Conference (March 16, 2014), 

https://www.ftc.gov/system/files/documents/public_statements/293621/140316civ

iljustice-wright.pdf. The FTC also launched a study of “consumer perception 

and understanding of class action notices and the options they provide to 

consumers” and the Deciding Factors Study, which will consider the “factors 

that influence consumers’ decisions to participate, opt out of, or object to 

a class action settlement.” In November 2016, the FTC issued orders to eight 

claims administrators requiring them to provide information on procedures for 

notifying class members about settlements and response rates. FTC Seeks to 

Study Class Action Settlements, FED. TRADE COMM’N (Nov. 14, 2016), 

https://www.ftc.gov/news-events/press-releases/2016/11/ftc-seeks-study-classaction-settlements. As of this writing, the results are not available.

69 Resnik, Hensler & Curtis, supra note 11, at 300; see e.g., In re Nineteen 

Appeals Arising Out of the San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 

603, 605 (1st Cir. 1992); In re Thirteen Appeals Arising Out of the San Juan 

Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 300 (1st Cir. 1995).

70 15 U.S.C. § 78u-4(a)(6).

71 In Re Relafen, 231 F.R.D. 52 (D. Mass. 2005). The decision has been praised 

in submissions to this Committee. See Proposed Amendments to the Federal 

Rules of Civil Procedure: Public Hearing on Proposed Amendments to the 

Federal Rules of Civil Procedure Judicial Conference Advisory Committee on 

Civil Rules, 13 (Jan. 4, 2017) (Statement of Jennie Lee Anderson).

72 339 U.S. 306 (1950).

73 Id. at 317.

74 Id. at 313-314.
TAB 7

OUTLINE OF TESTIMONY AND COMMENT

THEODORE H. FRANK OF

COMPETITIVE ENTERPRISE INSTITUTE
1

February 6, 2017

Rebecca A. Womeldorf

Rules Committee Support Office

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, NE, Room 7-240

Washington, D.C. 20544

VIA EMAIL:

rebecca_womeldorf@ao.uscourts.gov

Re: Outline of Testimony for February 16, 2017 Public Hearing

Dear Ms. Womeldorf:

Below please find an outline of my remarks regarding proposed amendments to Rule 23 of 

the Federal Rules of Civil Procedure for presentment to the Advisory Committee on Civil Rules 

during the telephonic public hearing scheduled for February 16, 2017.

I. The proposed amendments to Rule 23(e)(2) will continue to permit approval of “selfish” 

class action settlements where class counsel are the primary beneficiaries.

A. Because class action settlements are presented ex parte to the court by the settling 

parties, if the proposed amendments do not explicitly require the court to consider 

whether class counsel’s requested fees are disproportionate to actual class relief, then 

the future Rules will be distorted to promote self-dealing settlements.

1. The proposed amendments do not resolve the circuit split regarding 

valuation of settlement relief when assessing fairness and attorneys’ fee 

awards but instead, the amendments risk reversing the legal precedents that 

protect class members from self-dealing settlements. 

2. Just as the Committee Notes to the 2003 Amendments to the Civil 

Procedure Rules did not effectively stop disproportionate 23(h) awards, the 

Committee Notes to the proposed amendments will also be ignored.
2

B. The proposed amendments should also explicitly require district courts to consider 

whether class counsel failed to adequately represent the class by negotiating selfdealing settlement structures.

1. The proposed amendments should explicitly prohibit inclusion of clearsailing and reversion clauses. 

2. In considering class counsel’s adequacy for purposes of assessing settlement 

fairness, the proposed amendments should explicitly require district courts to 

consider class counsel’s use of cy pres awards.

II. The proposed amendments to Rule 23(e)(5) will permit settling parties to improperly insulate 

self-dealing settlements and will continue to permit bad-faith objectors to receive “objector 

blackmail.”

A. The proposed changes to Paragraph (A) requiring specificity should be deleted 

because they are unnecessary and will be abused to protect bad settlements, but at a 

minimum, Paragraph (A) should be revised to require notification, prevent technical 

rejection of objections, and ensure preservation of objectors’ appellate rights.

1. Paragraph (A) as proposed creates unnecessary collateral litigation regarding 

whether an objection is sufficiently specific that class counsel will use to 

protect self-dealing settlements.

2. If Paragraph (A) is adopted as proposed, additional language should be 

inserted to protect class members including notifying absent class members 

of the new specificity requirements, preventing technical rejection of 

objections, and preservation of objector’s appellate rights.

B. Proposed Paragraphs (B) and (C) should be deleted because they will not effectively 

end extortionate payments to bad-faith objectors; the Rules should be revised to 

acknowledge that objectors are entitled to attorneys’ fees if they demonstrate that the 

class realized a benefit and the Rules should be further revised to provide an 

enforcement mechanism to recover the extortionate payments to bad-faith objectors. 

1. Paragraphs (B) and (C) should be deleted because rather than effectively 

ending objector blackmail, the Proposed Amendments will only increase 

extortionate payments to bad-faith objectors. 
3

2. The Rules should be revised to explicitly recognize that objectors are entitled 

to attorneys’ fees if they can demonstrate that their objection realized a 

benefit to the class.

3. The Proposed Amendments should identify an enforcement mechanism for 

failure to satisfy Paragraphs (B) and (C).

We intend to submit written comments to the Rules Committee early next week. If you have 

any questions, please do not hesitate to contact me. 

Sincerely,

/s/ Theodore H. Frank

Theodore H. Frank

cc: frances_skillman@ao.uscourts.gov
4
February 15, 2017 

Ms. Rebecca A. Womeldorf 

Secretary of the Committee on Rules and Practice 

and Procedure of the Administrative Office of the 

United States Courts 

One Columbus Circle, NE 

Washington, D.C. 20544 

 Re: CEI Comments to Proposed Amendments to Federal Rule Civil Procedure 23 

 

Ms. Womeldorf: 

On behalf of the Competitive Enterprise Institute (CEI), we respectfully submit these 

comments regarding proposed amendments to Rule 23 of the Federal Rules of Civil Procedure 

presently under consideration by the Civil Rules Advisory Committee and its Rule 23 Subcommittee. 

Please contact Mr. Frank at (202) 331-2263 or ted.frank@cei.org if you have any questions. 

Sincerely, 

/s/ Theodore H. Frank 

Theodore H. Frank 

/s/ Melissa A. Holyoak 

Melissa A. Holyoak 
 1

COMPETITIVE ENTERPRISE INSTITUTE’S CENTER FOR CLASS ACTION FAIRNESS

COMMENTS

to the 

CIVIL RULES ADVISORY COMMITTEE

AND ITS RULE 23 SUBCOMMITTEE

Competitive Enterprise Institute (CEI) respectfully submits these comments regarding the 

proposed amendments to Rule 23 of the Federal Rules of Civil Procedure presently under 

consideration by the Civil Rules Advisory Committee and its Rule 23 Subcommittee (“Proposed 

Amendments”).1 CEI is a nonprofit public interest organization dedicated to the principles of 

limited constitutional government and free enterprise. The authors of these comments are CEI 

Senior Attorney and Director of the Center for Class Action Fairness, Theodore H. Frank, and CEI 

Senior Attorney Melissa A. Holyoak. 

Interest of the Commenters 

CEI’s Center for Class Action Fairness represents class members pro bono against unfair class 

action settlements and procedures. Since the Center’s inception in 2009,2 it has won numerous 

appellate landmark decisions protecting class members’ rights, and has secured over $100 million for 

class members that otherwise might have gone to trial attorneys or unrelated third parties. The New 

York Times calls Mr. Frank the leading critic of abusive class-action settlements. See Adam Liptak, 

When Lawyers Cut Their Clients Out of the Deal, N.Y. TIMES, Aug. 13, 2013, at A12.

Summary 

It is important to understand that, in practice, rules relating to class-action settlements will 

most often be litigated in ex parte circumstances where settling parties will seek interpretations 

favorable to themselves at the expense of absent class members. If rules do not explicitly bind 

settling parties, courts will tend to adopt interpretations and create precedents permitting abuse. The 

Proposed Amendments to Rule 23(e)(2) therefore do not adequately protect the class from selfdealing settlements where class counsel is the primary beneficiary. Settlements will continue to be 

approved where attorneys’ fees are disproportionate to the relief actually received by the class. The 

 

1 Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal 

Procedure (“Proposed Amendments”), available at http://www.uscourts.gov/sites/default/files/2016-

08preliminary_draft_of_rules_forms_published_for_public_comment_0.pdf. 

2 On October 1, 2015, the Center merged with the non-profit Competitive Enterprise Institute. 
 2

Advisory Committee tried to fix this problem in 2003 when Rule 23(h) was created, but Rule 23(h) 

failed to explicitly require courts to determine whether class counsel’s fee request was proportionate 

to relief actually received and the Advisory Committee’s intent went ignored. Now courts are split as 

to whether fees may be awarded based on actual relief and the Rules risk undoing the precedent that 

requires courts to determine whether fees are proportionate. To end the circuit split and avoid 

repeating the deficiency of the 2003 Amendments, the Rules should explicitly require that district 

courts consider the proportion of fees to relief actually received by class members, and explicitly 

reject the line of precedent that permits parties to value settlements based on the fiction of 

maximum possible relief, when in practice parties can predict with actuarial certainty the claims rate 

of a settlement structure. Indeed, the Rules should provide additional protections by requiring 

district courts to consider whether class counsel negotiated clear sailing, reversion, or cy pres awards 

that prioritize relief to third parties when assessing adequacy of class counsel. 

The Proposed Amendments to Rule 23(e)(5) should be deleted. Proposed Paragraph (A) 

requiring specificity for objections is unnecessary because district courts and parties can already 

effectively manage non-specific objections and will instead create collateral litigation. Paragraph (A) 

will only serve as a mechanism for class counsel to eliminate objections that may derail their selfdealing settlements. 

Proposed Paragraphs (B) and (C)—requiring court approval for settlement of objections—

will, as conferences discussing the amendments have shown, be ineffective in ending objector 

blackmail (extortionate payments to objectors in exchange for dismissal of their appeals) because the 

Rules fail to adopt a standard that objectors must satisfy for approval of their settlement with class 

counsel. The Proposed Amendments do nothing to address the real problem: objectors are more 

motivated to bring bad-faith objections than good-faith objections because there is a greater chance 

of payment in objector blackmail than in successfully litigating an objection. The Rules need to 

eliminate the incentive for objector blackmail by eliminating the possibility of receiving 

consideration for dismissal of appeal and instead, create incentives for good faith objections by 

explicitly recognizing that objectors who realize a benefit for the class are entitled to attorneys’ fees. 

Under current law, only non-profit organizations have the ability to consistently see through 

meritorious objections. 
 3

I. Amendments to Rule 23(e)(2) as Proposed Will Permit Approval of Unfair Class 

Action Settlements. 

The Proposed Amendments to Rule 23(e)(2) incorporate factors a district court must 

consider in determining whether a proposed class action settlement is fair, reasonable and adequate: 

(A) the class representatives and class counsel have adequately represented 

the class; 

(B) the proposal was negotiated at arm’s length; 

(C) the relief provided for the class is adequate, taking into account: 

(i) the costs, risks, and delay of trial and appeal; 

(ii) the effectiveness of the proposed method of distributing relief to 

the class, including the method of processing class-member claims, if 

required; 

(iii) the terms of any proposed award of attorney’s fees, including 

timing of payment; and 

(iv) any agreement required to be identified under Rule 23(e)(3); and 

(D) class members are treated equitably relative to each other. 

See Proposed Amendments at 213-214. 

As the Committee Notes to the Proposed Amendments observe, circuit courts have 

developed lengthy, “distracting” lists of factors to consider in approving class action settlements. See 

id. at 224-225. The Proposed Amendments are intended to focus the court on the “core concerns” 

in deciding whether a class action settlement should be approved. Id. at 224. The Proposed 

Amendments correctly identify the adequacy of class counsel and the award of attorneys’ fees as a 

core concern when assessing whether the settlement relief is fair. See id. at 214 

(Paragraph 23(e)(2)(C)(iii)). As drafted, however, the Proposed Amendments are not explicit enough 

to protect the class from attorneys’ fee requests that may be disproportionate to the relief actually

received by the class as well as other unfair settlement provisions that often cost class members 

millions of dollars. 

A. Because of the ex parte nature of the settlement approval process in most 

cases, if the Proposed Amendments do not explicitly require the court to 

consider whether the requested fees are disproportionate to actual class relief, 

then the future Rules will be distorted to promote self-dealing settlements. 

When negotiating a class action settlement, class counsel and defendants are both 

incentivized to bargain effectively over the size of the settlement. But defendant only cares about the 

“bottom line” and will take the deal that drives down the total cost to defendant, with “no reason to 

care about the allocation of its cost of settlement between class counsel and class members.” See 

Pearson v. NBTY, Inc., 772 F.3d 778, 783 (7th Cir. 2014). Class counsel, on the other hand, are 

incentivized to seek as large a portion of the relief as possible for themselves, and may accept 

bargains that are worse for the class in exchange for a larger piece of the pie. Id. at 783-84. 
 4

Together, class counsel and defendants have a mutual interest in creating the illusion of relief 

rather than actual relief to the class: the optimal settlement for class counsel maximizes attorneys’ 

fees, while the defendant is seeking only to minimize its total expenditure with indifference to where 

the settlement money actually goes. See Redman v. RadioShack Corp., 768 F.3d 622 (7th Cir. 2014) 

(Posner, J.); Eubank v. Pella Corp., 753 F.3d 718, 720 (7th Cir. 2014) (Posner, J.) (“From the selfish 

standpoint of class counsel and the defendant, ... the optimal settlement is one modest in overall 

amount but heavily tilted toward attorneys’ fees.”). See generally, Howard Erichson, Aggregation As 

Disempowerment: Red Flags in Class Action Settlements, 92 N.D. L. REV. 859 (2016); Erin L. Sheley & 

Theodore H. Frank, Prospective Injunctive Relief and Class Settlements, 39 HARV. J. L. & PUB. POL’Y 769 

(2016). 

The classic example of illusory relief is the coupon settlement, which “provides class counsel 

with the opportunity to puff the perceived value of the settlement so as to enhance their own 

compensation.” In re HP Inkjet Printer Litig., 716 F.3d 1173, 1179 (9th Cir. 2013). The Class Action 

Fairness Act (CAFA), 28 U.S.C. § 1712, sought to preclude parties from taking credit for 100% of 

the face value of coupons when the actual redemption rates are typically less than 1%. But even with 

this bright-line principle, district courts’ application remains inconsistent because the settling parties 

often refuse to admit that a settlement is offering “coupons” to the class members. E.g., Redman, 768 

F.3d at 635 (rejecting class counsel’s argument that settlement “vouchers” were not coupons under 

CAFA). 

The problem is that the settling parties’ ex parte presentation of the class action settlement 

deprives the court of an adversarial system. As Judge Posner explained: 

A trial judge’s instinct, in our adversarial system of legal justice, is to approve 

a settlement, trusting the parties to have negotiated to a just result as an 

alternative to bearing the risks and costs of litigation. But the law quite rightly 

requires more than a judicial rubber stamp when the lawsuit that the parties 

have agreed to settle is a class action. The reason is the built-in conflict of 

interest in class action suits. 

See Redman, 768 F.3d at 629.3 District courts depend on an adversary system, one that involves 

independent, unconflicted counsel. District courts have neither the time nor the resources to step 

into that adversarial role and unearth the illusory relief, the self-dealing settlement structure and 

provisions, and the self-interested interpretations of the Civil Rules and legal precedent. 

When the district courts are presented with a settlement that will take a years-old case off 

their dockets, and both parties are telling the judge that the settlement is a good deal for their clients 

and complies with the Rules, district courts will bend over backwards to approve settlements, even 

when they are unfair for absent class members. Take for example, In re EasySaver Rewards Litig., 921 

F. Supp. 2d 1040 (S.D. Cal. 2013), rev’d No. 13-55373, 599 Fed. Appx. 274 (9th Cir. Mar. 19, 2015). 

 

3 See also Ted Frank, Class Actions, Arbitration, and Consumer Rights, Legal Policy Report No. 16 at 6-11 

(Manhattan Institute 2013); Lester Brickman, LAWYER BARONS 335-72 (Cambridge U. Press 2011); John C. 

Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343, 1347-48 (1995); 

Coffee, 54 U. CHI. L. REV. at 883-84; Jonathan R. Macey & Geoffrey P. Miller, The Plaintiffs’ Attorney’s Role in 

Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform, 58 U. CHI. L. REV. 1, 7-8 

(1991). 
 5

Plaintiffs claimed that defendants’ gift- and flower-delivery websites violated state and federal law by 

enrolling customers in rewards programs after luring them with the promise of worthless coupons. 

Class counsel negotiated a settlement where 0.2% of the class received cash ($225,000) and the 

remaining class members received low-value coupons, while $8.85 million went to plaintiffs’ lawyers 

and $3 million to cy pres including class counsel’s alma maters. The district court agreed with the 

parties that the settlement “e-credits” were not “coupons,” and valued them at full face value for 

determining settlement fairness and fees—even though the “e-credits” were called coupons in the 

Rule 8 complaint, they expired in a year, could only be used to purchase flowers and other gifts, 

were neither transferable or usable in conjunction with other coupons, and could not be used in the 

weeks before or of Valentine’s Day, Mother’s Day, and Christmas. 921 F. Supp. 2d at 1048-49. The 

Ninth Circuit vacated the settlement approval and remanded for further consideration. 599 Fed. 

Appx. at 275. But even on remand, the district court repeated its finding. In 2016 U.S. Dist. LEXIS 

105152 (S.D. Cal. Aug. 9, 2016). The Civil Rules must be explicit and drafted to limit district courts 

from adopting class counsel’s self-interested interpretations. 

Claims-made settlements are no different economically from coupon settlements. In both 

types of settlements, the defendant “makes available” a certain amount of relief, but can expect to 

pay only a fraction of that amount because of low claims rates. But like coupon settlements, class 

counsel exploit their conflict of interest by seeking fees based on the amount “available” and not 

what the class will actually receive. The circuit courts of appeals to have considered the issue are split. 

The Proposed Amendments do not resolve the split and worse, they may undo the progress some 

circuits have made in protecting absent class members. The Rules must be explicit regarding the 

valuing of settlement relief when assessing the attorneys’ fee award. 

1. The Proposed Amendments do not resolve the circuit split regarding 

valuation of settlement relief when assessing fairness and attorneys’ fee 

awards but instead, the Amendments risk reversing the legal 

precedents that protect class members from self-dealing settlements. 

Several courts have recognized the inherent conflict between class counsel and the class 

during settlement negotiations and have required an additional inquiry beyond the typical multifactors tests for fairness: Have the class attorneys engaged in self-dealing to structure the settlement 

so that they are receiving preferential treatment vis-à-vis the clients to whom they have a fiduciary 

duty? See In re Dry Max Pampers Litig., 724 F.3d 713, 718 (6th Cir. 2013) (looking beyond Sixth 

Circuit’s seven-factor test to find settlement unfair when it constitutes “preferential treatment” for 

class counsel); In re Baby Prods. Antitrust Litig., 708 F.3d 163, 174 (3d Cir. 2013) (failure to consider 

“the degree of direct benefit provided to the class” reversible error, though not in Third Circuit’s 

nine-factor test). These appellate courts have employed doctrinal tests to correctly align the 

incentives of class counsel with those of the absent class members. Most notably, the Seventh 

Circuit has held that it will compare the attorney award only to the amount actually realized by the 

class: “the ratio that is relevant ... is the ratio of (1) the fee to (2) the fee plus what the class members 

received.” Pearson, 772 F.3d at 781, Redman, 768 F.3d at 630. 

