Case Information
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Before K ANNE R OVNER , and W OOD , Circuit Judges. W OOD , Circuit Judge. Airborne Express, Inc. (now known as DHL Express (USA), Inc., but referred to as “Airborne” *2 throughout this opinion) is in the business of delivering packages. In 2002, Synfuel Technologies, Inc., filed this lawsuit on behalf of itself and other Airborne customers claiming that the shipper’s practice of charging customers a five pound default rate if they failed to identify the weight of their package violated federal common law. After the district court denied Airborne’s motion to dismiss, the company decided to come to the table. A settlement worked out by the parties proposed to compensate class members with up to four pre-paid Airborne shipping envelopes or $30 in cash and to require Airborne to make changes to its billing practices. Several class members filed objections to the settlement, maintaining, among other things, that the compensation provided to class members was nominal. Nevertheless, after a hearing, the district court approved the settlement and awarded class counsel over $600,000 in attorneys’ fees.
Several objectors filed appeals. All the objectors argue that the district court lacked jurisdiction over this suit. Objectors Kearney D. Hutsler, P.C., and Thompson, Hutsler & Carson (the “Hutsler objectors”) additionally contend that the settlement is unfair to the class members. Objector Joel Shapiro argues that the settlement notice approved by the district court was insufficient. Objectors W. Andrew Hoffman of the Hoffman Legal Group, Pritchard, McCall & Jones, LLC, Professional Asset Strategies, Inc., Asset Strategies, Inc., and N. Albert Bacharach, Jr. (the “Hoffman objectors”) argue that the district court wrongly denied their motion to intervene. Finally, class counsel Korein Tillery appeals the district court’s attorneys’ fees award, contend- ing that it was too low.
We conclude that subject matter jurisdiction exists, although based on diversity jurisdiction, not federal com- mon law. On the merits, we vacate the district court’s approval of the settlement agreement because the court did not adequately evaluate whether the settlement is fair to *3 class members. We do not reach the other issues raised by the objectors and class counsel.
I
Prior to this lawsuit, if a customer shipping a Letter Express package (an envelope intended to carry eight ounces or less at a special fixed rate) with Airborne failed either to indicate the actual weight of the package on the airbill or to write the number “1” in the weight section, she was charged a default rate equivalent to the cost of sending a five pound shipment. The actual cost of these shipments varied depending on the customer’s particular arrangement with Airborne, but the record indicates that the default charge was typically about $5 higher than the regular Letter Express rate.
In April 2002, Synfuel filed a complaint against Airborne, asserting that the company’s practice of charging a default rate constitutes a “penalty” and that “[f]ederal common law prohibits the imposition of a penalty, as opposed to liqui- dated damages, under any contract.” Although Synfuel filed the initial suit only on its own behalf, an amended com- plaint added class allegations and sought to certify a class made up of “All Airborne Express, Inc. customers who have been assessed Letter Express charges based on a five pound default rate within the last ten years.” Airborne moved to dismiss the suit, contending that application of a default rate was not a penalty but rather “an alternative contrac- tual rate that determines how the sender will be charged for shipment.” In support of this argument, Airborne attached a copy of one of its airbill forms, which states on its face: “If you fail to record the weight of the shipment on the airbill at the time of tender, we may, at our discretion, apply either a default rate or an additional service charge.”
In October 2002, the district court denied Airborne’s motion to dismiss, reasoning that “the default weight *4 provision resembles a penalty provision, rather than a liquidated damages provision or an alternative contract.” The parties then entered into settlement discussions, eventually reaching an agreement in October 2003. The proposed settlement defines a settlement class of Airborne customers who were charged the default rate between April 11, 1992, and November 30, 2003. It allows each class member to submit a proof of claim form and supporting documentation and receive pre-paid Letter Express pack- ages, worth approximately $13 each, according to the following schedule:
1-3 default charges = 1 package 4-7 default charges = 2 packages 8-12 default charges = 3 packages 12+ default charges = 4 packages Alternatively, a class member may opt to receive a cash payment instead of the pre-paid packages:
1 default charge = $2.50 2 default charges = $5.00 3 default charges = $7.50 4-6 default charges = $2.00 per charge >6 default charges = $1.50 per charge up to a maxi- mum of $30.
