Rodriguez v. West Publishing ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODRIGUEZ, ET AL., 
Plaintiff-Appellee,
GEORGE SCHNEIDER; JONATHAN M.
SLOMBA; JAMES PUNTUMAPANITCH; Nos. 07-56643,
JUSTIN HEAD; RYAN HELFRICH 07-56833

Appellants, D.C. No.
v. CV-05-03222-
R(MC)
WEST PUBLISHING CORPORATION, a
Minnesota corporation, dba BAR-
BRI; KAPLAN, INC., a Delaware
corporation,
Defendants-Appellees.

RODRIGUEZ, ET AL., 
Plaintiff-Appellee,
DAVID FELDMAN; CAMERON
GHARABIKLOU; EMILY GRANT; JEFF
LANG; SARAH MCDONALD; CARA No. 07-56645
PATTON; RACHEL SCHWARTZ; GREG
D.C. No.

THOMAS,
Appellants, CV-05-03222-
R(MC)
v.
WEST PUBLISHING CORPORATION, a
Minnesota corporation, dba BAR-
BRI; KAPLAN, INC., a Delaware
corporation,
Defendants-Appellees.

4743
4744 RODRIGUEZ v. WEST PUBLISHING CORP.
RODRIGUEZ, ET AL., 
Plaintiff-Appellee,
DAVID ORIOL; JASON TINGLE, No. 07-56646
Appellants,
D.C. No.
v.  CV-05-03222-
WEST PUBLISHING CORPORATION, a R(MC)
Minnesota corporation, dba BAR-
BRI; KAPLAN, INC., a Delaware
corporation,
Defendants-Appellees.

RODRIGUEZ, ET AL., 
Plaintiff-Appellee,
JAMES JURANEK; AUDREY JURANEK;
RICHARD P. LE BLANC, No. 07-56647
Appellants, D.C. No.
v.  CV-05-03222-
R(MC)
WEST PUBLISHING CORPORATION, a
Minnesota corporation, dba BAR-
BRI; KAPLAN, INC., a Delaware
corporation,
Defendants-Appellees.

RODRIGUEZ v. WEST PUBLISHING CORP. 4745
RODRIGUEZ, ET AL., 
Plaintiff-Appellee,
EVANS & MULLINIX, P.A.; SARAH
SIEGEL; JENNIFER BROWN MCELROY; No. 07-56649
DANIEL SCHAFER,
D.C. No.

Appellants,
CV-05-03222-
v. R(MC)
WEST PUBLISHING CORPORATION, a
Minnesota corporation, dba BAR-
BRI; KAPLAN, INC., a Delaware
corporation,
Defendants-Appellees.

RODRIGUEZ, ET AL., 
Plaintiff-Appellee,
ROBERT GAUDET, JR.; ANDREA
BOGGIO; SANDEEP GOPALAN; No. 07-56650
ELIZABETH DE LONG,
D.C. No.

Appellants,
CV-05-03222-
v. R(MC)
WEST PUBLISHING CORPORATION, a
Minnesota corporation, dba BAR-
BRI; KAPLAN, INC., a Delaware
corporation,
Defendants-Appellees.

4746 RODRIGUEZ v. WEST PUBLISHING CORP.
RODRIGUEZ, ET AL., 
Plaintiff-Appellee,
PAMELA COLLINS, No. 07-56651
Appellants,
D.C. No.
v.  CV-05-03222-
WEST PUBLISHING CORPORATION, a R(MC)
Minnesota corporation, dba BAR- OPINION
BRI; KAPLAN, INC., a Delaware
corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
March 3, 2009—Pasadena, California
Filed April 23, 2009
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Rymer
4750 RODRIGUEZ v. WEST PUBLISHING CORP.
COUNSEL
N. Albert Bacharach, Jr., N. Albert Bacharach, Jr., P.A.,
Gainesville, Florida, on behalf of objector-appellant Pamela
Collins.
J. Garrett Kendrick and C. Benjamin Nutley, Kendrick & Nut-
ley, Pasadena, California, on behalf of objectors-appellants
George Schneider, Jonathan M. Slomba, James Puntuma-
panitch, Justin Head, and Ryan Helfrich.
Charles A. Sturm, Steele Sturm PLLC, Houston, Texas, on
behalf of objectors-appellants James Juranek, Audrey
Juranek, and Richard P. LeBlanc.
Scott L. Nelson, Public Citizen Litigation Group, Washing-
ton, D.C., on behalf of objectors-appellants Robert Gaudet,
Jr., Andrea Boggio, Sandeep Gopalan, Elizabeth De Long.
Steven F. Helfand, Helfand Law Offices, San Francisco, Cali-
fornia, on behalf of objectors-appellants David Feldman,
Cameron Gharabiklou, Emily Grant, Jeff Lang, Sarah
McDonald, Cara Patton, Rachel Schwartz, and Greg Thomas.
J. Darrell Palmer, Law Offices of Darrell Palmer, Solana
Beach, California, on behalf of objectors-appellants Evans &
Mullinix, P.A., Sarah Siegel, Jennifer Brown McElroy, Daniel
Schafer, David Oriol, and Jason Tingle.
Sidney K. Kanazawa, McGuireWoods LLP, Los Angeles,
California; Dan Drachler, Zwerling, Schachter & Zwerling,
LLP, Seattle, Washington, on behalf of plaintiffs-appellees
Ryan Rodriguez, et al.
Stuart N. Senator, Munger, Tolles & Olson LLP, Los Ange-
les, Califoria, on behalf of defendant-appellee Kaplan, Inc.
RODRIGUEZ v. WEST PUBLISHING CORP. 4751
James P. Tallon, Shearman & Sterling LLP, New York, New
York, on behalf of defendant-appellee West Publishing Cor-
poration.
OPINION
RYMER, Circuit Judge:
West Publishing Corp. and Kaplan, Inc. entered a settle-
ment agreement in an antitrust class action brought by those
who purchased a BAR/BRI course between August 1, 1997
and July 31, 2006. (BAR/BRI is a subsidiary of West that pro-
vides preparation courses for state bar exams.) The district
court approved the settlement, and several class members who
object (Objectors) appeal. Their principal objection relates to
incentive agreements that were entered into at the onset of liti-
gation between class counsel and five named plaintiffs who
became class representatives. They also contend that the dis-
trict court improperly failed to compare the amount of the set-
tlement to the likely recovery of treble, as well as single,
damages.
We agree that the ex ante incentive agreements created
conflicts among the five contracting class representatives,
their counsel, and the rest of the class. We disapprove of
them. Nevertheless, there were two other class representatives
who had no incentive agreements and whose separate counsel
were not conflicted. They provided adequate representation
and the court was not required to reject the settlement on this
account.