Pearson involved claims regarding the marketing of glucosamine nutritional supplements. 772 

F.3d at 779. While there were over 12 million class members, only 30,245 class members claimed 

$865,284; the settlement also provided a $1.13 million cy pres award and an injunction against certain 

marketing practices. Id. at 780, 784. Class counsel requested $4.5 million and the district court 

awarded $1.93 million in fees. Id. at 780. The Seventh Circuit reversed settlement approval, finding 
 6

that the “problem with the district judge’s decision is not that it leans too far in favor of the 

objectors, as class counsel contend, but that it doesn’t lean far enough.” Id. The Seventh Circuit held 

that the district court correctly excluded the cy pres award in calculating the benefit to the class “for 

the obvious reason that the recipient of that award was not a member of the class” and that the 

court properly valued the injunction at zero. Id. at 781. Seventh Circuit held that the district court 

erred, however, in valuing the settlement with the “maximum potential payment” that class members 

could receive. Id. at 780. 

The Third Circuit and the Ninth Circuit have reached similar conclusions. Allen v. Bedolla, 

787 F.3d 1218, 1224 n.4 (9th Cir. 2015) (reversing approval because although $1.125 million was 

25% of gross fund, “economic reality” was that fee request was three times more than what class 

would actually receive); In re Baby Prods. Litig., 708 F.3d 163, 169-70, 179 (3d Cir. 2013) (rejecting 

settlement that gave $3 million to class, $14 million to attorneys’ and $18.5 million to cy pres and 

administrative expenses because class members were not “foremost beneficiaries of the settlement”). 

 By contrast, a settlement nearly identical to Pearson (but with even worse results) was upheld 

in the Eleventh Circuit. In Poertner v. Gillette Co., the Eleventh Circuit affirmed a settlement involving 

claims regarding marketing of a line of Duracell batteries. 618 Fed. Appx. 624, 625 (11th Cir. July 16, 

2015) (unpublished). Under the settlement, class members received less than $345,000 (and over 99 

percent of the class got zero), defendant would give $6 million in batteries to a third-party charity (cy 

pres award) and defendant agreed to an injunction preventing marketing of a discontinued line of 

batteries. Id. at 626. Class counsel requested over $5 million in fees based on an estimated settlement 

value of $50 million. Id. But class counsel based it on the assumption that every class member would 

file a claim, even though they were fully aware that only a tiny fraction would. Id. at 626 n.1. The 

Eleventh Circuit upheld the settlement—even though the attorneys received nearly 15 times more

than their “putative clients”—because its Rule 23(e) precedents allowed vague notions of the 

settlement’s overall value in direct conflict with other circuits’ rules. Id. at 630. Predictably, similarly 

structured settlements are flowing into Eleventh Circuit courts relying on the Poertner decision. See, 

e.g., Braynen v. Nationstar Mortg., LLC, No. 14-CV-20726, 2015 WL 6872519, 2015 U.S. Dist. LEXIS 

151744, *55-57 (S.D. Fla. Nov. 9, 2015) (approving claims-made settlement and $5 million fee 

without claim-rate or actual recovery information); Marty v. Anheuser-Busch Cos., No. 13-cv-23656-

JJO, 2015 WL 6391185, 2015 U.S. Dist. LEXIS 144290, *4-*5 (S.D. Fla. Oct. 22, 2015) (approving 

$3.5 million fee and rejecting objection that court should consider the actual amount of claims paid). 

Like the Eleventh Circuit, the Sixth Circuit upheld a settlement where class counsel received 

a disproportionate fee award. Though the settling parties had the addresses of the class members 

and knew precisely what each class member was entitled to under the terms of the settlement, the 

settlement was structured as a claims-made settlement, with the settlement administrator testifying 

under oath that this structure could be expected to pay less than ten percent of the class’s claims. 

The class received less than $1.6 million (49,808 claims of the 600,000 class members) but class 

counsel sought to justify their $2.39 million fee request by arguing to the district court that the 

settlement value was $15.5 million because that was the total available benefit to the class. Gascho v. 

Global Fitness Holdings, LLC, 822 F.3d 269, 277 (6th Cir. 2016). The district court decided to split the 

difference—without any economic explanation why an unclaimed award is worth anything to a class 

member, much less 50% of its unclaimed value—and held that the class benefit should be valued at 

$8.5 million. Id. at 288. The Sixth Circuit affirmed in a split decision, with the majority opinion citing 
 7

a law-review article suggesting there was nothing problematic if 100% of settlement benefit went to 

class counsel. Id.

4

 That class counsel should be given credit for making the entire maximum available—because 

they somehow have “no control” over the amount that is claimed—is one of the greatest fictions 

presented by class counsel. When class counsel structures a claims-made settlement, they are fully 

aware that 99% of the class will go uncompensated because those class members will not submit 

claims. In Poertner, class counsel attempted to defend the low number of claims by presenting a study 

of hundreds of class-action settlements that showed that the median settlement pays only 0.23% of 

the class. See Daniel Fisher, Odds of a Payoff in Consumer Class Action? Less Than a Straight Flush, FORBES

(May 8, 2014) (discussing evidence presented in Poertner); Alison Frankel, A Smoking Gun 

in Debate over Consumer Class Actions?, REUTERS (May 9, 2014) (noting that median claims rate in such 

cases is “1 claim per 4,350 class members”). 

 Not only can class counsel accurately predict the claims rates, they can manipulate them with 

actuarial certainty. Risk Settlements, a company that offers post-lawsuit insurance for class action 

settlements, market their services to prospective clients by explaining that class-action defendants 

can save millions of dollars if they use claims-made settlements instead of common funds. See

http://risksettlements.com/case-studies/case-study-a (saving client $7.5 million by restricting from 

common fund to claims-made settlement). But as Risk Settlements explains, each claims-made 

settlement can be “individually design[ed]” to reduce cost by using “historical database and risk 

assessment predictive system.” See http://risksettlements.com/case-studies/case-study-a; see generally 

Theodore H. Frank, Settlement Insurance Shows Need for Court Skepticism in Class Actions, OpenMarket 

blog (Aug. 31, 2016), available at https://cei.org/blog/settlement-insurance-shows-need-courtskepticism-class-actions; cf. also Brian T. Fitzpatrick & Robert C. Gilbert, An Empirical Look at 

Compensation in Consumer Class Actions, 11 N.Y.U. J. OF LAW AND BUSINESS 767, 783 (2015) (empirical 

data showed that a higher percentage of class members received compensation in settlements with 

direct payments compared to settlements with a claims process and that class members negotiated 

postcard-sized checks less often than standard-sized checks). Parties can structure the claims process 

to ensure that very little money actually reaches the class. E.g., Dry Max Pampers, 724 F.3d at 718; 

Eubank v. Pella Corp., 753 F.3d 718 (7th Cir. 2014); Pearson v. NBTY, 772 F.3d 778 (7th Cir. 2014). 

When class counsel’s fee award is compared to the amount actually received by the class, the 

comparison “gives class counsel an incentive to design the claims process in such a way as will 

maximize the settlement benefits actually received by the class, rather than to connive with the 

defendant in formulating claims-filing procedures that discourage filing and so reduce the benefit to 

the class.” Pearson, 772 F.3d at 781. Conversely, “[w]hen the parties to a class action expect that the 

reasonableness of the attorneys’ fees allowed to class counsel will be judged against the potential 

rather than actual or at least reasonably foreseeable benefits to the class, class counsel lack any 

incentive to push back against the defendant’s creating a burdensome claims process in order to 

minimize the number of claims.” Id. at 783. 

 

4 CCAF has petitioned for writ of certiorari. See Blackman v. Gascho, No 16-364 (U.S.). Attorneys 

General from seventeen states filed an amici brief in support of CCAF’s position that fees must be awarded 

and settlements must be judged based on the actual relief received. Id. 
 8

The idea that class counsel will respond to these incentives by more carefully working to 

ensure settlement money gets to class members is more than theoretical, and has been borne out by 

the Center’s experience. On remand from the Baby Products reversal, the parties determined that they 

had access to a list of class members, arranged for direct distribution of settlement proceeds, and 

paid an additional $14.45 million to over one million class members—money the parties initially 

directed to cy pres before the successful objection led to an “exponential increase” in class recovery. 

McDonough v. Toys “R” Us, Inc., 80 F. Supp. 3d 626, 660 (E.D. Pa. 2015). After the Center objected 

to a claims-made settlement in a settlement over alleged false advertising of aspirin, the parties used 

subpoenaed third-party retailer data to identify over a million class members (instead of the 18,938 

who would have been paid $5 each in the original claims-made structure), and paid an additional 

$5.84 million to the class. Order at 4, In re Bayer Corp. Litig., No. 09-md-2023, Doc. 254 (E.D.N.Y. 

Nov. 8, 2013). And on remand in Pearson, the parties renegotiated to give class members at least 

$4 million more in cash, with any reduction in attorneys’ fees now going to class members rather 

than back to defendants. Settlement ¶¶ 7-8, No. 11-cv-07972, Doc. 213-1 (N.D. Ill. May 14, 2015). 

In short, as Pearson predicted, if courts require lawyers get money to clients in order to get paid, that 

is exactly what happens. 

The Proposed Amendments should resolve the circuit split and adopt the Seventh Circuit’s 

requirement that fees be compared to what the class actually receives and the Committee Notes 

should specifically reject the approach adopted by the Eleventh and Sixth Circuits. The Seventh 

Circuit approach aligns the interests of class counsel and the class: class counsel will be incentivized 

to get as much money as possible in the class members’ pockets.5 As currently drafted, the Proposed 

Amendments do not resolve the split. Instead, class counsel will argue that Paragraph (e)(2)(C)(iii)—

requiring the court to simply “take into account” the fees in considering the adequacy of class 

relief—does not affect the circuit split and courts may employ the Eleventh and Sixth Circuit’s 

approach to consider the relief made available in awarding fees. 

Worse yet, settling parties may argue that the newly adopted Rule 23(e) (and factors set forth 

in Rule 23(e)(2)(C)) supersede the legal precedent in the Third, Seventh, and Ninth Circuits requiring 

district courts to consider what the class actually receives in awarding fees.6 If the Proposed 

Amendments do not explicitly require courts to consider the actual relief awarded, the legal 

 

5 This would also solve many of the problems associated with cy pres awards. “A cy pres award is 

supposed to be limited to money that can’t feasibly be awarded to the intended beneficiaries, here consisting 

of the class members.” Pearson, 772 F.3d at 784 (rejecting $1.13 million cy pres award because distribution was 

possible to class members); In re BankAmerica Corp. Sec. Litig., 775 F.3d 1060, 1063-64 (8th Cir. 2015) 

(rejecting $2.7 million cy pres award where third distribution to class members was possible). If class counsel is 

only paid for money delivered to the class (and not third parties), class counsel is incentivized to negotiate 

settlements that prioritize payments to class members rather than third-party cy pres recipients. See, e.g., Pearson, 

772 F.3d at 781 (comparing class counsel’s fee award only to amounts delivered to class and not the $1.13 

million cy pres distribution when assessing settlement fairness). 

6 The Committee Notes to the Proposed Amendments explain that the “goal” of 23(e)(2)(C) is not 

to “displace” the factors contained in the various multi-factor tests. See Proposed Amendments at 224. 

Although this would support an argument that the legal precedents in the Third, Seventh, and Ninth Circuits 

are not superseded by the future adopted Rules, as further explained below, the Committee Notes have 

largely been ignored and may not prevent the reversal of those precedents that protect absent class members. 
 9

precedents protecting class members may be reversed. In the future, during the settling parties’ 

ex parte presentation of a class action settlement, class counsel will replace the “superseded” 

precedent with a self-interested interpretation of the newly adopted Rules that follows the Eleventh 

and Sixth Circuit approach. 

2. Just as the Committee Notes to the 2003 Amendments to the Civil 

Procedure Rules did not effectively stop disproportionate 23(h) 

awards, the Committee Notes to the Proposed Amendments will also 

be ignored when unfavorable to settling parties. 

The guidance contained in the Committee Notes to the Proposed Amendments are not 

sufficient to address the concerns regarding self-dealing settlements. Consistent with the Seventh 

Circuit’s approach, the Committee Notes to the Proposed Amendments observe that “the relief 

actually delivered to the class can be an important factor in determining the appropriate fee 

award.” See Proposed Amendments at 227 (emphasis added). Mr. Frank has had conversations with 

Federal Judiciary Center members who were surprised that this guidance did not resolve the 

controversy in favor of requiring consideration of actual recovery. But like the Committee Notes to 

the 2003 Amendments, the guidance in the Notes to the Proposed Amendments will be ignored. 

In 2003, the Rules were amended to include Rule 23(h), which permits a court to award 

“reasonable attorney’s fees” in connection with a class action settlement. See Fed. R. Civ. P. 23(h). 

The Committee Notes to the 2003 Amendments directed courts to consider the relief actually 

received by the class in determining the reasonableness of class counsel’s fee award:

Courts discharging this responsibility have looked to a variety of factors. 

One fundamental focus is the result actually achieved for class 

members, a basic consideration in any case in which fees are sought 

on the basis of a benefit achieved for class members. The Private 

Securities Litigation Reform Act of 1995 explicitly makes this factor a cap for 

a fee award in actions to which it applies. See 15 U.S.C. §§77z–1(a)(6); 78u–

4(a)(6) (fee award should not exceed a “reasonable percentage of the amount 

of any damages and prejudgment interest actually paid to the class”). For a 

percentage approach to fee measurement, results achieved is the basic 

starting point. 

In many instances, the court may need to proceed with care in assessing the 

value conferred on class members. Settlement regimes that provide for future 

payments, for example, may not result in significant actual payments to class 

members. In this connection, the court may need to scrutinize the manner 

and operation of any applicable claims procedure. In some cases, it may be 

appropriate to defer some portion of the fee award until actual payouts 

to class members are known. Settlements involving nonmonetary 

provisions for class members also deserve careful scrutiny to ensure 

that these provisions have actual value to the class. On occasion the 

court's Rule 23(e) review will provide a solid basis for this sort of evaluation, 

but in any event it is also important to assessing the fee award for the class. 

See Notes of Advisory Committee on 2003 Amendments to Rule 23 (emphasis added). 
 10

The Federal Judicial Center (FJC) expected the parties to adhere to the Committee Notes to 

the Rule 23(h) amendments: “In cases involving a claims procedure..., the court should not base the 

attorney fee award on the amount of money set aside to satisfy potential claims. Rather, the fee 

awards should be based only on the benefits actually delivered.” Federal Judicial Center, Manual for 

Complex Litigation (Fourth) § 21.71 (2004). 

The Advisory Committee and the FJC anticipated the district courts to follow the Notes, but 

unfair class action settlements that awarded attorney fee awards disproportionate to class relief were 

consistently approved for over a decade after 23(h)’s adoption. The landmark appellate rulings 

recognizing that district courts must look at the results actually achieved—the same approach the 

Committee advocated in 2003—were not decided until CCAF challenged the misapplication of the 

Rules a decade after they were adopted. See Baby Prods, 708 F.3d 163 (3d Cir. 2013); Pearson 772 F.3d 

778 (7th Cir. 2014). (Unfair results persisted for so long based in part on the fact that the Rules do 

not provide incentives for good faith objectors to challenge settlements. See § II.B below.) 

The problem was that the language in Rule 23(h) did not expressly include the requirement 

that fees be awarded based on relief actually delivered. The Committee Notes were ignored because 

the settling parties’ ex parte presentation misapplied the Rules and in turn created precedent for 

future settlements to be rubber-stamped that endorse that same abuse of the Rules. 

For example, in Masters v. Wilhelmina Model Agency, Inc., the Second Circuit held that the 

district court should have computed class counsel’s attorneys’ fees based on the amount made 

available and not the amount actually delivered to the class. 473 F.3d 423, 436-37 (2d Cir. 2007). In 

reaching its decision, the Second Circuit distinguished the Advisory Committee Notes to Rule 23(h) 

and held that the fee restrictions described in the 2003 Committee Notes only applied to securities 

class actions. Id. at 437-38. 

The 2003 Committee Notes state that the Private Securities Litigation Reform Act (PSLRA) 

requires a fee award to not exceed a “reasonable percentage of the amount of any damages and 

prejudgment interest actually paid to the class.” See Notes of Advisory Committee on 2003 

Amendments to Rule 23 (quoting 15 U.S.C. §§77z–1(a)(6)). But the 2003 Committee Notes used the 

PSLRA as an example of why fees should be based on actual relief delivered. The Second Circuit’s 

limitation of the 2003 Notes to securities cases makes no sense because (1) there would be no need 

for the Notes to provide guidance on fees in securities class actions when the PSLRA statute 

expressly requires fees to be based on amounts “actually paid;” and (2) it contradicts a plain reading 

of the 2003 Notes. 

The same thing will happen again. Even if the Committee Notes to the Proposed 

Amendments direct district courts to consider the amounts class members actually receive when 

assessing the relief provided and class counsel’s fee award, those Notes will once again be ignored or 

distorted to promote class counsel’s self-interest. 

* * * 

To protect class members from unfair settlements with disproportionate fee awards, 

Proposed Rule 23(e)(2)(C) should adopt the Seventh Circuit approach and include the additional 

bolded, underlined language: 

(C) the relief provided for the class is adequate, taking into account: 

(i) the costs, risks, and delay of trial and appeal; 
 11

(ii) the effectiveness of the proposed method of distributing relief to the 

class, including the method of processing class-member claims, if 

required; 

(iii) the terms of any proposed award of attorney’s fees, including timing 

of payment, and, if class members are being required to 

compromise their claims, the ratio of (a) attorneys’ fees to (b) the 

amount of relief actually delivered to class members; and 

(iv) any agreement required to be identified under Rule 23(e)(3); .... 

The above provision would alert the district court to the most fundamental problem of 

fairness in class actions: class counsel structuring the settlement so that they receive the lion’s share 

of the actual relief obtained. 

B. The Proposed Amendments should also explicitly require district courts to 

consider whether class counsel failed to adequately represent the class by 

negotiating self-dealing settlement structures. 

In assessing the fairness of a class action settlement, Proposed Amendment Rule 23(e)(2)(A) 

requires a district court to consider “the class representatives and class counsel have adequately 

represented the class.” See Proposed Amendments at 213. This inquiry should not just ask whether 

the attorneys have zealously prosecuted the litigation, but whether they have disregarded their 

fiduciary duties by negotiating a settlement that provides preferential treatment to class counsel. Dry 

Max Pampers, 724 F.3d at 717-18; Pearson, 772 F.3d 778. 

