Harry Dennis v. Stephanie Berg ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARRY DENNIS; JON KOZ, on behalf 
of themselves and all others
similarly situated,
Plaintiffs-Appellees, No. 11-55674

STEPHANIE BERG, D.C. No.
Objector-Appellant, 3:09-cv-01786-
v. IEG-WMC
KELLOGG COMPANY, a Delaware
corporation,
Defendant-Appellee.

HARRY DENNIS; JON KOZ, on behalf 
of themselves and all others
similarly situated,
Plaintiffs-Appellees, No. 11-55706
D.C. No.

OMAR RIVERO,
Objector-Appellant, 3:09-cv-01786-
IEG-WMC
v.
OPINION
KELLOGG COMPANY, a Delaware
corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted
June 7, 2012—Pasadena, California
8109
8110 DENNIS v. KELLOGG COMPANY
Filed July 13, 2012
Before: Stephen S. Trott and Sidney R. Thomas,
Circuit Judges, and Kevin Thomas Duffy, District Judge.*
Opinion by Judge Trott
*The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
8112 DENNIS v. KELLOGG COMPANY
COUNSEL
Joseph Darrell Palmer and Janine R. Menhennet, Law Offices
of Darrell Palmer PC, Solana Beach, California, and Christo-
pher A. Bandas, Bandas Law Firm, P.C., Corpus Christi,
Texas, for the objectors-appellants.
Timothy G. Blood, Blood Hurst & O’Reardon LLP, San
Diego, California, for the plaintiffs-appellees.
Kenneth K. Lee, Jenner & Block LLP, Los Angeles, Califor-
nia, and Richard P. Steinken, Jenner & Block LLP, Chicago,
Illinois, for the defendant-appellee.
OPINION
TROTT, Circuit Judge:
Most cases in our judicial system never make it to trial. Lit-
igants often find it advantageous to secure a resolution more
DENNIS v. KELLOGG COMPANY 8113
quickly by settling the case and negotiating a result the parties
can tolerate, even though neither side can call it a total win.
Normally, that is the end of the story, and the parties walk
away — not entirely happy, but not entirely unhappy either.
In a class action, however, any settlement must be
approved by the court to ensure that class counsel and the
named plaintiffs do not place their own interests above those
of the absent class members. In this false advertising case, we
confront a class action settlement, negotiated prior to class
certification, that includes cy pres distributions of money and
food to unidentified charities. It also includes $2 million in
attorneys’ fees — which breaks down to a $2,100 hourly rate
— while offering class members a sum of (at most) $15.
After carefully reviewing the class settlement, we conclude
that it must be set aside for two reasons. First, the district
court did not apply the correct legal standards governing cy
pres distributions and thus abused its discretion in approving
the settlement. The settlement neither identifies the ultimate
recipients of the cy pres awards nor sets forth any limiting
restriction on those recipients, other than characterizing them
as charities that feed the indigent. To the extent that we can
meaningfully review such distributions where the parties fail
to identify the recipients, we hold that the cy pres portions of
the settlement are not sufficiently related to the plaintiff class
or to the class’s underlying false advertising claims. Second,
even if the cy pres distributions did comply with our cy pres
standards, the settlement would still fail because the negoti-
ated attorneys’ fees are excessive. We therefore reverse the
district court’s approval of the settlement, vacate the judg-
ment, and remand for further proceedings consistent with this
opinion.
I
BACKGROUND
In January 2008, Kellogg Co., the maker of Frosted Mini-
Wheats cereal, began a marketing campaign that claimed the
8114 DENNIS v. KELLOGG COMPANY
cereal was scientifically proven to improve children’s cogni-
tive functions for several hours after breakfast. Obviously
aimed at parents of school-age children, Kellogg’s advertise-
ments allegedly included the following statements:
• “Does your child need to pay more attention in
school? . . . A recent clinical study showed that
a whole grain and fiber-filled breakfast of Frosted
Mini-Wheats® helps improve children’s atten-
tiveness by nearly 20%.”
