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Tilting at Windmills

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January 17, 2006
By: Kevin Drum

CLASS ACTION FOLLIES....The Washington Post has a story today about one of my pet peeves: class action suits in which the "penalty" is more a benefit than a punishment. The piece in the Post is about a settlement in a case against Netflix:

In the past few years, both the FTC and the trial lawyers group have been actively protesting class-action settlements that bring little value to consumers, usually coupons with little monetary value, but pay off handsomely for lawyers.

....The FTC said the Netflix settlement was "more a promotional vehicle" for the company than a means to correct alleged misleading practices....Under the proposed settlement, which must be approved by the court, current Netflix customers would get a one-month upgrade to receive more DVDs, a value that ranges from $2 to $6, depending on the plan a customer already had. But if consumers fail to cancel that upgraded service at the end of 30 days, they would be billed for the more expensive service every month after that.

Netflix would pay to run a program like this. In fact, they do. After all, this kind of thing is a pretty standard sort of marketing come-on: "Upgrade free for 30 days! If you don't like it, cancel with no further obligation!"

I've gotten offers like this several times, most recently from my cable company. In their case, the "settlement" was (I think) a one-month upgrade to digital cable for half price an offer not even as good as the usual promotions they run two or three times a year. It was a joke.

Why judges approve these kinds of deals is beyond me. They should either insist on cash settlements or else not bother. What we have now is just a sham.

Kevin Drum 11:43 PM Permalink | Trackbacks | Comments (45)

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This type of "tort" action appeals to conservatives, since it ultimately helps big business and not consumers.


Posted by: SteveAudio on January 17, 2006 at 11:53 PM | PERMALINK

Total crap. Everyone should either get a break on their bill (rebate) or free rentals. End of story. I don't even knw what the hell the lawsuit was about, but I know that "settlement" is a joke.

Posted by: Mr Furious on January 17, 2006 at 11:55 PM | PERMALINK

You are certainly right about this particular settlement. I am sure the fees to the attorneys will prove to be well worth it to Netflix. I, too, have been in several class action plaintiff classes that have had dubious "settlements." My favorite was an AT&T Wireless case where the company had put satellite dishes on the roofs of stores to improve reception during the sales pitch. I got a coupon that I threw away.

But, I have also been in a couple cases where I got small amounts of money, like a NJ class involving a massive scam by car dealers on title fees. I got back $35.

This is the one-penny supermarket scanner problem. The super market that programs its scanner to charge each customer one cent too much is going to get away with it if individual customers must sue. The only way to deal with these scams is by allowing the individual customers to band together via a plaintiff class. [I am assuming no realistic chance of actual governmental enforcement resources.] Otherwise, you never bring the bad guys into compliance. We just need greater vigilence by the bench in approving the settlements. The issue is competent judicial oversight which, in the end, comes down to too many Republican judicial appointees!

Posted by: mert7878 on January 18, 2006 at 12:01 AM | PERMALINK

Wal-Mart Stores Inc. recently paid $25000 to settle allegations


This is, how you say, a little joke, no?

Posted by: snowy s.o.b. on January 18, 2006 at 12:17 AM | PERMALINK

It's not enough for judicial vigilance.

The lawyers for the class need some enormous negative feedback. Not ebay style, but financial, or even disbarment. After all, any lawyer representing me against Netflix that okayed this deal not only had an enormous conflict of interest in terms of maximizing their settlement, but acted on that conflict of interest.


And in the future, lawyers in a class action suit that exceeds some amount should have to agree to having a third party set their fees.

Posted by: jerry on January 18, 2006 at 12:20 AM | PERMALINK

Cheney:>"$25,000 seems like a lot to me - you have that on you right now?"

Just like a con, always assuming he should get it all.

Posted by: Joey G. on January 18, 2006 at 12:27 AM | PERMALINK

In cases like the NetFlix case where the per person settlement is low I would like to see a settlement lottery. Say 1 in 12 plantiffs get a year free. That sort of thing.