Although a disproportionate fee award is the most fundamental problem of fairness in class 

action settlements, there are other problematic features of class settlements that “benefit defendants 

and plaintiffs’ lawyers without providing value to class members” including “spurious injunctive 

relief, nontransferable or non-stackable coupons, unjustified cy pres remedies, burdensome or 

unnecessary claims procedures, reversions, excessively broad releases, expanded class definitions, 

class representative bonuses, revertible fee funds, and clear sailing agreements.” See Erichson, supra. 

Some of these features were identified by the Ninth Circuit in its partial list of warning signs 

that class counsel had engaged in self-dealing. In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 

947-49 (9th Cir. 2011) (recognizing disproportionate fee awards, clear-sailing and reversion as 

warning signs of self-dealing settlements). Unfortunately, many courts interpret this list narrowly to 

hold that these factors are irrelevant if there is no actual collusion or if they are otherwise satisfied 

with the size of the settlement—even though “clear sailing” clauses, reversion provisions and the 

other problematic features are inherently tacitly collusive and prejudicial to the class. 

1. The Proposed Amendments should explicitly prohibit inclusion of 

clear-sailing and reversion clauses. 

The Proposed Amendments should prohibit, or at the very least warn district courts, against 

inclusion of clear-sailing and reversion clauses. 

Class actions may be negotiated as a common fund structure (where the parties negotiate a 

single pot of money from which class counsel would later seek fees) or a segregated fee structure 
 12

(where the parties negotiate the class benefit first and negotiate the fees later). The segregated fee 

structure is often sold to the district courts as a “good deal” for the class because defendant is 

“responsible” for the fees and the payment won’t affect class compensation. Courts have debunked 

the myth that a segregated fee agreement benefits the class: 

Class counsel claim that often they negotiate for the benefits to the members 

of the class first, selflessly leaving for later any consideration of or 

negotiation for their award of attorneys’ fees. That claim is not realistic. For 

we know that an economically rational defendant will be indifferent to the 

allocation of dollars between class members and class counsel. Caring only 

about his total liability, the defendant will not agree to class benefits so 

generous that when added to a reasonable attorneys’ fee award for class 

counsel they will render the total cost of settlement unacceptable to the 

defendant. We invited class counsel to explain how, therefore, negotiating 

first for class benefits could actually benefit a class, and were left without an 

answer. 

Pearson, 772 F. 3d 778, 786-87 (7th Cir. 2014) (Posner, J.); cf Bluetooth, 654 F.3d at 948 (separation of 

fee negotiations from other settlement negotiations does not demonstrate that a settlement with 

disproportionate fee proposal is fair). 

Where plaintiffs’ counsel and defendants are negotiating fees separate from recovery, 

“[l]awyers might urge a class settlement at a low figure or on a less-than-optimal basis in exchange 

for red-carpet treatment on fees.” Bluetooth, 654 F.3 at 847 (quoting Weinberger v. Great N. Nekoosa 

Corp., 925 F.2d 518, 524 (1st Cir. 1991)); “Clear-sailing” clauses (where the defendant agrees not to 

challenge the fee) and “kicker” clauses (where any reduction in the fee award reverts to defendants 

rather than the class) combine together to insulate fee requests from scrutiny. 

Courts have repeatedly held that the reversion to defendant is part of a constructive 

common fund and reflects money that a defendant would have been willing to pay class members to 

settle, whether it was negotiated separately or not. Pearson, 772 F.3d at 786-87; Redman v. RadioShack 

Corp., 768 F.3d 622, 637 (7th Cir. 2014); Bluetooth, 654 F.3d at 948-49; Johnston, 83 F.3d at 245-46. “It 

is the duty of attorneys under fiduciary principles, the law of agency, and the rules of ethics to 

achieve the best possible results for their clients.” See Letter to Standing Committee on Ethics and 

Professional Responsibility from Lester Brickman, et al. (Sept. 17, 2007) at 10-11 (“Ethics 

Committee Letter”);7see also Lester Brickman, Lawyer Barons 522-25 (2011). By structuring a 

segregated fee structure, class counsel may sacrifice the best possible result and breach their fiduciary 

duty because of the potential reversion or “kicker” to the defendant if the district court awards less 

than what the parties had agreed (clear-sailing agreement). Cf. Lobatz v. U.S. West Cellular of Cal., Inc., 

222 F.3d 1142, 1147 (9th Cir. 2000) (“If ... class counsel agreed to accept excessive fees and costs to 

the detriment of class plaintiffs, then class counsel breached their fiduciary duty to the class.”). 

For example, if the settling parties agree to $10 million in fees, but the district court awards 

only $5 million, the unawarded difference ($5 million) would revert back to the defendant. If the 

 

7 Available at http://is.gd/BrickmanLetter or 

https://cardozo.yu.edu/sites/default/files/ABA%20Ethics%20Letter%20September%2017%202007%20Ed

ited(1).pdf. 
 13

defendant is willing to pay $10 million, then class counsel—as fiduciaries for the class—should have 

structured the settlement to capture the unawarded fees for their clients rather than returning to 

defendant. Negotiating a settlement structure with a reversion is a breach of class counsel’s fiduciary 

duty. As Judge Posner explained, the Pearson panel could not “think of a justification for a kicker 

clause; at the very least there should be a strong presumption of its invalidity.” 772 F.3d at 786-87 

(emphasis added); see also Lester Brickman, LAWYER BARONS 522-25 (2011) (reversionary kicker 

should be considered per se unethical). 

When class counsel negotiate settlements with these provisions, they breach their fiduciary 

duty to the class. These provisions are costing class members millions of dollars, but if they are not 

explicitly included in the Proposed Amendments, district courts will not appreciate the dangers they 

pose. As explained above, settling parties’ ex parte presentation will argue that any previous legal 

precedents warning of these provisions (e.g., Bluetooth, Pearson) are superseded by the “core 

concerns” set forth in Paragraph 23(e)(2)(C). See § I.A above. 

2. In considering class counsel’s adequacy for purposes of assessing 

settlement fairness, the Proposed Amendments should expressly 

require district court’s to consider class counsel’s use of cy pres

awards. 

Class counsel or representatives do not adequately represent the class when class counsel 

structures a settlement to include cy pres awards that prioritize benefits to third parties (including 

third parties related to class counsel!) over payments to the class. Two appellate courts have 

endorsed the approach set forth in Section 3.07 of the ALI Principles regarding cy pres awards: “A cy 

pres award is supposed to be limited to money that can’t feasibly be awarded to the intended 

beneficiaries, here consisting of the class members.” Pearson, 772 F.3d at 784 (rejecting $1.13 million 

cy pres residual when distribution possible to 4.7 million class members); accord BankAmerica, 775 

F.3d at 1063-64 (rejecting cy pres of $2.7 million residual in lieu of third distribution to class 

members) (explicitly adopting ALI Principles § 3.07); Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468, 

475 (5th Cir. 2011). 

It is particularly problematic when class counsel has a preexisting relationship with the 

recipients of the cy pres award. One Academic recently classified “the ugliest cy pres settlements” as 

“those that direct funds to organizations with which class counsel or the judge is affiliated.” 

Erichson, supra; see also Nachshin, 663 F.3d at 1039 (criticizing cy pres where “the selection process may 

answer to the whims and self interests of the parties [or] their counsel”). For example, in one class 

settlement where class counsel was scheduled to receive $27 million, cy pres was designated to a 

charity run by class counsel’s ex-wife; the conflict was never disclosed to the district court, which 

approved the settlement. See In re Chase Bank USA NA “Check Loan” Contract Litig., No. 09-md02032 (N.D. Cal.)). Defendants’ pre-existing relationships with cy pres recipients present additional 

problems. When the defendant is already a regular contributor to the proposed cy pres recipients, 

there is no demonstrable value added by the defendant’s agreement to give money to that institution. 

See Dennis v. Kellogg, 697 F.3d 858, 867-68 (9th Cir. 2012), 697 F.3d at 867-68. The settling parties will 

hide such conflicts in their ex parte presentation of the settlement unless the Proposed Rules 

expressly require disclosure of such conflicts and pre-existing relationships. 

* * *
 14

The Proposed Amendments should prohibit clear sailing and reversion provisions in class 

action settlements. At a minimum, however, the Proposed Amendments to Rule 23(e)(2)(A) 

regarding class counsel’s adequacy in analyzing the fairness of a proposed settlement should 

explicitly consider whether class counsel negotiated some of the problematic self-dealing features 

and insert the following bolded, underlined language: 

(A) the class representatives and class counsel have adequately represented 

the class or whether they negotiated settlement provisions or 

structures intended to benefit class counsel and not the class 

including, but not limited to, disproportionate fee awards, clearsailing and reversion, cy pres awards that prioritize relief to third 

parties rather than class members, and cy pres recipients that have 

preexisting relationships with the parties or their attorneys; 

II. Amendments to Rule 23(e)(5) Will Continue to Permit Settling Parties to Improperly 

Insulate Self-Dealing Settlements and Will Continue to Permit Bad-Faith Objectors 

to Receive Objector Blackmail. 

Proposed Rule 23(e)(5)(A) requires greater specificity of objections but the new 

requirements will only create unnecessary collateral litigation over whether objections are “specific” 

enough and lead to the technical rejection of meritorious objections. And while Proposed Rule 

23(e)(5)(B) and (C) are intended to eliminate payments to bad-faith objectors (those who seek only 

personal gain, i.e., payment in exchange for dismissal of the objection or appeal), these paragraphs 

will not eliminate payments to bad-faith objectors but could potentially increase the practice of 

extorting money from the settling parties and worse, be used to insulate class counsel’s self-dealing 

settlements. 

A. The proposed changes to Paragraph (A) requiring specificity should be deleted 

because they are unnecessary and will be abused to protect bad settlements, but at 

a minimum, Paragraph (A) should be revised to require notification, prevent 

technical rejection of objections, and ensure preservation of objectors’ appellate 

rights. 

Proposed Paragraph 23(e)(5)(A) inserts the following (bolded) language: 

In General. Any class member may object to the proposal if it requires court 

approval under this subdivision (e)the objection may be withdrawn only with 

the court’s approval. The objection must state whether it applies only to 

the objector, to a specific subset of the class, or to the entire class, and 

also state with specificity the grounds for the objection. 

See Proposed Amendments at 215-16. This change is unnecessary because district courts and parties 

already effectively manage non-specific objections. Instead, Paragraph (A) will create unnecessary 

collateral litigation and will serve as a mechanism for class counsel to eliminate legitimate objections. 
 15

1. Paragraph (A) as proposed creates unnecessary collateral litigation 

that will be abused to protect self-dealing settlements. 

The Comments to the Proposed Amendments indicate that the specificity requirement of 

Paragraph (A) was added “to clarify that objections must provide sufficient specifics to enable the 

parties to respond to them and the court to evaluate them.” See id. at 228 (emphasis added). 

Although the supposed reason for the change is to assist the parties and the court, there is no 

evidence that parties or courts suffer any costs from non-specific objections. 

No settlement has ever been derailed by a non-specific objection; courts invariably dismiss 

them out of hand. District courts can require objectors at the fairness hearing to clarify their 

objections, or, if the objector cannot provide sufficient specificity beyond “general unfairness,” 

district courts can approve the proposed settlement over the objections. Int'l Union v. GMC, 2008 

U.S. Dist. LEXIS 92590, *83-84 (E.D. Mich. July 31, 2008) (“In sum, the objections that do not 

specify any grounds beyond general unfairness provide no basis for rejecting the settlement.”) (citing 

7B Wright, et al., Fed. Prac. & Proc. § 1797. 1 (“Only clearly presented objections...will be 

considered.”)); Sunrise Toyota, Ltd. v. Toyota Motor Co., No. 71-1335, 1973 U.S. Dist. LEXIS 14862, at 

*6 (S.D.N.Y. Feb. 20, 1973) (rejecting objections based on “conclusory allegations” of “general 

unfairness”); cf. Dennis v. Kellogg, 697 F.3d 858 (9th Cir. 2012) (holding that district court “must give 

‘a reasoned response’ to all non-frivolous objections”). 

Because the proposed Paragraph (A) is unnecessary, the only thing the Rules will realize is 

additional collateral litigation regarding whether objections are sufficiently “specific.” The 

Comments to the Proposed Amendments indicate that “[f]ailure to provide needed specificity may 

be a basis for rejecting an objection.” See Proposed Amendments at 229. Rejection of objections—

where objectors lose appellate rights—is a draconian measure if the purpose of Proposed 

Paragraph (A) is to simply help the court and parties discover the actual concerns of vague 

objections. In practice, Paragraph (A) will be used to provide a means for eliminating objections that 

get in the way of settling parties’ settlements. Settling parties will argue that objections are waived 

based on failure to satisfy Paragraph (A). Thus, setting aside the underlying merits of the objections, 

the settling parties and objectors will engage in additional litigation over what level of specificity is 

required to satisfy Paragraph (A). 

Indeed, faced with this new specificity standard, settling parties will interpret the Rules to 

unduly burden objectors. Settling parties will point to other similar Federal Civil Rules and argue 

that the specificity requirement is akin to Rule 9’s “heightened pleading” requirement of a “specific 

allegation.” Swanson v. Citibank, N.A., 614 F.3d 400, 410 (7th Cir. Ill. 2010) (“The basic requirement 

for a complaint (‘a short and plain statement of the claim showing that the pleader is entitled to 

relief’) is set forth in Rule 8(a)(2) of the Federal Rules of Civil Procedure. Rule 9 requires heightened 

pleading (that is, a specific allegation) of certain elements in particular cases, such as fraud and 

special damages.”). While it is fundamentally unfair to place a higher burden on absent class 

members than placed on the named plaintiffs, settling parties will endorse such an interpretation to 

eliminate objections that potentially block settlement approval. Just as the parties will present a selfinterested interpretation of the Rules for approval of a settlement, see § I.A above, the settling parties 

will present a self-interested interpretation of the Rules to protect that settlement. 

Rather than taking away the carrot, the Proposed Amendments are giving class counsel a 

stick to fight against bad-faith objectors. But this stick will also be used against good-faith objectors. 
 16

Unlike professional objectors, CCAF does not settle appeals for quid pro quo payments and brings 

objections in good faith to overturn unlawful settlements. While CCAF has won over a dozen 

landmark decisions, the vast majority of the time, settling parties file briefs in response to CCAF’s 

objections that attempt to lump CCAF in with decisions criticizing so-called “professional 

objectors,” and/or accuse us of filing “boilerplate” because there was overlap in precedents we cited 

in previous objections. 

For example, in In re Target Corporation Customer Data Security Breach Litigation, CCAF objected 

on behalf of an absent class member, arguing that our client was part of an uncertified subclass that 

had been frozen out of recovery. Target I, 14-md-2522, Dkt. 513 (D. Minn.) (“Target I”), remanded 

and vacated in part with appeal pending, No. 15-3912 (8th Cir. Feb. 1, 2017) (“Target II”). Despite 

CCAF’s thorough analysis of the claims process and settlement structure, the district court adopted 

class counsel’s characterization that CCAF’s objection was “boilerplate” and CCAF was a 

“professional objector” (though CCAF submitted a declaration proving otherwise), and sanctioned 

CCAF with an unlawful appeal bond. Target, 14-md-2522, Dkts. 645, 701, 713; Target II. Good-faith 

objectors will suffer similar results with increasing frequency if class counsel is armed with the new 

requirements under Paragraph (A); if nothing else, the rule will raise costs to good-faith objectors 

faced with collateral litigation over whether the objection was “specific” enough—with the class 

counsel then using the time on the frivolous motion to strike the objection to burnish their lodestar. 

Class counsel will use any means available to insulate their bad settlements on appeal. For 

example, in In re Magsafe Apple Power Adapter Litigation, CCAF objected to a settlement where class 

counsel received $3 million, but the value of the class relief was unknown. 571 Fed. Appx. 560, 565 

(9th Cir. 2014). Class counsel sought appeal bonds of $200,000 per objector and the district court 

awarded $15,000 per objector. Id. at 563. The Ninth Circuit reversed and remanded for 

consideration under the appropriate legal standards, and was especially critical of the abusive appeal 

bond. Just like abusive appeal bonds, the Proposed Amendments give class counsel an additional 

mechanism for blocking appellate review. Class counsel will utilize Paragraph (A)’s specificity 

requirements to insulate bad settlements on appeal. 

If class counsel can eliminate objections for technical reasons under Paragraph (A), there is a 

risk that the merits of those objections will not be considered by the district court or on appeal. 

Class counsel’s self-dealing settlements that are approved at the expense of the class will go 

unchecked because objectors are divested of their essential role. As Judge Posner recognized when 

striking down the “selfish deal” the settling parties had negotiated, because of the “acute conflict of 

interest” between the class and class counsel, “objectors play an essential role in judicial review of 

proposed settlements of class actions and why judges must be both vigilant and realistic in that 

review.” Pearson, 772 F.3d at 787. Preventing review of the merits punishes the class because the 

class members benefit when the settlement is corrected on review. (Even some of the mostfrequently criticized “professional objectors” have obtained success for the class in appeals courts. 

E.g., In re Groupon Mktg. & Sales Practices Litigation, 593 Fed. Appx. 699 (9th Cir. 2015); Eubank v. Pella 

Corp., 753 F.3d 718 (7th Cir. 2014); Dennis v. Kellogg, 697 F.3d 858 (9th Cir. 2012).) 

In sum, district courts and parties are already equipped to handle non-specific objections. 

Rules that require objections to be “specific” will be abused to create an unfair level of burden on 

legitimate objectors as settling parties encourage courts to shift the goalposts through collateral 

litigation. Paragraph (A) does nothing to help district courts because it will only burden the district 

courts with this additional litigation. The Rules will also be used to deprive good- and bad-faith 
 17

objectors of their appellate rights and insulate self-dealing settlements from correction on appeal. 

Accordingly, the proposed Paragraph (A) amendments should be rejected. 

2. If Paragraph (A) is adopted as proposed, additional language should 

be inserted to protect class members including notifying absent class 

members of the new requirements, preventing technical rejection of 

objections, and preservation of objector’s appellate rights. 

If the proposed changed to Paragraph (A) are adopted, at a minimum, additional language 

should be inserted to protect class members. First, the Rules should be amended to require that 

absent class members be notified in the class notice of the new requirements. Most class members 

are unaware of the Federal Rules. Requiring class members to comply (or risk rejection of their 

objections) is fundamentally unfair if absent class members are not notified of the requirements. 

Second, Paragraph (A) should be amended to instruct courts not to reject objections for 

technical failures. The Committee Notes instruct district courts “to recognize that a class member 

who is not represented by counsel may present objections that do not adhere to technical legal 

standards.” See Proposed Amendments at 229. As explained above, this instruction will likely be 

ignored as district courts disregard the Committee Notes when class counsel present a self-interested 

interpretation of the Rules. See § I.A above. Thus, Paragraph (A) must explicitly direct courts that 

objections should not be rejected for technical deficiencies. 

