The parties’ agreement said: “State Farm agrees not to remove any Hurricane Ike cases filed by your firm to Federal Court.” Horn v. State Farm Lloyds, No. 12-40410 (Dec. 21, 2012). Roughly a year later, the firm filed a 100,000-member class action against State Farm, who removed the case. State Farm argued that the agreement was intended to resolve large numbers of individual claims and extending it to a class action was not consistent with the specific consideration given. The Fifth Circuit affirmed the remand order, finding that the terms “any” and “cases” were not ambiguous. The Court’s emphasis on contract wording, especially in the insurance context, is consistent with other recent cases, see, e.g., Ballard v. Devon Energy, 678 F.3d 360 (5th Cir. 2012).
In Ackal v. Centennial Beauregard Cellular, the Fifth Circuit reversed the certification of a class of Louisiana governmental entities who contracted with the class defendants for cell phone service. No. 12-30084 (Oct. 26, 2012). The Court reasoned that because Louisiana law requires many of the entities to follow a specific process before retaining outside legal counsel, the class was essentially “opt in” — a class structure expressly foreclosed by Rule 23(b)(3), which allows only class member “opt out.” Id. at 6 (citing Kern v. Siemens Corp., 393 F.3d 120 (2d Cir. 2004)).
After a 3-day hearing, a bankruptcy court certified a class for injunctive relief about foreclosure-related fees during the debtors’ bankruptcy proceedings. Rodriguez v. Countrywide Home Loans, No. 11-40056 (Sept. 14, 2012). The Fifth Circuit affirmed, finding that Countrywide’s acts were “generally applicable” to the “narrowly certified . . . class of approximately 125 individuals.” Id. at 6 (distinguishing Wilborn v. Wells Fargo, 609 F.3d 748 (5th Cir. 2010)). The Court also found that the relevant records were readily searched and that Countrywide had a consistent “practice” even though it had no formal company policy as to the fees. Id. at 9, 10-11 (distinguishing Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011)).
A consumer group sued under the Clayton Act about the market for funeral caskets, and then settled all compensatory damages with one of the defendants. Funeral Consumers Alliance v. Service Corp. Int’l, No. 10-20719 (Sept. 13, 2012). The Fifth Circuit held that, even after that settlement, the group had standing to proceed against the remaining defendants for attorneys fees. Id. at 4-14. Noting, however, that “[t]he fact that death is inevitable is not sufficient to establish a real and immediate threat of future harm,” the Court found no standing for injunctive relief. Id. at 15, 18. The Court also affirmed the denial of class certification, finding that the scope of the putative nationwide class fit poorly with the evidence of localized market activity for funeral services and casket sales. Id. at 27 (distinguishing United States v. Grinnell Corp., 384 U.S. 563 (1996)).
In Ahmad v. Old Republic National Title Insurance, the Court reversed a grant of class certification in a case about title insurance premiums. No. 11-10695 (Aug. 13, 2012). The Court relied on Benavides v. Chicago Title, 636 F.3d 699 (5th Cir. 2011), which declined to certify a similar class of title insurance buyers because “[t]he resulting trial would require the factfinder to determine whether each individual qualified for the discount based on the evidence in his or her file.” Op. at 9. The Court declined to distinguish Benavides even though a particular discount was mandatory once “the requirements of R-8 [a Texas Insurance Code provision]” were satisfied, because each plaintiff would present unique facts about those requirements. Id. at 10-11. Therefore, the class did not meet the commonality requirement of Fed. R. Civ. P. 23(a)(2).
In a significant case applying Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 130 S. Ct. 1758 (2010), the Court vacated a class arbitration award as exceeding the arbitrator’s authority. Reed v. Florida Metropolitan University, No. 11-50509 (May 18, 2012). The Court found that the “any dispute” and “any remedy” clauses in the parties’ agreement did not authorise class arbitration, acknowledging a different conclusion by the Second Circuit in Jock v. Sterling Jewelers, Inc., 646 F.3d 113 (2011). Op. at 19-22. Before reaching that result, the Court reviewed the applicable AAA rules and concluded that they allowed the threshold matter of class arbitration to be reviewed by the arbitrator. Id. at 8.
In the case of In re Dell, Inc., the Court reviewed the settlement of a shareholder class action against the arguments of two objectors. No. 10-50688 (Feb. 7, 2012). The Court first held that a class member does not have to file a proof of claim to have standing to object. Op. at 5. The Court then reviewed and rejected several objections to the fairnes of the settlement, reminding that a full evidentiary hearing is not necessarily required at a fairness hearing. Op. at 10. Finally, the Court found no abuse of discretion in awarding an 18% fee to the attorneys ($7.2 million) instead of requiring a “lodestar” calculation, rejecting a strict reading of In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 228 (5th Cir. 2008) (which stated: “This circuit requires district courts to use the ‘lodestar method’ to ‘assess attorneys’ fees in class action suits.”).
The case of Klier v. Elf Atochem presented this challenge: “When modern, large-scale class actions are resolved via settlement, money often remains in the settlement fund even after initial distributions to class members have been made because some class members either cannot be located or decline to file a claim.” Op. at 6. The Court reviewed the district court’s decision to make a cy pres distribution of unclaimed funds from a tort settlement to various charities. The Court began its analysis by reminding that the Rules Enabling Act and Fed. R. Civ. P. 23 “define the first –and often the last–arena of analysis,” Op. at 8, limiting cy pres distributions “only to rescue the objectives of the settlement when the agreement fails to do so.” Op. at 10. Noting that the parties’ settlement did not provide for a cy pres distribution, and that it had a clause allowing the district court to change the distribution protocol “for the benefit of the Settlement Class Members,” Op. at 11-12, the Court concluded that the unused funds were to be used for the benefit of another settlement subclass rather than as the district court had ordered. The Court went on to review several features of the parties’ agreement, reminding that the cases in this area “have necessarily taken case-specific approaches . . . .” Op. at 14. Chief Judge Jones wrote a concurrence that focused on situations when it would be appropriate to return unused funds to the settling defendant.