In Apple iPhone class action, plaintiffs’ lawyers defend $80 mln fee

An image of iPhone smartphones is displayed in an Apple Store in Manhattan, New York City, US, February 11, 2022. REUTERS/Andrew Kelly

(Reuters) – A national plaintiffs’ firm on Wednesday asked a US appeals court in California to uphold a nearly $80 million legal-fee award that was part of a $310 million settlement resolving class claims over the performance of certain Apple Inc iPhones.

In the San Francisco-based 9th US Circuit Court of Appeals, Mark Molumphy of Cotchett, Pitre & McCarthy spurned objectors’ allegations that the attorneys’ fee award, which was 26% of the settlement, was too high, depriving the class of tens of millions of dollars, and other claims over the settlement notice process.

US District Judge Edward Davila in San Jose, California, held two days of hearings and “did not rubber-stamp the settlement,” Molumphy told Circuit Judges Jacqueline Nguyen, Ryan Nelson and John Owens. Davila weighed objections to the compensation award and to the settlement, one of the largest class resolutions in California, before approving them in March 2021, Molumphy said.

The panel raised concerns at the hour-long argument about whether Davila used the wrong legal frame before approving the settlement. Nguyen questioned whether Davila wrongly approached reviewing the settlement under a “presumption” that it was reasonable.

Nelson said to Molumphy: “It doesn’t look to me like the district court engaged to the degree that we might expect the court to do on the substance of some of the arguments that were raised.”

Molumphy on Thursday declined to comment.

The settlement resolved multidistrict claims that Apple secretly diminished the performance of certain iPhone operating systems in order to minimize phones from shutting off unexpectedly.

In setting the case, Apple said it had “agreed to put this matter behind it” but stood by what it called a performance management feature that “solved a complex technological problem.”

Apple’s lawyer on appeal, Chris Chorba, co-chair of Gibson Dunn’s class actions practice group, deferred comment to Apple. A company representative did not immediately return a message seeking comment.

“What does the panel want Judge Davila to do that he did not do?” Chorba said in court, defending the settlement.

“Maybe set up-front the standard that he’s actually applying,” Nelson replied.

The appeals court heard arguments from objectors including Ted Frank, director of the Hamilton Lincoln Law Institute for Class Action Fairness.

His brief on appeal argued that the percentage should not be greater than about 17%, which would return more than $35 million to the consumer class.

The case is In re Apple Inc Device Performance Litigation, 9th US Circuit Court of Appeals, No. 21-15758.

For plaintiffs: Mark Molumphy of Cotchett, Pitre & McCarthy

For Apple: Chris Chorba of Gibson, Dunn & Crutcher

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Class counsel in Apple ‘throttling’ case beat multifront attack to land $81 million in fees

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