Public Citizen represented Robert Gaudet, Jr., and three other objectors to a class action settlement in an antitrust case brought against West Publishing Corp. and Kaplan, Inc. The antitrust case was based on allegations that the companies conspired to avoid competition in the market for bar preparation courses nationwide. The settlement calls for cash payments to members of the class, who were purchasers of bar review courses. In approving the settlement, however, the district court refused to evaluate the fairness of the amount of the payments in comparison to the treble damages that the class would be entitled to under the antitrust laws if it were to prevail, and instead considered only single damages. In addition, the court acted on the basis of an almost entirely sealed record, even though no findings sufficient to support such blanket sealing had ever been made and the sealing inhibited class members’ ability to assess the fairness of the settlement.
On April 23, 2009, the U.S. Court of Appeals for the Ninth Circuit struck down the settlement in part, holding that the district court should not have awarded attorney fees without considering the impact of a potential conflict of interest. However, the court sustained the district court’s assessment of the adequacy of the overall settlement despite its failure to consider the prospect of treble damages, and it did not address the correctness of the district court’s sealing of the record.