Posted by: Jim Lund on January 18, 2006 at 12:51 AM | PERMALINK

Several years ago a local realtor was sued for "dual representation", which is where the same realty company represents both parties. Legal in some states with disclosure. Can't recall if it was illegal here or the issue was lack of disclosure.

The settlement was cash for the attorneys. The class members got coupons good for money off the next time they sold a house. As if you would ever hire that company again if you thought they screwed you.

Posted by: VOR on January 18, 2006 at 12:56 AM | PERMALINK

I'm willing to accept any settlement that pays off the legal fees in the same form as the consumers get paid. If the laywers are willing to be reimbursed for their time in coupons for free movies, I'll accept them. If they demand cash, that's what I want too.

Posted by: Joe Yangtree on January 18, 2006 at 1:01 AM | PERMALINK

In Gerald Mayo v. Satan and His Staff, the court determined that there is least some merit to a class action suit against Satan.

Posted by: Mornington Crescent on January 18, 2006 at 1:06 AM | PERMALINK

Actually, I do have $25,000 on me right now, or at least in my checking account. And in Repug terms, I'm not a rich guy. (Though admittedly very fortunate.) Which is why that Walmart settlement, if you're right about the sum, is a truly sick joke.

Posted by: DOW on January 18, 2006 at 1:11 AM | PERMALINK

Lawyers fees are evaluated as a percentage of the damages to see if they are excessive. 'In kind damages' allow lawyers to bend this rule a little and get more cash because the 'value' of the 'damages' can be inflated to make the sued party look good, and to make the lawyers get more fee.

Its just part of the money printing 'class action' system created by the liberals to defend the little guy.

Posted by: McA on January 18, 2006 at 1:27 AM | PERMALINK

Ugh, It would be nice if damages were calculated as the damages that the consumers suffered. The idea is to dissuade companies from pulling similiar scams in the future and not give them a new marketing tool.

If its too difficult to give the money to each damaged consumer, it would be more equitable if the company pay the illicit revenue to a charity of the plaintiffs and defendants mutual choice (I suppose the Red Cross or the Salvation Army could always use the money).

Posted by: beowulf on January 18, 2006 at 1:44 AM | PERMALINK

I would agree that the proposed settlement in this case would seem to benefit the company more than the consumers who were supposedly harmed,
but on the other hand, it does not seem as if the plantiffs in this case suffered a huge amount of actual economic harm.

The real purpose of the penalty should be to discourage illegal behavior on the part of the defendant, which in this case it seems unlikely to do.

After all, in mert7878's supermarket scanner example, an individual consumer is likely to suffer only $5-10 of actual economic harm per year, even though the supermarket would actually see a benefit in the millions of dollars.

The key question in class actions is whether the purpose of penalizing the defendant is to discourage illegal behavior or to reimburse the consumer for the economic damage they suffered. Depending on how you answer the question, you can have widely diverging opinions on the suitability of any proposed settlement.

Posted by: MattW on January 18, 2006 at 1:45 AM | PERMALINK

In their case, the "settlement" was (I think) a one-month upgrade to digital cable for half price an offer not even as good as the usual promotions they run two or three times a year. It was a joke
Kevin Drum 11:43 PM Permalink | TrackBack (0) | Comments (13)

But if you are a judge hoping to do a favour for your trial lawyer, this approach allows him to set the value of the damages as half of the cable price and then set the fees as a percentage of this inflated value.

Helps him do a favour for a politically powerful lobby without being blatant.

Posted by: McA on January 18, 2006 at 1:48 AM | PERMALINK

How about Columbiahouse, or was it BMG Music Club?, that was forced to offer CDs from their collection at a "discount rate" of 50% off, or something. With their inflated prices plus shipping/handling fee, that's just about store price...

Posted by: ogmb on January 18, 2006 at 4:33 AM | PERMALINK

You are all assuming that the settling defendant is settling strong and meritorious claims for pennies, and illsory pennies at that. these settlements happen when either liability or damages (or both) are weak. for everyone involved (judge, defendant plaintiffs lawyers) the alternatives are between devoting significant resources to a final resolution, in which it is highly likely that defendant will ultimately prevail but there is some possiblity of a truly bad outcome for the defnedant, or allowing a token face savings settlement.

