FUNERAL CONSUMERS ALLIANCE, INC.; Gloria Jaccarino Bender; Anthony J. Jaccarino; John Clark; Maria Magsarili; Tony Magsarili; Frances H. Rocha; Marsha Berger; Sandra Gonzalez; Deborah Winch; Anna Kain; Gay Holtz, Plaintiffs-Appellants, v. SERVICE CORPORATION INTERNATIONAL; Alderwoods Group, Inc.; Hillenbrand Industries, Inc.; Batesville Casket Co., Defendants-Appellees.
No. 10-20719
United States Court of Appeals, Fifth Circuit
Sept. 13, 2012
HIGGINSON, Circuit Judge
In light of the district court‘s particularized remark at sentencing, we hold that Dominguez-Alvarado‘s sentence does not constitute error, plain or otherwise. Dominguez-Alvarado‘s sentence is AFFIRMED and the case is REMANDED for amendment of the written judgment to conform to the oral sentence.
J. Clifford Gunter, III (argued), Gregg Lee Goldstein, Jeffrey L. Oldham, Bracewell & Giuliani, L.L.P., Houston, TX, Richard Bruce Drubel (argued), Boies, Schiller & Flexner, L.L.P., Hanover, NH, John F. Cove, Jr., Kieran P. Ringgenberg, Boies, Schiller & Flexner, L.L.P., Oakland, CA, for Defendants-Appellees.
Before DENNIS, CLEMENT and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
Plaintiffs-Appellants, the Funeral Consumers Alliance, Inc. (“FCA“) and eleven
For the following reasons, we reverse and remand the dismissal of Plaintiff-Appellants’ § 4 claims for lack of subject matter jurisdiction, affirm the dismissal of Consumer Appellants’ and FCA‘s action for injunctive relief for lack of subject matter jurisdiction, and affirm the denial of class certification.
FACTS AND PROCEEDING
FCA is a non-profit consumer rights organization devoted to advocating consumers’ right to choose a meaningful, dignified, and affordable funeral that claims 400,000 individuals as members of its national organization or its local affiliates. Consumer Appellants are eleven individuals who each purchased a Batesville casket from SCI, Alderwoods, or Stewart. No ICD is a party to this matter.
On November 24, 2008, Magistrate Judge Calvin Botley recommended that the Plaintiffs’ Motion for Class Certification be denied in a 30-page Memorandum and Recommendation (“M&R“). On December 29, 2008, Plaintiffs filed objections to the M&R, attaching two additional expert reports from Dr. Gregory Vistnes.
On March 26, 2009, United States District Judge Kenneth Hoyt adopted the M&R denying class certification.
Following the denial of class certification, Plaintiffs settled their claims against Stewart on June 15, 2010 (the “Stewart settlement“). In response, Defendants filed an expedited motion to strike Plaintiffs’ jury demand, which was denied by Judge Hoyt on July 13, 2010. Two days later, Plaintiffs filed an expedited motion to dismiss for lack of subject matter jurisdiction. After briefing and oral argument on August 2, 2010, the district court granted Plaintiffs’ motion on September 27, 2010. The district court determined that because of the settlement with Stewart, Plaintiffs had lost standing to continue to sue the remaining Defendants.
Notes
A. Subject Matter Jurisdiction
When reviewing a dismissal for lack of subject matter jurisdiction, we review factual findings for clear error and legal conclusions de novo. Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005).
1. Damages claims
The record is clear that Appellants are not seeking compensatory damages beyond those agreed to in the Stewart settlement. Appellants argue, nonetheless, that the Stewart settlement did not cover the attorneys’ fees and costs available to them under
Here, the consumer plaintiffs alleged overcharges by the defendants in an amount less than $22,000 each. They settled their suit for an amount far greater than each could recover were the case successfully tried to conclusion. Hence, there are no damages that the consumer plaintiffs could recover against the remaining defendant [sic]. And, because the consumer plaintiffs’ damages are quantifiable, as evidenced by their settlement, no irreparable injury is articulated even if a Clayton Act violation occurred .... The result is that the consumer plaintiffs’ claim for actual injury under the Clayton Act is rendered moot by their settlement ....
