Sharpe v. A&W Concentrate Co.

Docket number: 19-cv-00768-BMC (E.D.N.Y.)

The Hamilton Lincoln Law Institute represents its director, Theodore H. Frank, in objecting to a purported “$15 million settlement” that in fact delivers perhaps $2 million to class members, and earmarks $3.2 million for attorneys’ fees. National attention to the case expanded the claims rate, substantially resolving Frank’s objection.

The underlying suit alleges that A&W Root Beer’s “aged vanilla” packaging is deceptive because most of the vanilla flavor in the beverage is artificial. One of the lead attorneys has brought over 100 lawsuits based on this theory, the vast majority of which have been dismissed for no class-wide relieve. Here the parties agreed to settle by instead providing only the illusion of substantial relief.

In the claims-made settlement, only class members who file claims receive anything from the settlement. The settling parties know that not many class members will claim, so the relief “up to $15 million” is simply a fiction to prop up class counsel’s excessive attorneys’ fee request. The fee request is especially remarkable for its $1420/hour blended billing rate, which class counsel argues makes the $3.2 million fee request a discount (fractional lodestar multiplier) from their ordinary billing rates.

Objector Frank argues that the settlement should be rejected in its entirety because it was structured to deliver $3.2 million in fees, which the defendant agrees not to opposed. If the underlying settlement is approved, the fee request denied due to the excessive rates, lack of information by which to determine a more reasonable fee, and untimeliness that denied class members an opportunity to evaluate the request.

On November 15, 2023, the court approved the settlement and request for attorneys’ fees, after unpaid national media about the settlement aided the claims process, substantially expanding the de facto scope of the notice anticipated in the settlement.

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