As I note in our featured discussion, and Lester Brickman notes in Lawyer Barons, one of the popular ways to exaggerate the value of a settlement is through a claims-made process. The settling parties tell the court that all of the class members are eligible for relief, then create a claims process that is sufficiently burdensome that only 3% of the class actually recovers, but ask the court to evaluate the settlement on the fiction that the entire class collected. In the pending appeal of Brazil v. Dell, No. 11-17799, the Center for Class Action Fairness LLC is asking the Ninth Circuit to put a stop to this abuse of the class action process.
The case has an interesting twist. Three weeks after the CCAF brief was filed in March, but before the appellees' briefs have been filed, the district court issued a new opinion changing its reasoning and fact-finding from the oral and written opinions it had previously issued. As a friend clerking on a different circuit tells me, the technical term for that is "shenanigans." We've asked the Ninth Circuit to intercede.
(CCAF is not affiliated with the Manhattan Institute.)