Two From Chicago

This month has seen two noteworthy decisions from the U.S. Court of Appeals for the Seventh Circuit.

(1) In Sutton v. Bernard, 2007 WL 2963940 (7th Cir. Oct. 12, 2007), the court addressed an appeal by the lead counsel in a securities class action brought against Marchfirst, Inc. Following the settlement of the case, the district court rejected the lead counsel’s fees request, reducing it from 28% of the gross settlement amount to 15% or $2,605,000. On appeal, the court held that the district court had improperly failed to take into account “the market price for legal services” in making its determination, instead focusing only on the results achieved in the case.

Quote of note: “The trouble we have with the district court’s methodology is that the fee determination began and ended with the amount actually recovered for the class; the court did not consult the market for legal services for guidance in what constituted, as an abstract matter, a ‘reasonable percentage.'”

(2) In Asher v. Baxter Int’l Inc., 2007 WL 3010617 (7th Cir. Oct. 17, 2007), the court considered another appeal in a case that had previously generated a well-known decision on the PSLRA’s safe harbor for forward-looking statements. This time the court addressed whether, pursuant to Fed. R. Civ. P. 23(f), a plaintiff is entitled to appeal subsequent denials of class certification if it does not appeal the first denial within the 10-day statutory period. The court found that the “time limit would not be worth anything if it restarted with each new motion” and declined to allow the appeal. The opinion also contains interesting dicta on the representative plaintiff selection process in the case.

Quote of note: “The district court deemed both the Alaska and the Fayetteville funds inadequate because their investments are much smaller than those of other mutual or pension funds. One can’t help thinking that the unwillingness of any substantial shareholder to step forward as a representative suggests that the suit may not be in investors’ interest. To the district judge, the fact that two modestly sized pools with modest stakes in Baxter had been recruited by the lawyers already trying to represent a plaintiff class implied that they would be subservient to counsel.”

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