Under our precedent, however, Consumer Appellants have standing to resolve
The
The plaintiffs have a right under
We addressed whether actual recovery of compensatory damages is required for a plaintiff to recover attorneys’ fees and costs in Sciambra II, 892 F.2d at 413-14.2 As in the present case, the issue before us in Sciambra II was whether an antitrust plaintiff was no longer entitled to attorneys’ fees and costs after one defendant settled with the plaintiff for an amount greater than the maximum amount of compensatory damages being sought. Id. Sciambra brought an antitrust action against Graham News (“Graham“) and A.R.A. Services, Inc. (“ARA“). Id. at 413. Sciambra settled his claims against Graham but continued his suit against ARA. Id. Before trial, the district court held that ARA had abused the discovery process, entered a default judgment against ARA, ordered ARA to pay Sciambra‘s attorneys’ fees and costs, and awarded damages. Id. This court rejected the district court‘s method of calculating damages and remanded on the issue of damages. Sciambra I, 841 F.2d at 657-58. On remand, Sciambra conceded that his trebled lost profits were less than the Graham settlement. Sciambra II, 892 F.2d at 413. The district court awarded no damages, affirmed its prior award of attorneys’ fees and costs from the default judgment, and awarded new attorneys’ fees and costs for the appeal and the hearing on remand under
ARA claimed that Sciambra could not be awarded attorneys’ fees and costs when an earlier settlement offset all compensatory damages. Id. at 413-14. We rejected that argument, writing that, “if a plaintiff can prove an antitrust violation and the fact of damage, the plaintiff is entitled to recover attorneys’ fees pursuant to section 4.” Id. at 415. “Our holding merely recognizes that the structure of section 4 and the fact of damage analysis make the actual recovery of compensatory damages irrelevant to the recoverability of attorneys’ fees.” Id.
Appellees argue that our holding in Sciambra II does not apply to the present case because it is factually distinguishable. The default judgment against Graham News established the existence of an antitrust violation and the fact of damage before the district court determined that the Graham settlement precluded a compensatory damage award. Id. Appellees point to a sentence of ours in Sciambra II to support their contention that this factual discrepancy distinguishes Sciambra II from the present case:
[i]n a case such as this where, as the previous panel noted, the amount of potential damages was unclear when suit was instituted, ... an antitrust defendant that causes injury should not be spared liability for attorneys’ fees simply because a previous settlement turns out in retrospect to preclude a compensatory damage award.
Id. at 416-17. To be sure, unlike Sciambra II, antitrust liability has never been ascertained in this case. The Stewart settlement explicitly stated that no liability was being admitted by Stewart, and no liability determination was made by the district court. The settlement and subsequent stipulated dismissal of plaintiffs’ claims against Stewart with prejudice precludes a liability finding, and hence, any further recovery from Stewart. However, as to the remaining Defendants, Appellees herein, Sciambra II‘s logic applies for the narrow, but decisive, reason that no clear amount or allocation of attorneys’ fees and costs was assessed.3 Hence, these Defendants should not be spared liability for such fees if the antitrust charges against them are sustained. The total amount potentially due to the Consumer Appellants remains unclear because the record contains disputed issues of fact as to the amount of attorneys’ fees and costs associated with this litigation. Monetary damages under
Again, our reasoning in Sciambra II validated Congress‘s imperative in
The Third Circuit, in addition to highlighting the statutory priority of encouraging private parties to settle, pointed out that, “[a]lthough in almost all cases an award of compensatory damages will accompany an award of Section 4 attorneys’ fees, the latter is not dependent upon the former .... Any other holding would not only deter the private prosecution of antitrust violations, which is a critical element in the antitrust enforcement scheme and the primary reason attorneys’ fees are mandatory under the statute, but could also deter plaintiffs from early settlements with some defendants.” Gulfstream I, 995 F.2d at 419; see also id. (“hold[ing] that the district court did not err in awarding [plaintiffs] attorneys’ fees even though the trebled verdict was entirely offset by the prior settlements“).4
Appellees cite Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990), and Vermont Agency of Natural Res. v. United States, 529 U.S. 765, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). The Supreme Court, in that line of cases, however, clarified the well-settled proposition that plaintiffs cannot sue merely for the “byproducts” of litigation, but neither the Supreme Court, nor courts applying that case law, have extended “byproducts” reasoning to include, indeed preclude, Congressionally mandatory attorneys’ fees and costs.
