DR. DAVID S. MURANSKY, individually and on behalf of all others similarly situated, Plaintiff - Appellee, JAMES H. PRICE, ERIC ALAN ISAACSON, Interested Parties - Appellants, versus GODIVA CHOCOLATIER, INC., a New Jersey corporation, Defendant - Appellee.
No. 16-16486; 16-16783
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
October 3, 2018
D.C. Docket No. 0:15-cv-60716-WPD. [PUBLISH]. Appeals from the United States District Court for the Southern District of Florida.
Before MARTIN, JORDAN, and GINSBURG,* Circuit Judges.
This appeal was brought to contest the approval of a class-action settlement. Dr. David Muransky filed a class action against Godiva Chocolatier, Inc. for violating the Fair and Accurate Credit Transactions Act (“FACTA“). Appellants James Price and Eric Isaacson (“the objectors“) objected to a class settlement reached by Dr. Muransky and Godiva. Over their objections, the District Court approved the settlement, class counsel‘s request for attorney‘s fees, and an incentive award for Dr. Muransky. After careful review and with the benefit of oral argument, we affirm.
I. Background
In April 2015, Dr. Muransky filed a class action against Godiva for allegedly violating FACTA. FACTA prohibits merchants from printing “more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.”
Godiva moved to dismiss the complaint on the ground that it did not plausibly allege a willful violation of FACTA. The District Court denied Godiva‘s motion. After that, the parties engaged in discovery then mediated the case. In late November 2015, the parties notified the court of an agreement in principle to settle the case on a class-wide basis. They requested a stay, which the court granted.
Two months after that request, Dr. Muransky moved for preliminary approval of the class-action settlement. He explained that the parties agreed to a settlement fund of $6.3 million from which all fees, costs, and class members would be paid. He estimated that class members who submitted a timely claim form would receive around $235 as their pro-rata share of the settlement fund. None of the money would revert to Godiva. Dr. Muransky indicated he intended to apply for an incentive award of up to $10,000 and that class counsel would move for an award of attorney‘s fees of up to one-third of the settlement fund, which would be $2.1 million.
In this motion, Dr. Muransky also argued that the amount class members would recover by submitting a claim compared favorably to their possible recovery had the case proceeded to trial. FACTA provides for a combination of actual and statutory damages.
Dr. Muransky‘s motion also addressed some of the risks that favored pre-trial settlement. Most notably, Dr. Muransky pointed to two cases then pending before the Supreme Court: Spokeo, Inc. v. Robins, 578 U.S. ___, 136 S. Ct. 1540 (2016), on Article III standing, and Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___, 136 S. Ct. 1036 (2016), on class certification under
The motion for preliminary approval also contained a proposed class notice and a proposed schedule of notice, opt-out, and motion deadlines. The proposed notice said Dr. Muransky would seek an incentive award of up to $10,000 “for his work in representing the class” and that class counsel would seek up to $2.1 million in attorney‘s fees. The District Court granted the motion for preliminary approval, certified the class under
Notice of the settlement was sent to 318,000 class members and over 47,000 submitted claim forms. Only fifteen class members opted out. Five class members, including Mr. Price and Mr. Isaacson, objected to the settlement. In their objections, Mr. Price and Mr. Isaacson said they are members of the settlement class and that they timely submitted claim forms. Among other arguments, they said notice of Dr. Muransky‘s attorney‘s fee motion was inadequate under
On September 7, Dr. Muransky moved for final approval of the class settlement and requested an award of $2.1 million in attorney‘s fees as well as $10,000 as an incentive award. At the court‘s direction, Dr. Muransky filed a separate motion for attorney‘s fees and expenses. The Magistrate Judge issued a report and recommendation (“R&R“) on the attorney‘s fee motion just four days later, before the objectors filed opposition briefs. The R&R recommended that the District Court grant the motion and award the full amount of $2.1 million. Although the R&R was issued before the objectors filed opposition briefs, the Magistrate Judge considered Mr. Price‘s and Mr. Isaacson‘s previously filed objections to the settlement. In addition, soon after the R&R was issued, the objectors filed briefs in opposition to the motion for attorney‘s fees. They later filed objections to the R&R as well.
