A few weeks ago, the Duke Law Center for Judicial Studies held a conference on class action settlements in San Diego, to discuss best practices in the wake of the likely Rule 23 amendments. Like all of its conferences, this one was held under the Chatham House Rule, which dictate that you can repeat the substance of anything said but not the identity of the speakers.  The candor these rules foster is extraordinary, and lead to valuable discussions.  So, with that in mind, here are the five most important things attendees took away from the conference.

  1. Plaintiff-oriented amendments
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My apologies for missing last Thursday’s post: life with a newborn occasionally catches up with one. Nonetheless, finishing out our July Class Action Summer Camp, today we’ll focus on Rule 23(e) and class-action settlements. The vast majority of class actions settle, but because class-action settlements implicate so many different interests (the lawyers, the defendant, the absent class members, the court), they require an additional level of approval from the court. In addition, a number of different settlement structures have evolved that class-action lawyers must learn to pay attention to.

Ten Cases to Educate You

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Last Friday, Thomson/Reuters reporter Alison Frankel (who should be on every class-action lawyer’s RSS feed) wrote about an example of a new strategy class-action defendants have developed over the past few years. That strategy? Work with the government. In this case, publishers Harper Collins and Hachette–two of the defendants in both the Justice Department’s recent price-fixing complaint and a class action making the same allegations–have settled with 16 state attorneys general. Harper Collins has announced that it plans to settle with the other 34 state AGs as well if possible. Leaving aside the fact that settling with a government … Continue Reading

Cardozo law professor Lester Brickman has been a longtime critic of the contingency fee system. So it’s no surprise that his latest work, Lawyer Barons: What Their Contingency Fees Really Cost America (introduction here), has a lot to say about how contingency fees skew the incentives of plaintiffs’ lawyers. Among the most interesting observations he makes:

Many contingency fees don’t reflect actual risk. Brickman documents how often, lawyers don’t bear the risk of not getting paid, in part because of "careful case selection." This is not shocking; most plaintiffs’ lawyers admit readily to being selective about the cases they … Continue Reading

 Brian Fitzpatrick’s argument that courts should approve more fees for class action plaintiffs’ lawyers has generated its share of discussion. And a few months ago, the Seventh Circuit weighed in (sort of), during an argument about fees for objectors in In re Trans Union Corp. Privacy Litigation.

Judge Posner (who has decided a number of class action appeals this year) wrote the opinion, and observed:

It is a curiosity of class action litigation that often there is greater ferocity in combat among the class lawyers over the allocation of attorneys’ fees than there is between the class lawyers

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 Most professional objectors are fee-seekers (or, as one court called them, "remoras"). But not all; some, like the Public Citizen Litigation Group and the Center for Class Action Fairness, are non-profits that seek to keep class settlements for the benefit of class members instead of class counsel.

Alan B. Morrison, one of the founders of the Public Citizen Litigation Group and a member of the American Law Institute, has long experience in objecting to class actions. As he has put it:

What we found was that all the lawyers in every case, as well as

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Last year, Vanderbilt professor Brian Fitzpatrick made the bold argument that class action plaintiffs’ attorneys aren’t paid enough. Now, the University of Pennsylvania Law Review’s online presence, PENNUmbra, has a response by University of Arizona professor David Marcus

Marcus levels several criticisms against Fitzpatrick’s proposal. I’m going to ignore the easy ones and focus on two of his more interesting arguments. First, Marcus focuses on the effect of the Rules Enabling Act:.

Fitzpatrick believes that Federal Rule of Civil Procedure 23(h), which licenses "reasonable" fee awards in class actions, permits courts to do what he urges. But the

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