Posted by: sklein11 on January 18, 2006 at 4:37 AM | PERMALINK


Shouldn't we discourage weak cases from going to court altogether? If judges and courts have only so much time, shouldn't they spend it on serious stuff?

As long as lawyers can get millions in cash for dubious cases where the victims only merit coupons, then they'll file those cases.

Posted by: David Mastio on January 18, 2006 at 8:34 AM | PERMALINK

I was one of the "beneficiaries" of that class action lawsuit, but three movies at a time is more than enough for me and my wife.

I remember one person telling me how she got a nice new stainless steel pan out of a class action lawsuit, but usually you get barely anything. It does seem like their mainly to get lawyers rich, but there needs to be some punishment for coporations cheating customers... even if it is just pennies each.

Posted by: Frank J. on January 18, 2006 at 8:45 AM | PERMALINK

Requiring cash settlements doesn't change things much. I got a check for 35 cents in the mail a few years back as part of a settlement related to a credit card (not sure how I was supposedly injured -- something about payments being credited later in the day than they should have been). True, in that case the company wasn't able to use it as a marketing opportunity, but it still had the result that the injured parties got essentially nothing (I assume most, like me, didn't bother to cash the check) while the lawyers no doubt got millions.

Posted by: KCinDC on January 18, 2006 at 10:02 AM | PERMALINK

What needs to be reformed is the plaintiff-lawyer fee scheme, along with some realistic rejiggering of what settlements consist of.

I was part of the GM saddle-tank suit. The lawyers got $25 million, the affected consumers like me got a coupon for $2000 off our next GM vehicle--provided we bought that vehicle within 12 months. So, effectively, the class plaintiffs got nothing while the lwayers got everything.

I was also part of a class-action suit brought against a mortgage company back in the '90s. The lawyers got $54 million, the class plaintiffs got 25 cents each. Yes, 25 cents! Even better, I had to mail in a claim form to get my 25 cents--and since postage at the time was 29 cents, I ended up losing 4 cents.

This sort of crap has to stop. But only Congress can fix the system, and it has shown no sign whatever of wanting to do so.

Posted by: Derelict on January 18, 2006 at 10:14 AM | PERMALINK

"This type of "tort" action appeals to conservatives"

Not true, I'm mostly conservative and I hate that kinda crap. I DO agree that we need some serious tort reform.

First thing we have to do is Kill all the lawyers. (TIC)

"If its too difficult to give the money to each damaged consumer, it would be more equitable if the company pay the illicit revenue to a charity of the plaintiffs"
Posted by: beowulf

Now THAT sounds like an idea. I don't have a problem with the attorney(s) making their fee but it should be levied against the company in question on top of any fines or monies awarded as indicated by the court.

Posted by: Lurker42 on January 18, 2006 at 10:15 AM | PERMALINK

I used to be a class-action lawyer and my experience was that judges always hated these coupon settlements. I'm surprised they haven't become extinct by now.

Still, they can be appropriate in certain special cases. For example, when David Boies settled the antitrust case against Sotheby's and Christie's for a huge dollar amount, a large chunk of the settlement was in the form of coupons, because the companies simply couldn't raise the huge amount of cash that would be required. Boies told the court, "We think these coupons will have value, because these companies have so many repeat customers, and we also think there will be a secondary market," meaning that if you don't want your coupon, someone will likely buy it off you for cash.

"Why should I believe you?" the judge asked. "Well, your Honor," Boies replied, "we're so convinced that these coupons have value that we're willing to take our attorney's fee in coupons, in the same proportion as the class." Suffice it to say that very few lawyers are willing to take THAT deal.

With that said, there is usually a better solution than coupons. For example, I was one of the lawyers suing RealNetworks in one of the first Internet privacy cases. The case was a slam dunk for consumers, but the problem was, RealNetworks has millions of customers and even if you awarded them $5 each, the company would probably go bankrupt. So naturally, they wanted to give everyone coupons instead. We thought that would be pretty useless (it's just a way they can suck you into their paid content) and so instead, part of the settlement involved their agreement to cutting-edge privacy restrictions that ended up setting a standard for other companies to follow, and part involved a huge cash donation to organizations like the EFF which fight for Internet privacy. No, you didn't get your little coupon, but at the end of the day our online privacy is probably a lot more protected than if you had.

