Entrepreneurial Litigation: Its Rise, Fall, and Future

John C. Coffee Jr. Harvard, 2015. 307 pages.

Introduction

Over the past several decades, the most divisive and consequential topic in the field of litigation has been class actions. Partisans on one side argue that the class action device is a critical enforcement tool that increases much-needed access to justice.1 Combatants on the other side scoff that class actions are tools for shaking down corporations for settlement payments and attorney’s fees in unmeritorious cases.2 And every year, these combatants square off in the academic literature and in panel discussions, face each other in the federal appellate courts and at the US Supreme Court, and present competing visions at congressional hearings and before audiences of regulators and judges.

I should know. I am something of a regular on this circuit, presumably because my academic work leaves little doubt about where I stand on these issues. In amicus briefing, testimony, and informal appearances, I am often called on as a designated voice on the pro–class action side of the debate.3 And, of course, there are regulars on the other side of the issue—smart and energetic people who want as passionately as I do to convey their point of view and convince a broader audience of judges, lawmakers, and ordinary citizens.

The result is loud, and plenty heated. Like so many left-versus-right issues, important new developments—Supreme Court decisions, government studies, and proposed amendments to the Federal Rules of Civil Procedure—are greeted with talking points, white papers, and action plans. And, as with other consequential policy debates, the defenders of corporate interests, like the US Chamber of Commerce, open their checkbooks and tap their standby stables of high-powered lawyers and communications professionals. Meanwhile, consumer- and employment-rights organizations that are staffed by dedicated public-interest lawyers do what they can to man the barricades on the other side. And on and on it goes.

It is against the backdrop of this infernal din that I hear Professor John Coffee’s voice. Like a grown-up wading into a room of red-faced toddlers hurling food at one another, Coffee’s plea is audible: “Enough!”

It is a distinct voice. For more than thirty years, Coffee has been our preeminent scholar in the area of class actions. His work is invoked by both sides in the class action wars.4 For the embattled trial lawyers on the left—parched and looking to wring errant drips of validation from Supreme Court dissents or, worse yet, from Ninth Circuit decisions—Coffee’s fundamental faith in the class action device is restorative.5 And for the corporate side, Coffee’s relentless focus on endemic agency costs—the built-in misalignment of interests and the mischief that it begets6—just proves the point that class actions are and will remain tools for extortion.

In his most recent work, Entrepreneurial Litigation: Its Rise, Fall, and Future, Coffee puts each side in its place. The book looks to “present a ‘warts and all’ portrait” of class action litigation—an account, Coffee tells us, “that has long been missing in the literature, in large part because academics writing in this area either have been so ideologically committed to the private attorney general concept or so implacably opposed to it” that they have failed to fully examine its consequences (p 219).7 On the one hand, Coffee argues that “private enforcement of law through entrepreneurial litigation does litigate complex cases well (probably better than more resource-constrained public enforcers can do)” (p 219) (emphasis added).8 On the other hand, this private enforcement is “persistently misdirected” by “fiduciary failure”—the structurally misaligned incentives that lead “plaintiff’s attorneys to settle cases in their own interest” (pp 117, 219).9

For Coffee, it is a fundamental feature of class litigation that lawyers—agents—are barely constrained by their figurehead principals, the named plaintiff clients (pp 1–2). Lawyers make investments, often large ones, and lawyers decide when and whether to settle the cases. If it is a virtue of the class device that it can aggregate a large number of small interests—and that surely is a virtue for Coffee—then a corresponding detriment is that the named plaintiffs’ interests are too small to warrant any substantial investment in monitoring the lawyers (p 5).10

