*1
1157
Martinez; Kelly
Driver;
Christy
Ivonne
cause of
a
complaint states
whether
granted.
Brisbane;
can be
Porter;
which relief
Brenda Me
on
Lisa
action
J.
682,
Hood,
678,
66 S.Ct.
327 U.S.
Bell v.
Porter, Objec
lendez; Ralph Michael
(1946). Because
776,
773,
state Robison; a valid claim had, Pike; failure to state Kathryn Bertram subject of of a lack equivalent is not Randall; Her Jose Robert judg a calls for jurisdiction, and matter Plaintiffs, nandez, for a rather than the merits ment on jurisdiction. Rodri lack of dismissal for Nancy Segarra; Ellingwood, Ma Walter Mercante Grancolombia guez v. Flota Green; Jimmy Borbon; Marcia ria L. (9th Cir.), na, S.A., 1069, 1072 703 F.2d Carder; Green; W. Thomas A. Glenda 84, denied, 820, 104 S.Ct. 464 U.S. cert. Schilleci; Singer; Naomi C. Steven (1983). 78 L.Ed.2d Sandres, Objectors, rul- at 1550. We reiterated 798 F.2d Services, Radio ing in Western v. Court case (synthesizing Supreme 1193-96 SOLU EXPERIAN INFORMATION jurisdic- have thus “[w]e law to determine TransUnion, LLC; § to determine INC.; tion under 28 U.S.C. TIONS pri- affords a federal statute] whether [a LLC, Equifax Information Services action”).1 vate cause Defendants-Appellees. dispel some opinion should Our sub- concerning a court’s confusion district Borbon, Objector-Appellant, Maria L. to determine jurisdiction
ject matter v. a federal cause litigant a asserts whether reading of by reaffirming our of action Pike; Hernandez; Kathryn Robert Jose articulated precedent Supreme Court Robison, Randall; Bertram Radio Services. Thompson and Western Plaintiffs-Appellees, sum, subject matter court has district private whether a jurisdiction to determine law. exists under federal right of action Inc.; Information Solutions LLC;
TransUnion, Equifax Informa LLC, Defendants-Appel tion Services lees. Carter; RADCLIFFE; Chester
Robert Plaintiff, White, N. Terri Seale, III; Falcon; Clifton C. Maria Jr., Plaintiffs-Appel- Lovell, Arnold
lants,
1831,
5,
Lasker,
Hecht,
99 S.Ct.
441 U.S.
476 n.
Lapidus
also
1. See
(1979));
City Stock-
Cir.2000)
Price v.
(9th
private
v. v. Schilleci; Glenda W. Thomas Ellingwood, Objector-Appellant. Walter Carder, Objectors- A. Appellants. White, Plaintiff, Terri N. White, Plaintiff, Terri N. Radcliffe; Carter; Robert Chester Ar Hernandez; Lovell, Jr.; Jose nold Hernandez; Randall; Jose Robert III; Falcon; Seale, Clifton C. Maria Robison; Pike, Kathryn Bertram Robison; Randall; Robert Bertram Plaintiffs-Appellees, Kathryn Pike, Plaintiffs-Appellees, and Inc.; Experian Solutions, Information Inc.;
Experian Information Solutions TransUnion, Equifax LLC; Informa TransUnion, LLC; Equifax Informa LLC, Defendants-Appel tion Services LLC, Defendants-Appel tion Services lees, lees, v. v. Jimmy Green; Green, Marcia Juntikka, Esquire, Charles Objectors-Appellants. Objector-Appellant. 11-56387, 11-56376, 11-56389, Nos. 11-56397, 11-56400, 11-56440, White, Plaintiff, N. Terri 11-56482. Hernandez; Randall; Jose Robert United of Appeals, States Court Robison; Kathryn Pike, Bertram Ninth Circuit. Plaintiffs-Appellees, Argued and March Submitted 2013. April Filed 2,May Amended Inc.; Information Solutions LLC; TransUnion, Equifax Informa LLC, Defendants-Appel
tion Services
lees, Signer, Objector-Appellant.