We conclude that the district court did not clearly abuse its
discretion in finding that the $49 million settlement was fair,
adequate, and reasonable even though it evaluated the mone-
tary portion of the settlement based only on an estimate of
single damages. Courts are not precluded from comparing the
4752 RODRIGUEZ v. WEST PUBLISHING CORP.
monetary component of a settlement to the estimated treble
damages if, in their informed judgment, the strength of the
particular case warrants it; but they are not obliged to do so
in every antitrust class action. In this case, the settlement is
substantial and meets the standard for approval by any mea-
sure.
Finally, we believe that the incentive agreements may have
an effect on attorney’s fees that the district court did not
acknowledge. It gave no weight to the Objectors’ role in
securing denial of incentive awards, nor did the court take
into account ethics concerns arising out of the incentive
agreements when it awarded attorney’s fees to class counsel.
Both issues need to be revisited.
The Objectors’ remaining arguments lack force. Accord-
ingly, we affirm approval of the settlement. We reverse the
orders denying any fee award to Objectors and granting the
fee award to class counsel, and remand.
I
Ryan Rodriguez and Reena B. Frailich brought this action
on behalf of themselves and “[a]ll persons who purchased a
bar review course from BAR/BRI in the United States from
August 1997 to the present” against West and Kaplan. They
filed a first amended complaint in May 2005 joined by Lore-
dana Nesci, Jennifer Brazeal, and Lisa Gintz. Kari Brewer and
Lorraine Rimson were named plaintiffs in a related action
(Brewer v. West Publishing Corp.) that was consolidated with
Rodriguez. All were eventually designated as class representa-
tives. McGuireWoods LLP was appointed class counsel.
The operative complaint alleges that BAR/BRI has been the
major provider of bar preparation courses throughout the
United States for decades. In 1995, West started a business
called West Bar Review that competed with BAR/BRI in the
market for state bar preparation courses. Thomson Company
RODRIGUEZ v. WEST PUBLISHING CORP. 4753
acquired West in 1996 and sought to divest itself of West Bar
Review. Kaplan entered into a letter of intent to acquire West
Bar Review by early August 1997. BAR/BRI, unaffiliated
with West or Kaplan at that time, allegedly sought to thwart
the sale of West Bar Review to Kaplan by entering a market
division agreement with Kaplan whereby BAR/BRI agreed to
pay Kaplan and to withdraw from markets for other test prep-
aration courses, while Kaplan agreed not to enter BAR/BRI’s
primary market through acquisition of West Bar Review.
BAR/BRI then acquired West Bar Review in the fall of 1997.
A few years later, in 2001, West bought BAR/BRI.
The pleading also alleges that BAR/BRI erected and main-
tained various entry barriers to the market for bar preparation
courses that included targeting first-year law students with a
non-refundable option for BAR/BRI’s course when they grad-
uate; offering free access to its Westlaw service to students
enrolled in a BAR/BRI course; and advertising constantly on
Westlaw, which often has a captive audience of law students
required to use the service. It avers that BAR/BRI engaged in
numerous other acts of anticompetitive conduct such as enter-
ing into an agreement that eliminated a competitor in New
York (Marino Bar Review); including non-compete clauses in
contracts with law school faculty and other staff to prevent
them from working for competitors; destroying competitors’
advertising; paying fees to law schools for preferable access;
offering a purported scholarship program that actually subsi-
dized students considering a competitor’s course; and paying
Louisiana State University, a BAR/BRI competitor for prepa-
ration courses for the Louisiana bar, to discontinue its course.
Claims are stated for violation of section 7 of the Clayton
Act, 15 U.S.C. § 18, by West for the acquisition of West Bar
Review by BAR/BRI; violation of section 1 of the Sherman
Act, 15 U.S.C. § 1, by West and Kaplan for their market divi-
sion agreement; and violation of section 2 of the Sherman
Act, 15 U.S.C. § 2, by West for BAR/BRI’s anticompetitive
conduct. The class seeks recovery of actual damages of at
4754 RODRIGUEZ v. WEST PUBLISHING CORP.
least $300 million ($1,000 for each of the estimated 300,000
members) for each claim, treble damages, and injunctive
relief.
On May 15, 2006, the district court certified a Fed. R. Civ.
P. 23(b)(3) class1 consisting of all persons who purchased a
bar review course from BAR/BRI in the United States from
August 1997 to the present. West and Kaplan sought interloc-
utory review of the certification order, which we declined to
allow. A notice of class certification was sent to putative class
members in the summer of 2006, informing them of their
right to opt-out of the class before August 13, 2006.
During discovery, class counsel reviewed more than
400,000 pages of documents, deposed fourteen fact witnesses,
and took one deposition pursuant to Fed. R. Civ. P. 30(b)(6).
West and Kaplan deposed the seven class representatives and
three non-party witnesses. The parties also conducted deposi-
tions of five expert witnesses.
Kaplan moved for summary judgment, which the district
1
Rule 23(b) provides that a class “may be maintained if Rule 23(a) is
satisfied and if:
...
(3) the court finds that the questions of law or fact common to
class members predominate over any questions affecting only
individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the con-
troversy. The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling
the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the liti-
gation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.”
RODRIGUEZ v. WEST PUBLISHING CORP. 4755
court denied. West had yet to file a motion for summary judg-
ment when a settlement was reached.
Settlement negotiations began in November 2006. The ses-
sions were mediated by the Honorable Daniel Weinstein (Ret.
Superior Court of California, San Francisco County) of
JAMS, a provider of ADR services, who had extensive expe-
rience in this type of case. An agreement was executed on
February 2, 2007, though class representatives Rodriguez,
Nesci, and Gintz objected and refused to authorize execution
on their behalf. Under the agreement, West and Kaplan
agreed to pay $49 million into a settlement fund. The fund is
to be allocated pro rata to class members based on the amount
each paid for BAR/BRI courses relative to the amounts paid
by all other class members who file an allowable claim. Each
class member’s allocation from the settlement fund is capped
at thirty percent of the amount that member paid to BAR/BRI.
Any remaining funds are to be distributed by the district court
through application of the cy pres doctrine. West and Kaplan
also agreed to terminate their marketing agreement; West
agreed to include on the form used to enroll law students a
statement that an initial payment to BAR/BRI is not a com-
mitment to full payment; and West agreed “that it is commit-
ted to accurate advertising as required by the Lanham Act, the
Federal Trade Commission Act and similar laws, regulations
and rules.” In exchange, class members agreed to release all
claims against West and Kaplan related to the conduct alleged
in the complaint. In Judge Weinstein’s opinion, the settlement
“was arrived at through arm’s length negotiations by counsel
who were skilled and knowledgeable about the facts and law
of this case,” and it was “fair, reasonable and adequate in light
of the strengths and weaknesses of the claims and defenses
and the risks of establishing liability and damages.”
