Ninth Circuit withdraws and issues new opinion in class action settlement case: Dennis v. Kellog Co.

On September 4, 2012, the Ninth Circuit withdrew its earlier opinion and handed down a new opinion in a class action settlement case, Dennis v. Kellog Co., ___ F.3d ___ (9th Cir. Sept. 4, 2012).  Here is my blog post on the earlier opinion. 

The new opinion still reverses the final approval order because the cy pres recipients who would have received the settlement fund residual were "divorced from the concerns embodied in consumer protection laws such as the UCL and the CLRA."  Slip op. at 10540. 

The new opinion also vacates the attorneys' fees award, but unlike the earlier opinion, contains no separate section discussing the award.  Id. at  10544.  Instead, in a footnote, the opinion says that "[o]ur decision on the merits of the settlement renders moot the attorneys’ fees issue."  Id. at 10544 n.2 (citing Waggoner v. C&D Pipeline Co., 601 F.2d 456, 459 (9th Cir. 1979)). 

As a result, the new opinion no longer contains this language from the withdrawn opinion, which was widely quoted in the press:

[L]et us not forget that the $2 million fee award breaks out to just over $2,100 per hour. Not even the most highly sought after attorneys charge such rates to their clients.

Withdrawn opinion, slip op. at 8128.  That, of course, is not the standard by which the propriety of a fee award is measured in the Ninth Circuit in a contingency-fee action.  Under well-established Ninth Circuit decisional law, multipliers may be approved in a proper case, so it misses the mark to consider the total rate that a fee award "breaks out" to, without considering whether a multiplier is appropriate under relevant Ninth Circuit standards.   The language was appropriately omitted from the new opinion.