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October 21, 2014 Practice Points

An Inquiry into Materials Exchanged in a Class Action Settlement

By Jonah Orlofsky

In Ogbuehi v. Comcast of California/Colorado/Florida/Oregon, 2014 WL 4961109 (E.D.Cal. Oct. 2, 2014), the court was asked to grant preliminary approval of a class action settlement reached through mediation before class certification. Preliminary approval of a class action settlement requires only that the court determine whether the proposed settlement is within a range of possible approval. Final approval—particularly before a class is formally certified—requires a more rigorous review and a determination as to whether the settlement is fair, reasonable, and adequate.

The court granted the requested preliminary approval, but noted that it had reservations on whether it would grant final approval of the settlement. In order to make the required fairness determination, which included examining the settlement process for evidence of collusion or other conflicts of interest, the court ruled that the parties would have to submit “more detailed evidence concerning the mediation and negotiation of the proposed settlement agreements.” The court stated that it would need to “understand the nature of the negotiations” before making its final determination. Of particular concern were certain estimates of potential liability that were disclosed and discussed during the mediation. The court therefore ordered the parties to submit “information exchanged during their private mediation including, but not limited to, mediations statements and any relevant communications during the parties’ negotiations.” Recognizing that such materials might be confidential, the court permitted the parties to request that confidential materials be reviewed in camera.

Keywords: alternative dispute resolution, litigation, mediation, class settlement, proposed class settlement, final approval

Jonah Orlofsky is the founder of The Law Offices of Jonah Orlofsky in Chicago, Illinois.

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