A class member who submits a proof of claim form without providing supporting documentation is entitled to a single pre-paid Letter Express package.
In addition to compensating class members directly, the settlement requires Airborne to “implement new . . . training/enforcement measures intended to substantially increase the likelihood that packages are properly identified as Letter Express packages and that customers will include *5 the necessary information in airbills,” and it requires Airborne drivers to fill in missing package weights on airbills. The agreement does not, however, altogether prohibit Airborne from charging the default rate. Finally, the settlement calls for Airborne to pay class counsel Korein Tillery $4.95 million in attorneys’ fees and up to $45,000 in costs, and for class counsel to petition the court for an incentive award of $10,000 to be paid to Synfuel.
The district court conditionally certified the settlement class, approved a notice to be mailed to over 240,000 potential class members and printed in several national- circulation publications, and scheduled a fairness hearing for April 2004. By the date of the hearing, approximately 7,000 individuals (a paltry three percent) had filed proofs of claim and eight objections had been filed.
After hearing oral argument by the parties and objectors at the fairness hearing, the district court approved the settlement in a January 2005 order. The court rejected the complaint raised by the Hutsler objectors that the settle- ment provided insufficient compensation to class members, stating that it was “generous in light of the fact that Plaintiff’s case is subject to a number of strong defenses.” The district court also rejected the argument raised by objector Shapiro that the notice provided to class members was inadequate because several publications incorrectly stated that claims were due by June 23, 2004, as opposed to the deadline called for in the agreement of 60 days after final approval of the settlement. The Hutsler objectors and Shapiro filed timely appeals of the district court’s approval of the settlement.
After a separate hearing, the court awarded class counsel Korein Tillery $600,250 in fees, significantly less than the settlement agreement contemplated. In response to this order, the Hoffman objectors, who had not previously appealed the district court’s approval of the settlement *6 6
almost a year earlier, filed a motion to intervene to “preclud[e] reversion of the $4.4 million fee reduction to [Airborne].” The district court denied this motion because, among other reasons, it was untimely and class counsel had already filed a motion seeking “the exact same relief.”
II A Although the issue of subject matter jurisdiction was not addressed below, it should have been; only after several supplemental filings have we finally been able to assure ourselves that the district court’s jurisdiction was proper. Before the district court, class counsel maintained that jurisdiction was proper under 28 U.S.C. § 1331 because its claim arose under “federal common law.” This is obviously wrong. Later, the possibility of diversity jurisdiction under 28 U.S.C. § 1332 emerged; we discuss that below.
The Supreme Court has stressed that, when it comes
to jurisdiction, the “cases in which judicial creation of a
special federal rule would be justified . . . are . . . few and
restricted,”
Atherton v. FDIC
, 519 U.S. 213, 218 (1997)
(quoting
O’Melveny & Myers v. FDIC,
512 U.S. 79, 87
(1994)), and are limited to those involving “uniquely federal
interests
.” Boyle v. United Technologies Corp.
,
These cases trace federal common law authority in this
specialized area to Congress’s 1887 enactment of the
Carmack Amendment to the Interstate Commerce Act, a
statute that “specified that federal law [ ] controlled liability
for goods lost or damaged during interstate shipments.”
Sam L. Majors Jewelers
Presumably aware of the jurisdictional flaw in the case,
class counsel sought and received permission from this
court to add diversity jurisdiction allegations to the com-
plaint as permitted by 28 U.S.C. § 1653. In these allega-
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tions, counsel stated that at the time Synfuel filed its
complaint it was an Illinois limited liability company with
its principal place of business in Illinois (it has since
incorporated, hence its current designation as “Synfuel
Technologies, Inc.”). Airborne was, on the other hand, a
Delaware corporation with its principal place of business in
the State of Washington. We could not determine based on
these pleadings whether the parties were completely
diverse, however, because unfortunately the amended
complaint failed to provide us with the citizenship of each
of Synfuel’s members. See
Wise v. Wachovia Securities,
LLC
,
The amended complaint also stated that 28 U.S.C.