Posted by: Steve on January 18, 2006 at 10:57 AM | PERMALINK

I'm not a fan of coupon settlements, and I don't understand why judges approve them. It's usually the defendants who want them, however, which means McA's claim that coupon settlements are all about making plaintiffs' attorneys happy just a load of nonsense. That aside, those of you who are criticizing the amount of money that the attorneys make are missing the point. Class actions are nothing more than a "privatization" of the enforcement of laws intended to protect people from certain types of systematic petty graft. You could have your state attorneys general do the job, but then you have to pay for it through taxes. Rather than placing the financial burden of enforcing these laws on the taxpayer base as a whole, the class action approach places the burden on the attorneys who bring these suits and on the defendants who are engaged in the wrongful conduct. It's pretty expensive to bring a class action -- in fact, an attorney isn't even going to get approved as counsel for the class unless that attorney has the financial resources to do it right. And if the attorney loses the case, she doesn't get any of that money back, which means that there is a significant risk factor in bringing a class action in the first place. If she wins, however, the costs get reimbursed by the defendant, and the attorney's fees get paid by the defendant as well. The cost of enforcement then becomes part of the penalty for breaking the law in the first place. It's an approach that you'd think would be very attractive to small-government conservatives -- unless your definition of "small government" is limited to "not regulating business at all." If it is, come out and say it, and quit harping on how much class action attorneys are making.

Posted by: nolo on January 18, 2006 at 11:17 AM | PERMALINK

A portion of my practice relates to class actions. I have never been involved with a coupon settlement...but there are occasional contexts where they are appropriate. I am not familiar with the Netflix case....it may be that the plaintiff's case turned out to be rather weak (sometimes this isn't readily apparent until discovery is almost over)....

Do note that judges have to approve attorney's fees in class action settlements. Do also note that class actions are enormously expensive and time-consuming to litigate. A firm (or, usually, firms) which receives 25M in fees after a 6 year litigation may well have earned more than that if they had been billing their regular hourly amounts.

Posted by: Nathan on January 18, 2006 at 11:40 AM | PERMALINK

Two points in response to the last two commentors.

First, of course defendants tend to love coupon settlements, but that doesn't mean they're not for the benefit of the plaintiffs' lawyers as well. One of the reasons judicial approval of settlements is required is to ensure that the plaintiffs' lawyers don't sell out the class by making a deal that is lucrative for them, but not so good for their clients. Judges simply need to be more diligent in looking at coupon settlements.

In the context of securities fraud, the PSLRA partially fixed this problem by ensuring that the lead plaintiff is an institutional investor who will oversee the litigation and ensure that they don't get sold out cheaply, rather than Aunt Millie who owns half a share of stock.

Second, class actions are indeed very costly, but that doesn't mean the plaintiffs' lawyers deserve a big payday when their case turns out to be weak. It's the lawyers, not the nominal "clients," who decide whether to file a class action, and it's their burden to determine whether they have a strong or weak case. If you litigate a case for 5 years only to find out that it's weak and the best you can do is get coupons because the case has no cash value, you're not entitled to recover a big fee just because you've put a lot of time into the case. You can recover those hours on the next case when you actually have a strong claim and recover a lot of money for the class.

Posted by: Steve on January 18, 2006 at 11:56 AM | PERMALINK

Did anybody actually read what the lawsuit was about (the guy above who was part of it excepted)?

It sounds incredibly weak and I'm surprised it went to court at all*. The upshot: Netflix claims to send out movies the day after receiving a previous one from a customer, but in reality they often take 4-8 days to arrive. So for $17.99 a month you may have only been able to watch 10-15 movies rather than, say 15-20.

The horror.

The travesty here is that the lawyers made 2.5 million bucks off of all that hardship, not that customers got weak restitution.

This is the kind of case that makes great headlines for republican tort reform. Wonderful.