On March 26, 2007, over the objections of Rodriguez,
Nesci, and Gintz, the district court granted preliminary
approval of the settlement and directed that notice of the set-
tlement be sent to the class, defined as all persons who pur-
4756 RODRIGUEZ v. WEST PUBLISHING CORP.
chased a bar review course from BAR/BRI anywhere in the
United States anytime from August 1, 1997 through July 31,
2006. The Settlement Notice informed class members of the
$49 million settlement fund, the methodology for allocating
the fund, the non-monetary relief, class counsel’s intent to
seek twenty-five percent of the settlement fund for attorney’s
fees and expenses, and counsel’s plan to request incentive
awards of $25,000 for class representatives Brazeal, Brewer,
Frailich, and Rimson, and $75,000 for class representatives
Gintz, Nesci, and Rodriguez. It indicated that a final settle-
ment hearing would be held on June 18, 2007, and that the
deadline for filing objections was May 21, 2007. The Settle-
ment Notice was mailed to 376,301 people and published in
several national periodicals. Fifty-four objections were filed.
Class counsel filed a motion seeking incentive awards for
the class representatives after preliminary approval of the set-
tlement and dissemination of the Settlement Notice, but
before the final fairness hearing. It turns out that, as part of
their retainer agreement, the named plaintiffs in Rodriguez
(Rodriguez, Frailich, Nesci, Brazeal, and Gintz) had entered
into an incentive arrangement with Van Etten Suzumoto &
Becker, which preceded McGuireWoods LLP. The incentive
agreements obligated class counsel to seek payment for each
of these five in an amount that slid with the end settlement or
verdict amount: if the amount were greater than or equal to
$500,000, class counsel would seek a $10,000 award for each
of them; if it were $1.5 million or more, counsel would seek
a $25,000 award; if it were $5 million or more, counsel would
seek $50,000; and if it were $10 million or more, counsel
would seek $75,000. Neither Brewer nor Rimson, the other
two class representatives, was party to an incentive agree-
ment. They were separately represented, by Finkelstein
Thompson LLP, and Zwerling, Shachter & Zwerling, LLP.
By the time the motion was filed, Brazeal and Frailich had
agreed to lower their request to $25,000 from the $75,000
promised in the incentive agreement, but Gintz, Nesci, and
Rodriguez, who objected to the settlement, did not. Incentive
RODRIGUEZ v. WEST PUBLISHING CORP. 4757
awards in the amount of $25,000 were also sought for Brewer
and Rimson.
A final hearing on the fairness, reasonableness, and ade-
quacy of the settlement was held on June 18 and July 9, 2007.
Twelve groups of Objectors questioned the failure to bifurcate
the section 7 claim, adequacy of the monetary portion of the
settlement, not providing for the break-up of BAR/BRI, the cy
pres award, and sealing of documents pursuant to a protective
order. On September 10, 2007, the district court gave final
approval to the settlement agreement in a thirty-seven page
Settlement Order and fifty pages of Findings of Fact and Con-
clusions of Law. It found that the Settlement Notice and dis-
semination were adequate, and that the settlement was fair,
adequate, and reasonable despite the conflict of interest
between class representatives and class members. The court
denied the motion for incentive awards to all seven class rep-
resentatives, finding that the amount was unreasonable in
light of the work and risk undertaken, and that the incentive
agreements created actual conflicts of interest in violation of
public policy. It denied fees to Objectors’ counsel because
they “did not add anything to the court’s order denying” the
motion for incentive awards, but awarded class counsel its
lodestar, enhanced by a 1.75 multiplier, up to a limit of
twenty-five percent of the settlement fund.
Six groups of Objectors have timely appealed.2
2
James Juranek, Audrey Juranek, Richard P. Leblanc; Robert Gaudet,
Andrea Boggio, Sandeep Gopalan, Elizabeth DeLong; Pamela Collins;
David Feldman, Cameron Gharabiklou, Emily Grant, Jeff Lang, Sarah
McDonald, Cara Patton, Rachel Schwartz, Greg Thomas; Sarah Siegel,
Evans & Mullinix, P.A., Jennifer Brown McElroy, Daniel Schafer, Jason
Tingle, David Oriol; and George Schneider, Jonathan M. Slomba, James
Puntumapanitch, Justice Head, Ryan Helfrich. We refer to these groups
collectively as “Objectors” and treat the issues as if raised by all of them.
Each group does, however, make discrete arguments. We have considered
all of the arguments even though we may not discuss them specifically.
To the extent not addressed, we are not persuaded of their merit.
4758 RODRIGUEZ v. WEST PUBLISHING CORP.
II
Much of the appeal turns on the presence — and nondisclo-
sure to the class — of the incentive agreements. In particular,
Objectors assert that the Settlement Notice offends due pro-
cess because it omitted material information about the agree-
ments, and that the settlement itself should have been rejected
because the incentive agreements prevented the class repre-
sentatives from providing adequate representation. Relatedly,
Objectors contend that they benefitted the class by success-
fully opposing the incentive awards and should be allowed
attorney’s fees for the effort. Conversely, they question the
attorney’s fee award to class counsel as California law pre-
cludes the recovery of fees for conflicting representation.
A
Incentive awards are fairly typical in class action cases. See
4 William B. Rubenstein et al., Newberg on Class Actions
§ 11:38 (4th ed. 2008); Theodore Eisenberg & Geoffrey P.
Miller, Incentive Awards to Class Action Plaintiffs: An
Empirical Study, 53 U.C.L.A. L. Rev. 1303 (2006) (finding
twenty-eight percent of settled class actions between 1993 and
2002 included an incentive award to class representatives).
Such awards are discretionary, see In re Mego Fin. Corp. Sec.
Litig., 213 F.3d 454, 463 (9th Cir. 2000), and are intended to
compensate class representatives for work done on behalf of
the class, to make up for financial or reputational risk
undertaken in bringing the action, and, sometimes, to recog-
nize their willingness to act as a private attorney general.
Awards are generally sought after a settlement or verdict has
been achieved.
[1] The incentive agreements entered into as part of the ini-
tial retention of counsel in this case, however, are quite differ-
ent. Although they only bound counsel to apply for an award,
thus leaving the decision whether actually to make one to the
district judge, these agreements tied the promised request to
RODRIGUEZ v. WEST PUBLISHING CORP. 4759
the ultimate recovery and in so doing, put class counsel and
the contracting class representatives into a conflict position
from day one.