§ 1332’s amount in controversy requirement was met by the
value of injunctive relief demanded, including “the cost of
altering [ ] Airborne’s method of doing business” to reduce
the incidence of default charges, a cost plaintiffs estimate at
approximately $30 million over four years. In determining
the amount in controversy, “[t]he court cannot just add up
the damages sought by each member of the class”; rather,
“[a]t least one named plaintiff must satisfy the jurisdic-
tional minimum.”
In re Brand Name Prescription Drugs
Antitrust Litig.
123 F.3d 599, 607 (7th Cir. 1997) (citing
Snyder v. Harris
, 394 U.S. 332 (1969), and
Zahn v. Int’l
*9
Paper Co.
, 414 U.S. 291 (1973)). As the Supreme Court
recently clarified, however, where “at least one named
plaintiff in the action satisfies the amount-in-controversy
requirement, § 1367 does authorize supplemental jurisdic-
tion over the claims of other plaintiffs in the same Article
III case or controversy, even if those claims are for less than
the jurisdictional amount.”
Exxon Mobil Corp. v. Allapattah
Servs., Inc.
,
The key jurisdictional issue in this case, then, is whether Airborne could alter the default weight billing practice for an individual customer—in which case the value of the injunction to each individual class member is quantifiable and presumably quite small—or if it could comply with the proposed injunction only by undertaking a systemic change of its weighing and billing procedures, a change that would cost the same whether it was made for just one customer or every customer served by the company. When confronted with this question at oral argument, both Synfuel and Airborne agreed that the changes sought in the complaint could be instituted only on a systemic basis, because each package shipped by Airborne moves through an integrated delivery system. Based on this representa- tion, we conclude that plaintiffs’ complaint also meets the amount in controversy requirement and that we have diversity jurisdiction over this case.
Because the case was settled, we do not need to concern
ourselves with the theory of substantive law on which
plaintiffs were, or could have been, relying. Pleadings do
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not need to spell out legal theories in any event, and we can
imagine state-law claims for consumer fraud and deceptive
practices that conceivably could apply here. (The implica-
tions of the change in applicable law for class certification
are another matter, which is not before us at this time. The
district court, however, is free to revisit this issue on
remand. See F ED . R. C IV . P. 23(c)(1)(C);
In re
Bridgestone/Firestone, Inc.,
B
We turn now to the most substantial challenge raised by the objectors on the merits, which is the Hutsler ob- jectors’ claim that the district court erred in approving the settlement agreement as fair to class members.
A district court may approve a settlement only if it is “fair, reasonable, and adequate.” F ED . R. C IV . P. 23(e)(1)(C). Although our review of a district court’s approval of a class action settlement is limited to whether there was an abuse of discretion, Isby v. Bayh , 75 F.3d 1191, 1196 (7th Cir. 1996), we insist that district courts “exercise the highest degree of vigilance in scrutinizing proposed settlements of class actions.” Reynolds v. Beneficial Nat’l Bank , 288 F.3d 277, 279 (7th Cir. 2002). In the past, we have gone so far as to characterize the court’s role as akin “to the high duty of care that the law requires of fiduciaries.” Id. at 280.
The Hutsler objectors complain particularly about the settlement’s “capped regressive scale” of compensation, contending that the payment structure is disadvan- tageous to class members who were charged the default rate *11 by Airborne numerous times. They also argue that provid- ing class members with pre-paid Letter Express packages is analogous to providing them with coupons, a method of compensation that has been widely criticized. See, e.g. , Christopher R. Leslie, “The Need To Study Coupon Settle- ments in Class Action Litigation,” 18 G EO . J. L EGAL E THICS 1395, 1396-97 (2005) (identifying three problems with coupon settlements: (1) it is doubtful that they “provide meaningful compensation to most class members”; (2) they often “fail to disgorge ill-gotten gains from the defendant”; and (3) they may force class members “to do future business with the defendant”); Geoffrey P. Miller & Lori S. Singer, “Nonpecuniary Class Action Settlements,” 60 L AW & C ONTEMP . P ROBS . 97, 108 (1997) (noting that for many consumers “the right to receive a discount [or coupon] will be worthless”).