*I'm perfectly willing to believe there's more to this case (a la the famous McDonald's burn lady), but unless and until I hear it, this is just lame-0-rama.

Posted by: skippy on January 18, 2006 at 12:03 PM | PERMALINK


I agree with both of your points.

Posted by: Nathan on January 18, 2006 at 12:04 PM | PERMALINK

Netflix explains on their site that customers who order a lot of movies may get their movies later than less high-rate customers (probably why I always get my movies the next day).

I don't know for how long they've been disclosing this policy.

Posted by: Nathan on January 18, 2006 at 12:06 PM | PERMALINK


At the very end of the story it mentions,

"Netflix did not admit any wrongdoing in the settlement, although it has revised its Web site to note that its gives priority to customers who receive the fewest DVDs."

So it sounds like this was a result of the suit. Good deal, and I'm glad they've now disclosed that info. But I'm skeptical that a gigantic lawsuit was necessary to get them to mention this explicitly.

If you read that, would it put you off the company? Sounds fairly reasonable to me given the all-you-can-eat style pricing they offer.

Posted by: skippy on January 18, 2006 at 12:14 PM | PERMALINK

Ummm, oops. My above message was supposed to be a response to Nathan.

Posted by: skippy on January 18, 2006 at 12:15 PM | PERMALINK

What's funny is that the trial lawyers, dems, and public interest group tried to regulate coupon settlements--heavily restricting them and basing the lawyers compensation on how many customers actually redeemed them rather than a flat up-front fee--in the process of passing last year's class action bill. The Republicans didn't have that in their bill (which essentially just made it a hell of a lot harder to file a class action lawsuit) and strangely weren't interested at all in including it.

As a result, it's now harder to file a class action (which is a very effective deterrent against corporations screwing customers for amounts they probably wouldn't sue over individually), but when the suits do happen they can still result in crappy coupon settlements. Ironically, the coupon settlements were consistently trotted out by the Congressional Republicans and Bush as examples of why class action suits needed to be reformed.

That's modern Republicanism for you: find a bogeyman, pass some sort of corporate giveaway, don't actually solve the problem (see also Medicare Bill, Dept. of Homeland Security, Katrina rebuilding, etc.)

Posted by: Condor on January 18, 2006 at 12:34 PM | PERMALINK

The solution is to make it harder, much harder, to bring weak cases. Right now there's no deterrent at all. I would make the losing party's lawyer liable for the prevailing party's attorneys fees, allowing the attorney to shift that liability by contract of indemnity to his client. Obviously, plaintiff's lawyers would not be able to shift the liability and so would have to exercise better quality control in taking cases and would have to find some way to insure against the risk of losing cases (such insurance exists in England, for example). That would encourage defendants faced with very weak class action claims like the Netflix case to fight and not settle. It would also encourage defendants faced with very strong claims to settle lest they be liable for the plaintiff's attorneys fees, too.

Posted by: DBL on January 18, 2006 at 12:59 PM | PERMALINK
The solution is to make it harder, much harder, to bring weak cases. Right now there's no deterrent at all.

False. There is a deterrent, in that certain filings may be sanctioned.

I would make the losing party's lawyer liable for the prevailing party's attorneys fees, allowing the attorney to shift that liability by contract of indemnity to his client.

This is a bad idea, because it discourages consistent resolution of cases that would be questionable, which promotes growing uncertainty in the law, which leads to an ever-expanding see of deterred weak cases, which makes the law increasingly impotent.

Posted by: cmdicely on January 18, 2006 at 1:06 PM | PERMALINK

It's actually quite hard to bring a class action case. It now has to be done in federal court and a federal judge has to "certify your class," which is to agree that you have a case and that there is a class of individuals who have similar cases based upon a distinct action taken by the entity you are suing.

All those coupon settlements happened because those corporations really did screw their customers in an illegal way. The probablem is that instead of trying to fix the coupon settlment problem which, as Kevin points out, is no skin off the teeth of many businesses, the Republicans took the opportunity to simply make it much harder to sue businesses even when they really are screwing you. If they had fixed the coupon settlement problem (by, say, tying the compensation of the lawyers to the cash value of whatever customers actually redeemed) then the lawyers would start pushing for settlements that actually took a bite out of the ass of the business they were suing.

