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Rules 23(e) and 23(h) in Class Action Attorneys' Fees

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.

66 minutes
Course Exam
Certificate of Completion
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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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Over 35 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.

Credits

OnDemand Course

Applications have not yet been submitted for Delaware, Idaho, Kentucky, Oklahoma, South Carolina, and Wyoming CLE for this course. However, if you are interested in obtaining CLE for any of the listed states or have any additional credit questions please email us at [email protected] or call us at 866-352-9540.

This course was last revised on February 2, 2022.

Call 1-866-352-9540 for further credit information.

  • AK CLE 1.0
     
  • Alaska attorneys may receive 1.0 hours of continuing legal education for completing this program. Please contact the Alaska Bar Association or go to www.alaskabar.org for details regarding reciprocity with other states.
     
  • AL CLE 1.1
     
  • This course or a portion thereof has been approved by the Alabama State Mandatory Continuing Legal Education Commission for a maximum of 1.1 hours credit.
     
  • AR CLE 1.0
     
  • This course has been approved for 1.0 hours of CLE by the Arkansas CLE Board.
     
  • Arizona CLE 1.0
     
  • The Arizona State Bar does not pre-approve or pre-certify MCLE programs. However, records of this program and attendance will be maintained by Lorman Education Services for auditing purposes. This activity may qualify for up to 1.0 hours toward your annual CLE requirement for the State Bar of Arizona.
     
  • CA MCLE 1.0
     
  • Lorman Business Center, LLC. is a State Bar of California approved MCLE sponsor and this course qualifies for 1.0 CLE hours of participatory credit.
     
  • CT CLE 1.0
     
  • Neither the Connecticut Judicial Branch nor the Commission on Minimum Continuing Legal Education approve or accredit CLE providers or activities. This course has been approved for CLE credit in jurisdictions aside from CT and therefore it automatically meets the content and delivery requirements in Connecticut. Credit is based on a 60 minute credit hour and shall be awarded as follows: 1.0 CLE credit(s).
     
  • GA CLE 1.0
     
  • This program has been approved by the Georgia Commission on Continuing Lawyer Competency for 1.0 CLE hours.
     
  • HI CLE 1.0
     
  • This program was approved by the Hawaii State Board of Continuing Legal Education for 1.0 CLE credit hours.
     
  • IL CLE 1.0
     
  • This course was approved for a total of 1.0 hours of MCLE Credit by the Illinois MCLE Board.
     
  • IN CLE 1.1
     
  • This program has been approved by the Indiana Commission on Continuing Legal Education. Participating attorneys are eligible to receive up to 1.1 hours of Distance Education credit.
     
  • ME CLE 1.0
     
  • This course has been approved by the State of Maine Board of Overseers of the Bar. Lawyers who complete this course shall receive 1.0 hours of CLE credit under M. Bar R. 5.
     
  • MN CLE 1.0
     
  • This program has been approved by the Minnesota Board of Continuing Legal Education for 1.0 hours of credit.
     
  • MO CLE 1.3
     
  • This course qualifies for self-study CLE credit in Missouri.
     
  • MS CLE 1.1
     
  • This program has been approved by the Mississippi Commission on Continuing Legal Education for a maximum of 1.1 credit hours.
     
  • NC CLE 1.0
     
  • This program has been approved by the North Carolina State Bar Board of Continuing Legal Education for 1.0 CLE hours.
     
  • ND CLE 1.0
     
  • North Dakota CLE policy does not allow for pre-approval of any self-study courses. This course may qualify for up to 1.0 hours of CLE credit.
     
  • NH MCLE 1.1
     
  • NH MCLE does not approve or accredit CLE activities for the NH Minimum CLE requirement. Lorman Education Services believes this Ondemand course meets the requirement of NH Supreme Court Rule 53 and may qualify for CLE credit(s). Program Length: 66 Minutes.
     
  • NJ CLE 1.3
     
  • This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 1.3 hours of total CLE credit.
     
  • NM CLE 1.1
     
  • This program has been approved by the New Mexico Minimum Continuing Legal Education Board for 1.1 hours of credit.
     
  • NV CLE 1.0
     
  • This program has been approved by the Nevada Board of Continuing Legal Education for 1.0 CLE hours.
     