In order to evaluate the fairness of a settlement, a district
court must consider “the strength of plaintiffs’ case com-
pared to the amount of defendants’ settlement offer, an
assessment of the likely complexity, length and expense
of the litigation, an evaluation of the amount of opposition
to settlement among affected parties, the opinion of compe-
tent counsel, and the stage of the proceedings and the
amount of discovery completed at the time of settlement.”
Isby
,
we have recognized that “[a] high degree of precision cannot be expected in valuing a litigation,” the court should nevertheless “insist[ ] that the parties present evidence that would enable [ ] possible outcomes to be estimated,” so that the court can at least come up with a “ballpark valuation.” Id. at 285.
In assessing the strength of the plaintiffs’ case, the district court accepted class counsel’s contention, largely unsupported by any evidence or analysis, that the regres- sive payment schedule and $30 cap appropriately re- flected the impact of the statute of limitations and the voluntary payment doctrine on the class’s claims against Airborne. This latter doctrine, “a corollary to the mistake of law doctrine[,] . . . holds that a person who voluntarily pays another with full knowledge of the facts will not be entitled to restitution.” Randazzo v. Harris Bank Palatine, N.A. F.3d 663, 667 (7th Cir. 2001). The court reasoned that “[g]iven that a member is more likely to have ‘full knowl- edge of the facts’ after each successive default charge, counsel for the class and [Airborne] have appropriately incorporated a capped regressive scale to reflect the proba- bility of a member’s recovery.”
While we do not dispute that the statute of limitations and the voluntary payment doctrine may have some relevance to certain class members’ claims against Air- borne, we cannot glean from the district court’s opinion how it determined that this particular payment schedule and level of compensation is fair. In considering the fairness of the settlement, the court did not attempt to quantify the value of plaintiffs’ case or even the overall value of the settlement offer to class members. Nor did it estimate how many class members’ claims would be barred by the statute of limitations or the voluntary payment doctrine. In fact, the only effort to value the litigation that appears in the record is the Hutsler objectors’ estimate that Airborne overcharged class members by $75 million during the *13 relevant period, a figure the district court dismissed as irrelevant to its evaluation of the fairness of the settlement.
Our confidence in the fairness of the settlement is further
undermined by the agreement’s bias toward compensating
class members with pre-paid Letter Express envelopes
instead of cash. Pre-paid envelopes, like coupons, are a form
of in-kind compensation. “[C]ompensation in kind is worth
less than cash of the same nominal value,” since, as is
typical with coupons, some percentage of the pre-paid
envelopes claimed by class members will never be used and,
as a result, will not constitute a cost to Airborne.
In re
Mexico Money Transfer Litig.
Finally, we are not persuaded by Synfuel’s contention that the operational changes required by the settlement “will result in over $30 million in savings that will flow *14 directly into the pockets of Class members.” These changes will benefit only those class members who continue to purchase services from Airborne. The value of these operational changes must also be discounted to account for the fact that at least some, if not most, class members will not fail to record the weight of their packages in the future. It is future customers who are not plaintiffs in this suit who will reap most of the benefit from these changes. The class complaint specifically sought “[a] sum of money that represents the difference between the illegal penalties imposed on the Plaintiff and the Class and the amount that should have been imposed.” The fairness of the settlement must be evaluated primarily based on how it compensates class members for these past injuries.
Since we conclude that the district court abused its discretion by approving the settlement without adequately evaluating its fairness, we need not reach the other argu- ments raised by the objectors, nor the cross-appellants’ appeal of the court’s attorneys’ fees award.
III
We therefore V ACATE the district court’s approval of the settlement agreement and R EMAND for further proceed- ings consistent with this opinion.
A true Copy:
Teste: ________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—9-11-06