The predictable result of these misaligned agency incentives, for Coffee, is what he terms “abusive litigation”: the attempt by lawyers to leverage the scale of class actions to coerce unwarranted settlements (p 122). As Coffee explains, the abusive-litigation problem is exacerbated by doctrines and practices that magnify the opportunities for pressing nuisance value settlements (p 122).11 For example, Coffee points to the “American rule,” which effectively immunizes plaintiff’s lawyers “from the risk of cost shifting against the loser” (p 29).12 Freed from worrying about underlying merit, Coffee reports that plaintiffs’ lawyers regularly exploit the litigation cost differential created by this rule to induce settlements of even weak class cases (p 165).13 Coffee also considers the incentives for abusive litigation and sellout settlements in multiforum class litigation, in which plaintiff’s lawyers worry that if they do not settle quickly and cheaply, they “may lose out to others” who will (p 121). And “first to file” rules, Coffee observes, “give[ ] control to the first attorney on the scene,” but they also generate opportunities for abusive litigation by “reward[ing] premature filing and slapdash complaints” (p 160). Given these sorts of incentives, Coffee tells us, it is to be expected that opportunistic entrepreneurs would organize entire businesses around leveraging the class (or derivative) device “to exploit the nuisance value in cases” (p 122). Thus, “bottom fisher” law firms, as Coffee calls them, ply their craft through derivative suits designed only to threaten delay for M&A transactions, or through class actions alleging imperceptible injuries on behalf of consumers (p 89).14 And the abusive-litigation problem, for Coffee, is not consigned to these practice ghettos. The class device generally confers the power to extort by threatening defendants, in relatively weak cases, with crippling exposure to risk (pp 122–23).

In Coffee’s view, abusive litigation is a pathology born of poorly aligned agency incentives rather than an indictment of class actions themselves:

At the heart of this problem of abusive litigation is not the availability of the class action, which can be used to assert both meritorious and frivolous claims, but the lack of any downside for the attorney/entrepreneur who is deciding whether to assert a nonmeritorious claim based on its nuisance value. (p 122)

That brings Coffee to his central claim in Entrepreneurial Litigation: “Reform requires that the merits need to matter more” (p 122).

To ensure that plaintiffs’ counsel make investment decisions based on case merit rather than on exploitable cost asymmetries, Coffee would have lawyers assume a measure of financial responsibility for the fees and expenses incurred in unmeritorious actions (pp 165–66).15 Toward these ends, Coffee proposes adopting a carefully crafted “loser pays” system, or implementing a “seriously enforced system of sanctions for the assertion of weak claims” (p 122). In Coffee’s view, such strategies would allow fee-shifting against the plaintiffs’ lawyer who brings and loses a meritless case, while also limiting the fee to “a reasonable amount in relation to the plaintiff’s own costs and expected payoff” (p 165).16 Alternatively, Coffee suggests that a legislatively enacted “loser pays” rule could be applied selectively—perhaps “only to those cases that do not survive a motion to dismiss” (p 167).17

Importantly, Coffee emphasizes caution in designing these incentives: “[G]o too far in this direction, and entrepreneurial litigation ends” (p 122). And in this, he stands apart from the partisan critics of class actions—those who represent corporations that “are threatened both by meritorious [ ] and frivolous actions” and who thus “prefer overbroad reforms that will chill both types of actions” (p 123).18 Coffee—the grown-up in the room—represents the “limited constituency interested in optimal reforms that do not ‘throw the baby out with the bath water’” (p 123).19

It has been an article of faith on my side of the class action wars that when we open the drains to release bathwater, we lose babies.20 Aggressive actions to curb “abusive litigation” invariably chill the very class actions that Coffee agrees are beneficial. But let’s not underestimate Coffee: let’s assume that he can calibrate a filter that jettisons abusive litigation and keeps the babies where they belong. Presumably, at that point, we would be rid of the abusive-litigation problem. And we might even be able to reverse some of the bad policies that this critique has spawned: the terribly restrictive doctrine and legislation that the courts and Congress have generated in the name of combating abusive class action litigation.21

In this hypothetical postreform world, where realigned agency incentives help adjust the signal-to-noise ratio surrounding the class action debate, perhaps we can explore some important questions that otherwise get swept up into—and drowned out by—the old partisan food fight. Maybe, free of abusive-litigation concerns, we can look at how we really regard the private attorney general model that is at the core of class actions.

This Review investigates the legitimacy and limits of the private attorney general concept, stripped of abusive-litigation concerns. For this inquiry, there is probably no richer environment than that of consequential class cases that seek structural, institutional reform through injunctive relief. It is injunctive cases, brought as mandatory, non-opt-out class actions under Rule 23(b)(2), that bring into starkest relief concerns about the assumption of power by private actors.22 When we look at those cases, free from the distortions of the abusive-litigation problem, do we still find areas in which observers encounter significant discomfort with the private attorney general model? I believe that we do.

