So, the attorneys got $2.7 million; as-yet-unidentified charities will get $0.4 million; and the class will get a money-back guarantee useful only to those class members who happen to save two-year-old diaper packaging and receipts and didn't previously request refunds. (Leave aside that the money-back guarantee is indistinguishable from the marketing campaigns P&G uses to sell Swiffer and Fixodent without the requirement of an injunction.) Can such a settlement be approved as fair? Moreover, can this lawsuit brought for monetary damages it be approved as a Rule 23(b)(2) mandatory class action settlement? And can the class sweep in people who happened to purchase diapers for the first time after the objection deadline? The appellate brief filed by the Center for Class Action Fairness yesterday says "No" to all three questions.
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