Mark NOTZ, et al., Plaintiffs and Respondents v. TICKETMASTER-SOUTHERN CALIFORNIA, INC., et al., Defendants and Respondents, Thomas A. Jenkins, Objector and Appellant.
Thomas A. Jenkins appeals from a judgment approving a settlement of three consolidated class actions brought by consumers against Ticketmaster Corporation or Ticketmaster-Southern California, Inc. (collectively Ticketmaster) and Bay Area Seating Service, Inc. (BASS), Jenkins raises numerous contentions, some of which we will hold he lacks standing to raise. As for the others, we find no abuse of discretion in the court's ultimate conclusion that the settlement was fair, reasonable and adequate.
There were originally five actions, all filed between June 1 and October 15, 1992, four of them in San Francisco Superior Court. The fifth, filed in Marin County Superior Court, was voluntarily dismissed, and its named plaintiffs joined one of the others. This left four actions, three of which-the Notz, Teeters and Johnson actions-were similar in allegations and were brought against Ticketmaster and BASS.
The fourth-the Cravens action (Cravens et al. v. Bay Area Seating Service, Inc., et al. (Super.Ct.City & County of S.F., 1992, No. 943387))-entailed expanded theories and allegations and named additional defendants, including Bill Graham Enterprises, Inc. and others (the Bill Graham defendants) who had also been defendants in a previously settled class action called the SJBO case (San Jose Box Office, Inc. v. Bay Area Seating Service, Inc., et al. (Super.Ct. Santa Clara County, 1987, No. 646343)). Cravens was filed by Jenkins, a partner in a newly formed law firm, Jenkins & Mulligan, and he had just left “of counsel” association with the law firm Khourie, Crew & Jaeger, which had negotiated the SJBO settlement on the plaintiffs' side. The settlement included a covenant not to sue the Bill Graham defendants on any further related claims.
The Bill Graham defendants moved in the Cravens action to disqualify Jenkins from acting as counsel, claiming a violation of the SJBO settlement. The superior court granted the motion on March 30, 1993, and ordered Jenkins disqualified. He appealed the ruling. This court ultimately affirmed it in an unpublished opinion filed in January 1994 (Cravens v. Bill Graham Enterprises, Inc. (A061443)), and the Supreme Court in late March denied Jenkins's petition for review (S038130).
Over a year earlier, meanwhile, in January 1993, the four actions had been consolidated and assigned to “Plan 3” status under the local superior court rules, and a consolidated amended complaint (the complaint) was filed in February. The Cravens plaintiffs declined to join in the complaint.
The four-count complaint alleged violations of California's Cartwright Act (Bus. & Prof.Code, § 16700 et seq.) and unfair competition laws (id., § 17200 et seq.), common law restraint of trade and monopoly. The common allegations claimed a horizontal conspiracy between BASS and Ticketmaster, dominators of non-box-office ticket sales in the Northern and Southern California markets respectively, to monopolize and divide that market, fix and drive up service charges, and eliminate competition and box-office sales. This was allegedly accomplished through exclusive contracts with event promoters and venues, Ticketmaster's acquisition of a competitor, Ticketron, Inc., a territory-allocating agreement between defendants, and overlapping officers and directors. The putative class, comprised of consumer (non-resale) purchasers, sought damages and restitution for the limitations period (June 1988 onward), injunctive relief, and costs and attorney fees. Defendants answered, denying all allegations.
The issues came into finer focus during class certification. Plaintiffs made their motion in late February 1993, and the court ultimately certified the class on September 9. During that time, all named plaintiffs were deposed, extensive briefing was filed and both sides retained and offered analyses by economics experts on issues of certification and market division and overcharges. The experts were deposed. In response to opposition that individual issues predominated, plaintiffs stressed their allegation that a software license agreement between defendants effected an unlawful market division. That agreement was produced in discovery.