I focus here on three such discomfort zones, all of which are variations on a sort of the “who the heck are you” critique aimed at the class action lawyer’s self-appointed assumption of power. Part I considers what I call the “tyranny paradox”: the authority of class counsel to engineer broad injunctive settlements and releases that may benefit a majority of class members while simultaneously disabling the rights of a minority to continue litigation for better or different relief. Part II examines the perceived usurpation of the traditional role of public enforcers by self-appointed private lawyers. Finally, Part III takes on the clash between realism and formalism in contemporary class action practice—the disconnect between (1) the real practice of contemporary class action lawyers, particularly in sprawling, multi­defendant litigations, and (2) the traditional conception of one lawyer representing one client.

To explore these theoretical issues in a tangible context, I focus on a group of recent cases that provides a unique laboratory for crystallizing and examining attitudes toward the private attorney general model. In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation23 (“MDL 1720”) and In re American Express Anti Steering Rules Antitrust Litigation24 (“Amex ASR”) (together, “the Payment Card Cases”) involve class actions brought on behalf of merchants against the major credit card companies relating to the swipe fees that merchants incur for accepting credit cards. In these cases, the private attorneys and defendants’ counsel negotiated industry-changing reform of the rules that govern merchant credit card acceptance. In the case of MDL 1720—brought against Visa and MasterCard, as well as their largest member banks—the settlement called for cash payments of roughly $7 billion, making it by far the largest antitrust settlement in history.25 In the Amex ASR case, class damages were unavailable as a result of the Supreme Court’s decision in American Express Co v Italian Colors Restaurant,26 in which the Court upheld American Express’s (“Amex’s”) class action waivers.27 As a result, by the time of the proposed settlement, Amex ASR focused entirely on the claims for injunctive relief and on reforming Amex’s policies under Rule 23(b)(2).28 Both sets of cases were driven by entrepreneurial lawyers who invested over a decade of time and capital in the litigation.

But what makes the Payment Card Cases ideal for the purposes of our inquiry here is that they so squarely implicate each of the three areas that I identify for enduring skepticism of the private attorney general model. The Payment Card Cases are peculiarly on point in teeing up the second discomfort zone: the usurpation of public-enforcement prerogatives by private actors. These cases also raise the “tyranny of the majority” problem. The Amex ASR case in particular is like a perfect exam question designed to illustrate the constitutional and policy concerns underlying private structural-reform litigation.

But the area in which the Payment Card Cases are truly unique is in the third discomfort zone: the unease that the traditional bar and commentariat feel with the on-the-ground, realpolitik, actual practice of meaningful reform litigation. These cases illustrate a high-impact collision of realism and formalism, in which a lawyer intent on achieving industrial reform for his clients—and practicing all the politics and diplomacy necessary to get there—smacks headlong into settled expectations regarding how lawyers ought to behave.

Like many collisions, this one kicks off sparks that provide rare illumination of the behind-the-scenes sausage making that is normally the stuff of rank conjecture or the latest John Grisham novel. But we have to be careful to keep our eyes on the narrow inquiry here, as this story has no shortage of distractions: we get this rare backstage pass because one of the defense-side lawyers working on MDL 1720, Willkie Farr & Gallagher partner Keila Ravelo, turns out to have been engaged in a long-running criminal scheme to defraud her client, MasterCard, Inc, out of millions of dollars.29 When her criminal activities came to light in December 2014, Ravelo was terminated and her files were searched, at which point her employer discovered a great deal of correspondence between Ravelo and Gary Friedman, a longtime friend and a plaintiffs’ class action lawyer representing the merchant classes in both MDL 1720 and Amex ASR.

Because the settlements in both cases were contested by prominent objectors, and because Willkie Farr believed the correspondence may have contained “inappropriate” communications, the firm initiated a disclosure procedure under which the Friedman-Ravelo communications were disclosed to all interested parties.30 Under court supervision, more than eighteen thousand pages of e-mails and other documents were ultimately produced under seal.31 At that point, the objectors were free to wring whatever narrative they could out of the massive record to argue that the MDL 1720 settlement, already long approved, should be vacated under Rule 6032 and that the Amex ASR settlement, which had not yet been approved, should be rejected.33 And it is in these submissions—the briefs of the objectors, a decision of one federal judge, and a public response by Friedman—that we see the collision between realism and formalism.

