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Update: In re Baby Products

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We previously discussed the pending Center for Class Action Fairness appeal in In re Baby Products, No. 12-1165 (3d Cir.), where the:

district court held that the class wasn't even entitled to an opportunity to object to the as-yet-to-be-proposed [cy pres] recipients. Baby Products presents the additional problem of the sort of settlement where class members were artificially deterred from making claims to expand the amount available for cy pres; indeed, under the district court's order, the class counsel will walk away with over $14 million of the $35.5 million fund, and the class millions of dollars less, likely less than half of what the attorneys got. (Note that under the Brian Fitzpatrick methodology, this would count as a "33.3%" fee award, though that percentage in reality is off by at least a factor of two, and no one in the world will ever know how much the class actually receives; and under the district court's procedure, the class counsel might well be doubly compensated if the cy pres goes to a charity related to the class counsel.)

Briefing is now complete, with oral argument likely in the second half of September.

In both the lower court and Third Circuit, CCAF argued that the court should apply Klier v. Elf Atochem; the district court refused to do so by distinguishing Klier on erroneous grounds. Yet neither appellee even mentioned Klier in their briefs. Does pretending the dispositive issue doesn't exist actually work as an appellate strategy? If so, I've been doing it wrong all these years.

Thanks to Dan Greenberg, Adam Schulman, and Lisa Solomon for their assistance on these briefs.

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.