On September 21, the District Court held a fairness hearing, during which objectors’ counsel made their case. During the hearing, Mr. Isaacson‘s counsel raised standing as a new objection, saying that the court needed to decide whether Dr. Muransky had Article III standing. Soon after the hearing, the District Court approved the settlement and awarded the incentive award and attorney‘s fees to Dr. Muransky and class counsel respectively. In response to the objectors’ argument that notice was not adequate, the District Court noted it had “permitted objections to be filed both before and after” the motion for attorney‘s fees was filed and that “meaningful objections were in fact filed both before and after the filing” of that motion. The court said it had reviewed the class members’ objections to the R&R de novo, “taken them into full consideration,” and “carefully analyzed” them. The court then found that the requested attorney‘s fees were reasonable and awarded $2.1 million, one-third of the settlement fund, in fees. The Court also granted the $10,000 incentive award for Dr. Muransky‘s “efforts in this case.”
The objectors appealed. They say the District Court abused its discretion by finding that the notice satisfied
A. The objector‘s right to appeal
The Supreme Court has held “only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S. Ct. 586, 587 (1988) (per curiam). We start by deciding whether objectors like Mr. Price and Mr. Isaacson are “parties” with the ability to appeal from a district court‘s judgment. We hold that they are.
In Devlin v. Scardelletti, 536 U.S. 1, 122 S. Ct. 2005 (2002), the Supreme Court addressed whether a nonnamed class member who timely objects to a settlement agreement but does not opt out is a “party for the purposes of appealing the approval of the settlement.” Id. at 7, 122 S. Ct. at 2009 (quotation marks omitted). The Court held that nonnamed class members who are bound by a judgment must “be allowed to appeal the approval of a settlement when they have objected at the fairness hearing.” Id. at 10, 122 S. Ct. at 2011. “To hold otherwise,” the Court explained, “would deprive nonnamed class members of the power to preserve their own interests in a settlement that will ultimately bind them, despite their expressed objections before the trial court.” Id.
Devlin addressed a mandatory settlement class, but not whether objectors to a
B. Article III standing
“We review our subject matter jurisdiction de novo.” Day v. Persels & Assocs., LLC, 729 F.3d 1309, 1316 (11th Cir. 2013). Article III of the
Constitution limits our jurisdiction to “cases” or “controversies.” Standing is one of the essential components of Article III‘s case or controversy requirement. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). Standing, in turn, has “three elements: injury in fact, causation, and redressability.” Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1001 (11th Cir. 2016). An injury in fact must be concrete, particularized, and actual or imminent. Lujan, 504 U.S. at 560, 112 S. Ct. at 2136. Mr. Isaacson argues that Dr. Muransky has not alleged a concrete injury in fact that confers Article III standing under the Supreme Court‘s decision in Spokeo, 136 S. Ct. at 1548. We have concluded to the contrary.
To determine whether a statutory violation results in a concrete injury, we consider both “history and the judgment of Congress.” Id. at 1549. More specifically, we look to whether the intangible harm that results from the statutory violation bears a “close relationship” to harms that have “traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. And we consider the judgment of Congress because it “is well positioned to identify intangible harms that meet minimum Article III requirements.” Id.
But before we get ahead of ourselves, we stop to examine the duties imposed and the rights conferred by FACTA. FACTA, which is an amendment to the Fair Credit Reporting Act, “is aimed at protecting consumers from identity theft.” Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1306 (11th Cir. 2009). To do that, FACTA imposes a duty on merchants “that accept[] credit cards or debit cards for the transaction of business” not to “print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.”