At this point, a whopper of a disclosure is in order. I am not remotely unbiased here. Gary Friedman is my husband, and Keila Ravelo was a friend for twenty years—I first met her when I was a summer associate, and she was my assigned mentor at a corporate law firm in 1994. I have watched as the Friedman-Ravelo communications became the subject of conspiracy theories aimed at toppling the class action settlements, and I have seen the credulity with which even the most fanciful arguments are received by an audience primed to believe the worst about the plaintiffs’ class action bar. Many people—from a federal judge to professional objectors,34 from serious journalists to the New York Post35—were lightning quick to latch onto the familiar narrative of a plaintiffs’ class action lawyer selling out his clients’ interests, even when the evidence showed otherwise.36

The wells of distrust run deep in class action land. My suspicion is that even if we were to implement Coffee’s prescriptions for fully aligning the incentives of class members and class counsel, we would not easily escape a sort of formalism that is itself largely a by-product of concerns with Coffee’s abusive-litigation problem. Even in a world that has solved Coffee’s abusive-litigation problem, I suspect that this formalism—these vague, ex ante precepts for proper comportment, designed to obviate nettlesome ex post inquiry into whether the agent has indeed rendered loyal and able service to his principal—will persist, vestigial, like a phantom limb.

  • 1. See, for example, Myriam Gilles and Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U Pa L Rev 103, 108–12 (2006).
  • 2. See, for example, John H. Beisner, Matthew Shors, and Jessica Davidson Miller, Class Action “Cops”: Public Servants or Private Entrepreneurs?, 57 Stan L Rev 1441, 1442–44 (2005).
  • 3. See, for example, Brief of Amici Curiae Professors of Civil Procedure and Complex Litigation in Support of Petition for Rehearing En Banc, Carrera v Bayer Corp, Docket No 12-2621, *2–4 (3d Cir filed Oct 4, 2013) (authored by Myriam Gilles, counsel for amici curiae).
  • 4. Compare Gilles and Friedman, 155 U Pa L Rev at 103 (cited in note 1), with Beisner, Shors, and Miller, 57 Stan L Rev at 1453 n 60 (cited in note 2).
  • 5. See, for example, John C. Coffee Jr, Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum L Rev 1343, 1348 (1995); John C. Coffee Jr, The Regulation of Entrepreneurial Litigation: Balancing Fairness and Efficiency in the Large Class Action, 54 U Chi L Rev 877, 896 (1987); John C. Coffee Jr, Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter Is Not Working, 42 Md L Rev 215, 226–27 (1983).
  • 6. See, for example, John C. Coffee Jr, Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum L Rev 370, 372 (2000).
  • 7. See also John C. Coffee Jr, Entrepreneurial Litigation: Its Rise, Fall, and Future 16 (Harvard 2015):

    This book’s position is that both views [liberal and conservative] have some basis in fact. The “liberal” view of the plaintiff’s attorney as a “private attorney general,” who simply supplements public enforcement, significantly understates the reality and impact of our entrepreneurial system of private enforcement. Correspondingly, the “conservative” view of the plaintiff’s attorney as a “strike suiter” seems increasingly dated after legislation . . . [but] has substantially raised the bar for plaintiffs in order to protect defendants from “frivolous” litigation.

  • 8. Coffee also points out that liberals value how the class action device “provides legal representation to dispersed and small claimants, who could never afford to sue on an individual basis.” Id at 3.
  • 9. Coffee also states that “[e]ntrepreneurial litigation could be redirected, but that goal ultimately requires refashioning the incentives that today invite private attorney generals to grab the low-hanging fruit, often in a manner that benefits mainly lawyers (and not their clients).” Id at 220.
  • 10. See also id at 5 (“Because no individual class member typically has a fraction of the economic stake at risk that the plaintiff’s attorney has, the attorney’s actions and decisions are seldom closely monitored by the class members.”); id at 202 (observing that “the U.S. system has long been characterized by weak monitoring of class counsel and only limited accountability”).
  • 11. See also Coffee, Entrepreneurial Litigation at 122 (cited in note 7):

    [S]ome plaintiff’s law firms . . . will seek to exploit the nuisance value in cases[,] . . . [which] may sometimes be based on a favorable litigation cost differential, sometimes on the fact that delay is more costly to defendants than plaintiffs (as in a merger case), and sometimes on the fact that risk-averse individual defendants would prefer to settle if they can arrange to do so based on someone else’s money (e.g., the insurer, the indemnifying corporation, or the party bearing the costs of a nonpecuniary settlement).

