Through the Looking Glass

According to The Recorder and WSJ Law Blog, the Bar/Bri antitrust settlement has now received final approval, but under very strange circumstances. Specifically, the court (C.D. Cal, Real, J.) rejected proposed incentive payments to the representative plaintiffs on the grounds that the representatives had conflicts of interest. The proposed payments were huge ($25,000 to some reps, $75,000 to others) and the court has lots of discretion to reduce or refuse such payments. However, if the reps had conflicts, it seems to me that the proper remedy was to decertify the class. Also, The Recorder quotes one of the plaintiffs as saying that the judge basically instructed class representatives and their lawyers to work out incentive payments among themselves. I don’t think that would be appropriate. In fact, I think it’s a lot like the conduct that Millberg Weiss is under indictment for.

I’ll be fascinated to see what, if anything, happens next. What we presently have, essentially, is a class settlement approval order expressly finding that one of the requirements for class certification (adequacy of representation) is not met. See FRCP 23(a).

PRE-UPDATE: I'm really supposed to be doing a set of intermediate con law questions, so I haven't read the actual order yet. I'll post again if it helps make more sense of this situation.