In Steel Co., Citizens for a Better Environment sued Steel Company under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) for failure to file reports as required under EPCRA. 523 U.S. at 86-88. Under the EPCRA, any damages from an EPCRA violation are awarded to the United States Treasury, not the party bringing suit. Id. at 106-07. The statute made it permissible, but not mandatory, for the district court to award “the prevailing or substantially prevailing party” the costs of litigation in a final order. Id. at 107 n. 8. The Supreme Court determined that the plaintiff did not have standing because the plaintiff was not seeking any relief that would remedy the injury it suffered. Id. at 107-10. The Court explained that since Citizens for a Better Environment was not eligible for any relief under the EPCRA, they could not bring a suit merely to obtain discretionary attorneys’ fees and costs. In contrast, Appellants are eligible for mandatory fees and costs under the Clayton Act if their antitrust claims are proven valid. Again, under
In Lewis, the plaintiff secured an injunction and declaration that a Florida banking law violated the Commerce Clause and then brought a separate statutory claim for attorneys’ fees under
Finally, in Vermont Agency, the defendant challenged the standing of a qui tam relator to bring suit. 529 U.S. at 771-72. The Supreme Court held that, “[a]n interest unrelated to injury in fact is insufficient to give a plaintiff standing. The interest must consist of obtaining compensation for, or preventing, the violation of a legally protected right.” Id. at 772-73 (internal citations omitted). The qui tam relator had not suffered an invasion of any right; he was suing on behalf of the United States for a violation of one of its rights. Id. at 773. As a result, he was suing for a mere “byproduct” of the suit that would not materialize until the relator prevailed at the end of litigation. Id. In the present case, Appellants have alleged that they directly have suffered an invasion of their right to be free from violations of federal antitrust laws. The interest at issue (mandatory attorneys’ fees and costs) is related to this injury-in-fact because the plain language and undisputed purpose of the mandatory attorneys’ fees and costs provision (to discourage potential defendants from violating antitrust laws) helps prevent the violation of the legally protected right (the violation of federal antitrust laws). Sciambra II, 892 F.2d at 416.
2. Injunctive relief
To have standing to sue for injunctive relief, a party must: (1) have suffered an injury-in-fact; (2) establish a causal connection between the injury-in-fact and a complained-against defendant‘s conduct; (3) show that it is likely, not merely speculative, that a favorable decision will redress the injury-in-fact; and (4) “demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.” James, 254 F.3d at 563 (internal citations omitted); Soc‘y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir.1992); see also City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). The threat of injury must be “concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical....” Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (internal citations omitted).6
The district court determined Consumer Appellants did not have standing to sue for injunctive relief because they could not “establish an irreparable injury or a future threat.” Specifically, the district court concluded that (1) any harm would be reparable by a monetary award, like the Stewart settlement, and (2) based on the particular allegations here, the chance of one of the Consumer Appellants purchasing another Batesville casket or his or her family purchasing a Batesville casket upon the Consumer Appellant‘s death did not create a “‘real’ immediate” or potential future injury.