• “Kellogg recently commissioned research to
measure the effect on kids of eating a breakfast
of Frosted Mini-Wheats® cereal. An independent
research group conducted a series of standard-
ized, cognitive tests on children ages 8 to 12 who
ate either a breakfast of Frosted Mini-Wheats®
cereal or water. The result? The children who ate
a breakfast of Frosted Mini-Wheats® cereal had
a nearly 20% improvement in attentiveness.”
• “Based upon independent clinical research, kids
who ate Kellogg’s® Frosted Mini-Wheats®
cereal for breakfast had up to 18% better atten-
tiveness three hours after breakfast than kids who
ate no breakfast.”
According to a declaration submitted by lead counsel for
the plaintiff class, counsel began investigating these market-
ing claims and, in April and May 2009, drafted a class action
complaint on behalf of Ohio resident Jon Koz, alleging viola-
tions of Ohio consumer protection laws. Around the same
time, another law firm was investigating the same marketing
claims on behalf of California resident Harry Dennis.
Although Mr. Koz never filed his Ohio complaint, Mr. Dennis
filed suit in August 2009 against Kellogg in the United States
District Court for the Southern District of California, alleging
DENNIS v. KELLOGG COMPANY 8115
violations of that state’s Unfair Competition Law (UCL) and
asserting a claim of unjust enrichment.
Sometime prior to January 2010, counsel for Koz and coun-
sel for Dennis discovered they were involved in similar activi-
ties and decided to join forces. Because informal settlement
attempts were unsuccessful, counsel for the consumers and
for Kellogg participated in a day-long mediation session with
Martin Quinn of JAMS, a well-established alternative dispute
resolution firm. As a result of this mediation session and
numerous other settlement discussions, the parties agreed, in
principle, to settle the case.
Meanwhile, the Dennis lawsuit had been gathering dust. On
June 22, 2010, the district court notified the parties of its
intent to dismiss the case for lack of prosecution. Koz and
Dennis immediately filed a joint amended class action com-
plaint.
In their amended complaint, the named plaintiffs asserted
that Kellogg’s marketing claims regarding the effect of
Frosted Mini-Wheats on children’s attentiveness were false,
that the study upon which these results were based did not
support the company’s claims, and that the study was not sci-
entifically valid. The plaintiffs asserted unjust enrichment,
claims under the UCL and California’s Consumer Legal Rem-
edies Act (CLRA), and claims under “similar laws of other
states.”
Over the next three months, the parties continued to work
out the details of their settlement. Ultimately, they agreed to
settle the case on the following terms:
• Kellogg agreed to establish a $2.75 million fund
for distribution to class members on a claims-
made basis. Class members submitting claims
would receive $5 per box of cereal purchased, up
8116 DENNIS v. KELLOGG COMPANY
to a maximum of $15.1 Any funds remaining
would not revert to Kellogg but would instead be
donated to “charities chosen by the parties and
approved by the Court pursuant to the cy pres
doctrine.”
• Kellogg agreed to distribute, also pursuant to the
cy pres doctrine, $5.5 million “worth” of specific
Kellogg food items to charities that feed the indi-
gent. The settlement does not specify the recipi-
ent charities, nor does it indicate how this $5.5
million in food will be valued — at cost, whole-
sale, retail, or by some other measure.
• Kellogg agreed that for three years, it would “re-
frain from using in its advertising and on its
labeling for the Product any assertion to the
effect that ‘eating a bowl of Kellogg’s® Frosted
Mini-Wheats cereal for breakfast is clinically
shown to improve attentiveness by nearly
20%.’ ” Kellogg would still be allowed to claim
that “[c]linical studies have shown that kids who
eat a filling breakfast like Frosted Mini-Wheats
have an 11% better attentiveness in school than
kids who skip breakfast.”