Third, Paragraph (A) should be amended to recognize that failure to satisfy the requirements 

of Paragraph (A) does not constitute waiver so that objectors may still appeal the district court’s 

order approving the settlement. If a district court finds that the objection was waived (even if the 

“waiver” was because of an unduly burdensome procedure established for objecting), some courts 

of appeal hold that the class member lacks standing to appeal without a formal motion to intervene, 

notwithstanding the Supreme Court’s command in Devlin v. Scardelletti. See, e.g., In re Deepwater 

Horizon, 739 F.3d 790, 809 (5th Cir. 2014) (dismissing appeal because objector had “forfeited and 

waived” objections by failing to comply with preliminary approval order); In re UnitedHealth Group 

S'holder Derivative Litig., 631 F.3d 913, 917 (8th Cir. 2011) (dismissing appeal because objector failed 

to “file a timely objection pursuant to district court procedure”); In re Integra Realty Res., Inc., 354 F.3d 

1246, 1257-58 (10th Cir. 2004) (dismissing appeal where objector failed to follow proper procedure 

for filing objection). 

 

* * *

The Proposed Amendments to Rule 23(e)(5)(A) should be deleted, but at a minimum, 

Paragraph (A) should be revised to protect absent class members by inserting the additional bolded, 

underlined language: 

(A) In General. Any class member may object to the proposal if it requires 

court approval under this subdivision (e)the objection may be withdrawn 

only with the court’s approval. The objection must state whether it 

applies only to the objector, to a specific subset of the class, or to the 

entire class, and also state with specificity the grounds for the objection.

The notice to the class must notify class members of the 

requirements contained in this paragraph. An objector’s failure to 
 18

satisfy technical standards is not a basis for dismissal of an 

objection. An objector does not waive an objection nor any rights 

to proceed on appeal for failure to meet the requirements of this 

paragraph.

In the alternative, language requiring that the class notice inform class members of 

Paragraph (A) could be added to Federal Rule 23(c)(2) regarding notice to the class. 

B. Proposed Paragraphs (B) and (C) should be deleted because they will not 

effectively end extortionate payments to bad-faith objectors; the Rules should be 

revised to acknowledge that objectors are entitled to attorneys’ fees if they 

demonstrate that the class realized a benefit; and the Rules should be further 

revised to provide an enforcement mechanism to recover the extortionate 

payments. 

The Proposed Amendments insert the following paragraphs to Rule 23(e)(5): 

(B) Court Approval Required For Payment to an Objector or Objector’s 

Counsel. Unless approved by the court after a hearing, no payment or other 

consideration may be provided to an objector or objector’s counsel in 

connection with: 

(i) forgoing or withdrawing an objection, or 

(ii) forgoing, dismissing, or abandoning an appeal from a judgment 

approving the proposal. 

(C) Procedure For Approval After an Appeal. If approval under Rule 

23(e)(5)(B) has not been obtained before an appeal is docketed in the court 

of appeals, the procedure of Rule 62.1 applies while the appeal remains 

pending. 

See Proposed Amendments at 216-17. These additional changes will not effectively address the 

problem of extortionate payments to bad-faith objectors but will make the matters worse by 

increasing unlawful payments, increasing litigation, and permitting class counsel to insulate selfdealing settlements from correction on appeal. Proposed Paragraphs (B) and (C) should be removed. 

Instead, the Rules should be revised to encourage good faith objections by explicitly recognizing an 

objector’s entitlement to attorneys’ fees if an objector can demonstrate that their objection resulted 

in a benefit to the class. 

1. Paragraphs (B) and (C) should be deleted because rather than 

effectively ending objector blackmail, the Proposed Amendments will 

only increase extortionate payments to bad-faith objectors. 

Paragraphs (B) and (C) were added to address bad-faith or professional objectors: those who 

file objections, appeal the settlement approval and then seek extortionate payments from the settling 

parties in exchange for dismissal of their appeals. The problem is that the status quo of the class 

action system actually encourages professional objectors. The threat of an appeal can be a valuable 

weapon and objector blackmail can be quite lucrative. Fitzpatrick, Brian T., The End of Objector 

Blackmail?, 62 VAND. L. REV. 1623, 1634, 1637 n.67 (2009). On the other hand, when objectors are 
 19

successful and achieve a benefit for the class, their efforts often go uncompensated. See § II.B.2 

below. Losing an objection and settling on appeal is a much more profitable business model than 

successfully litigating an objection. 

Traditionally, commentators and courts have wrongly focused on creating sticks to combat 

objector blackmail. See, e.g., Lopatka, John E. & D. Brooks Smith, Class Action Objectors: What to do 

About Them?, 39 Fl. Law Rev. 865, 890-906 (discussing sanctions, prohibiting appeals, and appeal 

bonds as means for eliminating objector blackmail). But the focus should shift to the carrots. The 

Rules should eliminate the carrot of bad faith objections (remove the possibility of blackmail on 

appeal) and establish the carrot for good-faith objections (explicitly require attorneys’ fee awards for 

objections that improve class settlements). The only way to truly end objector blackmail is by taking 

away the possibility of an extortionate payment on appeal. 

While the proposed Rules may be intended to eliminate extortionate payments by requiring 

court approval, the Rules as drafted will serve only to legitimize objector blackmail. After proposed 

Paragraph (B) is adopted, the motivations of class counsel and the objectors will remain unchanged: 

class counsel want to eliminate the threat of appeal and the objectors want a payday. (Even if the 

objection has merit, objectors know that they have a better chance of being paid by settling than by 

successfully litigating the objection.) Proposed Paragraph (B) requiring court approval does not 

contain a standard that objectors must satisfy to receive a payment. Without any explicit standard for 

approval of such a settlement, class counsel and the settling objector need not demonstrate anything 

beyond the fact that they have settled. Like a class action settlement, class counsel and the settling 

objector will submit an ex parte presentation of their settlement with no adversarial response. See 

§ I.A above. Objector blackmail will not change but simply transformed from an undisclosed 

settlement to a rubber-stamped order. Just as meritless M&A class actions justify attorney fees for $0 

settlements with immaterial supplemental disclosures (In re Walgreen Co. Shareholder Litig., 832 F.3d 

718 (7th Cir. 2016)), bad-faith objectors colluding with class counsel will claim entitlement to fees 

for immaterial changes to the settlement website, a modest cy pres payment, or even for the right of 

the objector to opt out and negotiate a separate settlement of his claim. (Though it smacks of a joke 

about chutzpah, we have even seen class counsel claim that a shareholder class benefits simply from 

the settlement of litigation brought by the class counsel against the defendant corporation. E.g., 

Gordon v. Verizon, 2017 NY Slip Op 742 (N.Y.A.D. 1st Dept. Feb. 2, 2017) (agreeing that this was a 

benefit meriting settlement approval); Robert F. Booth Trust v. Crowley, 687 F.3d 314 (7th Cir. 2012) 

(rejecting argument). 

Further, the proposed Paragraph (B) will actually expand the cottage industry of professional 

objectors. Currently objector blackmail is not disclosed to the court. But when a settlement between 

an objector and class counsel or defendants is on the docket and publicly disclosed, other 

entrepreneurial attorneys will soon catch on. Newcomers to the objector blackmail market will see 

that they too can file a boilerplate objection with conclusory allegations and be paid to go away. 

And worse, class counsel can utilize Paragraph (B) as a mechanism to insulate their selfdealing settlements. While objector blackmail can be costly for class counsel, objector blackmail can 

save class counsel money by preventing their self-dealing settlements from being corrected on appeal. 

Appellate courts have rejected selfish settlements, knocking down millions of dollars in fees. See, e.g., 

In re Baby Products Antitrust Lit., 708 F.3d 163 (3d Cir. 2013)(rejecting settlement that paid $14 million 

attorneys’ fees and $3 million to class). Class counsel can protect their settlements by paying off 

objectors at a fraction of the millions they risk losing. Cf. Schmitt, Richard B., Objecting to Class-Action 
 20

Pacts Can be Lucrative for Attorneys, WALL ST. J., Jan.10, 1997 at B1. If class counsel utilizes proposed 

Paragraph (B) to insulate their settlements from appeal, class members are robbed of the benefit 

they would receive from correction on appeal. 

The Rules should be revised to eliminate any payments or consideration to an objectors for 

dismissal of their appeal. 

2. The Rules should be revised to explicitly recognize that objectors are 

entitled to attorneys’ fees if they can demonstrate that their objection 

realized a benefit to the class. 

In addition to removing the carrot motivating objector blackmail, the Rules should create a 

carrot for good faith objections by explicitly recognizing that objectors who realize a benefit for the 

class are entitled to attorneys’ fees. The Comments to Rule 23(h) direct that fees may be awarded to 

those “whose work produced a beneficial result” including “attorneys who represented objectors.” 

See Notes of Advisory Committee on 2003 Amendments to Rule 23. But too often, even when 

objectors realize a substantial benefit, objectors go uncompensated. 

For example, in Fraley v. Facebook, Inc., the district court denied CCAF’s request for attorneys’ 

fees where CCAF’s objection realized $300,000 for the class. 638 Fed. Appx. 594, 600 (9th Cir. 

2016). The district court claimed that it was “commonsense” that fees should be awarded based on 

net settlement value rather than gross settlement value Id. Of course it was not “commonsense” to 

class counsel who requested fees based on gross settlement value and class counsel suffered no 

consequence for presenting a fee request that contradicted the “commonsense” approach. In his 

dissenting opinion, Judge Bea explained: “[O]bjectors must decide whether to object without 

knowing what objections may be moot because they have already occurred to the judge.” Id. 

(quoting Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 288 (7th Cir. 2002)). 

Another way objectors are shortchanged is when the judge argues that an objector’s time 

should be sliced apart to award fees for arguments adopted by the court. For example, in In re 

Transpacific Passenger Air Transportation Antitrust Litigation, the district court reduced class counsel's 

request for attorneys’ fees and expenses by over $5.1 million, for the benefit of the class. 2015 U.S. 

Dist. LEXIS 106943, *13-14, No. 3:07-cv-05634-CRB (N.D. Cal.), pending appeal, No. 15-16280 (9th 

Cir.). Despite the benefit CCAF’s objection created, class counsel argued that the district court 

should reduce CCAF’s fee request to solely the lodestar CCAF spent on the issues adopted by the 

court. Such a reduction is arbitrary as it is unreasonable to allocate time spent to various issues. 

Much of the time of objection is spent analyzing the settlement, engaging in the compliance costs of 

confirming and documenting class membership to have standing to object, and preparing for the 

fairness hearing; to say that only a page of the objection made a difference to the class and the 

attorneys should only be compensated for the time spent on that page misunderstands the nature of 

proximate cause. It is also inequitable to hold objectors to a different standard than class counsel. 

Courts do not dissect class counsel’s lodestar to assign values to their success in litigating the 

separate claims or issues. If class counsel is concerned that “obvious” objections may result in 

disproportionate payout to successful objectors, the solution is to avoid settlements and fee requests 

that have obviously objectionable issues. 

While CCAF does not bring objections to earn fees, CCAF’s fee requests are often denied or 

reduced; despite CCAF’s unprecedented success in improving class-action settlements in dozens of 
 21

cases, and despite CCAF paying non-profit level salaries a fraction of what our attorneys could be 

making in private practice, fee awards fund only a small fraction of CCAF’s expenses. Under the 

status quo, no objector is incentivized to litigate a good-faith objection because they risk receiving 

nothing (or being nickel-and-dimed) when they could simply receive a payment to dismiss an appeal 

with a fraction of the work. The Rules should be revised to explicitly recognize that objectors are 

entitled to attorneys’ fees when they realize a material benefit for the class. 

Further, requiring objectors to demonstrate a material benefit also prevents objectors and 

class counsel from settling objections based on illusory relief, e.g., that objector is providing a 

benefit to the class by “getting out of the way” or that objector somehow created a benefit by a 10-

word immaterial change to the class notice. 

*** 

The Proposed Amendments to Rule 23(e)(5)(B) & (C) should be revised to eliminate the 

ability of objectors to dismiss their appeal for consideration by the settling parties and should 

include the additional bolded, underlined language recognizing an objector’s entitlement to fees: 

(B) Court Approval Required For Payment to an Objector or Objector’s 

Counsel. The court may approve an objector’s request for an award of 

reasonable attorney's fees and nontaxable costs after a hearing and on 

a finding that the objection realized a material benefit for the class. An 

objector may not receive payment or consideration in connection with:

agreement. The following procedures apply: Unless approved by the court 

after a hearing, no payment or other consideration may be provided to an 

objector or objector’s counsel in connection with: 

(i) forgoing or withdrawing an objection, or 

(ii) forgoing, dismissing, or abandoning an appeal from a judgment 

approving the proposal. 

(C) Procedure For Approval After an Appeal. If approval under Rule 

23(e)(5)(B) has not been obtained before an appeal is docketed in the court 

of appeals, the procedure of Rule 62.1 applies while the appeal remains 

pending. 

3. The Proposed Amendments should identify an enforcement 

mechanism for failure to satisfy Paragraphs (B) and (C). 

If Paragraphs (B) and (C) are adopted, the Rules should further be amended to provide an 

enforcement mechanism for failure to obtain court approval: disgorgement. Disgorgement is an 

equitable remedy within the inherent power of the court. See Porter v. Warner Holding Co., 328 U.S. 

395, 397-99 (1946) (“unless otherwise explicitly restricted by statute, District Courts may exercise all 

inherent equitable powers to fashion relief, including ordering the payment of money.”). The Rules 

should permit disgorgement of objector-appellants’ profit from misuse of the class action process to 

extract private gain. “The object of restitution [in the disgorgement context] . . . is to eliminate profit 
 22

from wrongdoing while avoiding, so far as possible, the imposition of a penalty.” Restatement 

(Third) of Restitution and Unjust Enrichment § 51(4) (2010). 

Courts have rightly criticized the appellate settlements where objectors “get paid to go away” 

because such payments “benefit only the [objectors] at the expense of all other parties to the 

litigation.” Vollmer v. Selden, 350 F.3d 656, 660 (7th Cir. 2003). All class action payments ultimately 

derive from resolution of the underlying claims. Pearson, 772 F.3d at 786 (defendant cares only about 

total liability). The Rules should provide for a means of recouping any consideration objectors 

receive for dismissing their appeal in contradiction of Paragraphs (B) and (C). 

*** 

The Proposed Amendments insert the following paragraphs to Rule 23(e)(5): 

(D) Enforcement. Any party or class member may initiate an action to 

enforce Paragraph (B) and (C) by filing a motion for disgorgement of 

any consideration received by an objector in connection with foregoing 

or dismissing an objection or appeal. 
TAB 8

COMMENT OF

RICHARD SIMMONS OF ANALYTICS
18675 Lake Drive East 

Chanhassen, MN 55317 

Phone: 952.404.5703 

Email: rsimmons@analyticsllc.com 

February 15, 2017 

To: The Advisory Committee on Civil Rules of the Judicial Conference of the United States 

and Members of the Rule 23 Subcommittee 

Re: Comment on Proposed Amendments to Rule 23

Regarding Class Notice 

 

Dear Committee and Subcommittee Members: 

I am writing to you regarding the proposed amendments to Rule 23 as they relate to “Notice by 

Electronic Means”. 

As an active class action consultant with over 26 years of experience designing and implementing 

class notification and claims programs1, the use of digital notice, where appropriate, is common 

practice. As noted by other experts submitting comments regarding these proposed amendments, 

courts have increasingly approved the usage of digital forms of notice (especially email and 

internet banner advertisements). 

Summary 

Digital notice provides fundamentally different opportunities and challenges than traditional 

notice. Existing practices, rules, and guidance that have been used to evaluate whether or not a 

notice program provides the “best practicable” notice are still necessary – but are no longer 

sufficient to address the complexities of digital media. The lack of clear standards associated with 

digital notice raise concerns that notice programs will be proposed and approved that diminish the 

ability for class members to make informed decisions about whether to opt out or, in instances 

where a proposed settlement is involved, to object or to make claims. 

To address evolving methods of providing notice (both now and in the future), the rules and draft 

advisory committee notes should be modified to recommend that courts take account not only the 

likelihood that members of a class receive a message when delivered by a certain mechanism, but 

 

1

 My biography is attached as Exhibit A. 
also the extent to which members of a class are likely to act in response to messages delivered by 

different means. 

Data Regarding the Effectiveness of Class Notice 

The best sources of data regarding effectiveness of various forms of notice are the notice and 

claims administrators that implement them. This data is frequently reported on in affidavits and 

declarations, but more often than not the details and mechanics are outside the scope of this 

process. They key elements being reported on include the fact that the best practicable notice was 

proposed – and then was provided as designed without omission or incident. Consequently, most 

data are not publicly available. 

In 2016, the Federal Trade Commission issued 6(b) Orders to class action claims administrators 

requesting data regarding various forms of notice. What this data will show is unknown, but to 

the best of my knowledge this will be the first independent analysis of the effectiveness of alternate 

forms of class notice. 

In writing this letter, I draw upon my own experiences and have attempted to generalize them to 

provide some insight into the factors that influence class member participation. These statements 

will be generally true, but there will be special cases and counter-examples. When representations 

are made regarding the effectiveness of alternate forms of notice based on a single matter (rather 

than from repeatable events) - they should be treated as special cases and with some skepticism. 

Best Practicable “Traditional” Notice 

With traditional forms of notice – the standard for providing class members with the “best notice 

practicable” was straightforward2. If the identities of class members were known, they received a 

mailed notice (and claim form if necessary). If the identities of class members were unknown, a 

media campaign targeting class members was conducted. As one appellate court summarized it - 

“It is well settled that in the usual situation first-class mail and publication in the press fully satisfy 

the notice requirements to class members of both Fed. R. Civ. P. 23(c) and the due process clause.”3

This notice process contains four elements that drive class member education and participation: 

1. The notice must effectively reach the class; 

2. The notice must come to the attention of the class (designed to be “noticed”); 

3. The notice should be informative and easy to understand; and, 

4. All of the rights and options should be easy to act on. 

 

2

 See, for example, the Federal Judicial Center’s “Judges' Class Action Notice and Claims Process Checklist and 

Plain Language Guide” (2010). 

3

 Zimmer Paper Prods., Inc. v. Berger & Montague, P.C., 758 F.2d 86, 90 (3d Cir. 1985). 
The qualitative standards outlined above are inherent in the design of a traditional notice campaign. 

Once incorporated in the design, they are provided at little to no cost to the class. These standards 

being met, the metrics for evaluating class notice have so that the “best practicable” notice is the 

notice that: 

1. reaches a minimum acceptable percentage of class members (ensuring due process); and, 

2. is provided at the lowest possible cost (protecting class member funds). 

Missing from these criteria are any consideration for the stated goals of the rule amendments: 

The ultimate goal of giving notice is to enable class members to make informed decisions 

about whether to opt out or, in instances where a proposed settlement is involved, to object 

or to make claims. 

Under these metrics, the following forms of notice could be considered interchangeable: 

x A mailed notice and claim form 

x A postcard notice 

x An emailed notice 

x A text message with the link to the notice 

x A single appearance of a notice in a magazine or newspaper; and, 

x A single banner advertisement on a website. 

Based upon information produced outside the context of discussions regarding these amendments, 

is this true? 

Direct Notice: Form Impacts Participation 

The form of notice has a direct impact on participation rates in class action settlements. Put another 

way, communicating the same settlement information via different media or formats results in 

different participation rates. This is consistent with a marketing piece produced by a competitor 

(and still being used in December 2016): 
 

Current Criteria are Necessary, But Not Sufficient 

Out of tradition, the criteria being used to evaluate “traditional notice” is applied without regard 

for opportunities and challenges that digital notice provides. From a market perspective, the “best 

practicable” notice is notice that is provided at the lowest possible cost (protecting class member 

funds) that: 

1. effectively reached the class (ensuring due process). 