Dr. Muransky alleged that Godiva willfully violated its duty not to print more than five digits of his credit card number on a receipt. See
McCormick v. England, 494 S.E.2d 431, 437–38 (S.C. Ct. App. 1997) (distinguishing privacy torts from breach of confidence). Under this view, when a customer uses a credit card to make purchases, he entrusts the merchant with his card number and his trust is violated when that card number is not kept confidential.
The willful violation of FACTA‘s card-truncation duty also resembles a modern version of a claim for breach of an implied bailment agreement. The common law has often implied a bailment agreement when a merchant holds a customer‘s property as a necessary incident to the merchant‘s business. Woodruff v. Painter, 24 A. 621, 622 (Pa. 1892) (holding a shop could be liable for a watch that went missing while a customer tried on a suit); Bunnell v. Stern, 25 N.E. 910 (N.Y. 1890) (holding a shop could be liable for a customer‘s missing cloak). When a bailment relationship is implied, the merchant has a duty to protect the customer‘s property from damage, loss, or theft. See, e.g., Armored Car Serv., Inc. v. First Nat. Bank of Miami, 114 So. 2d 431, 434 (Fla. 3d DCA 1959) (describing the rule that an implied bailment for the mutual benefit of both parties imposes a duty on the bailee to avoid ordinary negligence). A bailee is also obligated to return the bailor‘s property in a time, place, and manner proscribed by agreement or “by the nature of the objective to be accomplished by the bailment.” See 8A Am. Jur. 2d Bailments § 134. Viewed through a bailment lens,
These common law torts bear a “close relationship” to the statutory cause of action authorized by Congress. By passing FACTA, Congress expressed its judgment that prohibiting merchants from printing more than five digits of a customer‘s credit card number would “reduce identity theft and credit card fraud.”
When the violation of a statute creates a concrete injury, as it does here, plaintiffs do not need to allege “additional harm beyond the one Congress has identified.” Spokeo, 136 S. Ct. at 1549. But in this case, Dr. Muransky also pled that he received the receipt from Godiva and all indications are that he still has it. This has imposed an additional burden on him. When merchants breach their truncation duty, customers like Dr. Muransky must use their time (and wallet space) to safely dispose of or keep the untruncated receipt so as to avoid someone finding their credit card number on their receipt. This Court has held that this type of time wasting constitutes an injury in fact. See Palm Beach Golf, 781 F.3d at 1251–52 (holding that plaintiff suffered an injury in fact when unsolicited faxes electronically occupied plaintiff‘s telephone line and fax machine for one minute); Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351 (11th Cir. 2009) (holding that the time it took to get an acceptable photo ID was sufficient to confer standing); id. at 1351–52 (holding that requiring someone to show a photo ID to vote is a sufficient injury); Fla. State Conference of NAACP v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008) (holding that the diversion of time and resources to counteract an unlawful action can satisfy the injury-in-fact requirement). Thus, in the context of FACTA, Dr. Muransky suffered a concrete injury when Godiva provided him with a receipt containing his untruncated credit card number, and he had to “shoulder the cost” of protecting it. See Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F.3d 1362, 1366 (11th Cir. 2017). Time spent safely disposing of or keeping the untruncated receipt is, of course, a small injury, but it is enough for standing purposes. See Common Cause, 554 F.3d at 1351 (“The Supreme Court has rejected the argument that an injury must be significant; a small injury, an identifiable trifle, is sufficient to confer standing.” (quotation marks omitted)). Thus, when Godiva unlawfully gave an untruncated receipt to Dr. Muransky, he suffered the concrete injury of shouldering the cost of safely keeping or destroying the receipt.
