Top Appellate Reversals: Radcliffe v. Experian Information Solutions Inc.

A $45 million settlement in a class action over botched credit reports got scuttled when a 9th U.S. Circuit Court of Appeals panel agreed with objectors that the deal was fatally flawed.

Making it even more unusual was the identity of those opposed to the deal - some of the lawyers who had originally filed the case. They hired powerhouse litigators at Boies, Schiller & Flexner LLP to pursue their grievance.

That put some of their former colleagues in the case on defense as appellees. The protesters argued that $5,000 conditional incentive awards to the class representatives were in effect bribes to be paid only if they supported the deal.

Boies Schiller partner George F. Carpinello, representing the objectors, said the conflict was partly over money and partly over the moral values. "We saw a patently inadequate settlement with serious ethical issues," he said.

Circuit Judge Ronald M. Gould wrote the decision dumping the settlement last April. Radcliffe v. Experian Information Solutions Inc.,715 F.3rd 1157.

"We must be vigilant in guarding against conflicts of interest in class-action settlements because of the 'unique due process concerns for absent class members' who are bound by the court's judgment," he wrote, quoting from an earlier case.

Another judge on the panel, Sam E. Haddon, a district judge from Montana sitting by assignment, protested that class counsel should get no fees at all because they "were singularly committed to doing whatever was expedient" to promote the settlement and win fees.

- JOHN ROEMER

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