Steven C.
H59 (argued) F. George Carpinello Shaw, Boies, & R. Schiller Flexner Adam LLP, NY; Wolf, Albany,. Daniel Daniel *3 Offices, D.C.; Washington, Law Wolf Juntikka, Juntikka & As- Charles Charles LLP, York, NY, sociates New for Plain- Radcliffe, tiffs-Appellants Robert Chester Carter, Falcon, Seale, III, Maria C. Clifton Objectors-Ap- Arnold E. Lovell and and Driver, Martinez, Christy pellants Ivonne Porter, Brisbane, Kelly J. Lisa Brenda Melendez, Ralph and Michael Porter. PC, Miller, Miller, A. A.
Steven Steven CO, Denver, Objector-Appellant for Ste- Singer. ven C‘. Palmer, Darrell Palmer
Joseph Darrell Offices, Beach, CA, Objec- Solana for Law Borbon. tor-Appellant Maria L. Thompson, M. Charles M. Charles PC, AL; Birmingham, R. Ste- Thompson, Griffis, phen Stephen R. Griffis Law Of- Hoover, fices, AL, Objectors-Appel- for and Glenda lants Thomas A. Carder Schilleci. Davis, W. Davis Law William John
John CA; Offices, F. Hel- Steven Diego, San Francisco, Offices, fand, San Helfand Law Elling- CA, Objector-Appellant Walter for wood. Benjamin Nutley and Garrett James
C. Pasadena, Kendrick, Nutley, Kendrick & Marcia CA, Objectors-Appellants for Jimmy Green. Green Nelson, L. Gregory A. Beck and Scott Group, Washing- Litigation Public Citizen D.C., ton, Charles Juntikka. Appellant for Cyn- (argued) A. Michael Caddell Chapman, & Hous- Caddell Chapman, thia Sobol, ton, TX; Lieff Michael W. Cabraser LLP, Francis- & San Heimann Bernstein co, CA; Rossman and Charles Stuart T. Delbaum, Consumer Law National M. MA; Center, Leonard A. Bennett Boston, Litiga- Consumer Erausquin, Matthew VA; Associates, P.C.,’ News, Newport tion Sherman, Callahan, Thompson, representation provides Lee A. Conflicted an in- Caudill, Irvine, LLP, CA; dependent ground reversing Sherman for the set- & Green, (citing tlement. id. Weller, Fed.R.Civ.P. Toups, Toups Mitchell A. & Cf. ,for 23(a)(4), (g)(4)). Because we reverse Terrell, L.L.P., Beaumont, TX, Plain- settlement, we also must reverse the tiffs-Appellees. fees and costs. See (argued) Daniel J. McLoon and Michael Bluetooth, re F.3d at 940. Addi- CA, Morgan, Day, G. Angeles, Jones Los tionally, we reverse the awards because Defendant-Appellee Infor- the district court abused discretion Solutions, Inc. mation *4 by not considering “whether class coun- Hanson, Cindy Kilpatrick D. Townsend properly discharged has duty sel its of LLP, Atlanta, GA, & Stockton for Defen- loyalty to absent class members” in its dant-Appellee Equifax Information Ser- of attorneys’ award fees and costs.5 Cf. vices LLC. II, at Strickland, Newman, Stephen Julia B. J. unchanged. The text footnote 5 is Frontino, Brian C. and Huang, Catherine 23, slip opinion At line 24 page page LLP, Stroock & Stroock & Lavan Los 2, 24, replace remand, line <On the dis- Angeles, CA, for Defendant-Appellee trict court should determine when the con- LLC. TransUnion arose, flict if the conflict continues under
any agreement, future settlement and how representation the conflicted should affect any fees awards. See Rodri- > guez F.3d 967-68. with the following: remand, On district should determine when the conflict arose and if Before: KIM McLANE WARDLAW conflict any continues under future GOULD, and RONALD M. Circuit agreement. Should the dis HADDON, Judges, and E. SAM District trict court approve an such Judge.* it then exercise discretion in GOULD; Opinion by Judge deciding whether, extent, and to what by Judge Concurrence HADDON. class counsel are entitled to fees under the common-fund doctrine.6 See
ORDER II, 657; F.3d at 2013, opinion 22, The filed on F.3d at April 967-68.