In late March 1994, after 10 months of negotiation begun during the certification stage, the parties reached a proposed settlement. Under its terms, defendants (1) could not interpret anything in their software license agreement (current or as renewed, substituted or extended) as prohibiting them from opening outlets and competing anywhere in the state, (2) could not have overlapping officers or directors in entities under common ownership (50% or greater equity) and (3) could not control or prohibit venues from the operation of on-site box-office sales. Defendants would also (4) distribute to charitable, public or other deserving organizations $1.5 million in tickets (retail value) for a representative sample of major events over three years and (5) would pay plaintiffs' counsel court-approved fees and costs totaling no more than $750,000.
Preliminary approval of the settlement, proposed notice to class members and other procedures was sought, and the court gave its preliminary approval on March 22, 1994, after a hearing at which Jenkins appeared and objected in various respects to the settlement and notice. Jenkins had by then been disqualified from acting as class counsel, and this court had affirmed that order on appeal. Jenkins appeared and argued pro se, asserting for the first time what he claimed were his own rights as a class member. His objections were overruled. The court approved the form of notice, ordered publication in 15 newspapers throughout the state, set April 15 as the last date for class members to object or opt out, and set a fairness hearing for May 2 (later amended to May 6).
Publication ensued as ordered, and the matter received regular media coverage as well. In addition, a March 30 press release from a San Francisco and Los Angeles based organization called Consumer Action criticized the settlement terms and encouraged class members to object. Among those quoted in the release were Dee Cravens (a plaintiff in the Cravens action), identified as a class member, and Jenkins, identified not as a class member but as a “consumer attorney.” The release listed Jenkins as one of three contact persons, identifying his law firm and giving the firm's phone number.
Jenkins's actions in that regard prompted an April 15 motion by Ticketmaster to sanction him for violating the disqualification order in Cravens. The court granted that motion on July 22, ordering him to pay Ticketmaster $3,000. Jenkins has appealed that order, and we review it by separate opinion (A067381).
Meanwhile, 57 class members had opted out and 123 (Jenkins included) had filed objections by the cut-off date. Jenkins also filed a brief in opposition to the settlement, as did Joseph M. Alioto, counsel for seven other objectors.
The hearing on final approval proceeded as scheduled on May 6, where Jenkins and Alioto argued. The court took the matter under submission and issued an amended final judgment on June 1. Jenkins timely appeals the judgment; no other objector appeals.
Jenkins challenges many aspects of the settlement, repeating in appellate form objections which he raised below. We finding no basis for reversal and so affirm.
[Standing to Challenge Notice]
Several procedural challenges have in common the theme that due process rights of absent class members were violated. Jenkins argues: (1) notice by publication was deficient because (a) some members could have been mailed individual notice (cf. Eisen v. Carlisle & Jacquelin [1974-1 Trade Cases ¶ 75,082] (1974) 417 U.S. 156, 173-176) and (b) several alternatives to, or improvements on, the publication used were practicable (see Fed.Rules Civ.Proc. rule 23)(c)(2), 28 U.S.C.); (2) notice of a hearing on proposed settlement violated rule 462 of the local class action manual (Super.Ct., City & County of S.F., Manual for the Conduct of Pretrial Proceedings in Class Actions), and (3) inadequate time was allowed for class members to opt out or file objections. Respondents address those claims on the merits, as a precaution, but contend that Jenkins lacks standing to raise them because he was present-not absent-and not personally aggrieved by any of the asserted deficiencies.
