Ciolino v. Frank

10 Analyses of this case by attorneys

  1. Seventh Circuit Holds CAFA Permits Lodestar Method to Calculate Attorneys’ Fees in Coupon Settlements

    McGlinchey Stafford PLLCMark DeethardtJanuary 17, 2017

    This decision creates a split with the Ninth Circuit, which previously held that CAFA Section 1712 only permits a district court to award attorneys’ fees to class counsel in a “coupon settlement” based on the value of the coupons redeemed by class members. See In re HP Inkjet Printer Litig., 716 F.3d 1173 (9th Cir. 2013).In this case, Southwest issued vouchers to “Business Select” passengers that could be redeemed for one free in-flight alcoholic drink.

  2. Ninth Circuit Affirms That Class Action Settlement Was Not a "Coupon Settlement"

    Holland & Knight LLPDecember 9, 2022

    623, 2022 WL 17333820 (9th Cir. Nov. 30, 2022) considered whether the proposed class action settlement was a "coupon settlement" and therefore subject to the restrictions on the award of attorneys' fees to class counsel imposed by the Class Action Fairness Act (CAFA). 28 U.S.C. Section 1712. Congress enacted CAFA in part out of "concern about settlements when class members receive little or no value, including settlements in which counsel are awarded large fees, while leaving class members with coupons or other awards of little or no value." CAFA, Pub. L. No. 109-2, § 2, 119 Stat. 4 (2005). Section 1712 only applies if the settlement is a "coupon settlement" and addresses this concern in two ways. First, under § 1712(e), courts must apply "heightened scrutiny" when approving settlement agreements awarding coupon relief. Id. at 949. Second, courts must apply "a series of specific rules" to attorneys' fees awards in coupon settlements under § 1712(a)–(c). In re HP Inkjet Printer Litig., 716 F.3d 1173, 1178 (9th Cir. 2013).The Ninth Circuit affirmed the district court's judgment awarding attorneys' fees by holding that the parties' settlement was not a coupon settlement and affirmed the district court's application of the percentage-of-fund method, reducing the requested award of $8.125 million to $5,689,440, representing 17.5% of the value of the fund and 2.9 times the lodestar, which represents the value of the work performed based on the number of hours reasonable spent and reasonable hourly rates for that work.Case BackgroundIn McKnight v. Hinojosa, the Ninth Circuit heard the consolidated appeal of the Plaintiff-Appellees who represented a class that brought breach of contract and consumer law claims against Uber Technologies Inc. and Raiser LLC (Uber) alleging the misrepresentation of "Safe Rides Fees" and the safety measures, background checks and other efforts taken to provide safety for customers.The parties reached an initial settlement in 2016, and the district court approved a revised settle

  3. Eighth Circuit Holds CAFA Does Not Authorize Class Counsel To Choose Its Own Method Of Fee Calculation

    McGlinchey Stafford PLLCHassan ElrakabawyFebruary 22, 2017

    The plaintiffs further argued that the district court erred in construing § 1712(a) as mandating that any fee award attributable to the coupon portion of the settlement must be based solely on the value of coupons redeemed. When the district court ruled, the Ninth Circuit had held in In re HP Inkjet Printer Litigation, 716 F.3d 1173 (9th Cir. 2013) that § 1712(a) and (b) are not permissive; they provide that a district court must calculate attorneys’ fees for coupon awards as a percentage of the redeemed value and must use the lodestar method to calculate fees for injunctive relief. In absence of the Eighth Circuit guidance in construing the statute, the district court followed the HP Inkjet analysis.

  4. Pay Your Class Counsel! The Lodestar Method Is Available to Calculate Attorney’s Fees in Coupon Settlements

    McGlinchey Stafford PLLCMelissa GrandJanuary 31, 2017

    The Seventh Circuit stated that the more difficult issue was whether § 1712 allowed the court to use the lodestar method to calculate the fee award for class counsel. Markow contended that § 1712(a) prohibited the use of lodestar method and that only permissible basis for a fee award here would be the value of the new coupons actually redeemed by the class members. Under this view, use of the lodestar method in a coupon settlement is not permissible.The court observed that this view was adopted by the Ninth Circuit in In re HP Inkjet Printer Litig., 716 F.3d 1173 (9th Cir. 2013). The dissent in HP Inkjet argued that § 1712 gave the district court discretion to use the lodestar method to calculate attorney fees for both coupon and non-coupon relief.The Seventh Circuit remarked that, in essence, it agreed with the dissent in HP Inkjet.

