Category Archives J. Vratil

Here's an interesting order from the District of Kansas that was published right before the Thanksgiving holiday that demonstrates how a proposed class settlement can get denied not once, but twice, if counsel does not adequately represent all members of the putative absent class. In Better v. YRC Worldwide, No. 11-2072-KHV, 2013 WL 6060952 (D. Kan. Nov. 18, 2013), the parties were before the court for a second time for preliminary approval of a securities class action settlement. While the court initially denied approval because plaintiffs failed to satisfy the Rule 23 requirements of typicality and adequacy, it appears the parties did not sufficiently address these deficiencies the second time around. Specifically, the court identified three areas where the parties failed to protect the interests of the putative class: First, approval was denied because the Court found that the proposed settlement failed to provide any benefit to certain class members while requiring…

Judge Vratil's order in Gambrell v. Weber Carpet, Inc., 2013 WL 1659591 (D. Kan. April 17, 2013), stands in stark contrast to the Missouri Supreme Court's recent analysis on class counsel fees. In this case, Judge Vratil ultimately approved an award of fees to class counsel in this FLSA settlement, but did so in a manner likely to haunt class counsel for years. The Court had overruled the parties' first motion to approve the proposed FLSA settlement because the parties had submitted it in camera. The Court overruled the second attempt at approval for failing to provide sufficient information needed to support the key findings (such as whether the proposed settlement was fair, reasonable and adequate). At this point, class counsel was undeterred by the Court's stated skepticism of their request for $40,375.00 in fees for a $14,000 settlement. The third attempt at approval failed for lack of supporting information…

There are many ways to give notice to class members, but the notice must be "the best notice that is practicable under the circumstances."  Fed. R. Civ. P. 23(c)(2)(B).  If you can identify class members through reasonable effort, you must give them individual notice.  If you can't, then publication notice may be an option. No matter the method of notice chosen, to pass muster under the Due Process Clause, the method must be  "reasonably certain" to inform the class members.  Mullane v. Cent. Hanover Back & Trust Co., 339 Us.S. 306, 315 (1950). Which is why Judge Vratil rejected Plaintiffs' class-notice plan, which would have used an exclusively web-based notice (Internet banner ads, to be precise) to give notice to class members in states where at least 75 percent of the target population has Internet access according the 2012 U.S. Census.  In re Motor Fuel Temperature Sales Practices Litigation (MDL…

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