Our holding that Dr. Muransky alleged a concrete injury is in keeping with the decisions of the Second, Seventh, and Ninth Circuits. See Bassett v. ABM Parking Servs., Inc., 883 F.3d 776 (9th Cir. 2018); Crupar-Weinmann v. Paris Baguette Am., Inc., 861 F.3d 76 (2d Cir. 2017); Meyers v. Nicolet Rest. of De Pere, LLC, 843 F.3d 724 (7th Cir. 2016). In those cases, customers alleged they suffered a risk of identity theft because merchants printed receipts that included the customers’ credit card expiration date, a violation of FACTA,
Here, Godiva printed the first six and last four digits of Dr. Muransky‘s credit card number without its expiration date. In contrast to the findings about expiration dates, the Clarification Act‘s findings also say that “proper truncation of the card number . . . prevents a potential fraudster from perpetuating identity theft
or credit card fraud.”
This case is also distinguishable from the Second Circuit’s decision in Katz v. Donna Karan Co., 872 F.3d 114, 116 (2d Cir. 2017) for two reasons. First, Katz did not consider whether the
In Katz, the Second Circuit found no clear error in a district court’s dismissal of a
Despite this admonition to consider future
There are a number of problems with relying on facts found in another
Another problem with developing bright-line
The Toys “R” Us decision is often cited for the proposition that printing the first six digits poses no risk of harm. See, e.g., Coleman v. Exxon Mobil Corp., No. 1:17-CV-119-SNLJ, 2018 WL 1785477, at *4 (E.D. Mo. Apr. 13, 2018) (citing Toys “R” Us, 2010 WL 5071073, at *12, and collecting other cases also citing Toys “R” Us). Yet it is not apparent that any of these district courts considered whether it still made sense to rely on facts established in these older cases, in light of technological changes related to brute-force cryptological attack on credit card numbers. See Katz, 872 F.3d at 118 (summarizing plaintiff’s contention that disclosure of the first six numbers, in addition to the last four, makes plaintiff more vulnerable to “computer-assisted guessing” of his remaining card numbers). Neither are we aware of a court that has taken a fresh look at the argument that an identity thief could use the first six digits, in combination with other available information, to access more information about a victim than would have been possible in 2007. See Toys “R” Us, 2010 WL 5071073, at *12–13 (summarizing plaintiff’s expert’s opinion that disclosure of the first six digits makes it easier for thieves to acquire other identifying information).
These problems show the importance of the Second Circuit’s admonition that standing in
Here, we are presented with a facial challenge to Dr. Muransky’s standing, so we must take the allegations in the complaint as true and evaluate whether those allegations plausibly allege standing. See Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (per curiam) (distinguishing between facial and factual attacks on standing). As set out above, the complaint alleges two concrete injuries: one based on the statutory violation and its relationship to common law causes of action and another based on Godiva giving Dr. Muransky an untruncated receipt. Mr. Isaacson has not challenged any other aspect of Dr. Muransky’s standing, and we conclude the other Article III standing requirements are satisfied.
III. The Merits
A. Notice of class counsel’s attorney’s fee motion
We now consider the objectors’ challenge to the sufficiency of notice of the attorney’s fee motion. As required by
Plaintiff will petition for a service award not to exceed $10,000 for his work in representing the Class, and for Class Counsel’s fees not to exceed one-third of
the fund, which is $2,100,000, plus reasonable expenses.
Class members got this notice in advance of counsel’s motion for attorney’s fees. Yet the attorney’s fees motion was not filed until two weeks after the deadline for class members to object had already passed.6 The class did not receive additional notice after the motion was filed. The objectors say this process deprived class members of the notice they needed to assess the fee request and violated
The Ninth Circuit’s holding in Mercury was that “class members were deprived of an adequate opportunity to object to the motion itself because, by the time they were served with the motion, the time within which they were required to file their objections had already expired.” 618 F.3d at 994. That same sequence—objection deadline before a filed motion for attorney’s fees—was what happened here. As in Mercury, this schedule deprived class members of “an opportunity to object to the fee motion itself” because they had to file objections before the motion was even filed. See id. at 993–94. As a result, this process violated
Although we conclude the District Court erred by requiring class members to object before they could assess the attorney’s fee motion, we hold that error does
B. The attorney’s fee award
The objectors also argue that the District Court made a mistake by awarding 33% of the class settlement fund as attorney’s fees to Dr. Muransky’s counsel. The District Court’s approval of the attorney’s fee award is reviewed for abuse of discretion. Camden I Condo. Assoc. v. Dunkle, 946 F.2d 768, 770 (11th Cir. 1991). “A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir. 2014) (quotation marks omitted). Under this standard, district courts have “great latitude” in setting fee awards in class action cases. See Faught v. American Home Shield Corp., 668 F.3d 1233, 1242 (11th Cir. 2011) (citation and internal quotation marks omitted). We conclude the District Court did not abuse its discretion.
