Ted Frank’s cy pres cert petition goes to SCOTUS conference Friday

Reuter's Westlaw reports on a case the U.S. Supreme Court is considering hearing based on Center for Class Action Fairness's objection to an unfair class action settlement. 

On Friday, justices of the U.S. Supreme Court will consider a petition for certiorari by an objector to a class action settlement of allegations that Gillette and Procter & Gamble deceived consumers about the lifespan of Duracell Ultra batteries. The objector is none other than Ted Frank, the class action watchdog whose group, the Center for Class Action Fairness, merged last year with the Competitive Enterprise Institute. Frank's cert petition, filed by counsel of record Thomas Goldstein of Goldstein & Russell, contends that the settlement – in which class members realized a total of $344,850, class counsel were awarded nearly $5.7 million and charities Duracell supports received $6 million in batteries – is not "fair, reasonable and adequate under the Federal Rule of Civil Procedure."

The odds of a cert grant are always daunting, and they've become even more so since the death last month of Justice Antonin Scalia. That's a numerical fact: Instead of convincing four of nine justices, or 44 percent of the court, petitioners have to persuade four of eight justices, or 50 percent, to take their case. "It's harder to get four of eight than four of nine," Frank said. "I would have thought (Justice Scalia) would be a vote for us."

Frank's cert petition had urged the justices to take the Duracell case to consider whether cy pres payments to charitable groups can substitute for distributions directly to class members. (You may recall that, a couple of years back, Chief Justice John Roberts expressed interest in the cy pres issue in a statement accompanying the Supreme Court's denial of certiorari in another Ted Frank case.)

Frank said he is still hoping four justices agree with him that class counsel have to work harder to get money to class members. Justice Scalia was well known to be skeptical about class actions, but Frank said class action fairness is not an ideological issue and he's confident Justices Elena Kagan and Ruth Bader Ginsburg "do not think class actions should look like this."

Full article at Westlaw.