With “traditional notice”, the three additional criteria outlined in the FJC checklist are not 

empirically measurable – are included by tradition - and are provided at little to no additional cost: 

2. The notices must come to the attention of the class (designed to be “noticed”); 

3. The notice should be informative and easy to understand; and, 

4. All of the rights and options should be easy to act on. 

With digital media, the last three criteria are driven by data, are conscious decisions, and carry 

additional expense. Driven by economics – and a judicial focus on a single metric (the percentage 

of class members receiving an opportunity to view a notice) - market forces lead to the lowest cost 

notice regardless of any other considerations. 

Without an analysis of the last three criteria, the following programs are indistinguishable: 
x a notice and claims program that meets the initial metric and provides the highest likelihood 

of a class member making “informed decisions about whether to opt out or, in instances 

where a proposed settlement is involved, to object or to make claims” 

x a notice and claims program that meets the initial metric but is designed to discourage or 

minimize the likelihood of a class member taking those same actions. 

Digital notice provides both the opportunity – based on data – to maximize class member 

engagement. It also provides, more nefariously, the opportunity to minimize class member 

engagement and interaction with a settlement in ways that are readily apparent under casual 

review. 

Why Digital is Different 

Digital notice is fundamentally different from traditional notice because of: 1) the limitless ways 

that it can be targeted, calibrated, limited, or expanded; and 2) because of the data that it can 

provide regarding how recipients interact with the notice materials. 

Know-Nothing Notice 

There is one school of thought that states that digital capabilities should be ignored. A notice plan 

is designed, implemented as proposed, and reported on. While information regarding how a 

program performed is interesting, it is not necessary to the process (or could be used to impugn 

the notice that was provided). Better alternatives may exist, but they are irrelevant to the process. 

Testimony regarding notice programs that reflect this school of thought are characterized by a lack 

of information about how the notice program actually performed. Depending upon the specifics 

of the notice program, the questions that aren’t asked or answered include, for example: 

x How many emails were opened? 

x How many links were clicked? 

x What websites did the notice actually appear on (as opposed to what network of sites)? 

x Of those individuals who visited the settlement website, how many submitted claims? 

Analysis Driven Notice 

The second school of thought is that the transformative nature of digital media needs to be 

embraced. A notice plan should be designed, and subject to the constraints of due process, allow 

for specifics to vary depending upon the how class members actually respond to the notice. Of the 

available options, this seeks out alternatives that are empirically provable to have superior 

performance. Testimony regarding notice programs that reflect this school of thought are 

characterized by the analysis of how the notice program actually performed. Depending upon the 

specifics of the notice program, issues that could be examined include: 

x Keeping the content of the notice the same, do different email subject lines increase class 

member responsiveness to information regarding the settlement? 
x Keeping the content of the notice the same, does changing the format of the information 

increase class member responsiveness to information regarding the settlement? 

x Are there some websites where the notice appears, but class members ignore the 

advertisements (relative to other web properties)? 

x What can be done to decrease the abandon rate – the rate at which class members either 

don’t complete on-line claims, or the rate at which they visit a settlement website and don’t 

submit a claim, 

The difference between these two approaches is best demonstrated by the divergence – driven by 

market forces – between programs designed to retain mass tort clients (and assist them in securing 

their rights) and programs designed to inform class members of the existence of a settlement: 

x Mass Tort: Market forces, competition between firms, and ethics constraints result in 

sophisticated campaigns built around e-commerce best practices – including placement of 

advertisements, website design, and sophisticated response mechanisms. The ultimate 

metric relied upon by market participants is return on investment. 

x Class Action: Market forces and legal constraints can result in campaigns designed around 

the lowest cost per class member without regard for class member participation. Without 

consideration of effectiveness – the metric relied upon by market participants is percentage 

of class members reached. 

Because of this, the rules and guidance should be modified to ensure that: 1) the notice and method 

of processing class-member claims, if required, is the best method that is practicable under the 

circumstances; and 2) that courts should take account the extent to which members of a particular 

class are likely to take action in response to messages delivered by different means. 

“Best Practicable Notice” by Electronic Means 

Issues associated with defining and providing the “best practicable notice” are shown in the 

attached examples. These issues are generally associated with two factors: the willingness to 

collect information performance (as noted above) and the increased expenses associated with 

implementing the best practicable notice: 

x Availability of Information: The mechanisms outlined below require collecting and 

acting on information regarding the internal performance of a notice campaign: 

determining what works, what doesn’t work, and then modifying the program to 

accommodate the new evidence. This approach – standard in e-commerce – means that 

you identify what plans don’t perform as intended and then correct them. 

x Increased Expenses: The mechanisms outlined below require active management of a 

notice campaign and occasionally changes the scope of the campaign or supplemental 

notice – all of which often comes at an additional expense - which is allowed but not 

required unless you take into consideration the extent to which members of a class are 

likely take action in response to messages delivered by different means. 
As shown in the attached examples – the same message regarding the same settlement delivered 

in different formats – can have profound impacts on class member participation – in some cases 

increasing them by a factor of 2x to 4x. 

While a certain approach may be the least expensive alternative – or provide fewer challenges 

regarding implementation – it may not be the “best” notice practicable. 

Conclusion 

As noted above, if the objective of the amendments is to maintain or expand class member 

engagement in the notice and settlement process, the amendments and supporting notes are 

necessary but no longer sufficient with the advent of digital notice campaigns. 

Sincerely, 

Richard W. Simmons 

 
Email Notice 

Emailed notices are proposed as a one-to-one replacement for direct mailed notice. The economic 

incentives driving this is straightforward: emails are essentially free while the first-class postage 

for a mailed notice will range from $0.25 (postcard) to $0.40. 

What distinguishes email notice from direct mailed notice is the availability of information 

regarding what a class member actually did with the notice. Using commercially available 

systems, the following data are obtainable regarding events in the “lifecycle” of an email notice: 

x Whether or not the email is delivered (either “bounces” or is rejected); 

x Whether or not (with certainty) images are displayed in an email; 

x Whether or not (with a high degree of certainty) an email is opened; and, 

x Whether or not (with certainty) the links to a website in an email are clicked. 

A/B Testing 

Unlike traditional mailed notice, email provides us with the opportunity to test email content and 

subject lines to determine which emails perform the “best” – as measured by percentage of 

recipients either opening the email or clicking through to the website. This “A/B” testing is 

commonly employed in e-commerce to ensure that the “best” marketing message is delivered. A 

sample of class members can receive alternate forms of the notice (all complying with legal 

standards), but the “best” notice is distributed to all class members. 

Based upon my experience, and proven out by A/B testing, a change as simple as inserting a 

“Submit Your Claim” button in an email can improve the rate at which class members participate 

in the settlement. In the example below, presented with the same information, the rate at which 

class members opened the notice increased by 170%, the rate at which they “clicked through” to 

the settlement website increased by 380%. 

Traditional Format “Best” Format 

 
Both emails met the standard of providing adequate notice – and both contained the same content 

- but one had substantially higher class member engagement rates: 

x If the likelihood class members take action in response to messages is not considered, then 

either provide adequate notice. 

x If the likelihood class members take action in response to messages is considered, then 

only the improved format provides adequate notice. 

If you do not test the content of email notice - or rely upon e-commerce best practices – how do 

you know that you provided the “best practicable” notice? 

Note: This directly addresses Major Checklist Item 2: “Will the notices come to the attention 

of the class?” In this example, the degree to which the notices come to the attention of the 

class is empirically verifiable and testable. This is consistent with e-commerce practices.

Supplmental Notices 

As noted above, it is possible to know who opens an email notice (with a high degree of certainty) 

and who clicks on links within an email notice (with certainty). To the degree that a class member 

receives an email notice, views its contents (or visits the settlement website), and chooses not to 

act, the best notice possible was provided. 

In the instances where my firm has either: 1) provided both email and mailed notice to all class 

members; or, 2) provided email notice to all class members for whom an email address was 

available and then mailed notice if the email bounces or it could not be shown that the class 

member opened the email, the participation rate was higher than either a mailed-only program or 

an email-only program. 

If there is a policy preference for class member participation – what do you do with class members 

where you know that they didn’t open the initial email? 

Note: This directly addresses Major Checklist Item 2: “Will notice effectively reach the 

class?” In this example, whether or not the email notice is opened is known with certainty. 

This is consistent with e-commerce practices.

 
Banner Advertisements 

Banner advertisements are historically treated as a replacement for published notice. What 

distinguishes banner advertisements from notices printed in magazines or newspapers is the 

availability of information regarding what a class member actually did with the notice. Using 

commercially available systems, the following data are knowable regarding events in the 

“lifecycle” of a banner advertisement: 

x Whether or not the viewer clicked on the advertisement; and, 

x Whether or not the viewer who clicked on the advertisement submitted a claim. 

Banner advertisements can be managed with regard to performance. This can occur in one of three 

ways: 1) determining where advertisements are run; 2) limiting the number of times an individual 

has the opportunity to see a notice; and, 3) analyzing the content of the notice with respect to class 

member reaction4. 

Website Selection 

From an implementation perspective, using standard e-commerce tools it is possible to not only 

target specific audience, but also to manager the placement of the advertisement with respect to 

the sites on which they appear. The process of selecting websites on which a digital notice appears 

occurs on a spectrum of strategies. 

x Run of Network or Remnant: At one end of the spectrum, advertisements can appear on 

a network of sites targeting an audience. You have no information regarding on what 

websites the notice appeared. This approach provides the lowest cost advertisements, but 

forgoes any possibility of managing the notice campaign. 

x Direct Purchases: Advertisements appear on known sites and networks targeting an 

audience. You know where notices appeared, and have the ability modify the program in 

response to class members propensity to click on the notice. This approach costs more, 

but allows for the possibility of managing the notice campaign 

x Big Data Targeting: At the far end of the spectrum, third party data regarding offline – 

real world purchases is used to target consumers who purchased relevant products. In 

general, this is the most expensive, but highly targeted, form of digital notice 

Constrained by the need to provide notice targeted to class members, ads can be placed on 

properties where class members are likely to respond. When advertising placements are managed 

properly, we have seen click through rates increase by 100%. 

It can be argued that all three strategies meet the standard of providing adequate notice – but do so 

at different costs. If there is a policy preference for class member participation – and you do not 

 

4 This analysis necessarily oversimplifies the process of implementing a digital notice campaign. 
manage the advertisements with respect to response - how do you know that you provided the 

“best practicable” notice? 

Note: This directly addresses Major Checklist Item 2: “Will the notices come to the attention 

of the class?” In this example, notices can be unmanaged – or managed to appear on websites 

where class members will respond to the advertisement. This is consistent with e-commerce 

practices.

How Many Advertisements are Displayed? 

As a standard e-commerce tactic to prevent consumers from being overwhelmed by an 

advertisement, digital campaigns implement “frequency caps” to control the number of times an 

ad is displayed to an individual. This allows advertisers to optimize website visitors’ opportunities 

to see an ad, but not ‘‘waste’’ repeated advertisements on a single individual while neglecting 

others. 

In some notice campaigns, efforts are made to limit class members opportunity to see an 

advertisement to a single time. Assuming this can be done, the economic incentive is to provide 

the widest possible distribution of notice. Digital notice campaigns are, generally speaking, 

linearly more expensive. Decreasing program from a frequency cap of 2 to a frequency cap of 1 

eliminates 66% of the notice expense. This is in spite of evidence – from both e-commerce and 

legal notice programs - that a single exposure limits the likelihood that a class member will click 

on the advertisement. 

Data from a relatively recent campaign show the diminishing returns to the number of times and 

individual is exposed to a notice: 

0.00%

0.50%

1.00%

1.50%

2.00%

2.50%

3.00%

3.50%

4.00%

1.00 2.00 3.00 4.00 5.00 6.00

Representative Class Member 

"Click Through: Rate
It has been argued that all levels of digital exposure to a notice meet the standard of providing 

adequate notice – but do so at different costs. 

If there is a policy preference for class member participation – and the percentage of the class that 

is exposed to an advertisement is “literally true” but capped so as to limit participation – is what 

was provided the “best practicable” notice? 

If there is a policy preference for class member participation – and class members are exponentially 

more likely to respond to an advertisement if they see it multiple times, should that be the standard? 

Note: This directly addresses Major Checklist Item 2: “Will the notices come to the attention 

of the class?” In this example, the frequency which advertisements are displayed to class 

members can adjusted to limit, or increase, the degree to which they come to the attention of 

the class. This is consistent with e-commerce practices.

A/B Testing of Notices 

As with email notice, different versions of a digital notice (each containing legally sufficient 

content) can have different response rates. In practice, we have seen some advertisements 

perform 60% better than others. Changing ad sizes, word selection, and including a court logo 

on the advertisement are all examples of changes that influence change response rates and 

engagement. 

If there is a policy preference for class member participation – and you do not test the 

advertisements - how do you know that you provided the “best practicable” notice? 

Note: This directly addresses Major Checklist Item 2: “Will the notices come to the attention 

of the class?” In this example, the degree to which the banner advertisements come to the 

attention of the class is empirically verifiable and testable. This is consistent with e-commerce 

practices.

 
Settlement Website 

A settlement website is an extension of a notice campaign and is frequently the class members’ 

portal to making regarding whether or not to take action regarding a settlement. The structure of 

a settlement website directly impact participation in a settlement. 

Using commercially available – and free – systems data is easily knowable regarding how class 

members interact with a settlement website, the documents that they choose to read, and whether 

they submit a claim. 

By structuring a settlement website around the consumer experience – with clear and conspicuous 

calls to action that are viewable on multiple devices (computers, tablets, or phones) consumer 

participation in settlements can increase by up to 300% among those who visit the settlement 

website. This mirrors e-commerce practices and as well as marketing techniques adopted by 

technically savvy law firms. 

 Desktop SmartPhone 

 

Note: This directly addresses Major Checklist Item 3: “Are all of the rights and options easy 

to act upon?” In this example, the degree to which the settlement website itself is a barrier to 

participation is empirically verifiable and testable. Ease of use results in higher participation 

rates. This is consistent with e-commerce practices.

 
Exhibit A 
Page 1

Richard W. Simmons

BIOGRAPHY

Richard W. Simmons is the President of Analytics Consulting LLC1. Mr. Simmons joined 

Analytics in 1990, and has more than 26 years of experience developing and implementing class 

action communications and settlement programs in more than 1,000 separate settlements.

Mr. Simmons’ first legal notice consulting engagement was the Schwan’s Salmonella Litigation

settlement (In Re: Salmonella Litigation, Case No. 94-cv-016304 (D. Minn.)). Since then, he 

has:

• Developed and implemented notice campaigns ranging in size up to 45 million known 

class members (and 180 million unknown class members);

• Testified regarding legal notice in building products, civil rights, consumer products, 

environmental pollution, privacy, and securities litigation settlements;

• Managed claims processes for settlement funds ranging up to $1 billion in value.

As part of Analytics’ ongoing class action notice consulting practice, Mr. Simmons has:

• testified regarding the adequacy of notice procedures in direct notice cases (including the 

development of class member databases);

• testified regarding the adequacy of published notice plans;

• been appointed as a Distribution Fund Administrator by the Securities and Exchange 

Commission tasked with developing Distribution Plans for court approval;

• been retained as an expert by the Federal Trade Commission to testify regarding the 

effectiveness of competing notice plans and procedures

In addition to his class action consulting work, Mr. Simmons has taught a college course in

antitrust economics, was a guest lecturer at the University of Minnesota Law School on issues of 

statistical and economic analysis, was a charter member of the American Academy of Economic 

and Financial Experts, and was a former referee for the Journal of Legal Economics (reviewing 

and critiquing peer reviewed articles on the application of economic and statistical analysis to 

legal issues). Mr. Simmons is a published author on the subject of damage analysis in Rule 10b5 securities litigation.

Mr. Simmons graduated from St. Olaf College with a B.A. in Economics, pursued a PhD. in 

Applied Economics (with a concentration on consumer/behavioral economics) at the University 

of Minnesota2, and has received formal media planning training from New York University. 

																																																							 1 In October 2013, Analytics Consulting LLC acquired Analytics Incorporated (d/b/a BMC Group Class Action 

Services (“BMC Group”)). I was formerly the President/Managing Director of BMC Group. References to 

Analytics herein include the prior legal entities.

2 Mr. Simmons suspended work on his dissertation to acquire and manage Analytics.
Page 2

APPLICATION OF TECHNOLOGY TO CLASS ACTION SETTLEMENTS

Mr. Simmons has been a visionary in the application of the Internet to class action notice 

campaigns and the management of settlements:

• In 1995, Mr. Simmons was the first in the nation to support class action settlements with 

an online presence, that included the ability to check online, the status of their claims.

• In 2000, Mr. Simmons invented online claims submission in class action litigation, filing 

a patent application governing “Method and system for assembling databases in multipleparty proceedings” US20010034731 A1.

• In 2002, Mr. Simmons established an online clearinghouse for class action settlements 

that provided the public with information regarding class action settlements and provided 

them with the ability to register for notification of new settlements. This clearinghouse 

received national press attention as a resource for class action settlements.

• From 2003 through 2013, Analytics’ incremental changes in Internet support included 

class member verification of eligibility, locater services that identified retail outlets that 

sold contaminated products, secure document repositories, and multi-language support.

• In 2014, Mr. Simmons was the first to utilize and testify regarding product based 

targeting in an online legal notice campaign

• In 2014, Analytics, under Mr. Simmons’ leadership, released the first class action 

settlement support site developed under e-commerce best practices.

SPEAKER/EXPERT PANELIST/PRESENTER

Mr. Simmons has presented to panels of judges and lawyers on issues regarding class notice, 

claims processing, and disbursement:

• Mr. Simmons served as a panelist for the Francis McGovern Conferences on 

“Distribution of Securities Litigation Settlements: Improving the Process”, at which 

regulators, judges, custodians, academics, practitioners and claims administrators 

participated.

• In 2011, Mr. Simmons was a panelist at the Federal Judicial Center’s workshop/meetings 

regarding class action notice and settlement administration. 

• In 2014, Mr. Simmons was invited to be interviewed by the Consumer Financial 

Protection Bureau as an expert on notice and claims administration in class action 

litigation as part of their study on arbitration and consumer class litigation waivers

• In 2016, Mr. Simmons presented results of research regarding the impact of forms of 

notice on fund participation rates to the Federal Trade Commission. 

Mr. Simmons’ speaking engagements regarding class notice include:

• Class Action Administration: Data and Technology, presented by Richard Simmons, 

Harris Martin Target Data Breach Conference in San Diego (2014);
Page 3

• Developments in Legal Notice, accredited CLE Program, presented by Richard Simmons 

and Christian Clapp at at Susman Godfrey in Dallas (2014) 

• Developments in Legal Notice, accredited CLE Program, presented by Richard Simmons 

and Christian Clapp at Shook Hardy & Bacon, LLP in Kansas City (2013),

• Developments in Legal Notice, accredited CLE Program, presented by Richard Simmons 

and Christian Clapp at Halunen & Associates in Minneapolis (2013), 

• Class Actions 101: Best Practices and Potential Pitfalls in Providing Class Notice, CLE 

Program, presented by Brian Christensen, Gina Intrepido, and Richard Simmons, to the 

Kansas Bar Association (March 2009).

