Brief of Amicus Curiae in Foster v. EOTech
Like the target reticle superimposed in EOTech’s sights, the proposed settlement is a holographic illusion. Class counsel has projected this illusion before the Court with one target in mind: an unjustified and disproportional $10 million dollar windfall fee.
Class counsel would like the Court to believe that their settlement provided $51 million to the class, but it actually provides approximately $3.5 million in class benefit. Based on plaintiffs’ filings, as of May 19, class members have only claimed $164,850 worth of cash and coupons available solely under the settlement agreement. Class members who receive or previously received a refund will also receive coupons under the settlement, but few of these $22.50 coupons are likely to be redeemed. All other recovery is in the form of refunds. But the defendants previously offered class members full refunds for 16 months, starting before the first suit was ever filed. Class counsel takes credit for all of these returns, and obfuscates the fact that class members already obtained most of the claimed relief without being forced to waive their claims against defendants. Even if some of the refunds are attributable to the lawsuit (and no evidence suggests they are), class counsel should not be credited with the gross cash payment of past refunds not attributable to class counsel.
Against this meager recovery, class counsel obtained royal treatment for its $10 million fee request, representing over three times lodestar, for a suit that was settled in principle the same month as class counsel was appointed. Because class counsel structured a segregated fee agreement, any decrease in the fee award will revert or kick Amicus Brief of Competitive Enterprise Institute Case No: 6:15-cv-03519-BCW 2 back to defendants rather than returning to the class. The Settlement is an egregious abuse of the class‐action system, and should be rejected in its entirety.