  • 12. See also id at 11–12 (observing that the American rule “effectively insulated the plaintiff, who otherwise would have had to fear that an unsuccessful suit . . . would result in the shifting of defendant’s legal fees against the plaintiff in an amount that might dwarf the damages the plaintiff was seeking”).
  • 13. See also id at 165 (“[T]he American rule incentivizes the plaintiff’s attorney to impose costs on the adversary, while economizing on its own costs, knowing that it is immune from fee shifting. The net result is to encourage weak litigation.”).
  • 14. See also id at 89 (describing “bottom fishers” as attorneys who “d[o] not litigate actively, [do] not conduct discovery, file motions, or take depositions,” but rather “just wait[ ] for defendants to make a settlement offer”).
  • 15. Coffee also discusses other ways in which we might try to generate incentives for lawyers to invest more time and energy in meritorious class cases. For example, judges could appoint as lead counsel only those lawyers who firmly “agree to commit time and money to the case,” or judges could reduce attorney’s fees in cases that merely piggyback on earlier public-enforcement actions. Coffee, Entrepreneurial Litigation at 161–62, 172 (cited in note 7). Or judges might more regularly certify issue classes to adjudicate complex and expensive-to-prove questions common to the class. See id at 162–65. The glaring problem with the latter proposal, which Coffee himself acknowledges, is that “[c]lass action attorneys are not interested in bestowing valuable findings on the attorneys in the individual actions (where the actual recovery will come) unless they are fairly compensated for so doing.” Id at 164. Coffee suggests that this problem might be solved if courts overseeing issue class actions required “that fees be paid out of any individual recovery to the class attorneys,” but he notes that this cross court solution would not be “easy to implement” or enforce. Id. To tackle the related problem of multiforum litigation in which defendants settle with the plaintiffs’ lawyer who is willing to make the cheapest, quickest deal—potentially selling out class-member interests—Coffee has an interesting proposal to expand the authority of the Judicial Panel on Multidistrict Litigation so that the Panel can “consolidate cases in different states, or in state and federal court.” Id at 157. In his view, either federal legislation (pursuant to the Commerce Clause) or interstate compacts among “eight or so key states in which such litigation is common” could enable the Panel to consolidate overlapping decisions and police potential collusion. Id at 157–58. Many details would have to be worked out in practice, but Coffee’s concept seems to be an elegant solution to a messy problem.
  • 16. See also id at 165–68. As Coffee describes this reform model, the fee-shifting would allow defendants to “resist . . . ‘meritless’ litigation but [would have] less impact on cases where the merits are stronger.” Id at 166. Presumably, plaintiffs’ lawyers would also “recognize that the prospect of fee shifting reduces the prospect of small settlements based on the differential in litigation costs. As a result, fewer ‘weak’ cases would be filed.” Id at 166–67.
  • 17. Coffee does not grapple here with the changes in pleading rules wrought by Bell Atlantic Corp v Twombly, 550 US 544 (2007), and Ashcroft v Iqbal, 556 US 662 (2009), which may result in a greater number of cases that are dismissed at the Federal Rule of Civil Procedure 12(b)(6) stage and that are, therefore, potentially subject to Coffee’s tax on “meritless” litigation. Coffee, Entrepreneurial Litigation at 166 (cited in note 7).
  • 18. See also Coffee, Entrepreneurial Litigation at 165 (cited in note 7) (warning that any reform to class actions “has to be a balanced one,” lest a “Draconian response . . . render the private attorney general extinct”).
  • 19. See also id at 153 (observing that it “is not easy to strike” a balance between “protecting the ‘negative value’ claimant . . . while also penalizing nuisance value suits”).
