Knisley v. Network Associates, Inc.

312 F.3d 1123, 2002 WL 31730697
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 6, 2002
DocketNo. 01-16540
StatusPublished
Cited by10 cases

This text of 312 F.3d 1123 (Knisley v. Network Associates, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knisley v. Network Associates, Inc., 312 F.3d 1123, 2002 WL 31730697 (9th Cir. 2002).

Opinion

KOZINSKI, Circuit Judge:

Noel Gage appeals from an order awarding attorney’s fees to Lieff, Cabraser, Heimann & Bernstein, LLP, which represented shareholders in a class action against Network Associates, Inc. Gage argues that the award is excessive in light of what he perceives to be the measly sum shareholders received in the settlement the firm negotiated. We consider whether Gage has standing to appeal the award.

1.- The underlying securities litigation arose after Network Associates restated its accounts in April 1999. It announced that it had allocated too much of its acquisition costs to in-process research and development (IPR & D). As a result of this [1125]*1125slip of the pen, the company’s reported financial results were too rosy by about $230 million. When the problem came to light, its stock price — which had already declined precipitously over the preceding months — tanked.

Several shareholders filed class actions against Network Associates and its executives, alleging that defendants had concealed the company’s true state of affairs while selling their own shares at inflated prices. The district judge appointed Robert A. Yatuone as lead plaintiff, who selected Lieff, Cabraser, Heimann & Bernstein, LLP, as class counsel.

Lieff Cabraser conducted discovery, deposing two executives and reviewing some 25,000 pages of documents. As usual in cases of this stripe, the parties settled before trial. Network Associates agreed to put $30 million into a common fund, most of which would come from its liability insurers. Lieff Cabraser would ask the district court to approve an award of about $2 million of this amount as attorney’s fees, and most of the rest would go to shareholders who lost money.

Gage was a Network Associates shareholder who was covered by the class definition in the Vatuone suit. While that litigation was underway, Gage was pursuing his own action against the company in state court. Lieff Cabraser sent him the required notice warning that unless he opted out, he would be bound by the class settlement. Gage didn’t respond. He later claimed he never received the notice, but the district court found that Lieffs efforts to notify him were sufficient and that the settlement therefore covered him.

Unhappy at having his lawsuit swept out from under him, Gage objected to the settlement. He argued that it was a bad deal for shareholders, who received only a tiny fraction of the total price drop in their shares. He also challenged the size of Lieff Cabraser’s fee, arguing that the firm had put in a half-hearted effort and cut a “sweetheart deal” with the company.

Lieff Cabraser defended the settlement and fee. It explained that, although the' share price had fallen considerably over several months, it would be hard to tie that drop to the IPR & D misrepresentations. It also pointed out that its fee was a modest seven percent of the recovery— much less than in many other settlements. Finally, it observed that only six class members out of about 150,000 had objected. The district court, after thoroughly considering the arguments, approved the settlement and fee.

The settlement agreement required class members to submit claim forms in order to receive their proportionate share of the settlement fund. Gage refused to do so and instead appealed both the settlement and the fee. While his appeals were pending, he reached an agreement with Network Associates that resolved his challenge to the settlement. All that remains, therefore, is his appeal from the fee award.

2. One risk of class action settlements is that class counsel may collude with the defendants, tacitly reducing the overall settlement in return for a higher attorney’s fee. See Staton v. Boeing Co., 313 F.2d 447, 473-74 (9th Cir.2002); Zucker v. Occidental Petroleum Corp., 192 F.3d 1323, 1327-29 & n. 20 (9th Cir.1999). The Federal Rules respond by requiring judicial oversight of class action settlements. Fed.R.Civ.P. 23(e). District judges must review both the fairness of the settlement and the reasonableness of the attorney’s fee. Zucker, 192 F.3d at 1328 & n. 20. A dissatisfied class member may object in the district court and may generally appeal an adverse decision. Devlin v. Scardelletti, 536 U.S. 1, 122 S.Ct. 2005, 2013, 153 L.Ed.2d 27 (2002); Powers v. Eichen, 229 F.3d 1249, 1251 (9th Cir.2000).

[1126]*1126Devlin held that nonnamed class members may appeal a settlement even if they didn’t intervene in the district court. 122 S.Ct. at 2013. It rejected the argument that a congressional policy against satellite litigation in class actions required a narrower right of appeal. Id. at 2011. There are still limits on who may appeal, however, which include the constitutional requirement that a litigant present an actual case or controversy for the court to resolve. See U.S. Const. art. III.

A party must satisfy three conditions to have constitutional standing to sue: It must allege some concrete injury in fact; that injury must be fairly traceable to the defendant’s actions; and (most importantly for our purposes) it must be likely, and not merely speculative, that a favorable decision will provide redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Utah v. Evans, 536 U.S. 452, 122 S.Ct. 2191, 2197, 153 L.Ed.2d 453 (2002); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). These requirements must be met by a party appealing a judgment. Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). “Absent such a showing, exercise of its power by a federal court would be gratuitous and thus inconsistent with the Art. III limitation.” Simon, 426 U.S. at 38, 96 S.Ct. 1917.

3. A class member who participates in a common fund settlement — i.e., a settlement where both the class recovery and the attorney’s fees are paid from the same fund — generally has standing to appeal the fee award. Both the recovery and the fee come out of the same pot, so by reducing the latter, the court increases the former and thus redresses the appellant’s injury. See Powers, 229 F.3d at 1254 n. 4 (“[Appellant] has constitutional standing to make this appeal, as the size of his portion of the settlement award is inversely related to the size of the attorney fee award.”). The class member may have standing to appeal the fee even if he doesn’t also appeal the settlement. The reason is that common funds typically distribute to claimants whatever amount is left over after all expenses are paid, see Zucker,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
312 F.3d 1123, 2002 WL 31730697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knisley-v-network-associates-inc-ca9-2002.