• Kellogg agreed to pay class counsel’s attorneys’
fees and costs “not to exceed a total of $2 mil-
lion.” Class counsel eventually requested the full
$2 million in fees and costs.2
1
The claims period has now closed. Although there is nothing in the
record to indicate how many class members submitted claims, class coun-
sel represented at oral argument that the claims submitted total approxi-
mately $800,000.
2
Although the district court’s order listed the attorneys’ fees as $2.4 mil-
lion, all parties agree that the correct figure is $2 million.
DENNIS v. KELLOGG COMPANY 8117
• The plaintiffs agreed to release all claims arising
out of the challenged advertising.
Together with notice and administrative costs approximated at
$391,500, the parties value the settlement at $10,641,500.
On the plaintiffs’ motion, the district court certified the
class, granted preliminary approval of the settlement, and
approved the proposed class notice. Because Kellogg sells its
products to wholesalers, not directly to consumers, there was
no way to identify each member of the class. Therefore, the
class notice was published in Parents magazine and other
“targeted sources based on market research about consumers
who purchased the products,” including 375 websites.
Two class members objected to the settlement: Stephanie
Berg and Omar Rivero (Objectors). As relevant to this appeal,
the Objectors argued that the settlement’s use of cy pres relief
was improper because “the only relationship between this
lawsuit and feeding the indigent is that they both involve food
in some way.” They argued also that the cy pres distributions
would benefit class counsel and Kellogg, but not the class
members, because class members “have no idea how their
funds might be used or in whose hands their monies will end
up.” Finally, the Objectors argued that the attorneys’ fees —
which represented approximately 19% of a common fund
allegedly worth over $10.64 million — were excessive. The
district court approved the class settlement and dismissed the
case with prejudice. In doing so, however, the court did not
address the Objectors’ argument that the cy pres distributions
were too remote from the class members and were not suffi-
ciently related to their UCL and CLRA claims. The court also
approved the requested attorneys’ fees, stating that the fees
were
fair and reasonable in light of the results achieved,
the risks of litigation, the skill required and the qual-
ity of work, the contingent nature of the fee, the bur-
8118 DENNIS v. KELLOGG COMPANY
dens carried by class counsel, and the awards made
in similar cases. See Vizcaino v. Microsoft Corp.,
290 F.3d 1043, 1048-50 (9th Cir. 2002). Accord-
ingly, the objections are overruled.
The Objectors timely appealed.
II
STANDARD OF REVIEW
The settlement of a class action must be fair, adequate, and
reasonable. Fed. R. Civ. P. 23(e)(2). “We review a district
court’s approval of a proposed class action settlement, includ-
ing a proposed cy pres settlement distribution, for abuse of
discretion. A court abuses its discretion when it fails to apply
the correct legal standard or bases its decision on unreason-
able findings of fact.” Nachshin v. AOL, LLC, 663 F.3d 1034,
1038 (9th Cir. 2011) (internal citations omitted).
Appellate review of a settlement agreement is generally
“extremely limited.” Hanlon v. Chrysler Corp., 150 F.3d
1011, 1026 (9th Cir. 1998). But where, as here, class counsel
negotiates a settlement agreement before the class is even cer-
tified, courts “must be particularly vigilant not only for
explicit collusion, but also for more subtle signs that class
counsel have allowed pursuit of their own self-interests and
that of certain class members to infect the negotiations.” In re
Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 947 (9th
Cir. 2011). In such a case, settlement approval “requires a
higher standard of fairness” and “a more probing inquiry than
may normally be required under Rule 23(e).” Hanlon, 150
F.3d at 1026. “To survive appellate review, the district court
must show it has explored comprehensively all factors,” id.,and must give “a reasoned response” to all non-frivolous
objections, Officers for Justice v. Civil Serv. Comm’n, 688
F.2d 615, 624 (9th Cir. 1982).
