01:59, September 06 630 0 law.com

2017-09-06 01:59:05
Class Action Lawyers Recall Posner's Impact — and His Barbs

Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, in Chicago.

Chensiyuan via WikiCommons

In the world of class actions, Judge Richard Posner left an indelible mark.

Posner, 78, who retired abruptly this past week after three decades on the U.S. Court of Appeals for the Seventh Circuit, authored some of the most-cited class action rulings.

He was particularly vigilant when it came to awarding fees to plaintiffs attorneys—a subject over which he made some of his most-famous remarks. He once called a settlement over glucosamine supplements a “selfish deal” between class counsel and the defendant.” He tossed a settlement over Pella windows for being “ scandalous.” And he called a settlement on behalf of Walgreens shareholders “no better than a racket.”

Here are some thoughts from the lawyers who were involved in some of those cases:

Ted Frank, director of the Competitive Enterprise Institute’s Center for Class Action Fairness, who frequently represented objectors challenging class action settlements:

“Judge Posner’s and [Frank] Easterbrook’s 1990s and 2000s opinions on class action settlements are what got me thinking about the issue and inspired me to do something about it, so he’s effectively one of the intellectual grandfathers of all of our work,” he wrote. Frank cited Posner’s decisions Pearson v. NBTY and Redman v. RadioShack, both from 2014, and In re: Walgreens Stockholder Litigation, from 2016—all cases in which he represented an objector. He also represented an objector in the Pella settlement. “And I’m confident that one day this decade a different court of appeals will disagree with one of those Posner opinions, the Supreme Court will take up the circuit split, and then tell us that Posner was right all along,” Frank wrote.

Jonathan Selbin, a New York partner at San Francisco’s Lieff Cabraser Heimann & Bernstein, who got denial of certification of his class action brought over Sears washing machines reversed twice by Posner in 2012 and 2013:

“I sometimes tell my associates that I learned everything I need to know about class actions from Judge Posner,” wrote Selbin. “Some viewed the washers decisions as some sort of change of heart by Judge Posner, but I did not. To me, they were part of his unified and consistent view about when such tools were efficient and fair to use and when they were not.” That said, he acknowledged that Posner was well known “for overturning class settlements that were not fair to the class. While some criticized those opinions as a needless intrusion into the right of the settling parties to agree upon terms of a deal, I viewed them, again, as part of a unified view of what class actions should and should not be about.”

Dianne Nast, founder of NastLaw in Philadelphia, who argued for the plaintiffs in Rhone-Poulenc, in which Posner reversed class certification:

“His contribution to the law is virtually immeasurable and his retirement, I believe, is a huge loss to the bench,” she wrote. In the Rhone-Poulenc oral arguments, she noted, Posner “appeared from the outset that he thought the district judge had ruled incorrectly,” but he was “extraordinarily gracious” and “listened to both sides patiently.” She wrote: “At the end of the day, our side lost in a memorable and often-quoted opinion. That opinion affected mass tort jurisprudence for many years to come and is a classic of its kind. Even though our position did not carry the day, I had and continue to have enormous admiration and respect for Judge Posner.”

Joseph Siprut, of Chicago-based Siprut PC, lost a 2017 ruling called Gubala v. Time Warner, in which Posner sided with the defense in a post-Spokeo v. Robins case. Siprut’s colleague handled the deal that Posner deemed “selfish” in Pearson v. NBTY:

“Judge Posner is one of a kind,” Siprut wrote. “His range of knowledge and productivity levels was astounding. His departure will leave a void.”

Adam Levitt, of Chicago’s DiCello Levitt & Casey, a frequent plaintiffs attorney in class actions, wrote:

“The only area of strong disagreement I have with his class action jurisprudence relates to his more recent rulings on the payment of attorneys’ fees in ‘claims-made’ settlements. While not vouching for the validity or the merits of the cases underlying those opinions, I respectfully submit that his conclusions in those opinions disregarded Supreme Court precedent and could have a negative impact on the deterrent purpose and effect of class action litigation.”