Components of Settlement Fund Considered By District Court, Fee Petition Notice, and Fee Award Explanation All Sound In Nature.
In In re Online DVD-Rental Antitrust Litig., Nos. 12-15705 et al. (9th Cir. Feb. 27, 2015) (published), the Ninth Circuit considered, among other issues, the propriety of a 25% of settlement fund fee award to class counsel in an antitrust class action brought against Walmart by a class of Netflix DVD subscribers, where the class action was settled through a settlement fund of $27.25 million consisting of both cash and gift card components (augmented by some other expenses mentioned below). Objectors challenged the fee award in several respects, but were unsuccessful.
The fee award was not subject to Class Action Fairness Act “coupon settlement” restrictions because the gift card component was much different in nature. The district judge properly included notice costs, administration expenses, and out-of-pocket litigation expenses as part of the settlement fund for purposes of applying the 25% benchmark. The district court provided adequate notice because the email to class members notified them of the 25% requested fee recovery and gave them a firm deadline in which to object. Finally, the district judge properly cross checked the 25% benchmark against lodestar figures.