In re: Apple Inc. Device Performance Litigation

Docket number: 21-15763 (9th Cir.)

Anna St. John of the Hamilton Lincoln Law Institute objected to the excessive $87.73 million fee request requested by plaintiffs’ counsel, which represents 28.3% of the $310 million “megafund” settlement reached over Apple’s practice of “throttling” processor power in older iPhones. Plaintiffs had alleged that this practice attempts to force consumers to upgrade by creating the false impression their iPhone does not have enough processing power.

The fee award is well above the 25% benchmark for class action settlements. Even a fee of “only” $77.25 million would be excessive because of the size of the settlement, resulting in a windfall to class counsel of several times their generous hourly rates. The rates of contract and staff attorneys are particularly egregious at $350-400/hour for staff that actually paid perhaps $50.

Such windfall would be especially undeserved because of the deficient claims process administered by class counsel. Even though the settlement offered potentially hundreds of dollars to claimants, the settlement achieved a poor claim rate because most notice emails were sent to spam. In contrast, a recent settlement with Google resulted in a better claims rate because emails were sent from Google’s own domain—even though that settlement offered only a few dollars to claimants.

The settlement appears to have throttled class claims, which ensured Apple would not be liable for more than the $310 million settlement floor. The settlement website rejected valid serial numbers from class members and required class members to swear under penalty of perjury that they still owned the relevant iPhone, even though the settlement was supposed to benefit both current and former owners of the affected devices.

On November 27, the State of Kentucky, joined by a bipartisan coalition of attorneys general from eleven other states, moved to file an amicus brief opposing the fee award for some of the same reasons St. John has. The fairness hearing occurred on December 4, 2020.

On March 17, 2021, the district court approved the settlement and granted a slightly reduced fee award of $80.6 million. Several appeals were taken from the district court’s order, which were consolidated in the Ninth Circuit.

On October 1, 2021, Objector-Appellant Anna St. John filed her opening brief in the Ninth Circuit arguing the district court erred (1) in approving a fee award over the 25% benchmark, given the district court itself looked to empirical research showing a mean award in such cases was between 10.2% and 12%, and found no single factor supported an upward departure from the benchmark, and (2) in failing to address objections that the underlying lodestar was exaggerated by above-market document review rates, duplicative work, and other inefficiencies and excesses.

On October 8, 2021, the State of Kentucky and 12 other states filed an amicus brief in support of  Appellants, including St. John.

On September 28, 2022, the Ninth Circuit vacated approval of the settlement because it “relied on a flawed legal standard.” The panel also observed that awarding fees for parallel state litigation “conflicted with its overall rationale for a fee award,” and that the courts failure to grapple with the objectors’ arguments was another abuse of discretion. This panel remanded the case to reevaluate final approval and, if approved again, decide a new fee award using appropriate legal standards.

On remand, plaintiffs filed a renewed settlement and fee request with the district court on remand, and on November 25, 2022, St. John filed an objection to the renewed fee request.

The district court overruled the objection and granted final approval and the renewed fee request on February 17, 2023.

Case Documents