Tuesday, November 19, 2013

End of the Road for SiriusXM Settlement Protest

A federal judge's unique attempt to match class counsel with class composition is questionable but not fit for Supreme Court review, one justice said Monday.

According to Courthouse News, yhe dispute grew out of claims in Manhattan that Sirius Satellite Radio and XM Satellite Holdings violated antitrust law by merging in 2008.

When the class moved for certification, U.S. District Judge Harold Baer Jr. cited a provision of Federal Rule of Civil Procedure 23 that empowers him to "consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."

Baer then ordered that the three law firms previously appointed to serve as class counsel "ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics."
With the class certified, the parties reached a settlement that required Sirius to freeze its prices for five months and pay class counsel $13 million in attorneys' fees.

Class member Nicolas Martin objected to the deal, which left no cash for plaintiffs like him. He also took aim at the court's reliance on race and gender in assessing the adequacy of class counsel.

The 2nd Circuit refused, however, to set aside the settlement as the tainted product of an invalid certification order. On Monday, the Supreme Court refused to grant Martin a writ of certiorari despite its misgivings on Baer's unique practice.

"Based on the materials now before us, I am hard-pressed to see any ground on which Judge Baer's practice can be defended," Justice Samuel Alito wrote in an opinion explaining the order.

"This court has often stressed that '[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal.' Court-approved discrimination based on gender is similarly objectionable, and therefore it is doubtful that the practice in question could survive a constitutional challenge."

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