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initial opinion finding the attorneys’ fees to be too high was withdrawn; the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.
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2 comments:
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?
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.
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