Learn methods for calculating attorneys' fees in class actions and the takeaways from the recent case law.
Attorneys' fees in class actions have increasingly become a stumbling block to both settling large class actions and obtaining court approval of any settlement. The courts are increasingly hostile to clear-sail provisions and inflated valuations of injunctive relief to justify high fee awards. This presentation will discuss the various methods for calculating the plaintiffs' attorneys' fees in class actions, the takeaways from the recent case law that casts a skeptical eye to many common features of fee agreements, and how this impacts particular types of class actions settlements (such as coupon settlements, claims-made settlements, and common fund settlements). The presentation will conclude with a prediction on how this will play out in the future, with a special focus on the issue from the perspective of defendants in class actions.
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Agenda
Calculating Attorneys' Fees in Class Actions
- Fed. R. Civ. P. 23: Courts Have a Duty to Make Sure That Settlement Agreements Are Fair and Reasonable, Including the Amount of Attorneys' Fees
- Methods of Calculating Attorneys' Fees
- Lodestar
- Percentage of Recovery Method
Common Issues With Settlements and Attorneys' Fees
- Bluetooth Warning Signs
- Class Counsel Receives Disproportionate Amount From the Settlement
- ClearSailing Provision: Defendant Agrees Not to Challenge the Fee Amount for Class Counsel
- Valuing Injunctive Relief
- Courts Have Struck Down Settlement Agreements With Injunctive Relief That Provides Little to No Benefit for the Class
- Case Law Suggests That Appellate Courts Closely Examine Injunctive Relief and How Much Value It Provides to Class Members
- Lodestar
- Not Always a Reasonable Way to Calculate Attorneys' Fees
- Coupons and Attorneys' Fees
- Coupons: Instead of Paying out Cash to Class Members as Part of the Settlement Agreement, the Defendant Provides a Coupon That Class Members Can Use Towards Buying Defendant's Products, Services
- The Ninth Circuit Applies a MultiFactor Test to Determine Whether a Settlement Agreement Is a Coupon Settlement, See in Re Easysaver Rewards Litig., 906 F.3d 747, 755 (9th Cir. 2018)
- Under CAFA, Calculating the Size of the Settlement Fund (and in Turn, the Fee Award) Must Account for the Redemption Rate of the Coupons, See in Re Easysaver Rewards Litig., 906 F.3d 747, 758 (9th Cir. 2018)
- In the Ninth Circuit, Courts Must Use the PercentageOfValue Method When Analyzing Coupons and Attorneys' Fees, See Chambers v. Whirlpool Corp., 980 F.3d 645, 660 (9th Cir. 2020)
- ClaimsBased Settlements and Attorneys' Fees
Looking Ahead
- Will Parties Start Litigating Attorneys' Fees More Frequently?
- Will Courts Start Insisting Fees Be Tied to the Actual Claims Made?
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This course was last revised on February 2, 2022.
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Faculty
Timothy W. Loose
Gibson, Dunn & Crutcher LLP
- Partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP and a member of the firm’s Litigation, Class Actions, and Privacy, Cybersecurity, and Data Innovation Practice Groups
- Has extensive experience in a broad range of business litigation, with a focus on class and mass action litigation
- Frequently defends the products and advertising of companies in the technology, banking, automotive, health care, food, and entertainment industries, and he has defended several companies in state and federal court against claims of unfair business practices, false advertising, and concealment
- Recognized by Law360 as a Rising Star in class action in 2017 and as a Rising Star in cybersecurity and privacy in 2018
- Named to Global Data Review’s 2018 “40 Under 40” list, as one of “the 40 individuals who represent the best and the brightest of the data law bar around the world”
- Admitted to practice before all California State Courts, the Ninth Circuit Court of Appeals, the Fourth Circuit Court of Appeals, and the Northern, Eastern, and Central Districts of California
- Before joining the firm, he served as a law clerk to the Honorable Ronald S.W. Lew in the United States District Court for the Central District of California
- Law degree, Order of the Coif and member of the Journal of International Law and Foreign Affairs, UCLA School of Law; B.A. degree with a double major in rhetoric and political science, magna cum laude, University of California at Berkeley
- Can be contacted at 213-229-7746 or [email protected]
Jeremy S. Smith
Gibson, Dunn & Crutcher LLP
- Associate in the Los Angeles office of Gibson, Dunn & Crutcher LLP and practices in the firm’s Litigation, Class Actions, Privacy, Appellate, and Constitutional Law, and False Claims Act/Qui Tam Defense Practice Groups
- Represented clients in a wide range of litigation in both federal and state courts
- Has defended clients in class actions across numerous substantive areas of law, including privacy, the Telephone Consumer Protection Act (TCPA), consumer fraud, and insurance law; also represents clients on appeal in a wide range of matters, with a particular focus on class action appeals and appellate proceedings in California state court
- Co-author of the Privacy Class Actions chapter in the American Bar Association’s A Practitioner’s Guide to Class Actions, Third Edition; he also frequently writes about class action and appellate issues in the Daily Journal and Law360
- Before joining Gibson Dunn, he served as a law clerk to the Honorable Kathleen Cardone of the United States District Court for the Western District of Texas
- Graduate, magna cum laude, Cornell University Law School
- Can be contacted at 213-229-7973 or [email protected]
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