DENNIS v. KELLOGG COMPANY 8119
III
DISCUSSION
A
The Cy Pres Distributions of Food and Unclaimed Funds
[1] Although the cy pres doctrine originated in the area of
wills as a way to effectuate the testator’s intent in making
charitable gifts, federal courts now frequently apply it in the
settlement of class actions “ ‘where the proof of individual
claims would be burdensome or distribution of damages cost-
ly.’ ” Nachshin, 663 F.3d at 1038 (quoting Six Mexican Work-
ers v. Ariz. Citrus Growers, 904 F.2d 1301, 1305 (9th Cir.
1990)). Used in lieu of direct distribution of damages to silent
class members, this alternative allows for “aggregate calcula-
tion of damages, the use of summary claim procedures, and
distribution of unclaimed funds to indirectly benefit the entire
class.” Six Mexican Workers, 904 F.2d at 1305. To ensure that
the settlement retains some connection to the plaintiff class
and the underlying claims, however, a cy pres award must
qualify as “the next best distribution” to giving the funds
directly to class members. Id. at 1308 (internal quotation
marks omitted).
[2] Not just any worthy recipient can qualify as an appro-
priate cy pres beneficiary. To avoid the “many nascent dan-
gers to the fairness of the distribution process,” we require
that there be “a driving nexus between the plaintiff class and
the cy pres beneficiaries.” Nachshin, 663 F.3d at 1038. A cy
pres award must be “guided by (1) the objectives of the
underlying statute(s) and (2) the interests of the silent class
members,” id. at 1039, and must not benefit a group “too
remote from the plaintiff class,” Six Mexican Workers, 904
F.2d at 1308. Thus, in addition to asking “whether the class
settlement, taken as a whole, is fair, reasonable, and adequate
to all concerned,” we must also determine “whether the distri-
8120 DENNIS v. KELLOGG COMPANY
bution of the approved class settlement complies with our
standards governing cy pres awards.” Nachshin, 663 F.3d at
1040 (internal quotation marks omitted).
A review of our relevant precedent reveals that the settle-
ment here fails to satisfy those standards. In Six Mexican
Workers v. Arizona Citrus Growers, a class of undocumented
Mexican farm workers sued various companies for violations
of the Farm Labor Contractor Registration Act. 904 F.2d at
1303. After a bench trial, the district court found the defen-
dants liable for over $1.8 million, which we later reduced to
$850,000, in statutory damages. Id. at 1303-04, 1310. The dis-
trict court identified the Inter-American Fund, which provided
humanitarian aid in Mexico, as the cy pres recipient of any
unclaimed funds. Id. at 1304.
We held that the cy pres distribution was an abuse of dis-
cretion because there was “no reasonable certainty” that any
class member would benefit from it, even though the money
would go “to areas where the class members may live.” Id. at
1308. The choice of charity and its relation to the class mem-
bers and class claims — or lack thereof — figured heavily in
our analysis. The purpose of the statute was to compensate
victims of unscrupulous employers and to deter future viola-
tions, but the Inter-American Fund was “not an organization
with a substantial record of service nor is it limited in its
choice of projects,” and any distribution would therefore have
required court supervision “to ensure that the funds are dis-
tributed in accordance with the goals of the remedy.” Id. at
1309. Because “the district court’s application [of the cy pres
doctrine] was inadequate to serve the goals of the statute and
protect the interests of the silent class members,” we reversed
the cy pres distribution. Id. at 1312.
We recently came to a similar conclusion in Nachshin v.
AOL, LLC. In that case, AOL was accused of violating a num-
ber of statutes, including the UCL and the CLRA, by wrong-
fully inserting commercial footers into the plaintiffs’ outgoing
DENNIS v. KELLOGG COMPANY 8121
emails. 663 F.3d at 1036. Because damages would be small
and distribution to the class prohibitively expensive, AOL
agreed, as part of a class settlement, to make substantial dona-
tions to three charities: the Legal Aid Foundation of Los
Angeles, the Federal Judicial Center Foundation, and the Los
Angeles and Santa Monica chapters of the Boys and Girls
Club of America. Id. at 1037.