published 1715422, at 2013 WL is amended The call number for footnote 6 should be as follows: < moved follow common-fund doc- trines, as shown above. 23,
At slip 17-19, opinion page lines < replace representation pro- slip opinion Conflicted At page footnote re- independent ground place vides an the text reversing for of the footnote with the following: the settlement and the attor- neys’ fees and costs.5 Because we reverse the settlement and Cf. > 656-60. with following: the awards of fees and costs based on * Haddon, Montana, The Judge Honorable Sam E. sitting by District designation. for the U.S. District Court for the District of named we do terests between the the conditional class, and the we conclude that the class the sub- of whether not reach the issue did representatives and class counsel brought of class counsel who set adequately represent the absent class suits, were con- and Pike which Acosta members, this reason the district case, an inde- with this faced solidated court should not have the class- interest because pendent conflict of jurisdiction action settlement. We have agreement they executed fee-sharing § under 28 and we reverse U.S.C. counsel. The dis- the rest of class with approval the district court’s of the settle- issue in trict court should revisit ment. holding. light of our opinion An is filed concurrent- amended I ly with this order. below—consumers amendments, any peti- light of these through bankruptcy allege have been — rehearing rehearing or en panel tion for Information Defendants days fourteen banc shall be filed within Inc., LLC, Systems, TransUnion *5 from the date of this order. Equifax Information issued Services LLC reports negative consumer credit with en-
IT
ORDERED.
IS SO
already discharged
tries for debts
in bank-
words,
alleg-
In other
Defendants
ruptcy.
OPINION
edly
reports that stated that
issued credit
GOULD,
Judge:
Circuit
in
plaintiffs
delinquent
making
were
objectors
plaintiffs
Several named
extin-
payments on debts that had been
of a
appeal
approval
the district court’s
A
guished
bankruptcy.
smaller subset
settlement. The settlement
class-action
plaintiffs
of the
also contends that
approved
have
like others we
credit-reporting agencies did not investi-
past, granted
in the
incentive awards to
errors,
gate
these
even after the
for their service
agencies
had notified the
of the errors on
to the class. But unlike the incentive
allegedly violat-
reports.
their
Defendants
before,
awards that we have
Fair
Act and its
Reporting
ed the
Credit
conditioned on the class
these awards were
counterparts because
California state-law
(1)
for the settle-
they
proce-
did not use “reasonable
possible
ment. These conditional incentive awards
maximum
accura-
dures to assure
in bank-
represen-
cy”
reporting
discharged
of the class
debts
caused the interests
(2)
1681e(b),
§
after
ruptcy, 15 U.S.C.
diverge
to
from the interests of the
tatives
errors,
being
credit-report
informed of the
because the settlement
a reasonable
Defendants did not “conduct
they
told class
would
reinvestigation to determine whether
they
incentive awards unless
receive
inaccurate,” 15
disputed information [was]
Moreover, the
supported the settlement.
1681i(a).
§
U.S.C.
See also Cal. Civ.Code
significantly
conditional incentive awards
1785.14(b), 1785.16;
§§
Cal. Bus. & Prof.
exceeded in amount what absent class
§ 17200.