Mr. Simmons’ writings regarding class notice include:

• Co-Author with Christian Clapp, Crafting Digital Class Notices That Actually Provide 

Notice - Law360.com, New York (March 10, 2016). 

JUDICIAL COMMENTS AND LEGAL NOTICE CASES

In evaluating the adequacy and effectiveness of Mr. Simmons’ notice campaigns, courts have 

repeatedly recognized Mr. Simmons’ work. The following excerpts provide recent examples of 

such judicial approval in matters where the primary issue was the provision of class notice. 

Judge	 Edward	 J.	 Davila,	 In	 re:	 Google	 Referrer	 Header	 Privacy	 Litigation (March	 31,	

2015),	10-04809	(N.D.	CA):

On	 the	issue	of	appropriate	notice,	 the	court	previously	recognized	 the	uniqueness	of	

the	class	asserted	in	this	case,	since	it	could	potentially	cover	most	internet	users	in	the	

United	States.	On	that	ground,	the	court	approved	the	proposed	notice	plan	involving	

four	 media	 channels:	 (1)	 internet-based	 notice	 using	 paid	 banner	 ads	 targeted	 at	

potential	class	members	(in	English	and	in	Spanish	on	Spanish-language	websites);	(2)	

notice	 via	 “earned	 media”	 or,	 in	 other	 words,	 through	 articles	 in	 the	 press;	 (3)	 a	

website	 decided	 solely	 to	 the	 settlement	 (in	English	 and	Spanish	versions);	 and	 (4)	 a	

toll-free	 telephone	 number	 where	 class	 members	 can	 obtain	 additional	 information	

and	request	a	class	notice.	In	addition,	the	court	approved	the	content	and	appearance	

of	the	class	notice	and	related	forms	as	consistent	with	Rule	23(c)(2)(B).	

The	court	again	finds	 that	 the	notice	plan	and	class	notices	are	consistent	with	Rule	

23,	and	that	the	plan	has	been	fully	and	properly	implemented	by	the	parties	and	the	

class	administrator.	
Page 4

Judge	Terrence	F.	McVerry,	Kobylanski,	et	al.	v.	Motorola	Mobility,	Inc., et	al.	(October	9,	

2014),	13-01181	(W.D.	PA):	

The	Court	finds	 that	 the	distribution	of	 the	Notice	 to	Class	Members	Re:	Pendency	of	

Class	 Action,	 as	 provided	 for	 in	 the	 Order	 Granting	 Preliminary	 Approval	 for	 the	

Settlement,	 constituted	 the	 best	 notice	 practicable	 under	 the	 circumstances	 to	 all	

Persons	within	the	definition	of	the	Class	and	fully	met	the	requirements	of	due	process	

under	the	United	States	Constitution.

Judge	 Marco	 Roldan, Mary	 Plubell	 v.	 Merck	 &	 Co (March	 15,	 2013),	 04CV235817-01	

(Jackson	County,	MO):

Under	 the	 circumstances,	 the	 notice	 this	 Settlement	 provided	 to	 Class	 Members	 in	

accordance	with	the	Notice	Order	was	the	best	notice	practicable	the	proceedings	and	

matters	set	forth	therein,	including	the	proposed	Settlement,	to	all	Persons	entitled	to	

such	notice,	and	said	notice	fully	satisfied	the	requirements	due	process	and	Missouri	

law.	

Judge	 James	P.	Kleinberg,	Janet	Skold,	et	al.	v.	Intel	Corporation,	et	al. (March	14,	2013)	

05-CV-039231	(County	of	Santa	Clara,	CA):	

The	 Court	 finds	 that	 Plaintiff’s	 proposed	 Notice	 plan	 has	 a	 reasonable	 chance	 of	

reaching	a	substantial	percentage	of	class	members.

Judge	Thomas	N.	O’Neill,	Jr.,	In	Re:	CertainTeed	Fiber	Cement	Siding	Litigation (March	20,	

2014), MDL	Docket	No.	2270	(E.D.	PA):	

Settlement	class	members	were	provided	with	notice	of	the	settlement	in	the	manner	

and	form	set	forth	in	the	settlement	agreement...	Notice	was	also	provided	to	pertinent	

state	and	federal	officials...		The	notice	plan	was	reasonably	calculated	to	give	actual	

notice	 to	 settlement	 class	 members	 of	 their	 right	 to	 receive	 benefits	 from	 the	

settlement	or	to	be	excluded	from	the	settlement	or	object	to	the	settlement.	The	notice	

plan	met	the	requirements	of	Rule	23	and	due	process.

Judge	 Robert	 G.	 Gettleman,	In	 Re	 Aftermarket	 Filters	 Antitrust	 Litigation (October	 25,	

2012), MDL	Docket	No.	1957	(N.D.	IL):	

Due	and	adequate	notice	of	the	Settlement	was	provided	to	the	Class...	The	manner	of	

giving	 notice	 provided	in	 this	 case	fully	 satisfies	 the	 requirements	 of	 Federal	 Rule	 of	

Civil	Procedure	23	and	due	process,	constitutes	 the	best	notice	practicable	under	 the	

circumstances,	and	constituted	due	and	sufficient	notice	to	all	persons	entitled	thereto.	

A	 full	 and	 fair	 opportunity	 was	 provided	 to	 the	 members	 of	 the	 Class	 to	 be	 heard	

regarding	the	Settlements
Page 5

Judge	J.	Phil	Gilbert,	Greenville	 IL,	et	al.	 v.	 Syngenta	Crop	Protection,	 Inc.	et	al. (October	

23,	2012),	10-00188	(S.D.	IL):

The Notice	 provided	 to	 the	 Class	 fully	 complied	 with	 Rule	 23,	 was	 the	 best	 notice	

practicable,	 satisfied	 all	 constitutional	 due	 process	 requirements,	 and	 provides	 the	

Court	with	jurisdiction	over	the	Class	Members.	Eisen	v.	Carlisle	and	Jacquelin,	417	U.S.	

156,	177-78	(1974);	Phillips	Petroleum	v.	Shutts,	472	U.S.	797	(1985).
Page 1 of 26

Partial List of Legal Notification and Settlement Administration Experience

Antitrust All Star Carts and Vehicles, Inc., et al. v. BFI Canada Income Fund, et al.

08-CV-1816 (E.D. NY)

In Re: Aftermarket Filters Antitrust Litigation

No. 1:08-cv-4883, MDL No. 1957 (N.D. Ill.)

In Re: Aluminum Phosphide Antitrust Litigation

Case No. 93-cv-2452 (D. Kan.)

In Re: Beef Antitrust Litigation

MDL No. 248 (N.D. Tex.)

In Re: Bromine Antitrust Litigation

MDL No. 1310 (S.D. Ind.)

In Re: Industrial Silicon Antitrust Litigation

Case No. 95-cv-2104 (W.D. Pa.)

In Re: Workers Compensation Insurance Antitrust Litigation

Case No. 4:85-cv-1166 (D. Minn.)

Red Eagle Resources Corporation, Inc., et al. v. Baker Hughes Inc., et al.

Case No. 91-cv-627 (S.D. Tex.)

Rob'n I, Inc., et al. v. Uniform Code Counsel, Inc.

Case No. 03-cv-203796-1 (Spokane County, Wash.)

Sarah F. Hall d/b/a Travel Specialist, et al. v. United Airlines, Inc., et al.

Case No. 7:00-cv-123-BR(1) (E.D. S.C.)

Business American Golf Schools, LLC, et al. v. EFS National Bank, et al.

Case No. 00-cv-005208 (D. Tenn.)

AVR, Inc. and Amidon Graphics v. Churchill Truck Lines

Case No. 4:96-cv-401 (D. Minn.)

Buchanan v. Discovery Health Records Solutions

Case No. 13-015968-CA 25 (Miami Dade County, FL)

Buchanan v. Discovery Health Records Solutions

Case No. 13-015968-CA 25 (Miami Dade County)

Do Right's Plant Growers, et al. v. RSM EquiCo, Inc., et al.

Case No. 06-CC-00137 (Orange County, Cal.)

F.T.C. v. Ameritel Payphone Distributors

Case No. 00-cv-514 (S.D. Fla.)

F.T.C. v. Datacom Marketing, Inc.

Case No. 06-cv-2574 (N.D. Ill.)
Page 2 of 26

Partial List of Legal Notification and Settlement Administration Experience

Business F.T.C. v. Davison & Associates, Inc.

Case No. 97-cv-01278 (W.D. Pa.)

F.T.C. v. Fidelity ATM, Inc.

Case No. 06-cv-81101 (S.D. Fla.)

F.T.C. v. Financial Resources Unlimited, Inc.

Case No. 03-cv-8864 (N.D. Ill.)

F.T.C. v. First American Payment Processing Inc.

Case No. 04-cv-0074 (D. Ariz.)

F.T.C. v. Group C Marketing, Inc.

Case No. 06-cv-6019 (C.D. Cal.)

F.T.C. v. Jordan Ashley, Inc.

Case No. 09-cv-23507 (S.D. Fla.)

F.T.C. v. Medical Billers Network, Inc.

Case No. 05-cv-2014 (S.D. N.Y.)

F.T.C. v. Minuteman Press Int’l

Case No. 93-cv-2496 (E.D. N.Y.)

F.T.C. v. Netfran Development Corp

Case No. 05-cv-22223 (S.D. Fla.)

F.T.C. v. USA Beverages, Inc

Case No. 05-cv-61682 (S.D. Fla.)

Garcia, et al. v. Allergan, Inc.

11-CV-9811 (C.D. CA)

Law Offices of Henry E. Gare, P.A., et al. v. Healthport Technologies, LL

No. 16-2011-CA-010202 (Duval County, FL)

Number Queen, Ltd. et al. v. Redgear Technologies, Inc. et al.

Case No. 14-0064 (W.D. MO)

Physicians of Winter Haven LLC v. STERIS Corp.

Case No. 1:10-cv-00264 (N.D. Ohio)

Sue Ramirez et al. v. Smart Professional Photocopy Corporation

No. 01-L-385 (Peoria County, IL)

Todd Tompkins, Doug Daug and Timothy Nelson v. BASF Corporation, e

Case No. 96-cv-59 (D. N.D.)

United States of America v. $1,802,651.56 in Funds Seized from E-Bulli

Case No. 09-cv-01731 (C.D. Cal.)
Page 3 of 26

Partial List of Legal Notification and Settlement Administration Experience

Business Waxler Transportation Company, Inc. v. Trinity Marine Products, Inc., e

Case No. 08-cv-01363 (E.D. La.)

Civil Rights Bentley v. Sheriff of Essex County

Case No. 11-01907 (Essex County, MA)

Cazenave, et al. v. Sheriff Charles C. Foti, Jr., et al.

Case No. 00-cv-1246 (E.D. La.)

Garcia, et al v. Metro Gang Strike Force, et al.

Case No. 09-cv-01996 (D. Minn.)

Gregory Garvey, Sr., et al. v. Frederick B. MacDonald & Forbes Byron

3:07-cv-30049 (S.D. Mass.)

McCain, et al. v. Bloomberg, et al.

Case No. 41023/83 (New York)

Nancy Zamarron, et al. v. City of Siloam Springs, et al.

Case No. 08-cv-5166 (W.D. Ark.)

Nathan Tyler, et al. v. Suffolk County, et al.

Case No. 1:06-cv-11354 (S.D. Mass.)

Nilsen v. York County 

Case No. 02-cv-212 (D. Me.)

Richard S. Souza et al. v. Sheriff Thomas M. Hodgson

2002-0870 BRCV (Superior Ct., Mass.)

Travis Brecher, et al. v. St. Croix County, Wisconsin, et al.

Case No. 02-cv-0450-C (W.D. Wisc.)

Consumer Andrew J. Hudak, et al. v. United Companies Lending Corporation

Case No. 334659 (Cuyahoga County, Ohio)

Angela Doss, et al. v. Glenn Daniels Corporation

Case No. 02-cv-0787 (E.D. Ill.)

Angell v. Skechers Canada

8562-12 (Montreal, Quebec)

Anthony Talalai, et al. v. Cooper Tire & Rubber Company

Case No. L-008830-00-MT (Middlesex County, NJ)

Arnett v. Bank of America, N.A.

No. 3:11-CV-01372-SI (D. OR)

Ballard, et al. v. A A Check Cashiers, Inc., et al.

Case No. 01-cv-351 (Washingotn County, Ark.)
Page 4 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer Belinda Peterson, et al. v. H & R Block Tax Services, Inc.

Case No. 95-CH-2389 (Cook County, Ill.)

Boland v. Consolidated Multiple Listing Service, Inc.

Case No. 3:19-cv-01335-SB (D. SC)

Caprarola, et al. v. Helxberg Diamond Shops, Inc.

Case No. 13-06493 (N.D. IL)

Carideo et al. v. Dell, Inc.

Case No. 06-cv-1772 (W.D. Wash.)

Carnegie v. Household International, Inc.

No. 98-C-2178 (N.D. Ill.)

Clair Loewy v. Live Nation Worldwide Inc.

Case No. 11-cv-04872 (N.D. Ill.)

Clements, et al. v. JPMorgan Chase Bank, N.A., et al.

No. 3:12-cv-02179-JCS (N.D. CA)

Conradie v. Caliber Home Loans

Case No. 4:14-cv-00430 (S.D. IA)

Covey, et al. v. American Safety Council, Inc.

2010-CA-009781-0 (Orange County, FL)

Cummins, et al. v. H&R Block, et al.

Case No. 03-C-134 (Kanawha County, W.V.)

David and Laurie Seeger, et al. v. Global Fitness Holdings, LLC

No. 09-CI-3094, (Boone Circuit Court, Boone County, Ky.)

Don C. Lundell, et al. v. Dell, Inc.

Case No. 05-cv-03970 (N.D. Cal.)

Duffy v. Security Pacific Autmotive Financial Services Corp., et al.

Case No. 3:93-cv-00729 (S.D. Cal.)

Edward Hawley, et al. v. American Pioneer Title Insurance Company 

No. CA CE 03-016234 (Broward County, Fla.)

Evans, et al. v. Linden Research, Inc., et al.

Case No. 4:11-cv-1078-DMR (N.D. CA)

F.T.C. and The People of the State of New York v. UrbanQ

Case No. 03-cv-33147 (E.D. N.Y.)

F.T.C. v. 1st Beneficial Credit Services LLC

Case No. 02-cv-1591 (N.D. Ohio)
Page 5 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer F.T.C. v. 9094-5114 Quebec, Inc.

Case No. 03-cv-7486 (N.D. Ill.)

F.T.C. v. Ace Group, Inc.

Case No. 08-cv-61686 (S.D. Fla.)

F.T.C. v. Affordable Media LLC

Case No. 98-cv-669 (D. Nev.)

F.T.C. v. AmeraPress, Inc.

Case No. 98-cv-0143 (N.D. Tex.)

F.T.C. v. American Bartending Institute, Inc., et al.

Case No. 05-cv-5261 (C.D. Cal.)

F.T.C. v. American International Travel Services Inc.

Case No. 99-cv-6943 (S.D. Fla.)

F.T.C. v. Bigsmart.com, L.L.C., et al.

Case No. 01-cv-466 (D. Ariz.)

F.T.C. v. Call Center Express Corp.

Case No. 04-cv-22289 (S.D. Fla.)

F.T.C. v. Capital Acquistions and Management Corp.

Case No. 04-cv-50147 (N.D. Ill.)

F.T.C. v. Capital City Mortgage Corp.

Case No. 98-cv-00237 (D. D.C.)

F.T.C. v. Certified Merchant Services, Ltd., et al.

Case No. 4:02-cv-44 (E.D. Tex.)

F.T.C. v. Check Inforcement

Case No. 03-cv-2115 (D. N.J.)

F.T.C. v. Chierico et al.

Case No. 96-cv-1754 (S.D. Fla.)

F.T.C. v. Clickformail.com, Inc.

Case No. 03-cv-3033 (N.D. Ill.)

F.T.C. v. Consumer Credit Services

Case No. 96-cv-1990 (S.D. N.Y.)

F.T.C. v. Consumer Direct Enterprises, LLC.

Case No. 07-cv-479 (D. Nev.)

F.T.C. v. Debt Management Foundation Services, Inc.

Case No. 04-cv-1674 (M.D. Fla.)
Page 6 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer F.T.C. v. Digital Enterprises, Inc.

Case No. 06-cv-4923 (C.D. Cal.)

F.T.C. v. Dillon Sherif

Case No. 02-cv-00294 (W.D. Wash.)

F.T.C. v. Discovery Rental, Inc., et al.

Case No: 6:00-cv-1057 (M.D. of Fla.)

F.T.C. v. EdebitPay, LLC.

Case No. 07-cv-4880 (C.D. Cal.)

F.T.C. v. Electronic Financial Group, Inc.

Case No. 03-cv-211 (W.D. Tex.)

F.T.C. v. Eureka Solutions

Case No. 97-cv-1280 (W.D. Pa.)

F.T.C. v. Federal Data Services, Inc., et al.

Case No. 00-cv-6462 (S.D. Fla.)

F.T.C. v. Financial Advisors & Associates, Inc.

Case No. 08-cv-00907 (M.D. Fla.)

F.T.C. v. First Alliance Mortgage Co.

Case No. 00-cv-964 (C.D. Cal.)

F.T.C. v. First Capital Consumer Membership Services Inc., et al.

Case No. 1:00-cv-00905 (W.D. N.Y.)

F.T.C. v. First Capital Consumers Group, et al.

Case No. 02-cv-7456 (N.D. Ill.)

F.T.C. v. Franklin Credit Services, Inc.

Case No. 98-cv-7375 (S.D. Fla.)

F.T.C. v. Global Web Solutions, Inc., d/b/a USA Immigration Services, et

Case No. 03-cv-023031 (D. D.C.)

F.T.C. v. Granite Mortgage, LLC

Case No. 99-cv-289 (E.D. Ky.)

F.T.C. v. ICR Services, Inc.

Case No. 03-cv-5532 (N.D. Ill.)

F.T.C. v. iMall, Inc. et al.

Case No. 99-cv-03650 (C.D. Cal.)

F.T.C. v. Ira Smolev, et al.

Case No. 01-cv-8922 (S.D. Fla.)
Page 7 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer F.T.C. v. Jeffrey L. Landers

Case No. 00-cv-1582 (N.D. Ga.)

F.T.C. v. Jewelway International, Inc.

Case No. 97-cv-383 (D. Ariz.)

F.T.C. v. Komaco International, Inc., et al.

Case No. 02-cv-04566 (C.D. Cal.)

F.T.C. v. LAP Financial Services, Inc.

Case No. 3:99-cv-496 (W.D. Ky.)

F.T.C. v. Marketing & Vending, Inc. Concepts, L.L.C., et al.

Case No. 00-cv-1131 (S.D. N.Y.)

F.T.C. v. Mercantile Mortgage

Case No. 02-cv-5078 (N.D. Ill.)