Consumer Appellants did not establish that there was a real and immediate threat that any of the eleven remaining Consumer Appellants will purchase an allegedly overpriced Batesville casket from a SCI or Alderwoods funeral home.7 In order for the remaining Consumer Appel-
The fact that death is inevitable is not sufficient to establish a real and immediate threat of future harm.8 Appellants did not cite any evidence that any of the eleven named individuals are even charged with the task of purchasing a casket for a friend or relative upon his or her passing. “Such ‘some day’ intentions-without any description of concrete plans, or indeed any specification of when the some day will be-do not support a finding of the ‘actual or imminent’ injury that our cases require.” Summers, 555 U.S. at 496 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)); see also In re N.J. Title Ins. Litig., 683 F.3d 451, 461 (3d Cir.2012) (holding that consumer plaintiffs failed to establish standing for antitrust injunction claim alleging anti-competitive conduct in the setting of title insurance rates where, inter alia, they did not allege any “plans to buy title insurance in the future, thus failing to raise their claims above the speculative level“); McCray v. Fid. Nat‘l Title Ins. Co., 682 F.3d 229, 243-44 (3d Cir.2012) (reaching the same conclusion where, inter alia, plaintiffs in a similar action likewise had not alleged that they had “‘actual or imminent’ plans to purchase title insurance“); In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 14-15 (1st Cir.2008) (holding that consumer plaintiffs lacked standing to pursue antitrust injunction action alleging anti-competitive action by automobile company defendants where “the complaint [did not] make any allegation regarding a named plaintiff‘s intention to buy or lease another new vehicle within such a time frame as could be deemed imminent“).
3. FCA‘s associational standing to pursue injunctive relief
It is well-established law that an association has
Appellants alleged in their first amended consolidated class action complaint only that, “FCA‘s members include consumers that have purchased, or in the future will likely purchase, caskets from funeral homes owned and operated by Stewart, Alderwoods, and SCI.” Because Appellants do not allege that there was a real and immediate threat that any of FCA‘s members will purchase an allegedly overpriced Batesville casket from a SCI or Alderwoods funeral home, FCA lacks injunctive standing on behalf of its members.9
B. Class Certification Denial10
We review a denial of class certification for abuse of discretion and
The requirements for certifying a class action are set forth in
Appellants contest the district court‘s findings that they failed to meet
1. Scope of Rule 23 analysis
To determine whether class certification is appropriate, courts “must conduct intense factual investigation.” Robinson v. Texas Auto. Dealers Ass‘n, 387 F.3d 416, 420 (5th Cir.2004). Notably, “there are no hard and fast rules ... regarding the suitability of a particular type of antitrust case for class action treatment.” Id. at 420-21 (quoting Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 301 (5th Cir.2003)). Rather, “[t]he unique facts of each case will generally be the determining factor governing certification.” Id. “The party seeking class certification bears the burden of demonstrating that the requirements of rule 23 have been met.” O‘Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 737-38 (5th Cir.2003) (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir.1998)).
“A district court must rigorously analyze
Appellants contend the district court‘s
“[C]lass determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff‘s cause of action.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (internal quotation marks and citations omitted); Oscar Private Equity Invs. v. Allegiance Telecom, Inc., 487 F.3d 261, 268 (5th Cir.2007), abrogated on other grounds by Erica P. John Fund, Inc. v. Halliburton Co. (Halliburton), — U.S. —, 131 S.Ct. 2179, 180 L.Ed.2d 24 (2011) (holding that a district court “must give full and independent weight to each Rule 23 requirement, regardless of whether that requirement overlaps with the merits.“). Ultimately, the court must consider “how a trial on the merits would be conducted if a class were certified.” Bell Atl., 339 F.3d at 302 (internal citations omitted). When there are disputed facts relevant to
Appellants contend that the Supreme Court‘s June 6, 2011 decision in Halliburton, 131 S.Ct. 2179, precludes district courts from rendering merits-based conclusions at the class stage. We disagree. In Halliburton, the Supreme Court does not state that merits inquiries or conclusions cannot occur, or must be ignored, in the fact-intensive
At the same time that Appellants argue that the district court‘s
First, Dr. Vistnes’ reports were included as Exhibits 1 and 2 to Plaintiffs’ Objections to Judge Botley‘s Memorandum and Recommendation Denying Class Certification and were filed on December 29, 2008, after the magistrate judge‘s M&R was filed on November 24, 2008, but well before the district court‘s March 26, 2009 Order Denying Class Certification. The district court‘s Order Denying Class Certification states, “[t]he Court has reviewed the plaintiff‘s objections ....” The district court had almost three months to do so, and we find no reason to assume this review did not include the exhibits containing Dr. Vistnes’ reports that were filed with Plaintiffs’ objections.