[2] The arrangement was not disclosed when it should have
been and where it was plainly relevant, at the class certifica-
tion stage. Had it been, the district court would certainly have
considered its effect in determining whether the conflicted
plaintiffs — Rodriguez, Frailich, Nesci, Brazeal, and Gintz —
could adequately represent the class. The conflict might have
been waived, or otherwise contained, but the point is that
uncovering conflicts of interest between the named parties
and the class they seek to represent is a critical purpose of the
adequacy inquiry. See Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 625 (1997). “[A] class representative must be part
of the class and ‘possess the same interest and suffer the same
injury’ as the class members.” E. Tex. Motor Freight Sys. Inc.
v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger
v. Reservists Comm. to Stop the War, 418 U.S. 208, 216
(1974)); see also Amchem Prods., 521 U.S. at 625-26. An
absence of material conflicts of interest between the named
plaintiffs and their counsel with other class members is cen-
tral to adequacy and, in turn, to due process for absent mem-
bers of the class. Hanlon v. Chrysler Corp., 150 F.3d 1011,
1020 (9th Cir. 1998).
In fact, the incentive agreements came to the fore when
Objectors pounced on them in opposing class counsel’s
motion for incentive awards to the class representatives. This
happened after preliminary approval of the settlement. In that
context the district court held that the agreements were inap-
propriate and contrary to public policy for a number of rea-
sons: they obligate class counsel to request an arbitrary award
not reflective of the amount of work done, or the risks
undertaken, or the time spent on the litigation; they create at
least the appearance of impropriety; they violate the Califor-
nia Rules of Professional Conduct prohibiting fee-sharing
with clients and among lawyers; and they encourage figure-
4760 RODRIGUEZ v. WEST PUBLISHING CORP.
head cases and bounty payments by potential class counsel.
The court found it particularly problematic that the incentive
agreements correlated the incentive request solely to the set-
tlement or litigated recovery, as the effect was to make the
contracting class representatives’ interests actually different
from the class’s interests in settling a case instead of trying it
to verdict, seeking injunctive relief, and insisting on compen-
sation greater than $10 million. It further observed that the
parties’ failure to disclose their agreement to the court, and to
the class, violated the contracting representatives’ fiduciary
duties to the class and duty of candor to the court.
[3] We agree. By tying their compensation — in advance
— to a sliding scale based on the amount recovered, the
incentive agreements disjoined the contingency financial
interests of the contracting representatives from the class. As
the district court observed, once the threshold cash settlement
was met, the agreements created a disincentive to go to trial;
going to trial would put their $75,000 at risk in return for only
a marginal individual gain even if the verdict were signifi-
cantly greater than the settlement. The agreements also gave
the contracting representatives an interest in a monetary set-
tlement, as distinguished from other remedies, that set them
apart from other members of the class. Further, agreements of
this sort infect the class action environment with the troubling
appearance of shopping plaintiffships. If allowed, ex ante
incentive agreements could tempt potential plaintiffs to sell
their lawsuits to attorneys who are the highest bidders, and
vice-versa. In addition, these agreements implicate California
ethics rules that prohibit representation of clients with con-
flicting interests.3 See Image Tech. Serv., Inc. v. Eastman
Kodak Co., 136 F.3d 1354, 1358 (9th Cir. 1998) (noting that
“[s]imultaneous representation of clients with conflicting
interests (and without informed written consent) is an auto-
3
The Central District of California has adopted the State Bar Act, the
Rules of Professional Conduct of the State Bar of California, and the deci-
sions applicable to the Act and Rules. C.D. Cal. L.R. 83-3.1.2.
RODRIGUEZ v. WEST PUBLISHING CORP. 4761
matic ethics violation in California”); Flatt v. Superior Court,
885 P.2d 950, 955 (Cal. 1994).
Although we have not previously encountered incentive
agreements, we expressed concern about similar problems
with incentive awards in Staton v. Boeing Co., 327 F.3d 938(9th Cir. 2003). There, we declined to approve a settlement
agreement where the awards request indicated that the class
representatives were “more concerned with maximizing [their
own] incentives than with judging the adequacy of the settle-
ment as it applies to class members at large.” See Staton, 327
F.3d at 977-78. We explained that excess incentive awards
may put the class representative in a conflict with the class
and present a “considerable danger of individuals bringing
cases as class actions principally to increase their own lever-
age to attain a remunerative settlement for themselves and
then trading on that leverage in the course of negotiations.”
Id. at 976-77.4 The danger is exacerbated if the named plain-
tiffs have an advance guarantee that a request for a relatively
large incentive award will be made that is untethered to any
service or value they will provide to the class.
[4] In sum, we disapprove of the incentive agreements
entered into between the named plaintiffs and class counsel in
this case. They created an unacceptable disconnect between
the interests of the contracting representatives and class coun-
sel, on the one hand, and members of the class on the other.
We expect those interests to be congruent. See Molski v.
Gleich, 318 F.3d 937, 955 (9th Cir. 2003) (noting that ade-
4
Congress has also expressed concern with the potential abuses of
incentive awards. The Private Securities Litigation Reform Act of 1995
(PSLRA) prohibits granting incentive awards to class representatives in
securities class actions. See 15 U.S.C. § 78u-4(a)(2)(A)(vi). More recently,
in the Class Action Fairness Act of 2005 (CAFA), Congress made the fol-
lowing finding: “Class members often receive little or no benefit from
class actions, and are sometimes harmed, such as where . . . (B) unjustified
awards are made to certain plaintiffs at the expense of other class mem-
bers.” Pub. L. No. 109-2, § 2(a)(3), 119 Stat. 4.
4762 RODRIGUEZ v. WEST PUBLISHING CORP.
quate representation consists of an “absence of antagonism”
and a “sharing of interests between representatives and absen-
tees”) (internal quotation marks and citation omitted). They
also gave rise to a disturbing appearance of impropriety. And
failing to disclose the incentive arrangements in connection
with class certification compounded these problems by
depriving the court, and the class, of the safeguard of
informed judicial consideration of the adequacy of class rep-
resentation.
[5] This said, we do not believe the district court was
required to reject the settlement for inadequate representation.
Only five of the seven class representatives had an incentive
agreement. Brewer and Rimson did not. “[T]he adequacy-of-
representation requirement is satisfied as long as one of the
class representatives is an adequate class representative.”
Local Joint Executive Bd. of Culinary/Bartender Trust Fund
v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 n.2 (9th Cir.
2001); 7A Charles A. Wright et al., Federal Practice and
Procedure § 1765, at 326 (2005) (“[I]f there is more than one
named representative, it is not necessary that all the represen-
tatives meet the Rule 23(a)(4) standard; as long as one of the
representatives is adequate, the requirement will be met.”).