To begin, the objectors say the District Court applied the wrong legal test to evaluate Dr. Muransky’s attorney’s fee request. In their view, the District Court should have applied a lodestar analysis that multiplied the number of hours counsel worked by the prevailing hourly rate. They claim that analysis is required by Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 546, 130 S. Ct. 1662, 1669 (2010). In Perdue, the Supreme Court decided “whether the calculation of an attorney’s fee, under federal fee-shifting statutes, based on the ‘lodestar,’ i.e., the number of hours worked multiplied by the prevailing hourly rates, may be increased due to superior performance and results.” Id. The Court allowed the award of attorney’s fees under a fee-shifting statute to be enhanced above the lodestar amount, but only in “rare” and “exceptional” cases. Id. at 554, 130 S. Ct. at 1674. Here, the objectors say the District Court should have followed Perdue because class counsel’s fees would have been decided under a fee-shifting statute if the class prevailed against Godiva. See
The problem for the objectors is that class counsel sought attorney’s fees from a common fund rather than under a fee-shifting statute. See
In the alternative, the objectors say that the District Court misapplied Camden I by awarding 33% of the fund to class counsel. In Camden I, this Circuit called 25% of a common fund a benchmark attorney’s fee award that “may be adjusted in accordance with the individual circumstances of each case.” 946 F.2d at 775. To evaluate whether the benchmark should be enhanced, district courts can apply the twelve factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974),8 in addition to other class-settlement specific factors. Camden I, 946 F.2d at 775. We have also said that the “majority of common fund fee awards fall between 20% and 30% of the fund.” Waters v. Int’l Precious Metals Corp., 190 F.3d 1291, 1294 (11th Cir. 1999). In this case, the objectors argue the District Court misapplied the Johnson factors in awarding 33% of the settlement fund as attorney’s fees.
We see no abuse of discretion in the District Court’s decision. Although the objectors “are correct that the fee award is bigger than some awards in other suits[,] . . . that does not mean the award is too big.” Birchmeier v. Caribbean Cruise Line, Inc., 896 F.3d 792, 796 (7th Cir. 2018). The Magistrate Judge’s R&R concluded that the Johnson factors supported the request for a fee above the 25% benchmark. That conclusion was based on weighing nine Johnson factors in favor of the enhanced award, including, by way of example, “the novelty and difficulty of the issues” and “the results obtained.” After considering the objections to the
R&R de novo, the District Court reached the same conclusion that “the requested attorneys’ fees are reasonable under the Johnson/Camden I analysis.”9 The District Court found that the settlement “confers substantial benefits” on class members. The District Court’s order also emphasized “the results obtained,” saying the class members who submitted claims “will receive cash payments that represent a significant portion of the damages that would be available to them were they to prevail in an individual
The District Court properly assessed the risks faced by the class and the compensation secured by class counsel. Under the circumstances, the District Court did not abuse its discretion by awarding an above-benchmark percentage of the common fund. The attorney’s fee award is therefore affirmed.
C. The incentive award
Finally, the objectors challenge the $10,000 incentive award the District Court approved for Dr. Muransky as class representative. A district court’s
decision to grant an incentive award to a named class representative is reviewed for abuse of discretion. Hadix v. Johnson, 322 F.3d 895, 897 (6th Cir. 2003).