F.T.C. v. Meridian Capital Management

Case No. 96-cv-63 (D. Nev.)

F.T.C. v. NAGG Secured Investments

Case No. 00-cv-02080 (W.D. Wash.)

F.T.C. v. National Consumer Counsil, Inc., et al.

Case No. 04-cv-0474 (C.D. Cal.)

F.T.C. v. National Credit Management Group

Case No. 98-cv-936 (D. N.J.)

F.T.C. v. National Supply & Data Distribution Services

Case No. 99-cv-128-28 (C.D. Cal.)

F.T.C. v. Nationwide Information Services, Inc.

Case No. 00-cv-06505 (C.D. Cal.)

F.T.C. v. NBTY, Inc.

No. 05-4793 (E.D. NY)

F.T.C. v. Pace Corporation

Case No. 94-cv-3625 (N.D. Ill.)

F.T.C. v. Paradise Palms Vacation Club

Case No. 81-1160D (W.D. Wash.)

F.T.C. v. Patrick Cella, et al.

Case No. 03-cv-3202 (C.D. Cal.)

F.T.C. v. Platinum Universal, LLC

Case No. 03-cv-61987 (S. D. Fla.)
Page 8 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer F.T.C. v. Raymond Urso

Case No. 97-cv-2680 (S.D. Fla.)

F.T.C. v. Robert S. Dolgin

Case No. 97-cv-0833 (N.D. Cal.)

F.T.C. v. Southern Maintenance Supplies

Case No. 99-cv-0975 (N.D. Ill.)

F.T.C. v. Star Publishing Group, Inc.

Case No. 00-cv-023D (D. Wy.)

F.T.C. v. Stuffingforcash.com Corp.

Case No. 02-cv-5022 (N.D. Ill.)

F.T.C. v. Target Vending Systems, L.L.C., et al.

Case No. 00-cv-0955 (S.D. N.Y.)

F.T.C. v. The College Advantage, Inc.

Case No. 03-cv-179 (E.D. Tex.)

F.T.C. v. The Crescent Publishing Group, Inc., et al.

Case No. 00-cv-6315(S.D. N.Y.)

F.T.C. v. The Tungsten Group, Inc.

Case No. 01-cv-773 (E.D. Va.)

F.T.C. v. Think Achievement Corp.

Case No. 2:98-cv-12 (N.D. Ind.)

F.T.C. v. Think All Publishing

Case No. 07-cv-11 (E.D. Tex.)

F.T.C. v. Trustsoft, Inc.

Case No. 05-cv-1905 (S.D. Tex.)

F.T.C. v. Unicyber Gilboard, Inc.

Case No. 04-cv-1569 (C.D. Cal.)

F.T.C. v. US Grant Resources, LLC.

Case No. 04-cv-0596 (E.D. La.)

F.T.C. v. Verity International, Ltd., et al.

Case No. 00-cv-7422-LAK (S.D. N.Y.)

F.T.C. v. Wellquest International, Inc.

Case No. 2:03-cv-05002 (C.D. Cal.)

F.T.C. v. Wolf Group

Case No. 94-cv-8119 (S.D. Fla.)
Page 9 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer Fernando N. Lopez and Mallory Lopez, et al. v. City Of Weston

Case No. 99-8958 CACE 07 (FL 17th Jud Dist)

Fiori, et al. v. Dell Inc., et al.

Case No. 09-cv-01518 (N.D. Cal.)

FMS, Inc. v. Dell, Inc. et al.,

Case No. 03-2-23781-7SEA (King County, Wash.)

Galatis, et al. v. Psak, Graziano Piasecki & Whitelaw, et. al. 

No. L-005900-04 (Middlesex County, NJ)

Garcia v. Allergan

11-cv-9811 (C.D. Cal.)

Grabowski v. Skechers U.S.A., Inc.

No. 3:12-cv-00204 (W.D. Ky.)

Greg Benney, et al. v. Sprint International Communications Corp. et al.

Case No. 02-cv-1422 (Wyandotte County, KS)

Griffin v. Dell Canada Inc

Case No. 07-cv-325223D2 (Ontario, Superio Court of Justice)

Harris, et al. v. Roto-Rooter Services Company

Case No. 00-L-525 (Madison County, IL)

Harrison, et al. v. Pacific Bay Properties

No. BC285320 (Los Angeles County, CA)

Henderson, et al . V. Volvo Cars of North America, LLC, et al.

09-04146 (D. NJ)

In re H&R Block IRS Form 8863 Litigation

Case No. 4:13-MD-02474-FJG. (W.D. MO)

In Re: Bancomer Transfer Services Mexico Money Transfer Litigation

BC238061, BC239611(Los Angeles County, CA)

In Re: Certainteed Fiber Cement Siding Litigation

MDL 2270 (E.D. PA)

In Re: H&R Block Express IRA Marketing Litigation

Case No. 06-md-01786 (W.D. Mo.)

In Re: High Carbon Concrete Litigation

Case No. 97-cv-20657 (D. Minn.)

In Re: High Sulfur Content Gasoline Products Liability Litigation

MDL No. 1632 (E.D. La.)
Page 10 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer In Re: Ria Telecommunications and Afex Mexico Money Transfer Litigat

Case No. 99-cv-0759 (San Louis Obispo, Cal.)

In Re: Salmonella Litigation

Case No. 94-cv-016304 (D. Minn.)

Janet Figueroa, et al. v. Fidelity National Title Insurance Company 

Case No. 04-cv-0898 (Miami Dade County, Fla.)

Jerome H. Schlink v. Edina Realty Title

Case No. 02-cv-18380 (D. Minn.)

Jerome Walls, et al. v. JP Morgan Chase Bank, N.A., et al.

Case No. 11-00673 (W.D. KY)

Joel E. Zawikowski, et al. v. Beneficial National Bank, et al.

Case No. 98-cv-2178 (N.D. Ill.)

John Babb, et al. v. Wilsonart International, Inc. 

Case No. CT-001818-04 (Memphis, Tenn.)

John Colin Suttles, et. Al v. Specialty Graphics, Inc.,

Case No. 14-505 (W.D. TX)

Kenneth Toner, et al. v. Cadet Manufacturing Company

Case No. 98-2-10876-2SEA (King County, Wash.)

Kiefer, et al. v. Ceridian Corporation, et al.

Case No. 3:95-cv-818 (D. Minn.)

Kobylanski et al. v. Motorola Mobility, Inc. et al.

No. 13-CV-1181 (W.D. PA)

Long et al v. Americredit Financial Services, Inc.

0:2011-02752 (Hennepin County, MN)

Louis Thula, et al. v. Lawyers Title Insurance Corporation 

Case No. 0405324-11 (Broward County, Fla.)

Lynn Henderson, et al. v. Volvo Cars of North America, LLC, et al.

No. 2:09-cv-04146-CCC-JAD (D. N.J.)

Lynnette Lijewski, et al. v. Regional Transit Board, et al.

Case No. 4:93-cv-1108 (D. Minn.)

Mark Laughman, et al. v. Wells Fargo Leasing Corp. et al.

Case No. 96-cv-0925 (N.D. Ill.)

Mark Parisot et al v. US Title Guaranty Company

Case No. 0822-cc-09381 (St. Louis Circuit Court, Mo.)
Page 11 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer Mark R. Lund v. Universal Title Company

Case No. 05-cv-00411 (D. Minn.)

Melissa Castille Dodge, et al. v. Phillips College of New Orleans, Inc., et 

Case No. 95-cv-2302 (E.D. La.)

Michael Drogin, et al. v. General Electric Capital Auto Financial Services

Case No. 95-cv-112141 (S.D. N.Y.)

Michael Sutton v. DCH Auto Group, et al. 

(Essex County, NJ)

Michael T. Pierce et al. v. General Electric Capital Auto Lease

CV 93-0529101 S

Mitchem, et al v. Illinois Collection Service, Inc.

Case No. 09-cv-7274 (N.D. Ill.)

Northcoast Financial Services v. Marcia Webster

2004 CVF 18651 (Cuyahoga County, OH)

Oubre v. Louisiana Citizens Fair Plan

No. 625-567 (Jefferson Parish, LA)

Patricia Faircloth, et a. v. Certified Finance, Inc., et al.

Case No. 99-cv-3097 (E.D. La.)

Pistilli v. Life Time Fitness, Inc.

Case No. 07-cv-2300 (D. Minn.)

Rawlis Leslie, et al. v. The St. Joe Paper Company

Case No. 03-368CA (Gulf County, Fla.)

Regayla Loveless, et al. v. National Cash, Inc, et al.

Case No. 2001-cv-892-2 (Benton County, Ark.)

Ricci, et al., v. Ameriquest Mortgage Co.

Case No. 27-cv-05-2546 (D. Minn.)

Ronnie Haese, et al. v. H&R Block, et al.

Case No. 96-cv-423 (Kleberg County, Tex.)

Sandra Arnt, et al. v. Bank of America, N.A.

No. 27-cv-12-12279 (Hennepin County, MN)

Sara Khaliki, et al. v. Helzberg Diamond Shops, Inc.

4:11-cv-00010 (W.D. Mo.)

Shepherd, et al. v. Volvo Finance North America, Inc., et al.

Case No. 1:93-cv-971 (D. Ga.)
Page 12 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer Skusenas v. Linebarger, Goggan, Blair & Sampson, LLC.

Case No. 1:10-cv-8119 (N.D. Ill.)

Smith v. NRT Settlement Services of Missouri, LLC

Case No. 06-cv-004039 (St. Louis County, MO)

Terrell Ervin v. Nokia Inc. et al.

Case No. 01-L-150 (St. Clair County, Ill.)

Theresa Boschee v. Burnet Title, Inc.

Case No. 03-cv-016986 (D. Minn.)

Thomas Geanacopoulos v. Philip Morris USA, Inc.

Civil Action No. 98-6002-BLS1 (MA Superior Court)

Thomas Losgar, et al. v. Freehold Chevrolet, Inc., et al. 

Case No. L-3145-02 (Monmouth County, NJ)

Tom Lundberg, et al. v. Sprint Corporation, et al. 

Case No. 02-cv-4551 (Wyandotte County, Kan.)

Truc-way, Inc., et al. v. General Electric Credit Auto Leasing

Case No. 92-CH-08962 (Cook County, Ill.)

Trudy Latman, et al. vs. Costa Cruise Lines, N.V., et al

Case No. 96-cv-8076 (Dade County, Fla.)

U.S. v. $1,802,651.56 in Funds Seized from e-Bullion, et al. ("Goldinger"

No. CV 09-1731 (C.D. Cal.)

U.S. v. $1,802,651.56 in Funds Seized from e-Bullion, et al. ("Kum Vent

No. CV 09-1731 (C.D. Cal.)

U.S. v. David Merrick

6:10-cr-109-Orl-35DAB

U.S. v. Sixty-Four 68.5 lbs (Approx.) Silver Bars, et al.

(E.D. FL)

United States of America v. Alfredo Susi, et al.

3:07-cr-119 (W.D. NY)

United States of America v. Elite Designs, Inc.

Case No. 05-cv-058 (D. R.I.)

Vicente Arriaga, et al. v. Columbia Mortgage & Funding Corp, et al.

Case No. 01-cv-2509 (N.D. Ill.)

William R. Richardson, et al., v. Credit Depot Corporation of Ohio, et al.

Case No. 315343 (Cuyahoga County, Ohio)
Page 13 of 26

Partial List of Legal Notification and Settlement Administration Experience

Consumer Zyburo v. NCSPlus Inc.

Case No. 12-cv-06677 (S.D.N.Y.)

Employment Adam P. Kelly, et al v. Bank of America, N.A., et al.

No. 10-CV-5332 (E.D. IL)

Alequin, et al. v. Darden Restaurants, Inc. et al.

Case No.: 12-61742-CIV (S.D. FL)

Alice Williams, et a. v. H&R Block Enterprises

RG 08366506, (County of Alameda, CA)

Alma Anguiano v. First United Bank and Trust Co.

Case No. CIV-12-1096 (D. OK)

Andrew R. Rondomanski, et al. v. Midwest Division, Inc.

No. 11-cv-00887 (W.D. MO)

Balandran, et al. v. Labor Ready, et al.

BC 278551 (Losa Angeles County, Cal.)

Ballard, et al., v. Fogo de Chao, LLC

Case No. 09-cv-7621 (D. Minn.)

Beasley, et al. v. GC Services LP

Case No. 09-cv-01748 (E.D. Mo.)

Berry v. Farmers Bank & Trust, N.A.

Case No. 13-02020

Berte v. WIS Holdings Corporation

07-cv-1932 (S.D. CA)

Bishop et al. v. AT&T Corp.

Case No. 08-cv-00468 (W.D. Pa.)

Bobbie Jarrett v. GGNSC Holdings, LLC

Case No.: 12-CV-4105-BP (W.D. MO)

Chandler Glover and Dean Albrecht, et al., v. John E. Potter

EEOC No. 320-A2-8011X; Agency No. CC-801-0015-99 

Christopher Evins v. Glow Networks, Inc.

Case No. 14-cv-00544 (W.D. MO)

Claudine Wilfong, et al. v. Rent-A-Center, Inc.

Case No. 00-cv-680 (S.D. Ill.)

Creed, et al. v. Benco Dental Supply Co.

3:12-CV-1571 (E.D. PA)
Page 14 of 26

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Employment Doe, et al. v. Cin-Lan, Inc, et al.

Case No. 4:08-cv-12719 (E.D. Mich.)

DuBeau et al v. Sterling Savings Bank et al.

No. 12-cv-1602 (D. OR)

Equal Employment Opportunity Commission (EEOC) v. Star Tribune Co

Case No. 08-cv-5297(D. Minn.)

Equal Employment Opportunity Commission v Faribault Foods, Inc.

Case No. 07-cv-3976 (D. Minn.)

Fisher, et al. v. Michigan Bell Telephone Company

Case No. 09-cv-10802 (E.D. Mich.)

FranŬ͕ PeasleLJ͕ taters͕ anĚ tilŚelm͕ v 'ŽlĚ’n PlumƉ PŽultrLJ͕ InĐ.

Case No. 04-cv-1018 (D. Minn.)

French v. Midwest Health Management, Inc.

Case No.: 2:14-cv-2625

Geelan, et al. v. The Mark Travel Coporation

Case No. 03-cv-6322 (D. Minn.)

Gipson, et al. v. Southwestern Bell Telephone Company

Case No. 08-cv-2017 (D. Kan.)

Gregory Hernandez v. The Children's Place

No. CGC 04-4300989 (San Francisco, CA)

Helen Bernstein, et al. v. M.G. Waldbaum

Case No. 08-cv-0363 (D. Minn.)

Holt v. Living Social

1:2012cv00745 (D. DC)

Jimmy West v. PSS World Medical, Inc.

Case No. 4:13-cv-00574 (E.D. Mo)

Jimmy West v. PSS World Medical, Inc.

4:13-cv-00574 (E.D. MO)

John Alba, et al. v. Papa John's USA, Inc.

Case No. 05-cv-7487 (W.D. Cal.)

Johnson, et al v. General Mills, Inc.

Case No. 10-cv-1104 (W.D. Mo.)

Kelly Marie Camp, et al. v. The Progressive Corporation, et al.

Case No. 01-cv-2680 (E.D. La.)
Page 15 of 26

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Employment Kelly, et al v. Bank of America, N.A. et al.

No. 10-5332 (ND IL)

Lang, et al v DirecTV, Inc., et al.

No. 10-1085 (E.D. La)

Lynn Lietz, et al. v. Illinois Bell Telephone Company, et al.

No. 1:11-cv-0108 (N.D. Ill.)

Michelle Jackson, et al. v. Jamba Juice Company

Case No. 8:02-cv-00381 (C.D. Cal.)

Pamela Adams, et al., v. MedPlans Partners, Inc

Case No. 3:07-cv-259 (W.D. Ky.)

Phillip Busler, et al. v. Enersys Energy Products Inc., et al.

Case No. 09-cv-0159 (W.D. Mo.)

Rocher, et al. v. Sav-on Drugs, et al.

Case No. BC 227551 (Los Angeles County, Cal.)

Russell, et al. v. Illinois Bell Telephone Company

Case No. 08-cv-1871 (N.D. Ill.)

Sequoia Moss-Clark, et al. v. New Way Services, Inc., et al.

Case No. C12-1391 (Contra Costa County, CA)

Smallwood, et al. v. Illinois Bell Telephone Company,

Case No. 09-cv-4072 (N.D. Ill.)

Smith v. Family Video

No. 11-cv-01773 (N.D. Ill.)

Smith v. Pizza Hut, Inc.

No. 09--cv-01632-CMA-BNB (D. Colo.)

Stephanie Sanz, et al. v. Johny Utah 51, LLC

Case No. 14-cv-4380 (S.D. NY)

Teeter v. NCR Corporation

Case No. 08-cv-00297 (C.D. Cal.)

Thomas Cramer et al. v. Bank of America, N.A. et al.

Case No. 12-08681 (N.D. IL)

Thomas Dege, et al., v. Hutchinson Technology, Inc.

Case No. 06-cv-3754 (D. Minn.)

Wilkinson, et al. v. NCR Corporation

Case No. 1:08-cv-5578 (N.D. Ill.)
Page 16 of 26

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Employment William Perrin, et al. v. Papa John's International

No. 4:09-CV-01335 (E.D. Mo.)

William Whitlock, et. al v. FSH Management, LLC, et. al.

3:10-cv-00562-M

Williams v. DH Pace

Case No. 4:14-cv-00161 (W.D. MO)

Williams, et al. v. Dollar Financial Group, et al.

Case No. RG03099375 (Alameda County, Cal.)

Williams, et al. v. H&R Block Enterprises, Inc.

No. RG 08366506 (Alameda County, CA)

Wittemann, et al. v. Wisconsin Bell, Inc.

Case No. 09-cv-440 (W.D. Wisc.)

Wlotkowski, et al. v. Michigan Bell

Case No. 09-cv-11898 (E.D. Mich.)

Environmental Bernice Samples, et al. v. Conoco, Inc., et al.

Case No. 01-0631-CA-01 (Escambia Country, Fla.)

Billieson, et al. v. City of New Orleans, et al.

No. 94-19231 (Orleans Parish, LA)

City of Greenville, et al., v. Syngenta Crop Protection, Inc., and Syngent

No. 3:10-cv-00188-JPG-PMF (S. D. Ill.)

In Re: Duluth Superior Chemical Spill Litigation

Case No. 92-cv-503 (W.D. Wis.)

McGruder, et al. v. DPC Enterprises

No. CV2003-022677 (Maricopa County, AZ)

Mehl v. Canadian Pacific Railway, Limited

Case No. 02-cv-009 (D. N.D.)

Michelle Marshall, et al. v. Air Liquide -- Big Three, Inc. et al.

No. 2005-08706 (Orleans Parish, LA)

Perrine, et al. v. E.I. Dupont De Nemours and Company, et al.

01-0631-CA-01 (Harrison C., WV)

ERISA Anthony Abbott, et al. v. Lockheed Martin Corp., et al.