Brewer and Rimson were also separately represented. There
is no evidence or contention that these two had any other con-
flict with the class.
Objectors submit only that Brewer and Rimson should have
told the district court about the incentive agreements. Even
assuming these two knew about the incentive agreements and
understood the implications, this did not create a conflict of
interest or otherwise interfere with their ability or motivation
to represent the class. Other factors indicate that the class was
adequately represented: Judge Weinstein, who mediated the
settlement, attested that the negotiations were conducted at
arm’s length; there was no evidence of collusion;5 and the set-
5
Objectors suggest that the “clear sailing” provision by which West and
Kaplan agreed not to contest attorney’s fees or incentive awards of no
RODRIGUEZ v. WEST PUBLISHING CORP. 4763
tlement fund far exceeded the ten million dollar trigger for the
contracting class representatives’ incentive agreements.
[6] Accordingly, we conclude that the presence of con-
flicted representatives was harmless. Similarly, the adequacy
requirement for class counsel is satisfied. Fed. R. Civ. P.
23(a)(4), (g)(4). Class counsel vigorously prosecuted the case
through to a fair settlement with the participation of two non-
conflicted law firms that represented class representatives
Brewer and Rimson. See Hanlon, 150 F.3d at 1020. The court
found their representation was adequate; and Judge Wein-
stein, who oversaw the settlement negotiations, believed that
“[e]ach side aggressively advocated their positions,” class
counsel “ha[d] as their primary goal achieving the maximum
substantive relief that they could,” and agreement “was
arrived at through arm’s length negotiations by counsel who
were skilled and knowledgeable about the facts and law of
this case.” Moreover, the participation of two firms that did
not enter incentive agreements, Finkelstein Thompson and
Zwerling, Shachter & Zwerling, assuages any additional con-
cerns that a conflict created by the incentive agreements may
have adversely affected the adequacy of representation. See
Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th
Cir. 1998) (“[T]he addition of new and impartial counsel can
cure a conflict of interest even where previous counsel contin-
ues to be involved in the case.”).6
more than $25,000 evinces collusion. However, both payments were to be
made from the settlement fund, capped at $49 million. This scenario does
not signal the possibility of collusion because, by agreeing to a sum cer-
tain, West and Kaplan were acting consistently with their own interests in
minimizing liability. Cf. Weinberger v. Great N. Nekoosa Corp., 925 F.2d
518, 524 (1st Cir. 1991) (inferring collusion from a “clear sailing” provi-
sion when the attorney’s fees were to be paid on top of the settlement fund
as this is counterintuitive defense behavior).
6
No other adequacy-based ground for rejecting the settlement appears.
Objectors suggest that an intra-class conflict exists based on speculation
that the statute of limitations and tolling principles would allow only a
4764 RODRIGUEZ v. WEST PUBLISHING CORP.
B
It follows that the Settlement Notice was not fatally defec-
tive for failing to disclose the actual or potential conflict aris-
ing out of the existence of incentive agreements.
[7] “The court must direct notice in a reasonable manner to
all class members who would be bound by the proposal.” Fed.
R. Civ. P. 23(e)(1). “Notice is satisfactory if it ‘generally
describes the terms of the settlement in sufficient detail to
alert those with adverse viewpoints to investigate and to come
forward and be heard.’ ” Churchill Vill., LLC v. Gen. Elec.,
361 F.3d 566, 575 (9th Cir. 2004) (quoting Mendoza v. Tuc-
son Sch. Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980)).
The Settlement Notice advised absent class members that
an application would be made to the court for an incentive
award of $25,000 for Frailich, Brazeal, Brewer, and Rimson,
and $75,000 for Rodriguez, Nesci, and Gintz to compensate
them for their participation in, and prosecution of, this case on
behalf of the class, and that the petition for incentive awards,
which would be filed before May 7, 2007, would be available
for inspection at the clerk’s office. Rodriguez, Nesci, and
Gintz disclosed the existence of the incentive agreements in
a document filed with the court on March 6, 2007. The Notice
also indicated that the settlement agreement and related docu-
ments were posted at www.barbri-classaction.com, and pro-
vided class counsel’s phone number and an email address to
which inquires could be sent. The settlement agreement itself
states that whether incentive awards should be awarded to
class representatives, as well as attorney’s fees, will be deter-
subclass to pursue the section 7 claim, but whether a subclass actually
exists has not been adjudicated. The first amended complaint alleges the
section 7 claim on behalf of the entire class, and the settlement provides
compensation to the entire class for this claim. Thus, any potential conflict
did not materialize and there is no cognizable prejudice. See generally
Amchem Prods., 521 U.S. at 627.
RODRIGUEZ v. WEST PUBLISHING CORP. 4765
mined at the final settlement hearing. It also provides that
class counsel will submit an application for an incentive
award to each class representative to be paid from the gross
settlement fund, and that West and Kaplan agree not to
oppose any application for an incentive award seeking no
more than $25,000.
[8] While neither the Settlement Notice nor the settlement
agreement discloses the incentive agreements, both show that
incentive awards will be sought. In the circumstances this was
sufficient to alert class members to follow-up if they had con-
cerns. See id.[9] Objectors contend that the Settlement Notice also failed
to provide a meaningful description of the terms of the settle-
ment, including the content of objections and the expected
value of fully litigating the case. In our view, the Notice con-
tains adequate information, presented in a neutral manner, to
apprise class members of the essential terms and conditions of
the settlement. The Notice advises class members that a
majority (hence, not all) of the class representatives approve
the settlement. It describes the aggregate amount of the settle-
ment fund and the plan for allocation, thereby complying with
what we require. See Torrisi v. Tucson Elec. Power Co., 8
F.3d 1370, 1373-74 (9th Cir. 1993); Marshall v. Holiday
Magic, Inc., 550 F.2d 1173, 1177-78 (9th Cir. 1977). While
the Notice does not detail the content of objections, or analyze
the expected value, we do not see why it should. Settlement
notices are supposed to present information about a proposed
settlement neutrally, simply, and understandably7 — objec-
tives not likely served by including the adversarial positions
7
Int’l Union, United Auto., Aerospace, & Agric. Implement Workers of
Am. v. Gen. Motors Corp., 497 F.3d 615, 630 (6th Cir. 2007) (“Rule 23(e)
does not require the notice to set forth every ground on which class mem-
bers might object to the settlement.”); In re Traffic Executive Ass’n-E.
R.R., 627 F.2d 631, 634 (2d Cir. 1980) (requiring the class notice to be
“scrupulously neutral”); Grunin v. Int’l House of Pancakes, 513 F.2d 114,
122 (8th Cir. 1975) (same).