  • 20. See, for example, Paul D. Carrington, Protecting the Right of Citizens to Aggregate Small Claims against Businesses, 46 U Mich J L Ref 537, 542 (2013) (claiming that the Court’s decision in AT&T Mobility LLC v Concepcion, 131 S Ct 1740 (2011), “disabled effective private enforcement of many laws made to protect citizens”).
  • 21. Coffee, Entrepreneurial Litigation at 125–27 (cited in note 7) (describing legislation that has provided defendants “greater protection” from class actions, including the Private Securities Litigation Reform Act of 1995, the Securities Litigation Uniform Standards Act of 1998, and the Class Action Fairness Act of 2005). See also id at 127–30 (describing the Supreme Court’s decisions in Wal-Mart Stores, Inc v Dukes, 131 S Ct 2541 (2011), AT&T Mobility, and Comcast Corp v Behrend, 133 S Ct 1426 (2013), which reveal that “[t]he class action may be dying the death of [ ] one thousand cuts”).
  • 22. Coffee does not focus much attention on injunctive class cases in Entrepreneurial Litigation. His primary example of these phenomena are nonmonetary securities class settlements mandating additional disclosures. Not surprisingly, Coffee has a dim view of these deals. See, for example, Coffee, Entrepreneurial Litigation at 41–42 (cited in note 7) (reporting the results from studies of securities class action suits that found that many settled not for “monetary relief” but instead only for “cosmetic” changes to corporate governance structures); id at 45 (“[T]he process of settlement is dysfunctional, [ ] because [ ] cosmetic and nonpecuniary settlements enable plaintiff’s attorneys to obtain an acceptable return at low risk.”); id at 92 (observing that the “vast majority [of M&A litigation] provided only for additional disclosures” rather than compensation to class members). But securities class actions that settle for superficial changes do not even begin to represent the broader universe of injunctive-only class actions, and Coffee’s single-minded focus prevents him from fully grappling with some of the more controversial aspects of the private attorney general model.
  • 23. 991 F Supp 2d 437 (EDNY 2014).
  • 24. 2015 WL 4645240 (EDNY).
  • 25. See Christie Smythe, Visa, MasterCard $7.25 Billion Fee Deal Wins Approval (Bloomberg, Nov 9, 2012), archived at http://perma.cc/T4J8-8YUA.
  • 26. 133 S Ct 2304 (2013) (“Italian Colors”).
  • 27. Id at 2312.
  • 28. See Amex ASR, 2015 WL 4645240 at *4 (describing the proposed settlement as “effectively modify[ing] American Express’s Non-Discrimination Provisions,” resulting in a prohibition on merchants imposing “differential surcharging” on “transactions completed with a specific brand(s) and/or product type(s)”).
  • 29. See Robin Sidel, Keila Ravelo: From ‘Women Worth Watching’ to Under Arrest (Wall St J, Aug 31, 2015), archived at http://perma.cc/XLD8-QLK8.
  • 30. Amex ASR, 2015 WL 4645240 at *6–7.
  • 31. See Declaration of Theresa Trzaskoma, In re American Express Anti-steering Rules Antitrust Litigation, Civil Action No 11-MD-02221, *2 (EDNY filed July 29, 2015).
  • 32. See Objectors’ Reply Memorandum of Law in Support of Motion to Vacate Judgment or, in the Alternative, to Grant Further Discovery, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, Civil Action No 05-MD-1720, *21–26 (EDNY filed Sept 1, 2015).
  • 33. See Individual Merchant Plaintiffs’ Supplement in Opposition to the Proposed Class Settlement, In re American Express Anti-steering Rules Antitrust Litigation, Civil Action No 11-MD-02221, *6–9 (EDNY filed June 12, 2015) (available on Westlaw at 2015 WL 4985768).
  • 34. See, for example, Amex ASR, 2015 WL 4645240 at *11 (concluding that “improper and disappointing conduct . . . fatally tainted the settlement process”).
  • 35. See, for example, Kevin Dugan, ‘Burn after Reading’ Email Sets Fire to AmEx Credit-Card Pact (NY Post, Aug 4, 2015), archived at http://perma.cc/JR7L-K4ZZ (describing Friedman and Ravelo as “ethically challenged” and “bone-headed”).
  • 36. See Gary Friedman, Open Letter Responding to Judge Garaufis’s Aug. 4 Opinion (Sept 29, 2015) (“Friedman Open Letter”), archived at http://perma.cc/6ZXE-HYTJ (calling the proposed class settlement one “that would have provided historic benefits”).