We held that the cy pres distribution “fail[ed] to target the
plaintiff class, because it d[id] not account for the broad geo-
graphic distribution of the class.” Id. at 1040. The class
included over 66 million AOL users across the country, but
two-thirds of the donations were slated for Los Angeles chari-
ties. Further, although the donation to the Federal Judicial
Center Foundation “at least conceivably benefit[ed] a national
organization,” the Foundation “ha[d] no apparent relation to
the objectives of the underlying statutes, and it [wa]s not clear
how this organization would benefit the plaintiff class.” Id.We noted, however, that it would not be difficult for the par-
ties to come up with an appropriate charity if they wished to
do so:
It is clear that all members of the class share two
things in common: (1) they use the internet, and (2)
their claims against AOL arise from a purportedly
unlawful advertising campaign that exploited users’
outgoing e-mail messages. The parties should not
have trouble selecting beneficiaries from any number
of non-profit organizations that work to protect inter-
net users from fraud, predation, and other forms of
online malfeasance.
Id. at 1041. In approving the cy pres distribution to charities
that had no relation to the class or to the underlying claims,
the district court “applied the incorrect legal standard” and
abused its discretion. Id. at 1040.
[3] The cy pres award in the settlement here is likewise
divorced from the concerns embodied in consumer protection
8122 DENNIS v. KELLOGG COMPANY
laws such as the UCL and the CLRA. As California courts
have stated, “[t]he UCL is designed to preserve fair competi-
tion among business competitors and protect the public from
nefarious and unscrupulous business practices,” Wells v.
One2One Learning Found., 10 Cal. Rptr. 3d 456, 463-64 (Ct.
App. 2004), rev’d in part on other grounds, 141 P.3d 225(Cal. 2006), and the purpose of the CLRA is similarly “to pro-
tect consumers against unfair and deceptive business prac-
tices,” Cal. Civ. Code § 1760. Although there is no way to
identify the cy pres beneficiaries from this record, we do
know that according to the settlement, any charity to receive
a portion of the cy pres distributions will be one that feeds the
indigent. This noble goal, however, has “little or nothing to do
with the purposes of the underlying lawsuit or the class of
plaintiffs involved.” Nachshin, 663 F.3d at 1039.
[4] At oral argument, Kellogg’s counsel frequently
asserted that donating food to charities who feed the indigent
relates to the underlying class claims because this case is
about “the nutritional value of food.” With respect, that is
simply not true, and saying it repeatedly does not make it so.
The complaint nowhere alleged that the cereal was unhealthy
or lacked nutritional value. And no law allows a consumer to
sue a company for selling cereal that does not improve atten-
tiveness. The gravamen of this lawsuit is that Kellogg adver-
tised that its cereal did improve attentiveness. Those alleged
misrepresentations are what provided the plaintiffs with a
cause of action under the UCL and the CLRA, not the nutri-
tional value of Frosted Mini-Wheats. Thus, appropriate cy
pres recipients are not charities that feed the needy, but orga-
nizations dedicated to protecting consumers from, or redress-
ing injuries caused by, false advertising.
Our concerns are not placated by the settlement provision
that the charities will be identified at a later date and approved
by the court — a decision from which the Objectors might
again appeal. Our standards of review governing pre-
certification settlement agreements require that we carefully
DENNIS v. KELLOGG COMPANY 8123
review the entire settlement, paying special attention to
“terms of the agreement contain[ing] convincing indications
that the incentives favoring pursuit of self-interest rather than
the class’s interests in fact influenced the outcome of the
negotiations.” Staton v. Boeing Co., 327 F.3d 938, 960 (9th
Cir. 2003). Cy pres distributions present a particular danger in
this regard. “When selection of cy pres beneficiaries is not
tethered to the nature of the lawsuit and the interests of the
silent class members, the selection process may answer to the
whims and self interests of the parties, their counsel, or the
court.” Nachshin, 663 F.3d at 1039. This record leaves open
the distinct possibility that the asserted $5.5 million value of
the cy pres award will only be of serendipitous value to the
class purportedly protected by the settlement. The difficulty
here is that, by failing to identify the cy pres recipients, the
parties have restricted our ability to undertake the searching
inquiry that our precedent requires. The cy pres problem pre-
sented in this case is of the parties’ own making, and encour-
aging multiple costly appeals by punting down the line our
review of the settlement agreement is no solution.
