[authors: Christopher T. Micheletti and Heather T. Rankie]
Allowing class members the opportunity to present objections to settlements provides an important safeguard against flawed settlements and ensures that trial courts consider all points of view. However, a troubling abuse of this procedure has emerged as certain lawyers repeatedly orchestrate canned objections that ultimately do not benefit settlement classes. Such objections are overruled by trial courts and objectors then appeal orders approving class action settlements.
As courts have observed, these “serial” or “professional” objector counsel can make a living by routinely filing meritless appeals and extracting payment from parties or counsel in return for a dismissal of any such appeal. If such “greenmail” is not paid, the appellate process substantially delays settlement execution, including delaying classes’ receipt of settlement benefits and payment of class counsel’s expenses and fees.
There is a recent trend toward federal courts supporting class counsel’s efforts to obtain discovery from objectors represented by serial objector counsel. In the past 14 months, three federal judges in the Northern District of California have granted class counsel’s motions to compel objectors’ deposition testimony and document production.[1] At least one other federal court has similarly allowed class counsel to seek objector discovery.[2]
Settlement objectors voluntarily appear and participate in litigation by objecting, and discovery from them is relevant to a court’s evaluation, implementation and administration of the settlement before it. Court-approved discovery topics tend to include the objectors’ standing as class members, the factual basis of their objections, and any past objections they have made. Indeed, class representatives are routinely required to address similar topics in connection with their efforts to represent the class.
Further, when class counsel provide facts suggesting that an objection by a purportedly “pro se” objector is likely orchestrated by counsel, discovery concerning the objector’s relationship with serial-objector counsel is permitted. Certain serial objector counsel have had less-than-flattering comments made about them by courts. As such, they may prefer to manipulate the objection process from behind the scenes, so as to minimize court scrutiny of their true motives...
