May 29 (Reuters) - Sometimes an unusual judicial action
results in opinions that illuminate the procedural process for
countless other cases. And sometimes they end as little more
than a footnote.
A request to the 9th Circuit Court of Appeals to disregard a
somewhat tardy order from the lower court appears to be the
latter.
In April, On the Case scribe Alison Frankel wrote about a kerfluffle over attorneys fees in a class action settlement with
Dell Inc. over allegations the company didn't fully pay a $50
rebate it had offered. Theodore Frank of the Center for Class
Action Fairness is representing a class member objecting to the
settlement and the approximately $7 million in accompanying
attorneys' fees approved by the district court judge in October
2011.
Frank filed his initial briefing with the 9th Circuit Court
of Appeals in mid-March. On April 4, the judge who had approved
the settlement, Ronald Whyte of San Jose federal court, issued a second order explaining why he approved the fee request. In the
order, Whyte said the court had "inadvertently failed to file
and serve its written order onattorneys' fees."
Frank was not pleased with the timing, and told On The Case
at the time that the new order amounted to a de facto amicus
brief supporting the settlement. He filed a motion asking the
9th Circuit to disregard the April order, arguing that the lower
court no longer had jurisdiction and that such an order unfairly
interfered with the appellate process.
Attorneys for Dell, from Reeves & Brightwell in Austin and
Farella Braun & Martel in San Francisco, argued the second order
was nothing more than a "written manifestation of its prior oral
ruling on attorneys' fees." In his brief, plaintiffs' attorney
Michael Sobol of Lieff, Cabraser, Heimann & Bernstein, argued
that the second order would only aid the court in addressing the
appeal. (They also fit in commentary on Frank, calling him a
"serial, ideological objector to class action settlements.")
All that briefing apparently did not cause much
hand-wringing at the appeals court: It took Appellate
Commissioner Peter Shaw all of one and a half pages to deny
Frank's request to void the lower court order. Shaw did not
substantively address Frank's complaints, except for citing case
law for the proposition that a court retains jurisdiction to
publish a written decision when doing so is consistent with an
oral decision and aids in review of that decision.
Plaintiffs' attorney Sobol told us he was not at all
surprised by the order and that this was much ado about nothing,
echoing Dell's argument that the court did nothing more than put
on paper what Whyte had ruled in the October hearing on the
settlement agreement.
The appeals commissioner did grant Frank's request to
resubmit his opening brief. Whether Frank will stand down and
just do that is an open question, however. He told On the Case
that his team is reviewing their options.
Kim Brightwell of Reeves & Brightwell did not immediately
respond to requests for comment. A call to Judge Whyte's
chambers was also not immediately returned.
(Reporting by Erin Geiger Smith)
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