  5. Getting Free Stuff in Settlement is Not a Coupon Settlement

    McGlinchey Stafford PLLCJohn T. RouseOctober 14, 2015

    The issue before the district court was whether the settlement agreement was a coupon settlement under CAFA. The district court noted that the terms of the settlement provided that class members receive the choice of $10 gift certificate with no minimum purchase required or a 35% off voucher at the defendant’s retail store.The district court observed that In re HP Inkjet Printer Litigation, 716 F.3d 1173 (9th Cir. 2013), the Ninth Circuit addressed the calculation of attorneys’ fees in the context of coupon settlement under CAFA, and held that if a settlement gives coupon and equitable relief and the district court sets attorneys’ fees based on the value of the entire settlement, and not solely on the basis of injunctive relief, then the district court must use the value of the coupons redeemed when determining the value of the coupons part of the settlement.The district court observed that CAFA does not define what constitutes a coupon or even for that matter a voucher.

  6. Seventh Circuit Provides Guidance On Fairness Of Class Action Settlement Agreements And Fee Awards

    Seyfarth Shaw LLPSeyfarth Shaw LLPAugust 26, 2015

    It then considered whether the district court correctly concluded that the lodestar method nonetheless could be applied to determine the fee award. Disagreeing with the Ninth Circuit’s decision in In Re HP Inkjet Printer Litigation, 716 F.3d 1173 (9th Cir. 2013), the Seventh Circuit concluded that attorneys’ fees could be calculated using the lodestar method in coupon settlements, while simultaneously warning district courts to use the method only after “evaluat[ing] critically the claims of success of a class receiving coupons.” Id. at 16-17.

  7. Watchdog Attacks Coupon Settlement in False Advertising Action

    Morrison & Foerster LLPOctober 31, 2013

    Indeed, coupon or other in-kind settlements may be particularly appropriate in situations “where they provide real benefits to consumer class members.” For instance, coupon settlements may be appropriate where a defendant is in financial distress or where class members have repeat-business relationships with the defendant.In re: HP Inkjet Printer Litigation, 716 F.3d 1173, 1178 n.4 (9th Cir. 2013). The final approval hearing is set for November 4, 2013.

  8. The CAFA Year In (Appellate) Review: A Look Back At The Class Action Fairness Act In The Circuit Courts Of Appeals In 2012-2013

    Carlton Fields Jorden BurtJuly 1, 2013

    Those requirements had been imposed “to put an end to the ‘inequities’ that arise when class counsel receive attorneys’ fees that are grossly disproportionate to the actual value of the coupon relief obtained for the class.” In re HP Inkjet Printer Litigation, 2013 WL 1986396, at *4 (9th Cir. May 15, 2013). The one thing the majority of the panel and their “dissenting colleague” agreed on was that this attorney fees provision was, like various other provisions of CAFA, “poorly drafted….”

  9. In re: HP Inkjet Printer Litigation: Ninth Circuit Reverses And Remands Hewlett-Packard Coupon Settlement

    Carlton Fields Jorden BurtJune 3, 2013

    In In re: HP Inkjet Printer Litigation, Case No. C05-3580-JF, 2013 WL 1986396 (9th Cir. May 15, 2013), the Ninth Circuit recently held that attorney fee awards in class settlements involving coupons must be “attributable to” the value of the coupons awarded to class members. How does this holding affect the settlement between Hewlett-Packard and a nationwide class of consumers who purchased certain HP inkjet printers?

  10. Ninth Circuit Reverses Class Action Coupon Settlement Because Attorneys Were Awarded Fees Based on Hours Worked Rather Than Coupon Value

    Proskauer Rose LLPMay 23, 2013

    On May 15 a Ninth Circuit panel reversed the district court’s approval of a class action settlement, holding that attorney’s fees awarded in connection with a coupon for the class members must be tied to actual redemption of the coupons rather than the time the attorneys spent working toward the coupon settlement. (In re HP Inkjet Printer Litigation, No. 11-16097 (9th Cir. May 15, 2013) opinion available here.) The decision (1) forecloses the use of a reasonable-hours-times-reasonable-rate method of calculating fees for the coupon part of a settlement and (2) prevents the award of fees as a portion of the coupon value until the value of actually-redeemed coupons is known.