The objectors make two arguments on appeal. First, Mr. Isaacson argues incentive awards are prohibited in common-fund settlements. [Second, the objectors jointly challenge the $10,000 award as too large because they say Dr. Muransky put little personal time and effort into the litigation. We reject both arguments.
Relying on two common fund cases, Mr. Isaacson says litigants who secure a common fund can recover reasonable attorney’s fees and litigation expenses but cannot recover incentive awards for their own services. See Central R.R. & Banking Co. v. Pettus, 113 U.S. 116, 122, 5 S. Ct. 389, 390 (1885); Trustees v. Greenough, 105 U.S. 527, 538 (1882).
We are not persuaded by this argument. Many circuits have endorsed incentive awards and recognize them as serving the purposes of
At the same time, there are limits to an appropriate incentive award. In Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983), the class settlement awarded the class representatives different amounts than the unnamed class members because class counsel estimated that the named representatives had meritorious claims. Id. at 1148–49. This Court held that “[w]hen a settlement explicitly provides for preferential treatment for the named plaintiffs in a class action, a substantial burden falls upon the proponents of the settlement to demonstrate and document its fairness.” Id. at 1147. We said that “a disparate distribution favoring the named plaintiffs requires careful judicial scrutiny into whether the settlement allocation is fair to the absent members of the class.” Id. At the same time, we recognized that “the inference of unfairness” associated with unequal distributions “may be rebutted by a factual showing that the higher allocations to certain parties are rationally based on legitimate considerations.” Id.
Like the settlement distribution in Holmes, incentive awards “provide[] for preferential treatment for the named plaintiffs,” see id. at 1147, and create a similar possibility of collusion between class representatives, their counsel, and defendants. See id. at 1148; Hadix, 322 F.3d at 897 (“[I]ncentive awards are scrutinized
The parties dispute what those considerations should be. The objectors focus on the time and money actually spent on the case by the named representative while Dr. Muransky argues that the value of the settlement to the class members is most important. We see no reason to limit the discretion of district courts to consider the justifications proposed by either party. Indeed, we are aware of a number of justifications regularly cited in support of incentive awards. For example, incentive awards may be given “to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, . . . to recognize their willingness to act as a private attorney general,” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958–59 (9th Cir. 2009), and to “induce an individual to become a named plaintiff,” Montgomery v. Aetna Plywood, Inc., 231 F.3d 399, 410 (7th Cir. 2000). Although these considerations will certainly weigh differently in different cases, together they “help illuminate the fact that class representatives . . . have typically done something the absent class members have not—stepped forward and worked on behalf of the class.” 5 Newberg on Class Actions § 17.3. All of these justifications are legitimate, and district courts may exercise their discretion to determine whether they favor an incentive award in any given case.
Here, the District Court awarded Dr. Muransky $10,000 “for his efforts in this case.” It is not clear what the District Court meant by that. Even so, we find that the record supports the incentive award. See Friends of the Everglades v. S. Fla. Water Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir. 2012) (explaining that a district court abuses its discretion when “neither the . . . decision nor the record provide sufficient explanation to enable meaningful appellate review” (emphasis added)); Cox Enters. v. News-Journal Corp., 510 F.3d 1350, 1361 (11th Cir. 2007) (finding no abuse of discretion in district court’s decision not to award prejudgment interest based on the record). At the District Court, Dr. Muransky argued that an incentive award was justified by the size of the settlement. As previously discussed, the District Court found that the class settlement “confers substantial benefits” on the class members. And at the fairness hearing, the District Court observed that Dr. Muransky “was subjecting himself to inconvenience and time delays that didn’t materialize as much as they might have, but they still were a possibility when he signed on as the class representative.” These statements give meaning to the court’s $10,000 incentive award to Dr. Muransky “for his efforts in this case.”10 We therefore hold that the District Court did not abuse its discretion by granting this incentive award.
AFFIRMED.