Code
get upon
to
settle-
expect
members could
approval.
began
multiple
ment
Because these circum-
as
lawsuits
The cases
The district court
divergence
of in-
filed in 2005 and 2006.1
patent
stances created
history
litigation
appeal
effect of the condi-
procedural
consolidated
The
—the
representa-
purposes
incentive awards to class
complex but not relevant for our
tional
only
tives.
because we reach
one issue raised
this
suits,
simply
they
consolidated the
which raised similar Claimants
need to attest that
claims,
parties began
and the
mediation.
qualify
as
members
receive con-
In
reached a
April
parties
settle-
755,000
Approximately
venience awards.
relief,
injunctive
ment for
which the dis-
class members submitted these claims.
approved August
trict
2008. As
court
Each claimant will receive about $26.
settlement,
part
agreed
of that
Defendants
court preliminarily approved
The
implement procedures
pre-
that would
settlement and provisionally certified the
discharge
pre-bank-
sume the
of certain
7,May
settlement class on
2009. After
ruptcy
appellant challenges
debts. No
class,
two rounds of notice to the
the dis-
settlement.
trict court held a series of fairness hear-
February
parties
reached
ings on the settlement. Several named
monetary
an agreement for
relief. The plaintiffs
formerly
representa-
—
monetary
creates a common
objectors (collectively “Object-
tives—and
million,
fund of
million contributed
$45
Plaintiffs”)
ing
challenged the settlement.
by each
the three defendants. After
the The district court
rejected
considered but
costs of settlement administration are de-
objections
their
and found that the settle-
ducted, the rest of the fund will be distrib-
fair, reasonable,
ment was
adequate.
First,
uted as follows:
the settlement fund
granting
issued an order
final
pay “actual-damage
will
awards” to class
approval of
monetary-relief
they
members who demonstrate that
were
July
on
White v.
Info.
actually
harmed
Defendants’ conduct. Solutions,
Inc.,
F.Supp.2d
employment
Class members denied
will
*6
(C.D.Cal.2011). The court also awarded
$750,
receive
those denied a mortgage or
attorneys’ fees and
to
costs
class counsel.
$500,
housing rental will receive
and those
Objecting
appealed.
Plaintiffs
denied credit or auto loans will receive
appeal, Objecting
On
give
Plaintiffs
sev-
15,000
About
class members
$150.
arguments
why
eral
as to
the settlement
Second,
actual-damage
claimed
awards.
fair, reasonable,
adequate.
was not
pay
the settlement fund will
rep-
the class
only
But we
reach the issue of whether
resentatives and class counsel for their
representatives
class
and class counsel are
prosecuting
service in
the suit. The
adequate
agreement
where the settlement
agreement provides for incentive awards:
payment
conditions
of incentive awards on
19, 2009,
or
Proposed
On
before October
support for the
23(b)(3) Settlement Class Counsel shall
settlement.
application
file an
applications
or
to the
award,
Court for an incentive
to each of
II
the Named
serving
Plaintiffs
as class
representatives in support of the Settle-
We review
ap
the district court’s
ment, and each such award not to
proval
ex-
of a class-action settlement
$5,000.00.
ceed
abuse of discretion.
v. W. Pub.
I),
Corp. (Rodriguez
H63 Hinkson, 1262 sentatives. The settlement awarded the States banc)). (9th Cir.2009) (en $50,000 representatives up 29 class to
each.
noted that in
We
some cases incen-
Ill
proper
tive awards
be
but cautioned
Objecting
awarding
Plaintiffs contend
them should not become
provides
which
practice:
routine
class
“[i]f
“in
to named
for incentive awards
expect routinely to
special
receive
awards
[settlement,” created a con
support of the
recovery,
addition to their share of the
repre
flict of interest between
they may
tempted
accept suboptimal
to
Objecting Plain
sentatives and the class.
the expense
settlements at
of the class
that,
a
of this
tiffs also assert
as
result
they
appoint-
members whose interests
are
conflict,
in conflicted
engaged
class counsel
(alteration
guard.”
ed to
Id. at- 975
represent
representation by continuing
original)
Weseley v.
(quoting
Spear, Leeds
(“Settling
settling
(E.D.N.Y.
Kellogg,
F.Supp.