4766 RODRIGUEZ v. WEST PUBLISHING CORP.
of objectors. We therefore conclude that the Notice communi-
cated the essentials of the proposed settlement in a suffi-
ciently balanced, accurate, and informative way to satisfy due
process concerns.
C
[10] Objectors who challenged the incentive awards argue
that the district court improperly denied fees attributable to
that work. The court rejected their request for fees on the foot-
ing that Objectors’ counsel “did not add anything” to its deci-
sion to deny incentive awards. This seems clearly erroneous
to us. The court was not focused on the incentive agreements
before Objectors took exception to them after the motion to
award payments to the class representatives was filed. In the
wake of that objection, the court denied the motion for incen-
tive awards in its entirety because the amounts requested were
unreasonable and the incentive agreements were inappropriate
and contrary to public policy. The net effect was to leave
$325,000 in the settlement fund — for distribution to the class
as a whole — that otherwise would have gone to the class rep-
resentatives. Given this, we cannot let stand a ruling that
Objectors did nothing that increased the fund or substantially
benefitted the class members. See Vizcaino v. Microsoft
Corp., 290 F.3d 1043, 1051 (9th Cir. 2002). Therefore, we
remand for the district court to reconsider the extent to which
Objectors added value that increased the fund or substantially
benefitted the class members, and to award attorney’s fees
accordingly.
III
Objectors press a number of issues apart from the effect of
the incentive agreements that bear on whether the settlement
was fair, adequate, and reasonable. The most serious have to
do with the district court’s evaluation of the amount offered
in settlement, in particular, its failure to estimate the range of
RODRIGUEZ v. WEST PUBLISHING CORP. 4767
possible outcomes and ascribe a probability to those out-
comes, and to consider treble damages.
Fed. R. Civ. P. 23(e) requires judicial approval of any set-
tlement by a certified class. The settlement must be “fair, rea-
sonable, and adequate.” Fed. R. Civ. P. 23(e)(2). A district
court “may consider some or all of the following factors”
when assessing whether a class action settlement agreement
meets this standard:
[1] the strength of plaintiffs’ case; [2] the risk,
expense, complexity, and likely duration of further
litigation; [3] the risk of maintaining class action sta-
tus throughout the trial; [4] the amount offered in
settlement; [5] the extent of discovery completed,
and the stage of the proceedings; [6] the experience
and views of counsel; [7] the presence of a govern-
mental participant; and [8] the reaction of the class
members to the proposed settlement.
Molski, 318 F.3d at 953; accord Staton, 327 F.3d at 959.
We review approval of a class action settlement for a “clear
abuse of discretion.” Molski, 318 F.3d at 953. This court
“ ‘will affirm if the district judge applies the proper legal stan-
dard and his or her findings of fact are not clearly errone-
ous.’ ” Id. (quoting In re Mego Fin. Corp. Sec. Litig., 213
F.3d at 458). “Our review of the district court’s decision to
approve a class action settlement is extremely limited. It is the
settlement taken as a whole, rather than the individual compo-
nent parts, that must be examined for overall fairness.” Han-
lon, 150 F.3d at 1026 (internal citation omitted). “To survive
appellate review, the district court must show it has explored
comprehensively all factors,” id., but a court is not required
to “reach any ultimate conclusions on the contested issues of
fact and law which underlie the merits of the dispute, for it is
the very uncertainty of outcome in litigation and avoidance of
wasteful and expensive litigation that induce consensual set-
4768 RODRIGUEZ v. WEST PUBLISHING CORP.
tlements,” Officers for Justice v. Civil Serv. Comm’n of San
Francisco, 688 F.2d 615, 625 (9th Cir. 1982).
Here, the court balanced each of the relevant factors in
approving the settlement.
[11] Strength of the plaintiffs’ case. The court noted that
successfully opposing Kaplan’s motion for summary judg-
ment did not mean that the class had established liability or
would obtain a favorable, unanimous jury verdict. This is, of
course, correct. It noted the difficulty of proving an antitrust
case, and that Kaplan and West had substantive and proce-
dural defenses to all three of the class’s claims (including a
potential statute of limitations defense that could decrease the
size of the class). Also, there were no government coattails for
the class to ride. Counting this factor in favor of settlement
was not a clear abuse of discretion.
Amount offered in settlement. Objectors claim it was legal
error for the court to consider only estimates of single dam-
ages without considering the treble damages that are an auto-
matic component of the recovery of antitrust damages. 15
U.S.C. § 15(a). The district court found that the $49 million
settlement represented thirty percent of the damages estimated
by the class expert — $158 million to $168 million. This anal-
ysis compared the settlement amount to the best possible out-
come for the class, without taking into account the significant
difference between the class’s estimate and the defense’s. The
defense expert had opined that there likely would be no dam-
ages but if there were any, they would not exceed $7 million.
In any event, the court declined to accept Objectors’ argument
that the monetary portion of the settlement was inadequate
because the section 7 claim was worth treble the class expert’s
single damages estimate — or $360 million. It reasoned that
doing so would presuppose that plaintiffs prevail at the end of
trial (thus undercutting the point of a negotiated resolution
where defendants do not admit liability); it would be specula-
tive; and, as the Second Circuit indicated in City of Detroit v.
RODRIGUEZ v. WEST PUBLISHING CORP. 4769
Grinnel Corp., 495 F.2d 448, 458 (2d Cir. 1974), overruled
on other grounds as recognized by U.S. Football League v.
Nat’l Football League, 887 F.2d 408, 415-16 (2d Cir. 1989),
courts do not traditionally factor treble damages into the cal-
culus for determining a reasonable settlement value.
It is our impression that courts generally determine fairness
of an antitrust class action settlement based on how it com-
pensates the class for past injuries, without giving much, if
any, consideration to treble damages.8 At the same time, treble
damages are a fact of life in antitrust litigation. In some cases
a court, asked to approve a settlement, may believe the class’s
claim is so strong that the merits of the amount negotiated
cannot reasonably be evaluated without measuring it against
the likelihood of a treble as well as a single damages recov-
ery. We have never precluded courts from comparing the set-
tlement amount to both single and treble damages. By the
same token, we do not require them to do so in all cases.
This circuit has long deferred to the private consensual
decision of the parties. See Hanlon, 150 F.3d at 1027. Experi-
enced counsel such as those representing all the parties in this
case will certainly be aware of exposure to treble damages in
an antitrust action. Likewise, the mediator in this case. As we
have emphasized,
‘the court’s intrusion upon what is otherwise a pri-
vate consensual agreement negotiated between the
parties to a lawsuit must be limited to the extent nec-
essary to reach a reasoned judgment that the agree-
ment is not the product of fraud or overreaching by,
or collusion between, the negotiating parties, and
that the settlement, taken as a whole, is fair, reason-
able and adequate to all concerned.’
