Class action mystery: Where does the money go post-settlement?

December 11, 2013

I would have been shocked if Mayer Brown‘s new study of 148 federal-court class actions filed in 2009 concluded that the cases are of any real benefit to class members. Mayer Brown Supreme Court litigator Andrew Pincus, remember, is not only frequently counsel to the U.S. Chamber of Commerce, but was also the winner of the U.S. Supreme Court’s landmark 2011 endorsement of mandatory arbitration in AT&T Mobility v. Concepcion. Pincus told me that the firm decided to collect information on the outcome of consumer and employment class actions filed in 2009 at the behest of clients worried about the Consumer Financial Protection Bureau’s study of arbitration agreements. The Chamber and other clients, he said, have been frustrated at CFPB’s refusal to disclose exactly what it’s looking at. So, as the Chamber explained in a Dec. 11 letter to CFPB, Mayer Brown and its clients seized the initiative and compiled empirical evidence to show the agency what will happen if it precludes arbitration and forces consumers to litigate through class actions. “If you’re going to take away arbitration,” Pincus said, “you have to understand the alternative.”

According to the study, the alternative to arbitration is a system that is exceedingly bad at delivering recovery to class members, even as it amply rewards lawyers who bring claims on their behalf. (Like I said, no big surprise there.) Mayer Brown obtained its initial data set of 2009 class actions from case filings mentioned in the BNA Class Action Litigation Reporter and the Mealey’s Litigation Class Action Reporter. The firm screened out securities class actions and class actions asserting claims under the Fair Labor Standards Act, since both of those kinds of cases are litigated under their own unique rules. After accounting for consolidations, the study ended up analyzing outcomes in 148 consumer and employment class actions filed in or removed to federal court.

Only 21 cases (14 percent of the sample) remained unresolved when the study closed on Sept. 1. Of the 127 class actions that reached a resolution, Mayer Brown researchers found, 45 (or 35 percent) were dismissed voluntarily. (One-third of those voluntary dismissals included individual settlements for the name plaintiffs, according to the firm.) Another 41 cases (31 percent) were dismissed by the courts on motions to dismiss or summary judgment motions. Mayer Brown adds up those percentages and trumpets the conclusion that two-thirds of the resolved cases resulted in no relief whatsoever for class members.

Forty of the 2009 class actions (28 percent of the resolved cases) settled, a percentage that Mayer Brown says is notably low for cases litigated in federal court. In the firm’s extrapolation, that means class actions “are significantly less likely to produce settlements, and therefore significantly less likely to produce any benefit to class members, than other forms of litigation,” the study says. Mayer Brown broadly discusses three kinds of class action settlements: claims-made agreements in which class members must submit claims to recover compensation and leftover money either goes back to defendants or to a charity; automatic distribution deals that divvy up settlement money among class members when their identity is already known; and injunctive cases, in which the only benefit to class members is a pledge that defendants will end their wrongful conduct and perhaps contribute to a charity with interests similar to those of the class. The study describes the generally “paltry” benefits class members receive through these settlements, but aside from reporting that 18 cases in the sample ended with claims-made agreements, Mayer Brown doesn’t provide specifics on the settlements. I’d have liked to see a more robust discussion of how the cases in the study were resolved.

But I have to give Mayer Brown credit for what I consider to be the study’s most important point: We know next to nothing about what happened after settlement in 34 of the 40 settled cases in the study. And, as Mayer Brown discusses, that’s typical of class actions. Think about it. Most judicial – and even political – discussion of class actions goes no further than an assessment of the fairness of a settlement and accompanying fees for class counsel. When you hear critics complain about class actions, they’re typically opining on the potential recovery for class members, not the total amount of money that class members actually end up claiming and receiving as compensation when the settlement is administrated. And when judges award fees for plaintiffs lawyers, they typically do so based on the size of the settlement pool, regardless of whether anyone in the class subsequently files a claim.

It’s no accident, Mayer Brown says, that we generally don’t know what happens to class action settlement money after judges sign off and class action claims administrators take over distribution of the funds. No one in the process, speaking generically, has a reason to encourage such disclosures. Plaintiffs lawyers don’t want courts to see that relatively few class members make claims. Defense lawyers don’t want to rile plaintiffs lawyers for fear that class counsel will refuse to settle (and because their clients benefit from a low claims rate in settlements that call for unclaimed money to be returned to defendants). Judges don’t want to add to their workload by insisting upon post-settlement review of claims. And claims administrators, which have the easiest access to information about how settlement money is distributed, typically operate under confidentiality agreements that bar them from disclosing data except with permission of the parties or under a court order. This conspiracy of silence means that “the public almost never learns what percentage of a settlement is actually paid to class members,” the study says.

Mayer Brown did manage to unearth data on claims made on settlement funds in six of the 40 settled class actions in its study. The reported claims rates are Mayer Brown’s most powerful evidence that class actions don’t provide meaningful recovery to class members. “Of the six cases in our data set for which settlement distribution data was public,” the study says, five delivered funds to only minuscule percentages of the class: 0.000006 percent, 0.33 percent, 1.5 percent, 9.66 percent and 12 percent. (The sixth case, as the study explains in a footnote, was extremely unusual. The class consisted of 470 investors with ERISA claims rooted in Bernard Madoff’s Ponzi scheme; 99 percent of them asserted claims averaging more than $2.5 million against the $1.2 billion settlement fund.)

The Madoff case aside, microscopic claims rates in the class actions Mayer Brown analyzed show that “people on whose behalf these suits are being maintained don’t really care about them,” Pincus told me. I asked him whether Mayer Brown would have submitted the study to the CFPB if the firm had uncovered higher claims rates, indicating that class members were, in fact, benefiting in significant numbers through classwide litigation. He responded in an email: “Figuring out what really happens in class actions is important, given the significant judicial resources and litigation costs they consume. I think we would have submitted the study regardless, because the fact that more than two-thirds of the cases resulted in zero benefit to the class members (counting dismissals and ‘settlements’ that provide injunction relief that is value-less in the real world) by itself casts serious doubt on the class action enterprise. Frankly, I knew anecdotally about low distribution rates but these results shocked me.”

I’m enough of a believer in the concept of class actions to hope that claims rates of less than 2 percent is shocking and not merely business as usual for class action veterans. (I asked Pincus for additional details on the specific settlements, but he said it wasn’t immediately available.) More than anything else, what the Mayer Brown study shows is the futility of considering the future of class actions with so little public data on the efficacy of the cases. Are they a vindication of consumer rights? Or just a way to recycle defendants’ money and generate legal fees on both sides?

Unfortunately, without data we can’t answer those questions definitively and there’s no reason to believe the system will swerve to make claims rate information public. So we’re stuck with anecdote and ideology.

The CFTC is holding a public hearing Thursday in Dallas, at which it may release its initial findings on mandatory arbitration. Stay tuned.

(Reporting by Alison Frankel)

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A claims administrator in a class action settlement where I served as class counsel is, as we speak, preparing checks to be sent to more than 500,000 individuals, each of whom individually filled out claims forms with claims of less than $250. People do care about class action settlements. The miniscule claims rates he cites are a function of notice problems, not lack of interest.

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