Second, on close analysis, Appellants’ speculation that Dr. Vistnes’ opinions were “ignored” is not supported. A review of the portions of Dr. Vistnes’ December 29, 2008 reports cited by Appellants in their briefs and in their objections to the M&R reveals that cited portions of the reports contain little new quantitative analysis and restate facts already covered by Appellants and their expert, Mr. Romaine.14 Also, the M&R, adopted in full by the district court, refers to portions of Dr. Vistnes’ reply report that were reviewed by Magistrate Judge Botley before he issued the M&R, undercutting Appellants’ complaint that their expert, Dr. Vistnes, did not have a chance to be heard.
Third, Appellants’ contention that the district court erred by not reviewing the evidence and issues de novo is unsupported. It is only required that, “[a] judge of the court shall make a de novo determination of those portions of the [magistrate‘s] report or specified proposed findings or recommendations to which objection is made.” Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983) (quoting
2. Rule 23(b)(3) predominance and superiority requirement analysis
In the 30-page M&R adopted by the district court, the magistrate judge correctly began the predominance and superiority analysis by laying out the elements of Appellants’ claims and what must be shown to prove antitrust liability in a class action context. The magistrate judge continued his
Appellants contend that they should not have been required to prove national market or nationwide conspiracy at the class certification stage because these are not required elements of their antitrust claims. Recovery under
The factual determinations pertaining to national market and national conspiracy, detailed in the extensive M&R, were necessary for the district court to decide whether to certify a class for Appellants’ antitrust claims. The M&R analysis applied our well-settled approach set forth in Blue Bird, where the district court‘s certification of a national class was in fact reversed because “neither the products involved nor the purchasers appear to be standardized.” 573 F.2d at 322. In Blue Bird, while recognizing that antitrust price-fixing cases are particularly suitable for class action treatment, we determined that plaintiffs failed to prove that common issues of law or fact predominated over individual issues because the proposed national class included different sizes of buyers operating under different conditions in various regions throughout the United States and the products involved, school bus bodies, were marketed under different arrangements at different times. Id. at 321-23.
Following our analysis in Blue Bird, the M&R here noted that caskets may be sold separately or as part of a bundled package; buyers may purchase caskets either on a “pre-need” basis (before death) or “at-need” basis; consumer casket preferences vary by region, religion, ethnicity, age, and community tradition; prices vary significantly across geographic markets and even within the same funeral home chain; and caskets are generally sold and marketed locally. Specifically, Appellees’ expert, Dr. Sibley, testified “that most consumers shop for caskets locally; ICDs rarely shipped their products out of state; ICDs generally sold and advertised locally; and ICDs did not consider internet prices in setting their own prices.” The M&R also noted the differences in marketing arrangements between funeral home defendants (“FHDs“), observing that some FHDs offer package discounts for caskets and funeral services but other do not, that not all locations require the purchase of a casket, and that the package discounts vary among locations. Appellants attempt to distinguish the instant case from Blue Bird by contending that we denied class certification in Blue Bird because the Blue Bird plaintiffs planned “to proceed state by state and prove by varying evidence fifty different price-fixing conspiracies.” Here, however, the magistrate judge found Appellants’ evidence to be similarly localized, stating that “[p]laintiffs fail to explain how statements made by one association in one area of the country equates to a nationwide conspiracy.”
