Thursday, September 06, 2012

9th Circuit vacates opinion condemning class action fee award

Dennis v. Kellogg Co., --- F.3d ----, 2012 WL 3800230 (C.A.9 (Cal.))

The court vacated its previous opinion and substituted this one, which reversed the district court’s approval of the settlement, vacated the judgment and award of attorney’s fees, and remanded for further proceedings.  The most significant change: the portion of the initial opinion finding the attorneys’ fees to be too high was withdrawn; the decision on the merits rendered the fee issue moot.


Paul Alan Levy said...

Mootness cannot be the sole explanation for elimination of the fee discussion. The first opinion also vacated the settlement. It was a discretionary decision to give two separate grounds for the reversal instead of just one

What was in the petition for rehearing on the fees issue that might have given the panel second thoughts about that part of its opinion?

Rebecca Tushnet said...

It's an excellent question, Paul, that unfortunately I haven't had time to explore. The initial discussion was pretty disparaging (and if taken seriously suggested that benchmarking is actually a one-way ratchet, so that fees will always go down over time). Maybe it was just that, along with "the individual recovery is so small!" that convinced the court of appeals it had gone over the top.