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First Circuit Deepens Circuit Split On Fairness Of Class Settlements

By Bryan A. Fratkin, Trent Taylor, Andrew Gann & Sapir C. Shoshan on December 28, 2022
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On December 16, 2022, the U.S. Court of Appeals for the First Circuit made two important findings in a class-action settlement case. 

First, the Court vacated the district court’s settlement approval finding that the absence of separate counsel for distinct groups of class members made it too difficult to determine whether the settlement treated class members equitably. 

Second, the Court held that incentive payments to named class representatives were not prohibited so long as they fit within the bounds of Rule 23(e).

This case, Murray v. Grocery Delivery E-Servs. USA Inc., No. 21-1931, 2022 WL 17729630 (1st Cir. Dec. 16, 2022), concerned alleged violations of the Telephone Consumer Protection Act resulting in a proposed settlement.

Upon review of this settlement, the First Circuit held that when “easily identifiable categories of claimants . . . have significantly different claims, or . . .  defenses, the lack of separate representation presents an actual and substantial risk of skewing available relief in favor of some class members.”  In Murray, each claim “authorizes suit and recovery for a variety of quite different acts,” and different defenses apply to each claim.  The First Circuit found that these differences were significant and therefore required separate representation to adequately protect the claimant’s interests.

Moreover, the lump-sum nature of the settlement, the First Circuit expressed, was fraught with potential danger: “[i]t is unreasonable to expect . . . a lawyer to properly advocate for each [sub]group because giving one group a larger piece of the pie necessarily reduces the amount available to a different group.”

The First Circuit also followed the lead of other Courts of Appeal in allowing incentive awards for named plaintiffs in Rule 23 class actions.  The First Circuit rejected the “contention that incentive payments are categorically improper.”  This deepens the circuit split seen between the Sixth Circuit and Eleventh Circuit, which was discussed in the article written on January 15, 2021.

This case is an important reminder to adhere during class settlement negotiations to the procedural and substantive checks considered under Rule 23(e) to ensure that a proposed class settlement is approved.   

Photo of Bryan A. Fratkin Bryan A. Fratkin

Bryan leads the firm’s class action practice group, focusing his national practice on consumer financial services litigation under the various “alphabet soup” statutes. He represents large financial institutions involved in credit card, auto finance, banking, and mortgage litigation, alleging violations of the Fair…

Bryan leads the firm’s class action practice group, focusing his national practice on consumer financial services litigation under the various “alphabet soup” statutes. He represents large financial institutions involved in credit card, auto finance, banking, and mortgage litigation, alleging violations of the Fair Credit Reporting Act, Fair Debt Collection Practices Act, Servicemembers Civil Relief Act, Truth in Lending Act, Credit Repair Organizations Act, Equal Credit Opportunity Act, Bankruptcy Discharge Injunction and Stay, and state law consumer protection statutes. He also represents financial institutions and business clients in disputes that include allegations of fraud, conspiracy, civil RICO, and breach of contract. More recently, Bryan has successfully defended employers in background check class actions, alleging violations of the Fair Credit Reporting Act’s standalone and adverse action disclosure requirements.

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Photo of Trent Taylor Trent Taylor

Trent, co-leader of McGuireWoods’ Food & Beverage Industry Team, focuses on defending complex class actions with an emphasis on product liability matters, public and private nuisance litigation, environmental contamination suits, and food, cosmetic, and supplement labeling (including CBD) and safety issues.

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Photo of Andrew Gann Andrew Gann

Drew is a co-leader of McGuireWoods’ Crisis Management & Incident Response Practice Group. He represents companies in class actions, mass torts, and high-stakes commercial litigation—particularly when regulatory scrutiny, reputational risk, and catastrophic loss converge. He brings deep experience guiding clients through multidistrict litigation…

Drew is a co-leader of McGuireWoods’ Crisis Management & Incident Response Practice Group. He represents companies in class actions, mass torts, and high-stakes commercial litigation—particularly when regulatory scrutiny, reputational risk, and catastrophic loss converge. He brings deep experience guiding clients through multidistrict litigation, punitive damages exposure, and investigations by federal and state regulators, including the National Transportation Safety Board (NTSB), the U.S. Department of Transportation (DOT), the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Consumer Product Safety Commission (CPSC), public utility commissions, and state attorneys general.

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Photo of Sapir C. Shoshan Sapir C. Shoshan

Sapir focuses her practice on representing corporate defendants in a variety of mass tort and product liability matters.

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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Class Action Countermeasures
  • Organization:
    McGuireWoods LLP

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