JORDAN, Circuit Judge, concurring:
I join Judge Martin’s thorough opinion for the court. I write separately to note
As a member of the class, Mr. Isaacson did not just file objections to the proposed settlement; he chose not to opt out and submitted a claim for compensation pursuant to the settlement agreement. Given that the proposed settlement fund totaled $4.1 million after attorney’s fees, and that approximately 47,000 class members filed claims, Mr. Isaacson stands to receive about $85 even if his arguments about the attorney’s fees and the incentive award fail. Although that sum is not a king’s ransom, there is no doubt that Mr. Isaacson is going to realize some financial benefit from the settlement.
Article III’s standing requirements—injury-in-fact, causation, and redressability—persist “throughout the life of [a] lawsuit.” Wittman v. Personhuballah, 136 S. Ct. 1732, 1736 (2016). As a result, standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Hollingworth v. Perry, 570 U.S. 693, 705 (2013) (citation and quotation marks omitted). Because “standing is not dispensed in gross,” it seems to me that Mr. Isaacson “must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation and internal quotation marks omitted). If Mr. Isaacson “lacks standing to bring [a certain claim on] appeal, we lack jurisdiction over [that claim] and must dismiss it.” Tenille v. Western Union Co., 809 F.3d 555, 559 (10th Cir. 2015).
Mr. Isaacson certainly has standing on appeal to pursue his challenges to the deadline set by the district court for objections to the proposed settlement, to the attorney’s fees awarded to counsel for the plaintiffs, and to the incentive award given to Dr. Muransky. An incorrect deadline could have certainly affected Mr. Isaacson’s ability to assert objections to the motion for attorney’s fees, and any decrease in the attorney’s fees or the incentive award would be redistributed among the class members, potentially increasing Mr. Isaacson’s own monetary recovery. But Mr. Isaacson has also challenged Dr. Muransky’s standing to bring a
According to Mr. Isaacson—who happens to be a plaintiffs’ class-action attorney—Dr. Muransky did not suffer an injury that allows him to bring a claim under
I do not doubt the sincerity of Mr. Isaacson’s convictions, but it might fairly
Mr. Isaacson, as noted, stands to gain financially from the settlement. How, then, can it be said that Mr. Isaacson suffered any cognizable harm (aside from his arguments as to the deadline for objections, the attorney’s fees, and the incentive award) from the institution of the lawsuit by Dr. Muransky and/or the consummation and approval of the settlement which provided him with a tangible benefit? If Mr. Isaacson thought that the action brought by Dr. Muransky on behalf of a class did not constitute a justiciable case or controversy under Article III, why did he not simply opt out and let the statute of limitations expire on any
Stated differently, if Mr. Isaacson prevailed on his standing argument, I do not see how we could redress any injury he has suffered. See Wittman, 136 S. Ct. at 1732 (dismissing appeal by intervenors who could not explain how their alleged injury would be redressed by a favorable judicial decision). Indeed, Mr. Isaacson will cause himself injury if he succeeds because his monetary recovery—along with that of every class member—will be wiped out. For if Dr. Muransky has not suffered an Article III injury, he does not have standing to sue Godiva under
The rule against permitting appeals by prevailing litigants is a prudential one, but a litigant who obtains a favorable judgment must nevertheless have a personal stake to appeal. See generally Camreta v. Greene, 563 U.S. 692, 701-02 (2011). In an appropriate case, we may need to address whether a class member like Mr. Isaacson has standing on appeal to challenge the standing of a class representative who obtained a settlement providing economic benefits to the entire class. Cf. King v. Cessna Aircraft Co., 505 F.3d 1160, 1165 (11th Cir. 2007) (“if the requirements for appellate jurisdiction are not met ‘we cannot review whether a judgment is defective, not even when the asserted defect is that the district court lacked jurisdiction’”) (citation omitted).
Notes
No court has considered whether the congressional record reflects that a rash of merchants were printing the name of the card-issuing bank on customers’ receipts before the passage of