[5] For the foregoing reasons, we conclude that the district
court did not apply the correct legal standards for cy pres dis-
tributions as set forth in Six Mexican Workers and Nachshin.
Therefore, the approval of the settlement was an abuse of dis-
cretion.
[6] We do not have the authority to strike down only the
cy pres portions of the settlement. “It is the settlement taken
as a whole, rather than the individual component parts, that
must be examined for overall fairness,” and we cannot “de-
lete, modify or substitute certain provisions. The settlement
must stand or fall in its entirety.” Hanlon, 150 F.3d at 1026(internal quotation marks omitted). See also Jeff D. v. Andrus,
899 F.2d 753, 758 (9th Cir. 1989) (“[C]ourts are not permitted
to modify settlement terms or in any manner to rewrite agree-
ments reached by parties.”). Thus, we must reverse the district
court’s order approving the settlement and dismissing the
8124 DENNIS v. KELLOGG COMPANY
case, vacate the judgment, and remand for further proceed-
ings.
On remand, the parties are free to negotiate a new settle-
ment or proceed with litigation. If they again decide to settle,
they must consider correcting the additional deficiencies that
we find in this settlement agreement. Not only does the settle-
ment fail to identify the cy pres recipients of the unclaimed
money and food, but it is unacceptably vague in other areas
as well.
The settlement states only that Kellogg will donate “$5.5
million worth” of food. (emphasis added). But the settlement
gives no hint as to how that $5.5 million will be valued. Is it
valued at Kellogg’s cost? At wholesale value? At retail? Kel-
logg stated at oral argument and in its briefs to the district
court that it will value the food donation at wholesale, but the
only legally-enforceable document — the settlement — says
nothing of the sort. Additionally, the settlement fails to
include any restrictions on how Kellogg accounts for the cy
pres distributions. Can Kellogg use the value of the distribu-
tions as tax deductions because they will go to charity? And
given that Kellogg already donates both food and money to
charities every year — which is unquestionably an admirable
act — will the cy pres distributions be in addition to that
which Kellogg has already obligated itself to donate, or can
Kellogg use previously budgeted funds or surplus production
to offset its settlement obligations? Again, the settlement is
silent, and we have only Kellogg’s statements as to its future
intentions. All of this vagueness detracts from our ability to
determine the true value of the common fund.
Neither class counsel nor Kellogg offers any credible rea-
son for the mysteries in the current settlement. To approve
this settlement despite its opacity would be to abdicate our
responsibility to be “particularly vigilant” of pre-certification
class action settlements. In re Bluetooth Headset Prods. Liab.
Litig., 654 F.3d at 947.
DENNIS v. KELLOGG COMPANY 8125
B
Attorneys’ Fees
Even if the cy pres distributions were sufficiently related to
the class members and their false advertising claims, which
they are not, we would still vacate the settlement because the
$2 million award of attorneys’ fees is unreasonable. Indeed,
because the settlement grants counsel “a disproportionate dis-
tribution of the settlement” compared with the benefit to the
class, it is possible the settlement was “driven by fees.” Han-
lon, 150 F.3d at 1021.