If you're thinking, "hey, it sounds like the Republicans gave corporate america exactly what they would want without giving any benefit to wronged consumers," you'd be right.

Posted by: Condor on January 18, 2006 at 1:10 PM | PERMALINK
It sounds incredibly weak and I'm surprised it went to court at all*. The upshot: Netflix claims to send out movies the day after receiving a previous one from a customer, but in reality they often take 4-8 days to arrive.

How is this weak? It seems to me to be pretty clear fraud, and maybe (though I suspect the agreement is likely worded well enough to make it murkier) also breach of contract. Small individual damages -- which is certainly the case here -- is not the same thing as a weak case.

Posted by: cmdicely on January 18, 2006 at 1:11 PM | PERMALINK

cmdicely: I don't believe that Netflix has ever claimed that every movie is received the next day. Rather it has said "most" -- which apparently is in fact true.

Posted by: Nathan on January 18, 2006 at 1:26 PM | PERMALINK
...$25,000 seems like a lot to me - ...I have no problem with disbarment for plaintiff lawyers. Posted by: Cheney o
Oh, please please don't make that poor Walton family suffer even more than they are now. Why dont we disbar anti-labor and anti-consumer lawyers like you, chuckles. Those are the worst. Posted by: Mike on January 18, 2006 at 1:40 PM | PERMALINK

The solution would seem simple, if anyone cared to pass legislation implementing it: require the lawyers' portion of the settlement to be the same in kind as that of the class members.

If you're a lawyer, and you win money for the members of the class, then you get paid in money. If you win some promotional gimmicks for the class members, then you get paid in promotional gimmicks.

That would stop the nonsense real fast.

Posted by: RT on January 18, 2006 at 2:46 PM | PERMALINK

I think it's interesting that Kevin always finds a way to pin the blame on anyone but the attorneys involved! He says, "Why judges approve these kinds of deals is beyond me."

Why attorneys agree to these settlements is beyond me ... oh wait a minite, they approve because all they care about is lining their own pockets, not justice for those of us who were overcharged.

And yet Kevin feels the judge is the bad guy here.

Posted by: jerry2 on January 18, 2006 at 3:19 PM | PERMALINK
I don't believe that Netflix has ever claimed that every movie is received the next day.

The claim, stated upthread, was that they were sent within a day after the order was received, not that they were received the next day.

Posted by: cmdicely on January 18, 2006 at 5:46 PM | PERMALINK

Why judges approve these kinds of deals is beyond me. They should either insist on cash settlements or else not bother.

First of all, each victim suffered little and is recompensed little. Second, in the case of Netflix, there isn't any spare cash to speak of, and a cash settlement might hasten its impending bankruptcy without benefitting anybody. This way, beneficiaries of the settlement may receive slighlty better service for a time.

Posted by: contentious on January 19, 2006 at 12:21 AM | PERMALINK

Why attorneys agree to these settlements is beyond me ... oh wait a minite, they approve because all they care about is lining their own pockets, not justice for those of us who were overcharged.

And yet Kevin feels the judge is the bad guy here.

This is a silly way of looking at it.

Let's imagine a world where 99.9% of lawyers are saints, and 0.1% of them are corrupt. And meanwhile, only 90% of judges are saints, while 10% of judges are corrupt.

That's still enough corrupt lawyers to file all the bogus class action suits we're seeing now. Until ALL lawyers are saints, the opportunity for lawyers to make money this way will keep generating suits and settlements like this.

But if the vast majority of relatively decent judges put their collective foot down and refused to accept settlements like this, they'd drastically reduce the number of such absurd settlements.

It's not who the good guys or bad guys are; it's which players can make a difference, and why they are or aren't doing so. Regardless of the ethics of the lawyers involved, this is a situation where railing at the lawyers accomplishes nothing.

Posted by: RT on January 19, 2006 at 5:51 AM | PERMALINK
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