&
representatives”)
Plaintiffs” or “class
1989)).
magni-
Staton
large
groups
the class at
after the two
associated with incentive
fied
risks
Objecting
developed divergent interests.
because
the awards there were
rep
Plaintiffs thus contend that the class
larger than
payments
much
to individ-
inade
resentatives and class counsel were
members, “eliminating]
ual
a critical
mem
quate
represent
the absent class
on the fairness of the settlement for
check
23(a)(4),
bers.
Fed.R.Civ.P.
class as whole.” Id.
977. Where
23(g)(1)(B). Upon review of the record
representative supports
a class
the settle-
precedents,
agree.
on our
we
and reflection
ment and
treated
settle-
equally
ment, “the likelihood that the settlement is
A
forwarding the
interest to the maxi-
class’s
payments
are
to class
Incentive awards
practically
mum
increas-
degree
possible
for their service to the
But if
of the class
es.” Id.
“such members
Rodri
bringing
class in
the lawsuit. See
provided
special
are
with
‘incentives’ in the
958-59;
see also
guez
*7
agreement, they may
be more
§
McLaughlin on Class Actions
6:28
maximizing those incen-
concerned with
2012).
In
where the class re
ed.
cases
adequacy of
judging
tives than with
the
settlement,
monetary
the awards
ceives
it
to
mem-
applies
the settlement as
class
recovery.
are often taken from the class’s
that
the
large.”
We held
bers
Id..
Although
we have
incen
See id.
disproportionate
so
awards
Staton were
representatives
tive awards for class
recovery
to the
that
the district
class’s
cases,
some
we have told district courts to
finding
that
court abused
discretion
they
carefully
scrutinize
the awards so that
fair, ade-
agreement
the settlement
was
adequacy
the
of the
do
undermine
quate, and reasonable.
Id. at 978.
Staton v. Boe
representatives.
class
See
(9th Cir.2003).
Co.,
I,
ing
again
327 F.3d
In
we
confronted
Rodriguez
scope
Settling
misinterpret
Plaintiffs
the
At the
improper incentive awards.
start
awards,
precedent
of our
about incentive
litigation,
the
several class
begin by reviewing
precedent.
that
so we
agreements
required
that
signed retainer
request
incentive awards
class counsel
Boeing Company,
327 F.3d
Staton
as the
sliding
that
increased on a
scale
975-78,
court’s
we reversed the district
Rod
monetary recovery increased.
class’s
be-
approval of a class-action settlement
I,
at 957. The awards
riguez
dispro-
provided
cause the settlement
$75,000 if
total settle-
maxed out at
the
large payments
repre-
to class
portionately
ing
ment amount was
million or more. Id.
the settlement
the district
expressed disapproval
misapprehended
scope
“We
these incen
the
of our
prior
agreements,
precedents.
again
tive
and stated that
once
[the
We
reiterate
that
courts
agreements]
unacceptable
vigilant
‘created an
dis
district
must be
scrutinizing all incentive awards to deter-
connect between the interests of the con
they
counsel,
destroy
adequacy
mine whether
tracting representatives and class
of the
hand,
representatives.
class
The condi-
on the one
members of the
”
II,
tional incentive awards in this settlement
Rodriguez
on the other.’
B
would
[he]
[under
receive
the settlement]”
As in Staton
the incen-
he did not support
the settlement.
if.
tive
here'corrupt
Class counsel also told the district court
undermining
adequacy
rep-
that they had told
they
other
approv-
resentatives and class counsel. In
way
“don’t see a
for people who don’t
*8
I,
Rodriguez
In
we remanded “for the dis-
at 960. The district court here did not have
trict court to consider whether counsel could
the benefit of
Rodriguez
our decision in
II.
represent
both the class
with
whom there
was an incentive
presume
Settling
3. We must
Plaintiffs
members,
affecting
absentee class
without
the
knew the
agree-
contents of the settlement
entitlement
to fees.”