8
But see In re Compact Disc Minimum Advertised Price Antitrust Litig.,
216 F.R.D. 197, 210 n.30 (D. Me. 2003); In re Auction Houses Antitrust
Litig., No., 00 Civ. 0648 (LAK), 2001 WL 170792, at *7-10 (S.D.N.Y.
Feb. 22, 2001).
4770 RODRIGUEZ v. WEST PUBLISHING CORP.
Id. (quoting Officers for Justice, 688 F.2d at 625).
[12] In this case, the negotiated amount is fair and reason-
able no matter how you slice it. There is no evidence of fraud,
overreaching, or collusion. Even considering the trebling
effect, the settlement amount represents approximately ten
percent of the class’s estimate of its own trebled damages and
more than twice that estimated by West and Kaplan. The $49
million is in cash, not in kind, which is a good indicator of a
beneficial settlement. All things considered, the district court
neither committed legal error, nor aside from that, clearly
abused its discretion in weighing the amount offered in settle-
ment in favor of approving the settlement.
We are not persuaded otherwise by Objectors’ further sub-
mission that the court should have specifically weighed the
merits of the class’s case against the settlement amount and
quantified the expected value of fully litigating the matter. For
this they rely on the Seventh Circuit’s opinion in Synfuel
Tech., Inc. v. DHL Express (USA), Inc., 463 F.3d 646 (7th
Cir. 2006), which follows that circuit’s precedent requiring
district courts to determine the strength of the plaintiff’s case
on the merits balanced against the amount offered in settle-
ment by “ ‘quantifying the net expected value of continued lit-
igation to the class.’ ” Id. at 653 (quoting Reynolds v.
Beneficial Nat’l Bank, 288 F.3d 277, 284-85 (7th Cir. 2002)).
To do this, the Seventh Circuit directs courts to “ ‘estimate the
range of possible outcomes and ascrib[e] a probability to each
point on the range.’ ” Id. However, our approach, and the fac-
tors we identify, are somewhat different. We put a good deal
of stock in the product of an arms-length, non-collusive,
negotiated resolution, Hanlon, 350 F.3d at 1027; Officers for
Justice, 688 F.2d at 625, and have never prescribed a particu-
lar formula by which that outcome must be tested. As we
explained in Officers for Justice, “[u]ltimately, the district
court’s determination is nothing more than an amalgam of
delicate balancing, gross approximations and rough justice.”
688 F.2d at 625 (internal quotation marks and citation omit-
RODRIGUEZ v. WEST PUBLISHING CORP. 4771
ted). The Seventh Circuit also recognizes that precision is
impossible, and that even its more structured approach is apt
to produce only a “ballpark valuation.” Synfuel, 463 F.3d at
653.
In reality, parties, counsel, mediators, and district judges
naturally arrive at a reasonable range for settlement by con-
sidering the likelihood of a plaintiffs’ or defense verdict, the
potential recovery, and the chances of obtaining it, discounted
to present value. See Federal Judicial Center, Manual for
Complex Litigation § 21.62, at 316 (4th ed. 2004) (one factor
“that may bear on review of a settlement” is “the advantages
of the proposed settlement versus the probable outcome of a
trial on the merits of liability and damages as to the claims,
issues, or defenses of the class and individual class mem-
bers”); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank
Prods. Liab. Litig., 55 F.3d 768, 806 (3d Cir. 1995).
Although the district court did not put it this way, the
amount of the alleged overcharge, the estimated recovery
ranges by both parties and their experts, and the results of a
mediated resolution, were before it. Objectors do not explain
how reversing the math on the record would have yielded a
meaningfully different result. Accordingly, the court did not
clearly abuse its discretion in concluding that this factor
weighs in favor of approving the settlement.
In an argument related to their position on treble damages,
Objectors also challenge the cy pres provision, which they
point out is a disfavored substitute for distribution of benefits
directly to class members. See Molski, 318 F.3d at 954-55.
Here, their argument goes, the settlement agreement distrib-
utes funds to class members up to thirty percent of the amount
each paid to BAR/BRI; this is based on an estimate of single
damages; thus, the cy pres provision effectively substitutes for
treble damages that should also be distributed to class mem-
bers. However, this issue becomes ripe only if the entire set-
tlement fund is not distributed to class members. See Six (6)
4772 RODRIGUEZ v. WEST PUBLISHING CORP.
Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301,
1313 (9th Cir. 1990) (Fernandez, J., concurring). That trigger
point has not been reached; no cy pres disbursement is immi-
nent; and the fund in this case may well be depleted before cy
pres kicks in. We therefore decline to consider the propriety
of cy pres at this time.
[13] Risk, expense, complexity, and likely duration of fur-
ther litigation. The court found, with substantial support in
the record, that the case is complex and likely to be expensive
and lengthy to try. The class in this case does not have the
benefit, like some other antitrust classes, of previous litigation
between the defendants and the government. While Objectors
point out that much heavy-lifting had already been done, a
number of serious hurdles remained — Daubert motions,9
West’s anticipated motion for summary judgment, and a
motion to bifurcate. Inevitable appeals would likely prolong
the litigation, and any recovery by class members, for years.
This factor, too, favors the settlement.
[14] Risk of maintaining class action status. The court did
not have to analyze the probabilities that West and Kaplan
would seek decertification of the nationwide class and suc-
ceed in the endeavor, as Objectors suggest, to weigh this fac-
tor in favor of the settlement. A district court may decertify
a class at any time. See Gen. Tel. Co. of Sw. v. Falcon, 457
U.S. 147, 160 (1982). West and Kaplan vigorously opposed
certification of a nationwide class, sought (albeit unsuccess-
fully) to take an interlocutory appeal from that order, and
would undoubtedly have appealed certification if there were
a final, adverse judgment. At the time of settlement, the risk
remained that the nationwide class might be decertified; it
was not so minimal that this factor could not weigh in favor
of the settlement. Bar review courses are given on a state-by-
state basis; states are distinct markets geographically, and
9
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (establish-
ing threshold standards for admissibility of expert scientific testimony).
RODRIGUEZ v. WEST PUBLISHING CORP. 4773
possibly in other respects. This could call the nationwide class
into question.
[15] Discovery completed; state of proceedings. Extensive
discovery had been conducted, and the parties had gone
through one round of summary judgment proceedings. From
this the district court could find that counsel had a good grasp
on the merits of their case before settlement talks began. Nor
is there any dispute that counsel had considerable experience
in litigating antitrust matters, class actions, and other complex
litigation. As we have held that “[p]arties represented by com-
petent counsel are better positioned than courts to produce a
settlement that fairly reflects each party’s expected outcome
in litigation,” In re Pac. Enters. Sec. Litig., 47 F.3d 373, 378
(9th Cir. 1995), the court could weigh this factor in favor of
approval.
