Here’s a great formula for becoming a rich plaintiffs’-side class-action lawyer:
- Copy-and-paste some cookie-cutter complaints alleging technical statutory violations.
- Send demand letters to a group of deep-pocketed targets and negotiate coupon settlements with them before even filing the complaints.
- Then seek a six- or seven-figure award of attorneys’ fees for doing no heavy lifting, bearing no risk of non-payment, and providing no meaningful social benefit.
But a district judge in Massachusetts recently changed the equation by cutting a class counsel’s fee request by more than eighty percent in Brenner v. J.C. Penney Co. (pdf).
Brenner was one of a series of class actions filed in the wake of the Massachusetts Supreme Judicial Court’s ruling in Tyler v. Michaels Stores that it violates Massachusetts’ privacy statute for a vendor to request a customer’s zip code and that the customer can seek redress in court without proving monetary loss. The plaintiff in Brenner was one of a stable of clients of the law firm that secured the decision in Tyler. On Brenner’s behalf, the law firm sent demand letters to Penney’s and other stores within days of the issuance of the decision in Tyler. The firm then proceeded to negotiate a settlement with Penney’s under which one subclass would receive a $25 gift certificate—better known as a coupon in class-action parlance—and a second subclass would receive a $10 gift certificate. The firm filed the complaint and the notice of settlement at the same time and then immediately filed a motion for class certification. The only disputed issue was the amount of attorneys’ fees.
The law firm requested a fee award of $450,000 without any supporting documentation. Clearly skeptical, the district court (Stearns, J.) required the firm to submit its fee records. The court then reviewed the records and concluded that the amount of hours purportedly expended, the deployment of partners on “grunt work” that should have been done by associates, and the duplication of effort by multiple partners were unjustified. The court accordingly reduced the lodestar to just under $80,000. It then proceeded to reject the law firm’s argument for a risk multiplier. The court appeared bemused by the law firm’s rather cheeky contention that the results it obtained were “extraordinary,” “exceptional,” and “unparalleled,” observing that “the case required no extensive litigation effort, given J.C. Penney’s willingness to settle the case almost at its inception” and that, given the decision in Tyler, the result “was virtually preordained.” The court also pointed out that “this is not a case where the firm chose to take on what might have appeared a quixotic quest on behalf of a plaintiff unable to afford counsel. To the contrary, it was [the law firm] that sought out Ms. Brenner as a plaintiff in this and several other nearly identical cases.”
In prior posts, we have identified a number of arguments that defendants can raise in seeking dismissal of lawyer-driven, no-injury class actions like Brenner—including Article III standing if the case is in federal court. Brenner suggests that defendants beleaguered by no-injury class actions may have another option—reduce the incentive for bringing these suits by agreeing to an early settlement and then resisting any fee award that is disproportionate to the negligible benefits obtained in the settlement.