We are persuaded that he lacks standing. The pertinent authority is Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117 (Rebney ), our own precedent and, coincidentally, one involving an appeal by a pro se objector/attorney (among others) who raised arguments against a class action settlement-there concerning various banking fees and practices. We began: “[A]ppeals may be taken only by aggrieved parties. (Code Civ.Proc., § 902.) Appellants must be parties of record, and their rights or interests must be injuriously affected by the judgment. [Citation.] They may not assert error that injuriously affected only nonappealing coparties. [Citations.]” (Rebney, supra, at p. 1128.) Applying those precepts, we held that objectors lacked standing to raise fairness and expansion-of-class issues not affecting their own injuries (types of fees paid) or right to recover. (Id. at pp. 1129-1132.) We also held that certain appellants who had not held high-volume business accounts lacked standing to contend that settlement notice to those who did was insufficient to satisfy due process (id. at pp. 1137-1138) and, similarly, that they lacked standing to complain of deficient statutory notice to former customers “since they are not former customers” (id. at p. 1138, fn. 6). We find Rebney controlling here. Jenkins cannot complain of claimed error affecting the due process rights of absent class members when he himself was not an absent member and was not likewise affected.1
Jenkins protests that to deny him standing “would mean that notice requirements in class settlements could almost never be the subject of review since, by definition, anyone that had appealed would almost always have received notice, or else they could not have filed a notice of appeal.” However, we do not mean to suggest that absent class members who receive actual but deficient notice cannot gain standing on appeal. As we observed in Rebney, “all they have to do is appear as objectors at the fairness hearing and then take an appeal.” (Rebney, supra, 220 Cal.App.3d 1117, 113 1; see, e.g., Greenfield v. Villager Industries, Inc. (3d Cir.1973) 483 F.2d 824, 829.) California precedent has held that no appearance whatsoever is needed to raise a due process notice challenge; an absent class member is aggrieved and has standing by simply appealing. (Simons v. Horowitz (1984) 151 Cal.App.3d 834, 843 [defendant class member].) In the unlikely event that no notice at all were given and thus no chance to appeal arose, an absent member would still have protection. Reasonable notice being a fundamental due-process requirement for finality (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314), a judgment has no res judicata effect without it and may be vulnerable to collateral attack by an absent member after the appeal time has run (see Simons v. Horowitz, supra, 151 Cal.App.3d 834, 842-843, discussing Gonzales v. Cassidy (5th Cir.1973) 474 F.2d 67, 74-75 [inadequate class representation] ).
[Fairness of Settlement]
A trial court has broad powers to determine whether a proposed settlement in a class action is fair. (Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 438.) Jenkins mounts his substantive challenges by analyzing case law criteria developed to that end, specifically: (1) the strength of the plaintiffs' case on the merits balanced against what is offered; (2) a defendant's ability to pay; (3) the complexity, length and expense of further litigation; (4) the degree of opposition within the class; (5) the presence of collusion; (6) the opinions of counsel; and (7) the stage of proceedings and amount of discovery, (Armstrong v. Board of Sch. Directors, Etc. (7th Cir.1980) 616 F.2d 305, 314 (Armstrong ).)
We follow that analysis, mindful that those factors are not exhaustive and that the relative importance of any one depends on the nature of the claims advanced, the types of relief sought and the unique circumstances presented by each case. (Officers for Justice v. Civil Service Com'n, Etc. (9th Cir.1982) 688 F.2d 615, 625 (Officers for Justice ).) A trial court's “intrusion upon what is otherwise a private consensual agreement negotiated between the parties ․ [is] limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid.) “Ultimately, [that] determination is nothing more than ‘an amalgam of delicate balancing, gross approximation and rough justice’ ” undertaken with a perspective “that voluntary conciliation and settlement are the preferred means of dispute resolution.” (Ibid., citation omitted.) “Our task on appeal is even more limited. The initial decision to approve or reject a settlement proposal is committed to the sound discretion of the trial judge,” whose decision is entitled to great weight. (Id. at pp. 625-626, citations omitted.) We cannot substitute our own judgment and may reverse only upon a showing of clear abuse of discretion. (Id. at p. 626.)
Strength of the case versus the offer
This factor is generally regarded as the most important. (Armstrong, supra, 616 F.2d 305, 314.) It is in essence a summary of all factors (Georgine v. Amchem Products, Inc. (E.D.Pa.1994) 157 F.R.D. 246, 320 & fn. 54), especially where, as here, the risks of establishing liability and damages are not treated as separate factors (compare, e.g., In re General Motors Corp. Pick-Up Truck Fuel Tank (3d Cir.1995) 55 F.3d 768, 814-817 (General Motors )). Jenkins focuses on what was offered, ignoring the other side of the balance-the strength of the case. He undertakes no analysis of the legal or factual underpinnings of the suit except to statem without elaboration or authority, that “both the allocation of markets and the price fixing alleged in the [complaint] are plainly illegal conduct ․ condemned as per se violations of the antitrust laws.” Thus he utterly fails to demonstrate merit in the case, and we would be justified in saying no more.