Case No. 06-701 (S.D. IL)

In Re: Broadwing Inc ERISA Litigation

Case No. 02-cv-00857 (S.D. Ohio)
Page 17 of 26

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ERISA In Re: Xcel Energy, Inc. ERISA Litigation

Case No. 03-cv-2218 (D. Minn.)

Karolyn Kruger, et al. v. Novant Health Inc., et al.

Case No. 14-208 (M.D. NC)

Pat Beesley, et al v. International Paper Co. et al.

Case No. 06-703-DRH (S.D. IL)

Quince Rankin v. Charles C. Conway (Kmart ERISA Litigation)

Case No. 02-cv-71045 (E.D. Mich.)

FACTA Albright v. Metrolink

No. 4:11-CV-01691AGF (E.D. MO)

Ebert, et al. v. Warner's Stellian

No. 11-cv-02325 JRT/ SER (D. Minn)

Fouks, et al. v. Red Wing Hotel Corporation

Case No. 12-cv-02160 (D. MN)

Jones v. Dickinson

No. 11 CV 02472 (D. MO)

Linda Todd, et al. v. Medieval Times

Case No. 1:10-cv-00120 (D. N.J.)

Masters v. >Žǁe’s ,Žme Centers͕ InĐ.

Case No. 3:09-cv--255 (S.D. Ill.)

Seppanen et al. v. Krist Oil Company

Case No. 2:09-cv-195 (W.D. Mich.)

Waldman v. Hess Corporation

Case No. 07-cv-2221 (D. N.J.)

FLSA Shannon Wheeler v. Cobalt Mortgage, Inc. et al.

Case No. 2:14-cv-B1847-JCC (W.D. WA)

Watkins, et al. v. I.G. Incorporated, etl a.

Case No. 27-13-15361 (Hennepin County, MN)

Insurance Ann Castello v. Allianz Life Insurance Company

Case No. 03-cv-20405 (D. Minn.)

Boyd Demmer, et al. v. Illinois Farmers Insurance Company

Case No. MC 00-017872 (Hennepin County, Minn.)

Chultem v. Ticor Title Insur. Co., et al.

Case No. 2006-CH-09488 (Circuit Court of Cook County, Ill.)
Page 18 of 26

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Colella v. Chicago Title Insur. Co., et al. Insurance

Case No. 2006-CH-09489 (Circuit Court of Cook County, Ill.)

Deborah Hillgamyer, et al. v. Reliastar Life Insurance Company, et al.

No. 11-cv-729 (W.D. WI)

Doan v. State Farm

108CV129264 (Santa Clara Co, CA)

Dorothea Pavlov v. Continental Casualty Company

Case No. 07-cv-2580 (N.D. Ohio)

Frank Rose, et al. v. United Equitable Insurance Company, et al.

Case No. 00-cv-02248 (Cass County, ND)

Froeber v. Liberty Mutual Fire Insurance Company

Case No. 00C15234 (Marion County, OR)

Garrison, et al., v. Auto-Owners Insurance Company

Case No. 02-cv-324076 (Cole County, Mo.)

Harold Hanson, et al. v. Acceleration Life Insurance Company, et al.

Case No. 3:97-cv-152 (D. N.D.)

Hofstetter, et al. v. Chase Home Finance, LLC., et al.

Case No. 10-cv-1313 (N.D. Cal.)

In Re: Lutheran Brotherhood Variable Insurance Products Co. Sales Pra

Case No. 99-md-1309 (D. Minn.)

Irene Milkman, et al. v. American Travellers Life Insurance Company, et

No. 03775 (Philadelphia Court of Common Pleas, Pa.)

Jacobs v. State Farm General Insurance Company

No. CJ-96-406 (Sequoyah County, Okla.)

James M. Wallace, III, et al. v. American Agrisurance, Inc., et al.

Case No. 99-cv-669 (E.D. Ark.)

James Ralston, et al. v. Chrysler Credit Corporation, et al.

Case No. 90-cv-3433 (Lucas County, Ohio)

Michael T. McNellis, et al. v. Pioneer Life Insurance Company, et al.

CV 990759 (County of San Luis Obispo, Cal.)

Morris v. Liberty Mutual Fire Insurance Company

CJ-03-714 (Pottawatomie County, OK)

Paul Curtis, et al v. Northern Life Insurance Company

Case No. 01-2-18578 (King County, Wash.)
Page 19 of 26

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Insurance Ralph Shaffer v. Continental Casualty Company and CNA Financial Corp

Case No. 06-cv-2253 (C.D. Cal.)

Raymond Arent, et al. v. State Farm Mutual Insurance Company

Case No. 00-mc-16521 (D. Minn.)

Roy Whitworth, et al. v. Nationwide Mutual Insurance Company, et al.

Case No. 00CVH-08-6980 (Franklin County, Ohio)

Sonia Gonzalez, et al. v. Rooms to Go, Inc., et al.

Case No. 97-cv-3146 (S.D. Fla.)

Tow Distributing, Inc., et al. v. BCBSM, Inc., d/b/a Blue Cross and Blue S

Case No. 02-cv-9317 (D. Minn.)

Legal Notice Anderson et al. v. Canada (Attorney General)

2011 NLCA 82

Angell v. Skechers Canada

8562-12 (Montreal, Quebec)

Billieson, et al. v. City of New Orleans, et al.

No. 94-19231 (Orleans Parish, LA)

Carnegie v. Household International, Inc.

No. 98-C-2178 (N.D. Ill.)

Cazenave, et al. v. Sheriff Charles C. Foti, Jr., et al.

Case No. 00-cv-1246 (E.D. La.)

Cazenave, et al. v. Sheriff Charles C. Foti, Jr., et al.

Case No. 00-cv-1246 (E.D. La.)

City of Greenville, et al., v. Syngenta Crop Protection, Inc., and Syngent

No. 3:10-cv-00188-JPG-PMF (S. D. Ill.)

Evans, et al. v. Linden Research, Inc., et al.

Case No. 4:11-cv-1078-DMR (N.D. CA)

F.T.C. v. NBTY, Inc.

No. 05-4793 (E.D. NY)

Griffin v. Dell Canada Inc

Case No. 07-cv-325223D2 (Ontario, Superio Court of Justice)

In Re: Aftermarket Filters Antitrust Litigation

No. 1:08-cv-4883, MDL No. 1957 (N.D. Ill.)

In Re: Asia Pulp & Paper Securities Litigation

Case No. 01-cv-7351 (S.D. N.Y.)
Page 20 of 26

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Legal Notice In Re: Certainteed Fiber Cement Siding Litigation

MDL 2270 (E.D. PA)

In Re: Duluth Superior Chemical Spill Litigation

Case No. 92-cv-503 (W.D. Wis.)

In Re: Google Referrer Header Privacy Litigation

No. 10-04809 (N.D. CA)

In Re: Salmonella Litigation

Case No. 94-cv-016304 (D. Minn.)

Jerome H. Schlink v. Edina Realty Title

Case No. 02-cv-18380 (D. Minn.)

Joel E. Zawikowski, et al. v. Beneficial National Bank, et al.

Case No. 98-cv-2178 (N.D. Ill.)

Kobylanski et al. v. Motorola Mobility, Inc. et al.

No. 13-CV-1181 (W.D. PA)

Mary Plubell, et al. v. Merck and Co., Inc.

Case No. 04-cv-235817 (Jackson County, MO)

McGruder, et al. v. DPC Enterprises

No. CV2003-022677 (Maricopa County, AZ)

Mehl v. Canadian Pacific Railway, Limited

Case No. 02-cv-009 (D. N.D.)

Michelle Marshall, et al. v. Air Liquide -- Big Three, Inc. et al.

No. 2005-08706 (Orleans Parish, LA)

Pat Beesley, et al v. International Paper Co. et al.

Case No. 06-703-DRH (S.D. IL)

Red Eagle Resources Corporation, Inc., et al. v. Baker Hughes Inc., et al.

Case No. 91-cv-627 (S.D. Tex.)

Skold, et al. v Intel Corporation, et al.

Case No. 1-05-cv-039231 (County of Santa Clara, CA)

Thomas Geanacopoulos v. Philip Morris USA, Inc.

Civil Action No. 98-6002-BLS1 (MA Superior Court)

Medical/Drug F.T.C. v. CHK Trading Corp.

Case No. 04-cv-8686 (S.D. N.Y.)

F.T.C. v. Christopher Enterprises, Inc.

Case No. 2:01-cv-0505 (D. Utah)
Page 21 of 26

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Medical/Drug F.T.C. v. Conversion Marketing, Inc.

Case No. 04-cv-1264 (C.D. Cal.)

F.T.C. v. Enforma Natural Products, Inc.

Case No. 00-cv-04376 (C.D. Cal.)

F.T.C. v. Goen Technologies

FTC File No. 042 3127

F.T.C. v. Great American Products

Case No. 05-cv-00170 (N.D. Fla.)

F.T.C. v. Kevin Trudeau, et al.

Case No. 03-cv-3904 (N.D. Ill.)

F.T.C. v. Latin Hut, Inc.

Case No. 04-cv-0830 (S.D. Cal.)

F.T.C. v. QT, Inc.

Case No. 03-cv-3578 (N.D. Ill.)

F.T.C. v. Seasilver USA, Inc.

Case No. 03-cv-0676 (D. Nev.)

F.T.C. v. Smart Inventions, Inc.

Case No. 04-cv-4431 (C.D. Cal.)

F.T.C. v. Sunny Health Nutrition Technology & Products, Inc.

Case No. 06-cv-2193 (M.D. Fla.)

F.T.C. v. United Fitness of America, LLC

Case No. 02-cv-0648 (D. Nev.)

In Re: Guidant Corp Implantable Defibrillators Products Liability Litigati

Case No. 05-cv-1708 (D. Minn.)

In re: Nuvaring Products Liability Litigation

08-MDL-1964

Karen Wright, et al. v. Milan Jeckle

Case No. 98-2-07410-2 (Spokane County, Wash.)

Mary Plubell, et al. v. Merck and Co., Inc.

Case No. 04-cv-235817 (Jackson County, MO)

Privacy/Data Breach Anderson, et al. v. United Retail Group, Inc., et al.

Case No. 37-cv-89685 (San Diego County, Cal.)

F.T.C. v. CEO Group, Inc.

Case No. 06-cv-60602 (S.D. Fla.)
Page 22 of 26

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Privacy/Data Breach F.T.C. v. Choicepoint

Case No. 06-cv-0198 (N.D. Ga.)

In Re: U.S. Bank National Association Litigation

Case No. 99-cv-891 (D. Minn.)

Michael Stoner, et al. v. CBA Information Services 

Case No. 04-cv-519 (E.D. Pa.)

St. Clair, et al. v MRB, et al.

Casse No. 12-cv-1572 (D. MN)

Sterling et al. v. Strategic Forecasting, Inc. et al.

No. 2:12-cv-00297-DRH-ARL (E.D. N.Y.)

Securities Alan Freberg, et al. v. Merrill Corporation, et al.

Case No. 99-cv-010063 (D. Minn.)

Anderson v. Investors Diversified Services

Case No. 4:79-cv-266 (D. Minn.)

Charter Township Of Clinton v. OSI Restaurants

Case No. 06-CA-010348 (Hillsborough County, Fla.)

Christopher Carmona, et al. v. Henry I. Bryant, et al. (Albertson's Securi

Case No. 06-cv-01251 (Ada County, Idaho)

Daryl L. Cooper, et al. v. Miller Johnson Steichen Kinnard, Inc.

Case No. 02-cv-1236 (D. Minn.)

Dutton v. Harris Stratex Networks, Inc. et al

08-cv-00755-LPS (D. DE)

Edith Gottlieb v. Xcel Energy, Inc., et al.

Case No. 02-cv-2931 (D. Minn.)

Family Medicine Specialsts, et al. v. Abatix Corp., et al.

Case No. 3:04-cv-872B (N.D. Tex.)

Fisk, et al. v. H&R Block Inc., et al.

1216-CV20418 (Jackson County. MO)

Friedman, et al. v. Penson Worldwide, Inc.

11-cv-02098 (N.D. TX)

In Re: American Adjustable Rate Term Trust Securities Litigation

Case No. 4:95-cv-666 and 4:95-cv-667 (D. Minn.)

In Re: Ancor Communications, Inc Securities Litigation

Case No. 97-cv-1696 (D. Minn.)
Page 23 of 26

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Securities In Re: Asia Pulp & Paper Securities Litigation

Case No. 01-cv-7351 (S.D. N.Y.)

In Re: Bayer AG Secuirites

Case No. 03-cv-1546 (S.D. N.Y.)

In Re: Bio-One Securities Litigation

Case No. 05-cv-1859 (M.D. Fla.)

In Re: Bioplasty Securities Litigation

Case No. 4:91-cv-689 (D. Minn.)

In Re: Citi-Equity Group, Inc. Securities Litigation

Case No. 94-cv-012194 (D. Minn.)

In Re: Citi-Equity Group, Inc., Limited Partnerships Securities Litigation

MDL No. 1082 (C.D. Cal.)

In Re: Control Data Corporation Securities Litigation

Case No. 3:85-cv-1341 (D. Minn.)

In Re: Cray Research Securities Litigation

Case No. 3:89-cv-508 (D. Minn.)

In Re: Cybex International Securities Litigation

No. 653794/2012 (County of New York, NY)

In Re: E.W. Blanch Holdings, Inc. Securities Litigation

Case No. 01-cv-258 (D. Minn.)

In Re: Encore Computer Corporation Shareholder Litigation

Case No. 16044 (New Castle County, Del.)

In Re: EVCI Career Colleges Holding Corp Securities Litigation

Case No. 05-cv-10240 (S.D. N.Y.)

In Re: Flight Transportation

MDL No. 517 (D. Minn.)

In Re: Frontier Oil Corporation

Case No. 2011-11451 (Harris County, Tex.)

In Re: Hennepin County 1986 Recycling Bond Litigation

Cas No. 92-cv-22272 (D. Minn.)

In Re: McCleodUSA Incorporated Securities Litigation

Case No. 02-cv-0001 (N.D. Iowa)

In Re: McKesson HBOC, Inc. Securities Litigation

Case No. 99-cv-20743 (N.D. Cal.)
Page 24 of 26

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Securities In Re: Merrill Lynch & Co., Inc. Securities Derivative and ERISA Litigatio

07-cv-9633 (S.D. NY)

In Re: Merrill Lynch Research Reports Securities Litigation

Case No. 02-md-1484 (S.D. N.Y.)

In Re: Micro Component Technology, Inc. Securities Litigation

Case No. 4:94-cv-346 (D. Minn.)

In Re: National City Corp. Securities, Derivative and Erisa Litig.

MDL No. 2003 (N.D. Ohio)

In Re: New Century

No. 07-CV-0931 (C.D. Cal.)

In Re: Novastar Financial, Inc. Securities Litigation

Case No. 04-cv-0330 (W.D. Mo.)

In Re: OCA, Inc. Securities and Derivative Litigation

Case No. 05-cv-2165 (E.D. La.)

In Re: Raytheon Company Securities Litigation

Case No. 99-cv-12142 (D. Mass.)

In Re: Reliance Group Holdings, Inc. Securities Litigation

Case No. 00-cv-4653 (S.D. N.Y.)

In Re: Retek Inc Securities Litigation

Case No. 02-cv-4209 (D. Minn.)

In Re: Salomon Analyst Metromedia Litigation

Case No. 02-cv-7966 (S.D. N.Y.)

In Re: Scimed Life Systems, Inc. Shareholders Litigation

Case No. 94-mc-17640 (D. Minn.)

In Re: Sourcecorp Securities Litigation

Case No. 04-cv-02351 (N.D. Tex.)

In Re: SS&C Technologies, Inc. Shareholders Litigation

Case No. 05-cv-1525 (D. Del.)

In Re: Taxable Municipal Bond Securities Litigation

MDL 863 (E.D. La.)

In Re: Tellium Inc Securities Litigation

Case No. 02-cv-5878 (D. N.J.)

In Ze͗ TŚe ^ƉŽrtsman’s 'uiĚe͕ InĐ. >itiŐatiŽn

Case No. 06-cv-7903 (D. Minn.)
Page 25 of 26

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Securities In Re: Tonka Corporation Securities Litigation

Case No. 4:90-cv-002 (D. Minn.)

In Re: Tonka II Securities Litigation

Case No. 3:90-cv-318 (D. Minn.)

In Re: Tricord Systems, Inc. Securities Litigation

Case No. 3:94-cv-746 (D. Minn.)

In Re: VistaCare, Inc. Securities Litigation

Case No. 04-cv-1661 (D. Ariz.)

In Re: Williams Securities Litigation

Case No. 02-cv-72(N.D. Okla.)

In Re: Xcel Energy, Inc. Securities Litigation

Case No. 02-cv-2677 (D. Minn.)

In Re: Xcelera.Com Securities Litigation

Case No. 00-cv-11649 (D. Mass.)

In Re: Xybernaut Corp. Securities MDL Litigation

Case No. 05-mdl-1705 (E.D. Va.)

Ivy Shipp, et al. v. Nationsbank Corp.

19,002 (TX 12th Jud Dist)

Karl E. Brogen and Paul R. Havig, et al. v. Carl Pohlad, et al.

Case No. 3:93-cv-714 (D. Minn.)

Lewis H. Biben, et al. v. Harold E. Card, et al.

Case No. 84-cv-0884 (W.D. Mo.)

Lori Miller, et al. v. Titan Value Equities Group Inc., et al.

Case No. 94-mc-106432 (D. Minn.)

Makor Issues & Rights, Ltd., et al. v. Tellabs, Inc., et al.

02-C-4356 (N.D. IL)

Montoya, et al. v. Mamma.com, Inc., et al.

Case No. 1:05-cv-02313 (S.D. N.Y.)

Resendes, et al.; Maher, et al.; Hawkins, et al.; Schooley, et al. v. Thorp,

Case No. 84-cv-03457, 84-cv-11251, 85-cv-6074, 86-cv-1916L (D. Minn.)

Richard Donal Rink, et al. v. College Retirement Equities Fund

No. 07-CI-10761, (Jefferson County, KY)

Robert Trimble, et al. v. Holmes Harbor Sewer District, et al. 

Case No. 01-2-00751-8 (Island County, Wash.)
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Securities SEC v Al-Raya Investment Company, et. al.

No. 109-CV-6533

SEC v. Myron Weiner

11-CV-05731 (E.D. NY)

SEC v. Rockford Funding Group, LLC, et al.

09-10047 (S.D. NY)

Superior Partners, et al. v. Rajesh K. Soin, et al.

Case No. 08-cv-0872 (Montgomery County, Ohio)

Svenningsen, et al. v. Piper Jaffray & Hopwood, et al.

Case No. 3:85-cv-921 (D. Minn.)

Three Bridges Investment Group, et al. v. Honeywell, et al.

Case No. 88-cv-22302 (D. Minn.)

United States of America v. Zev Saltsman

Case No. 04-cv-641 (E.D. N.Y.)

William Steiner, et al. v. Honeywell, Inc. et al.

Case No. 4:88-cv-1102 (D. Minn.)

Test Score David Andino, et al. v. The Psychological Corporation, et al.

Case No. A457725 (Clark County, Nev.)

Frankie Kurvers, et al. v. National Computer Systems

No. MC00-11010 (Hennepin County, Minn)