563 F.3d at
they supported
ment that
in the district court.
II,
the case returned to us
Holder,
1040,
Bingham
See
v.
637 F.3d
1045
court,
relying
after the district
on
(9th Cir.2011) (“[A] party
signs
a written
agreements gave
found "that
the incentive
contract
'in the absence of fraud or other
rise to a conflict of interest between the class
wrongful
part
act on the
of another contract-
representatives and the other members of the
ing party,
conclusively presumed
is
to know
representa-
class that tainted [class counsel's]
” (quoting
its contents and to assent to them.’
tion, and
[therefore
...
denied]
Lord,
27 Richard A.
Williston on Contracts
(internal
fees.”
1165
objections.
over
to receive an
ment
their
The condition
incen-
support
here,
Settling
at issue
appeal,
On
Plaintiffs’
incentive awards
like the
tive award.”
al
interpretation
Staton,
disproportionately
for an alternative
argument
large awards in
unpersuasive.
fatally
for
rep
alter the calculus
the class
resentatives,
them
pushing
to be “more
$5,000
receiving
the
of
prospect
With
maximizing
concerned with
own
[their
only
they supported
if
incentive awards
gain]
judging
than
the adequacy
with
of
settlement, Settling
very
Plaintiffs had
the
applies
the
as it
mem
to class
than the rest of the
interests
different
Staton,
bers at
at 977.
large.”
327 F.3d
Like the agreements
Rodriguez,
class.
changed
awards
the conditional incentive
The
in
representatives’ divergent
representa-
motivations
the class
the
terests, as a result of the
incen
conditional
solely
being
Instead of
concerned
tives.
payments,
ability
tive
undermined their
to
the
adequacy
about the
of
settlement for
“fairly
protect
adequately
the interests
members,
repre-
the class
the absent
23(a)(4).
Fed.R.Civ.P.
This
class.”
$5,000
now
to
sentatives
had a
incentive
requirement
due-process
is rooted
con
regardless
the
cerns — “absent class members must be af
promise
they
and a
reward if
fairness
no
representation
forded adequate
before en
opposed
settlement.
conditional
a
try of
which
judgment
binds them.”
incentive
removed a critical check
awards
1011,
Chrysler Corp.,
Hanlon v.
150 F.3d
on the fairness of the class-action settle-
(9th Cir.1998).
ment,
judg-
which rests on the unbiased
representation depends
Adequate
representatives similarly
ment of class
sit-
antagonism
“an
upon
absence of
a
[and]
absent
uated to
class members.
sharing
representa
of interests between
Although
conditional
incentive
Gleich,
tives and
absentees.” Molski
to
awards themselves are sufficient
invali-
(9th Cir.2003),
937,
overruled
settlement,
significant dispar-
date
by
on other
Dukes v.
grounds
Wal-Mart
ity between the incentive awards and the
Stores,
Cir.2010).
Inc.,
payments to the
of the class members
rest
Where,
here,
as
further
the conflict of interest
exacerbated
significantly
face
different
incen
financial
conditional
caused
tives than the rest of the class because of
noted,
below
awards. As
district court
are
the conditional incentive awards that
potential
over
conflicts
be
“[e]oncerns
settlement,
built into
the structure
where,
here,
especially pressing
as
that the
are
say
we cannot
greatly
proposed service fees
exceed
Prods.,
adequate.
Amchem
Inc. v.
payments
to
class members.”
absent
Windsor,
521 U.S.
S.Ct.