[7] We review an award of attorneys’ fees for abuse of dis-
cretion. Rodriguez v. West Publ’g Corp., 563 F.3d 948, 967
(9th Cir. 2009). “[C]ourts have an independent obligation to
ensure that the [fee] award, like the settlement itself, is rea-
sonable, even if the parties have already agreed to an
amount.” In re Bluetooth Headset Prods. Liab. Litig., 654
F.3d at 941. In common fund cases like this one, “where the
settlement or award creates a large fund for distribution to the
class, the district court has discretion to use either a percent-
age or lodestar method.” Hanlon, 150 F.3d at 1029.
Under a percentage analysis, attorneys’ fees are calculated
as a percentage of the common fund, the real value of which
is simply illusive here. “This circuit has established 25% of
the common fund as a benchmark award for attorney fees.”
Id. But not every fee award under 25% is necessarily reason-
able. “[F]or example, where awarding 25% of a ‘megafund’
would yield windfall profits for class counsel in light of the
hours spent on the case, courts should adjust the benchmark
percentage or employ the lodestar method instead.” In re
Bluetooth Headset Prods. Liab. Litig., 654 F.3d at 942.
[8] The lodestar method of determining fees “begins with
the multiplication of the number of hours reasonably
expended by a reasonable hourly rate.” Hanlon, 150 F.3d at8126 DENNIS v. KELLOGG COMPANY
1029. In a common fund case, the court can then “apply a risk
multiplier,” which is “a number, such as 1.5 or 2, by which
the base lodestar figure is multiplied in order to increase (or
decrease) the award of attorneys’ fees on the basis of such
factors as the risk involved and the length of the proceed-
ings.” Staton, 327 F.3d at 967-68. Even where a court uses the
percentage of the fund analysis, it can be helpful to apply a
“lodestar cross-check.” Vizcaino v. Microsoft Corp., 290 F.3d
1043, 1050 (9th Cir. 2002). This “[c]alculation of the lodestar,
which measures the lawyers’ investment of time in the litiga-
tion, provides a check on the reasonableness of the percentage
award. Where such investment is minimal, as in the case of
an early settlement, the lodestar calculation may convince a
court that a lower percentage is reasonable.” Id.Under either method, reasonableness remains the focus.
Several factors are at play in the determination of a reasonable
award of attorneys’ fees. These factors include (1) the results
achieved for the class, (2) the risk in bringing the suit, particu-
larly with respect to the contingent nature of the fee, (3) the
length of the litigation and the burdens borne by counsel
throughout that litigation, and (4) any other relevant circum-
stance that might affect the amount of the award. Id. at 1048-
51. See also In re Bluetooth Headset Prods. Liab. Litig., 654
F.3d at 942 (identifying “a host of ‘reasonableness’ factors”).
In this case, the district court applied a percentage of the
fund analysis and approved the full $2 million in fees, which
— according to the parties — represents approximately 19%
of the common fund. Because the Objectors did not ask the
district court to apply the lodestar analysis instead of the per-
centage analysis, they have forfeited that argument. Neverthe-
less, we will consider the lodestar cross-check as one factor
in determining whether the fees are reasonable.
[9] We conclude they are not. Considering that (1) the par-
ties moved for settlement approval only three months after
class counsel filed the amended complaint, (2) the settlement
DENNIS v. KELLOGG COMPANY 8127
results in vaporous benefit to the class members and is flawed
at its core, and (3) class counsel’s financing of the litigation
and investment of time were rather limited, we hold that the
district court’s reasonableness finding is implausible. See
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009)
(en banc).
We recognize that the abbreviated nature of legal proceed-
ings does not always require a lower fee. We also understand
the necessity of allowing counsel “a premium over their nor-
mal hourly rates for winning contingency cases” to account
for the risk of non-payment if the case is unsuccessful. Viz-
caino, 290 F.3d at 1051. However, the most important factors
in this case — at least at this juncture — are the results
achieved for the class and the lawyers’ limited investment of
time and money.
[10] The settlement yields little for the plaintiff class. As
discussed above, there is no reasonable certainty that the cy
pres distributions as currently structured will benefit the class.
