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Access to justice for me, but not for thee department

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We frequently hear the plaintiffs' bar claim that all they really want is "access to justice," but that desire seems to stop at the door when it comes to challenges to abusive class action settlements that reward class counsel at the expense of their putative clients. In In re MagSafe Apple Power Adapter Litig., a rubber-stamp approval of a class-action settlement that paid the attorneys $3.1 million, but class members only about $800,000 due to a strangely restrictive claims process that wouldn't permit Apple computer owners to submit claims except using hard-copy paperwork, class counsel moved the district court to impose appeal bonds totaling another $800,000.

The Center for Class Action Fairness successfully opposed a claim that class counsel would be entitled to collect six-digit fees on appeal, but the district court still asked the parties to post appeal bonds of $60,000 to cover possible "costs." As any appellate attorney knows, this is an absurd figure, since "costs" means ten cents a page for photocopying under FRAP 39. (I just won costs in the Seventh Circuit in Robert F. Booth Trust v. Crowley—of $600.) We've posted our share of the bond (essentially a 0% illiquid deposit with the district court, since there's no legal risk that there will be costs imposed of that magnitude), and asked the Ninth Circuit to vacate the illegal bond order imposed by the district court to deter appeal of its erroneous settlement approval.

The related Opposition to the Motion to Dismiss is a preview of the merits brief.

Especially amusing; class counsel defends the appeal bond with an ad hominem attack on me, protesting that "Frank routinely files ideological objections to class action settlements and then appeals the same holding up settlements for substantial periods of time." I respond:

Frank has won four of the five federal appeals he has argued relating to class action settlements, including both in the Ninth Circuit. [cites omitted] "The possibility that [an appellate court] would see merit to [an objector's] appeal cannot be called 'prejudice'; appellate correction of a district court's errors is a benefit to the class." Crawford v. Equifax Payment Svcs., Inc., 201 F.3d 877, 881 (7th Cir. 2000) (Easterbrook, J.).

It goes without saying that nothing in Fed. R. App. Proc. 7 justifies a punitive appeal bond because of class counsel's unsupported ad hominem attacks against opposing counsel. But these ad hominem attacks are especially mysterious in this case: class counsel is complaining that Gryphon's counsel "routinely" brings successful appeals against settlements that violate Rule 23 and Rule 23.1.

The Center for Class Action Fairness LLC is not affiliated with the Manhattan Institute.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.