Nevertheless, respondents make some persuasive points. First, one primary theory of the case was that a per se violation arose by virtue of the software licensing agreement, yet a fair reading of that 1986 document, which the court had before it, reveals nothing on its face which divided or allocated markets. Rather, it granted BASS an exclusive license to use Ticketmaster's computerized ticketing system in Northern California, where BASS operated. Thus defendants convincingly urge that the per se theory was at risk, so that the court might use a more onerous rule-of-reason analysis. This is bolstered by the fact that the court on June 17, soon after its June 1 order approving the settlement, denied another plaintiff's motion for summary judgment (pending since March) in which counsel Alioto argued that the agreement constituted a per se violation (Bus. & Prof.Code, § 16720). Of course, “[n]either the trial court nor this court is to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements.” (Officers for Justice, supra, 688 F.2d 615, 625.) Still, the trial court did have this issue pending before it, in another context, and resolved it. Jenkins offers no supported argument in favor of finding a per se violation.
As for Ticketmaster's 1991 acquisition of Ticketron, Inc., and allegations of conspiracy, monopoly and restraint of trade generally, the court was aware that the California Department of Justice had conducted a preliminary review, considered “extensive documentary evidence and the views of the U.S. Department of Justice and the New York Attorney General's office,” and found “no evidence ․ indicat[ing] that Ticketmaster, either before or after its acquisition of Ticketron, has violated or is violating the antitrust laws,” and accordingly found further investigation unwarranted.2 A court in determining a settlement's fairness must respect the effect of such governmental investigations on the perspectives of counsel, even if the court were inclined to disagree with the investigative outcomes. (Stull v. Baker (S.D.N.Y.1976) 410 F.Supp. 1326, 1334-1335.)
If plaintiffs could establish unlawful restraint, expert evidence showed some risks in proving causation and damages. Plaintiffs' own expert was Robert E. Hall, a professor of economics at Stanford University and a senior fellow at Stanford's Hoover Institute. He opined by declaration that competition between ticket selling agencies would tend to lower service charges but also testified in deposition that high service charges could cause a compensating lowering of event ticket prices. While he thought that damages could be proved on a statewide basis, he concluded that actual damages could turn out to be low. Defendants' expert was Brett Reed, a senior economist at Micronomics, Inc., an economic research and consulting firm. He opined that there was no coercive exclusive dealing arrangement and that, if there were, the market effect would vary from one geographic area to another within the state, depending on events, ticket prices, promoters and venues, so that no uniform effect could be determined for the class. The experts, taken together, thus furnished evidence of risk in causation, damages and in the viability of proceeding by class action. Jenkins protests that plaintiffs' counsel Francis Scarpulla mischaracterized the testimony in his argument at the fairness hearing, but defendants correctly observe that Jenkins takes the argument out of context. There is no indication, moreover, that the court was ignorant of the actual expert testimony.
Defendants also point to arguments below, based on the expert testimony, that defendants were not actual competitors under the software license agreement and that the relevant market was more expansive than the “non-box office” ticket sales alleged in the complaint, thus requiring consideration of alternative forms of entertainment including recorded, broadcast, motion picture and other products competing for consumer dollars. As Jenkins makes no mention of those points, we may assume that they had some merit.
Against that overall picture of the case's strength the court below had to balance the settlement offer. “In this regard, ‘[c]ash as well as noncash consideration is appropriate, as long as the total consideration is sufficient.’ [Citations.]” (Georgine v. Amchem Products, Inc., supra, 157 F.R.D. 246, 319.) “It is well-settled that a cash settlement amounting to only a fraction of the potential recovery will not per se render the settlement inadequate or unfair. [Citations.] This is particularly true in cases, such as this, where monetary relief is but one form of the relief requested by the plaintiffs. It is the complete package taken as a whole, rather than the individual component parts, that must be examined for overall fairness.” (Officers for Justice, supra, 688 F.2d 615, 628.)