[16] Reaction to proposed settlement. The court had dis-
cretion to find a favorable reaction to the settlement among
class members given that, of 376,301 putative class members
to whom notice of the settlement had been sent, 52,000 sub-
mitted claims forms and only fifty-four submitted objections.
See, e.g., Churchill Village, 361 F.3d at 577 (affirming
approval of a class action settlement where forty-five objec-
tions were received out of 90,000 notices).10
[17] For these reasons, we cannot say that the district court
clearly abused its discretion in approving the settlement.
10
To the extent one group of objectors claims this is misleading because
class members lacked access to records that were sealed pursuant to a pro-
tective order, that group did not take advantage of access which was pro-
vided and sought to unseal those records more than three weeks after the
deadline for filing objections. The district court denied that motion as
untimely, which it had discretion to do. See United States v. W.R. Grace,
526 F.3d 499, 508-09 (9th Cir. 2008) (en banc).
4774 RODRIGUEZ v. WEST PUBLISHING CORP.
IV
Having upheld approval of the settlement agreement, we
must consider the award of attorney’s fees to class counsel.
This brings us back to the incentive agreements.
[18] We require only that fee awards be reasonable in the
circumstances, In re Wash. Pub. Power Supply Sys. Sec.
Litig., 19 F.3d 1291, 1294 n.2 (9th Cir. 1994), and our review
is for abuse of discretion, Powers v. Eichen, 229 F.3d 1249,
1256 (9th Cir. 2000). The district court may award fees pursu-
ant to either a lodestar or a straight percentage of the settle-
ment fund. Id. (quoting In re Coordinated Pretrial
Proceedings in Petroleum Prods. Antitrust Litig., 109 F.3d
602, 607 (9th Cir. 1997)). Here it adopted the lodestar. A
court may also apply a multiplier to the lodestar calculation,
which the district court did. Wash. Pub. Power Supply Sys.
Sec. Litig., 19 F.3d at 1299-1301. In doing so it found that
counsel faced substantial risk in prosecuting this action; did
not have the benefit of fruits from underlying government
actions; there were no controlling precedents, especially with
regard to the section 7 claim; defense counsel were skilled
and formidable; and there were a number of hurdles in prov-
ing both damages and liability. The problem is that the district
court nowhere appears to have considered the effect on the
award of attorney’s fees of the conflict of interest that resulted
from the incentive agreements.
By virtue of the district court’s local rules, California law
controls whether an ethical violation occurred. C.D. Cal. L. R.
83-3.1.2. “Simultaneous representation of clients with con-
flicting interests (and without written informed consent) is an
automatic ethics violation in California and grounds for dis-
qualification.” Image Tech. Serv., 136 F.3d at 1358; Flatt, 885
P.2d at 955. Under California law, “[a]n attorney cannot
recover fees for such conflicting representation.” Image Tech.
Serv., 136 F.3d at 1358. “An attorney may claim fees only for
RODRIGUEZ v. WEST PUBLISHING CORP. 4775
services provided before the conflict arose and the ethical
breach occurred.” Id.We express no opinion on the impact of these principles on
the fees request in this case, but it is apparent that they are,
at least, implicated. We realize that conflicts of interest
among class members are not uncommon and arise for many
different reasons. However, the conflict of interest inhering in
the incentive agreements did not just happen, nor was it a con-
flict that developed beyond the control or perception of class
counsel. It was inserted into the retainer agreement. “ ‘The
responsibility of class counsel to absent class members whose
control over their attorneys is limited does not permit even the
appearance of divided loyalties of counsel.’ ” Kayes v. Pac.
Lumber Co., 51 F.3d 1449, 1465 (9th Cir. 1995) (quoting Sul-
livan v. Chase Inv. Servs. of Boston, Inc., 79 F.R.D. 246, 258
(N.D. Cal. 1978)). In addition, class counsel’s fiduciary duty
is to the class as a whole and it includes reporting potential
conflict issues. Neither the incentive agreements nor the pos-
sibility of conflict was disclosed to the court so that it could
take steps to protect the interests of absentee class members.
We think it appropriate for the district court to consider
whether counsel could represent both the class representatives
with whom there was an incentive agreement, and absentee
class members, without affecting the entitlement to fees.
[19] At the fee-setting stage when fees are to come out of
the settlement fund, the district court has a fiduciary role for
the class. See Wash. Pub. Power Supply Sys. Sec. Litig., 19
F.3d at 1302. It may be that the record is insufficient for the
court to make a reasoned judgment; if so, an opportunity
should be afforded for the parties to develop the record.
Accordingly, we remand for the district court to consider in
the first instance the effect, if any, of the conflict arising out
of the incentive agreements on the request by class counsel
for an attorney’s fee award.
Objectors argue the amount of the fee award to class coun-
sel, including the 1.75 multiplier and the cap at twenty-five
4776 RODRIGUEZ v. WEST PUBLISHING CORP.
percent of the settlement fund, is grossly excessive. We
decline to address this argument at this time. On remand, we
expect the district court to revisit all aspects of the award to
class counsel.
V
We conclude that incentive agreements, entered into as part
of five named plaintiffs’ retainer agreement with counsel, cre-
ated conflicts among them (later certified as class representa-
tives), their counsel (later certified as class counsel), and the
rest of the class. It was inappropriate not to disclose these
agreements at the class certification stage, because an ex ante
incentive agreement is relevant to whether a named plaintiff
who is party to one can adequately represent the class. How-
ever, this impropriety did not require the district court to
reject the settlement negotiated in this case because two non-
conflicted class representatives with non-conflicted counsel
participated. Nor did the district court clearly abuse its discre-
tion in determining that the amount of the settlement favored
approval, whether compared to the likely recovery of single,
or treble, damages. By any measure, this settlement is fair,
adequate, and reasonable.
The district court should have recognized that Objectors’
position on the impropriety of incentive agreements had some
effect on its decision to deny the request for incentive awards;
and it should have considered what effect, if any, the ethics
implications of a conflict of interest created by the incentive
agreements had on class counsel’s request for an award of
attorney’s fees.
Therefore, we affirm approval of the settlement. We
reverse and remand the award of attorney’s fees to class coun-
sel for consideration of the effect, if any, of the incentive
agreements on entitlement to fees. We also reverse and
remand the denial of fees to Objectors’ counsel for a determi-
RODRIGUEZ v. WEST PUBLISHING CORP. 4777
nation of a reasonable amount given their contribution to the
denial of the requests for incentive awards.
AFFIRMED IN PART; REVERSED AND REMANDED
IN PART.
Each party shall bear its own costs on appeal.