3any motions for class certification werefiled or adjudicated, and before any motions directed tothe merits of the parties’ claims.
As the Supreme Court has explained, when a district court “certifies for class actionsettlement only, the moment of certification requires ‘heightened attention’ to the justificationfor binding the class members.”
Ortiz v. Fireboard Corp
., 527 U.S. 815, 849 (1999) (quoting
Amchem Products, Inc. v. Windsor
, 521U.S. 591, 620(1997));
Manual for ComplexLitigation, Fourth, § 21.61 at 309 (“Judicial review [of a proposed settlement] must be exactingand thorough. The task is demanding because the adversarinessof the litigation is often lostafter the agreement to settle.”).When applying“heightened attention” to this Proposed Settlementit is apparent theProposed Settlementclearly fails to satisfy the requirements of Rule 23, and to safeguard the due process rights of absent class members.
, 521 U.S. at 629 (Rule 23 must be“applied with the interests of absent class members in close view”);
.Manual for Complex
Because most information about the status of the case before settlement is not public, myconclusions are based on a review of the Docket Report for the case and of case filings. Theseconclusions are supported, however, by the Notice of Class Action Settlement. For instance, thesection entitled “Why is there aSettlement?,” summarizes the work that preceded the settlementand describes “review of millions of pages of documents produced by the parties,” but makes nomention of any depositions or work by experts.
Settlement Agreement, Attachment I, at 5.The Notice also states counsel for the Author Sub-Class “incurred approximately $140,000 inexpenses as of the date of the Settlement Agreement” (
. at 27) –a tiny amount for a complexcase or a large class action –further suggesting no significant discovery or expert work occurred.
On November 14, 2008, Judge Sprizzosigned a proposed order granting preliminaryapproval of the Settlement. The proposed order was entered without any contested briefing andwithout a hearing.
. Manual for Complex Litigation, Fourth, § 21.632at320 (“Review of a proposed class action settlement generally involves two hearings.”). Any class certificationruling is interlocutory, and may be revised at any time before judgment.
Fed. R. Civ. P.23(c)(1)(C)(“An order that grants or denies class certification may be altered or amended beforefinal judgment.”). Given that, and given preliminary approval was granted without ahearing or adversarial briefing, that Order should not be granted any deference.
. Dkt. 57 at 30-31(Plaintiffs’ counsel acknowledging “[p]rovisional certification is not final or binding, and isreviewed in connection with the final fairness hearing. Plaintiffs must then establish that theSettlement Classsatisfied the requirements of Rule 23 ….”).