  • NY CLE 1.0 including Areas of Professional Practice 1
     
  • This course has been approved in accordance with the requirements of the New York Continuing Legal Education Board for up to a maximum of 1.0 credit hours in the area(s) of Areas of Professional Practice for 1.00 hour. Each hour may be counted only as satisfying one category of credit. Duplicate credit for the same hour of instruction is not permitted. This course qualifies for both established and newly admitted attorneys. Lorman Business Center, LLC. has a financial hardship guideline. Please contact customer service at 1.866.352.9539 for instructions on how to apply.
     
  • OH CLE 1.0
     
  • This course has been approved by the Ohio Supreme Court Commission on Continuing Legal Education for 1.0 CLE credit hours. Please note: No more than twelve (12) hours of self-study CLE credit for any biennial reporting period may be earned by an Attorney or Judge under Regulation 409.2. To fulfill CLE requirements for self-study, web-based programs, you must complete 100% of the polling questions during the program. Your hours will be filed electronically within thirty (30) business days by Lorman Education Services provided you fulfilled 100% attendance and polling questions answered.
     
  • PA CLE 1.0
     
  • This Distance Learning program has been approved by the Pennsylvania Continuing Legal Education Board for 1.0 hours of substantive law, practice and procedure CLE credit.
     
  • RI CLE 1.0
     
  • This program has been approved by the Rhode Island Mandatory Continuing Legal Education Commission for 1.0 hours of CLE credit.
     
  • TN CLE 1.1
     
  • This program has been approved as a distance learning format by the Tennessee Commission on Continuing Legal Education for a maximum of 1.1 hours of credit.
     
  • VA CLE 1.0
     
  • This program has been approved by the Virginia Mandatory Continuing Legal Education Board for 1.0 CLE credit hours.
     
  • VT CLE 1.0
     
  • This self-study program has been approved by the Mandatory Continuing Legal Education Board of Vermont for 1.0 hour(s) of CLE credit. Please note: Attorneys may only claim 12 credits per compliance period in this format. This course is considered "Non-Moderated Programming without Interactivity".
     
  • WA CLE 1.0
     
  • This program has been approved by the Washington State Board of Continuing Legal Education for 1.0 hours of A/V credit under the Law & Legal Procedure category.
     
  • WI CLE 1.0
     
  • This program qualifies for 1.0 hour(s) of ondemand CLE through the WI Board of Bar Examiners.
     
  • WV MCLE 1.3
     
  • This program has been approved by the West Virginia State Bar MCLE Commission for 1.3 MCLE hours.
     
The CLE Code is ONLY a requirement when applying for CLE Credit in New York. Other states do not need to supply the CLE Code to apply for CLE credit.

To earn each credit Lorman offers through the OnDemand learning platform, you need to watch 100% of the program. Also, for certain credits you will need to fulfill additional requirements which will be displayed on the "credits" tab when viewing the course.

Virginia MCLE requirements do not allow approval for programs that do not include an audio or audiovisual component.

This program was previously offered as a live webinar. Virginia MCLE requirements do not allow approval for attendance at duplicate programs.

This program does NOT qualify, nor meet the National Standard for NASBA accreditation.

MP3 Download

  • AK CLE 1.0
     
  • Arizona CLE 1.0
     
  • CA MCLE 1.0
     
  • CT CLE 1.0
     
  • HI CLE 1.0
     
  • MO CLE 1.3
     
  • NJ CLE 1.3
     
  • NM CLE 1.0
     
  • NY CLE 1.0 including Areas of Professional Practice 1
     
  • UT CLE 1.0
     
  • VT CLE 1.0
     
  • WA CLE 1.0
     
  • WV MCLE 1.3
     
The CLE Code is ONLY a requirement when applying for CLE Credit in California (for participatory credit), Kansas, New Jersey or New York. Other states do not need to supply the CLE Code to apply for CLE credit.

This program does NOT qualify, nor meet the National Standard for NASBA accreditation.

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Why Lorman?

Over 35 years and 1.4 million customers worth of experience providing continuing education. Our passion is providing you world-class training to help you succeed in business and as a professional.

Faculty

Timothy W. Loose

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

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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Product ID: 409441
Published 2022
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