The injunctive relief, prohibiting Kellogg from using the 20%
attentiveness advertisements, lasts only three years. And class
members, assuming they were aware of the litigation and sub-
mitted claims, will each receive the paltry sum of $5, $10, or
$15.
In comparison, the $2 million award is extremely generous
to counsel — even if we were to accept their assertion that the
value of the common fund is $10.64 million. At the time the
plaintiffs moved for settlement approval, class counsel had
spent 944.5 hours working on the case. If the case had been
litigated on an hourly basis at the attorneys’ ordinary and
uncontested rates, the total fees would have come to
$459,203. The requested award, however, is about 4.3 times
this lodestar amount. Although under the parties’ valuation
the award is below the 25% benchmark, a lodestar multiplier
of 4.3 is quite high, particularly in a case that was not heavily
litigated. Because the attorneys’ investment was so minimal
8128 DENNIS v. KELLOGG COMPANY
— as was the relief they claim to have obtained for the class
— the lodestar cross-check leads us to the inescapable conclu-
sion that the $2 million award is not reasonable. Cf. Fischel
v. Equitable Life Assurance Soc’y of U.S., 307 F.3d 997, 1008
(9th Cir. 2002) (lodestar multiplier of 1.5 was not unreason-
ably low given that the case settled early); Vizcaino, 290 F.3d
at 1050-51 (lodestar cross-check of a 3.65 multiplier was not
unreasonably high given that litigation extended over eleven
years). Rather, it “yield[s] windfall profits for class counsel in
light of the hours spent on the case.” In re Bluetooth Headset
Prods. Liab. Litig., 654 F.3d at 942.
This is so even assuming that the fund is actually worth
what the parties say it is, an allegation very much in doubt.
Moreover, once the alleged $5.5 million cy pres distribution
is removed from the equation, the $2 million fee award
becomes 38.9% of the remaining value of the fund. This fig-
ure is well above our presumptive benchmark, making the
unreasonableness of the fee award all the more blatant.
[11] Finally, let us not forget that the $2 million fee award
breaks out to just over $2,100 per hour. Not even the most
highly sought after attorneys charge such rates to their clients.
Class counsel contends that the requested fees are reasonable
because counsel have continued to represent the class on
appeal and will do so throughout the administration of the set-
tlement. But one reason why those counsel had to defend this
appeal is because they negotiated a deficient settlement agree-
ment. We do not believe it appropriate to reward counsel for
failing to follow our cy pres precedent.
[12] In overruling the objections to the attorneys’ fees, the
district court recited the Vizcaino factors but did not “ade-
quately explain” its determination that those factors justified
the fees as fair and reasonable. Powers v. Eichen, 229 F.3d
1249, 1257 (9th Cir. 2000). Indeed, the court did not explain
its determination at all. Given the high amount of the negoti-
ated attorneys’ fees, the court “needed to do more to assure
DENNIS v. KELLOGG COMPANY 8129
itself — and us — that the amount awarded was not unreason-
ably excessive in light of the results achieved.” In re Blue-
tooth Headset Products Liab. Litig., 654 F.3d at 943. If and
when the issue of fees is again before the district court, the
court shall consider all of the circumstances of the case as
they exist at that time, including time wasted in preparing a
stillborn settlement, in finally determining a reasonable award
of attorneys’ fees.
IV
CONCLUSION
Class counsel and Kellogg ask us for the impossible — a
verdict before the trial. They essentially say, “Just trust us.
Uphold the settlement now, and we’ll tell you what it is later.”
But that is not how appellate review works. The settlement
provides no assurance that the charities to whom the money
and food will be distributed will bear any nexus to the plain-
tiff class or to their false advertising claims and therefore vio-
lates our well-established standards governing cy pres awards.
Moreover, the attorneys’ fees are impermissibly high consid-
ering what the defective settlement provides the class. The
district court’s contrary conclusions were an abuse of discre-
tion.
REVERSED, JUDGMENT VACATED, and CASE
REMANDED.