Appellants also rely on United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), to show that “the Supreme Court flatly rejected the argument ... that localized sales activity defeated [the] key features of national markets.” This reliance, however, is misplaced. In Grinnell, the Supreme Court affirmed a finding of national market where a company, that supplies fire and burglar alarm services had national operations, a national schedule of prices, rates and terms, national contracts, and national agreements with competitors, even though the company could sell its product only to local customers. 384 U.S. at 575-76. In contrast, here the evidence shows that (1) the prices FHDs charged were not national and instead varied considerably by funeral home; (2) each of the FHDs and independent funeral homes have different contracts with Batesville and with consumers; and (3) that marketing strategies vary greatly among FHDs. See Heerwagen, 435 F.3d at 230 (distinguishing Grinnell by noting that there was no evidence that Heerwagen defendants
Appellants contend separately that the district court “ignored” the evidence of national market and nationwide conspiracy presented by their expert.16 As endorsed by the district court, the magistrate judge here found, “[Appellees’ expert‘s] opinions to be well-reasoned and supported by concise reliable testimony as to why the correct geographic market is localized and not nationwide as well as why each claim is not susceptible to class-wide proof. [Appellees’ expert] supported his testimony with references to analytical data and other specialized work which he has performed as an economist.” (Notably, the testimony of Appellees’ expert, Dr. Sibley, at the class certification hearing was extensive, covering over 150 pages of the certification hearing transcript.) In contrast, the magistrate judge found “[Appellants’ expert‘s] opinions [were] based on speculation and guesswork, causing his testimony to be unreliable.” The magistrate judge explained that this is why he gave “less weight to [Appellants’ expert‘s] opinions.” Most tellingly, the M&R is explicit that Appellants’ expert testimony and documentary support were thoroughly considered yet were found to contain “mischaracterizations,” “overstatements,” as well as “references to surveys created by third-parties with no connection to the Funeral Home Defendants.” Regardless, a district court does “not abuse its discretion in failing to give the expert‘s view more discussion or credence.” Piggly Wiggly Clarksville, Inc. v. Interstate Brands Corp., 100 Fed.Appx. 296, 299 (5th Cir.2004) (unpublished).
In sum, the district court is given great discretion in certifying a class, and the district court‘s adoption of the M&R in this case does not amount to an abuse of that discretion.
CONCLUSION
We REVERSE and REMAND the district court‘s dismissal for lack of subject matter jurisdiction of the claim for attor-
EDITH BROWN CLEMENT, Circuit Judge, concurring in part and dissenting in part.
Although I agree with the majority holding affirming the district court‘s denial of class certification, I do not agree we have jurisdiction to reach that issue. Because the plaintiffs have received all they are entitled to, this case is moot with respect to plaintiffs’ claims for statutory attorneys’ fees. As the majority correctly observes, the plaintiffs also lack standing to pursue injunctive relief. Consequently, I respectfully DISSENT from Section A1 and Section B and CONCUR in Sections A2 and A3.
STANDARD OF REVIEW
Defendants successfully moved to dismiss in the district court due to a lack of subject-matter jurisdiction. We review the factual findings of the trial court for clear error and the legal conclusions de novo. MDPhysicians & Assocs. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir.1992). Plaintiffs are “required to prove the existence of subject-matter jurisdiction by a preponderance of the evidence.” Middle S. Energy, Inc. v. City of New Orleans, 800 F.2d 488, 490 (5th Cir.1986).
DISCUSSION
The facts and procedural history are unique and complex. Plaintiffs concede that they are no longer seeking damages but are instead seeking only statutory attorneys’ fees. At this point in the litigation, three things are abundantly clear. First, the named plaintiffs have received well over their claimed treble damages through the Stewart Settlement. Second, the only thing that can be gained in continuing this litigation is attorneys’ fees and costs, which plaintiffs’ attorneys admit will not go to the plaintiffs themselves. And third, any trial to award attorneys’ fees and costs would only exponentially increase the attorneys’ fees in question—with no more awarded to the plaintiffs.