White,
F.Supp.2d
at 1112. There is a
(1997) (“The settling par
H67
permit
appearance
in not
even the
of divided
provision
conditional-incentive-awards
the inter-
loyalties
Kayes
made
(quoting
counsel.”
actually
(9th
representatives
Co.,
1449,
ests of the class
Pac. Lumber
51 F.3d
1465
class.
of the rest of the
Cir.1995))).
different than those
lo-
Under the district court’s
rules,
governs
cal
California law
whether
I,
holding that the
Rodriguez
after
an ethical violation has occurred. See C.D.
a conflict of
agreements created
retainer
83-3.1.2;
II,
Rodriguez
Cal. R.
see also
interest,
presence
that the
we “conclude[d]
C 959; Rodriguez at F.3d at 688 F.3d attempt 656. Class counsel made no Settling Plain- Having determined the conflict or to con- obtain a waiver for adequately represent tiffs did not by alerting tain the the district conflict class, question turn to the we now I, at 959. court. See lack of whether the class Instead, position incen- class counsel took the adequacy on the conditional —based tive awards —also made class counsel inad- not even exist. More- that a conflict did hold equate represent over, the class. We pro- eonditional-incentive-awards that it did. settling all class counsel. vision affected F.3d at 961. Class fiduciary duty to the Cf.
Class counsel has a
could
adequate
counsel thus was not
reporting
a whole “and it includes
class as
not settle the case on behalf of
absent
district
potential conflict issues” to the
representation
class members. Conflicted
948;
see
court.
for re-
provides
independent ground
an
(“The responsibility
of class
also id.
(citing
id.
Fed.
versing the settlement.
whose
counsel to absent class members
Cf.
23(a)(4),
Because we re-
attorneys
(g)(4)).
is limited does R.Civ.P.
control over their
adequacy
we
on the condition-
the reasonableness
4. Because
reverse based
presented.
express
opinion on
million settlement
al incentive
we
no
*11
settlement,
verse the
we must also reverse
sent the interests of the class. We must
attorneys’
the awards of
fees and costs.
vigilant
guarding against
be
conflicts of
Bluetooth,
See In re
REVERSED AND REMANDED. IV HADDON, District Judge, concurring: sum,
In
we hold that the district court
join
I
in the decision
approval
abused its discretion in
to reverse
approving this set-
tlement where the class
of the settlement for
clearly
the reasons
and class counsel
adequately repre-
did not
Judge
stated in
Gould’s well-written opin-
clear,
awards,
5. To be
we reverse both awards of
of the conditional incentive
we do not
attorneys’ fees and both awards of costs.
arguments
reach the
ap-
other
raised
peal.
particular,
we decline to review At-
6. Because we reverse the settlement and the
torney-Appellant
challenge
Charles Juntikka’s
awards of fees and costs based on the condi-
restricting
to the district court’s order
his
tional incentive
we do not reach the
ability to contact his former clients. The is-
issue of whether the subset of class counsel
sue is moot because we reverse the order
suits,
brought
the Acosta and Pike
which
approving
oppos-
that Juntikka
case,
were consolidated with this
faced an
again
es and the issue
not arise
on re-
independent conflict of interest because of the
does,
mand.
If it
the district court should
fee-sharing agreement
they executed with the
any
address whether
new restrictions on
rest of class counsel. The district court
Bernard,
speech comply with
Oil Co. v.
Gulf
light
should revisit that issue in
of our hold-
452 U.S.
101 S.Ct.
orchestrating advocating disparate any award scenario without con- for, of, recognition or even the obvi-
cern underscore, presented my conflicts
ous
opinion, singularly that class counsel were doing expedi-
committed to whatever was together
ent to hold an offer of settlement did, might yield, as it an allowance of lawyers’
over million in fees.1 self-interest, coupled
Such adherence disregard
with the obvious fundamental to all
responsibilities class members—
members who had little or no real voice or process
influence not find —should
favor or Al- any be rewarded at level.
though within the discretion of the district instance,
court in the first I conclude that disqualified
class counsel should be from
participation any ultimately fee award
approved by upon the district court resolu-
tion of the case on the merits. SCHWAB; Kathryn
Michael P. Kleinman,
J. Petitioners-
Appellees, INTERNAL
COMMISSIONER OF
REVENUE, Respondent-
Appellant.
No. 11-71957. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted Feb. April
Filed 1. The total fees were $16,747,147.68.-