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Abstract

This Note proceeds in five parts. Part I provides a background of coupon settlements with special attention paid to the incentives of class counsel. Part II outlines CAFA’s relevant statutory provisions and examines them in light of the “Purposes” section in the statute and the Senate report accompanying the legislation—the most illuminating indicia of legislative intent. Part III examines the rationale supporting both cases in the circuit split and the implications behind both interpretive regimes. Part IV argues that the Seventh Circuit has the better legal argument for two reasons: (1) its strong textual argument; and (2) its support found in the Senate report. The Seventh Circuit’s reasoning makes it difficult to reconcile the Ninth Circuit’s opinion with the text and legislative history of the statute. Part V concludes by arguing that coupon settlements under CAFA raise a significant issue that should be addressed by Congress. Congress employed strong language throughout the Senate report indicating that it wanted to closely align the incentives of class counsel with members of the class. Part V continues by suggesting a methodology for courts to follow. This approach aims to accommodate both the interests of class counsel and class members to create a reasonable solution.

This Note does not decide whether coupon settlements are per se desirable or undesirable. There is robust scholarly literature describing the incentive structures inherent in coupon settlements and the pros and cons concerning their use. Arguments on both sides have merit, and these arguments are discussed later in the Note. This Note does, however, explain that the broad purpose evinced in the legislative history—attempting to avoid situations in which attorneys act at the expense of their clients—is not supported by the statutory text. CAFA is all bark with no proverbial bite. This Note provides a remedy to more closely align those incentive structures. If citizens truly do want to limit the availability of the lodestar method to alter class counsel’s incentives, they should attempt to change that through their elected representatives in Congress.

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