Standing is a constitutional requirement under
Here, plaintiffs cannot demonstrate any personal stake in the continuance of the litigation following the Stewart Settlement because they have none. Their claimed damages have been met multiple times over by the Stewart Settlement. The case, as it relates to the plaintiffs, is moot because their injury has been remedied.
The Supreme Court has previously stated that “a plaintiff cannot achieve standing
Although there is no Supreme Court precedent dealing with this issue in the context of a Clayton Act violation, the plaintiffs bear the burden of demonstrating that the litany of Supreme Court cases on similar statutory costs and attorneys’ fees are inapplicable. They fail to do so. Their strongest argument for continuing with this litigation is a misreading of a prior case in this circuit, Sciambra, which sat in a markedly different procedural posture from the case now before us. Sciambra v. Graham News, 892 F.2d 411 (5th Cir.1990). Sciambra dealt with statutory costs and attorneys’ fees under the Clayton Act, but the court had already found antitrust liability against the defendants through a default judgment. Since liability was already established, statutory attorneys’ fees were awarded. Despite arguments to the contrary by the plaintiffs and the majority, Sciambra is not controlling of the outcome of this case. What the attorneys here request is completely different from Sciambra because liability, and the right to be awarded attorneys’ fees, has yet to be ascertained. To be clear, the plaintiffs’ attorneys are not asking for a hearing to determine the amount of their fees, a perfectly reasonable request. They are asking for a trial to determine liability itself, and therefore any right they may or may not have to be awarded fees in the first place. Unlike in Sciambra, here, the attorneys ask to hold a trial that will involve thousands of attorneys’ hours, exorbitant costs, and an untold amount of judicial expense, all to determine whether or not the attorneys can get paid more than they have already received—with the result having zero impact on the plaintiffs themselves one way or another.
The majority rests much of its argument on the fact that statutory attorneys’ fees are part of the tripartite scheme created by the
Unable to point to one Supreme Court case that supports this request for a trial solely for attorneys’ fees, and therefore not able to meet their burden to demonstrate jurisdiction by a preponderance of the evidence, the plaintiffs’ attorneys rest their argument on a warped notion of judicial efficiency under the theory that dismissing this case will deter future settlements. Although such a policy consideration is essentially irrelevant to the constitutional issue of
The most damning argument against the plaintiffs’ theory is that, even after all remedies and recovery have been provided by the settlement to plaintiffs, the plaintiffs’ attorneys will continue racking up attorneys’ fees for their personal reimbursement all in an effort to find liability and recoup their spent and on-going costs, with nothing more to be gained for their clients. Once removed from the attorney-client relationship, the lawyers could litigate this case unchecked by any responsibility to represent their clients’ interests. The attorneys here—devoid of the need to placate their clients’ interests or heed at their clients’ orders—could litigate this issue unfettered in pursuit of their personal windfall, and could continue to do so long after they have relinquished any meaningful relationship with the plaintiffs. While plaintiffs’ attorneys’ litigation efforts in the quest for continuous ongoing and reimbursable fees would certainly help deter future anti-competitive actions, it is inconceivable that this is the public benefit scheme intended by the
CONCLUSION
The majority takes great pains to try to distinguish Supreme Court precedent. To get around the clear parallels between this case and that precedent, the majority states in conclusory fashion that this case is different because “the Stewart Settlement only mooted Appellant‘s antitrust claims against Stewart, not as against appellees.” Yet the mootness of this appeal, in toto, is exactly the issue before the court and one that the majority glosses over. Because the plaintiffs have no further “personal stake in the outcome” of this case and their attorneys are seeking a trial merely for their own self-interested “byproducts” of litigation, the Constitution and Supreme Court precedent clearly indicate that this case is moot. I respectfully DISSENT.
EDITH BROWN CLEMENT
UNITED STATES CIRCUIT JUDGE