The “cash” component here included $1,500,000 in retail value of tickets, to be distributed free to qualified organizations, plus reasonable attorney fees up to a ceiling of $750,000. Jenkins calls the tickets “a magnanimous gesture” but complains that they give no benefit to class members. He would have preferred refunding past charges, lowering or placing a ceiling on future charges, or ordering some percentage of tickets sold free of charges. The latter two suggestions, of course, hold no guaranty of reaching past ticket buyers, who comprise this class. But in any event, our unfair competition laws permit fluid recovery (or the equitable doctrine cy pres ) in lieu of direct restitution, at least where direct victims are difficult to identify, in order to prevent frustration of the laws' goal of preventing defendants from retaining ill-gotten gains. (See discussion in People v. Thomas Shelton Powers, M.D., Inc. (1992) 2 Cal.App.4th 330, 339-343.) “Where it is not possible [to refund a direct victim], the theory of fluid recovery permits an award of the funds to an interested third party.” (Id. at p. 343.) We see no reason why a different rule should apply to settlements.
The record supports direct refunds being impossible or impractical. The class had 5 million potential members. Briefing below represented that defendants did not maintain the names and addresses of each ticket purchaser and that approximately 65 to 70 percent of purchases were cash transactions which produced no records of the purchasers' names. Jenkins argues inferentially that the 30 to 35 percent of non cash transactions should have produced credit card records from which names and addresses were ascertainable. As has been observed in the class-notification context, however, such records are apt to be over- and under-inclusive, yielding duplicate names and names of persons who are responsible for credit card payments but who are not necessarily those who purchased or ultimately paid for the tickets. (In re Domestic Air Transp. Antitrust Litigation [1991-2 Trade Cases ¶ 69,679] (N.D.Ga.1992) 141 F.R.D. 534, 544-545.) Also, to distribute $1.5 million to 30 or 35 percent of a 5 million member class yields less than $1 per class member, an amount which would be mostly consumed in the expense of obtaining records and then reaching the members.
Jenkins suggests that the $1.5 million retail value might be inflated and that the tickets distributed might not prove to be representative of major sports and entertainment events. This ignores that the settlement terms call for the court to monitor compliance.
On the issue of the cash outlay for attorney fees, Jenkins merely states that the $750,000 amount is “grossly excessive” “[c]onsidering the result produced.” There are two answers: one, the settlement asks the court to award only reasonable fees up to that amount, and two, Jenkins gives too little credit for the “result produced.”
Most notably, he completely dismisses the settlement's injunction-like restraints as “chimerical,” giving them no value at all. In truth, injunction against the claimed unfair and anticompetitive practices was an integral part of the relief sought by the class. The settlement addresses three major allegations of anticompetitiveness: (1) prohibiting the software license agreement (or any later agreements) from being construed to limit competition between defendants, (2) forbidding interlocking directorates and (3) mandating that each venue doing business with defendants be allowed to decide for itself whether to conduct its own box office sales and what charges, if any, to impose for them. Jenkins offers the strange argument that since defendants denied that they had such practices, the relief “has no meaning force or effect.” Carried to its illogical conclusion, this would mean that no conceivable relief could have meaning, since defendants blanketly denied all wrongdoing in the action. Obviously, the point of settlement is to dispose of disputed allegations, and the restraints here did just that. Jenkins protests that restraints (1) and (2) would have no effect should defendants “combine their operations through merger, consolidation, transfer of assets, acquisition” or enter into any ancillary contracts in that regard. However, nothing in this complaint alleged such combination or sought injunctive relief against it. The settlement was properly limited to this action.
Finally, we reject Jenkins's view that the settlement violates public policy by allowing a continuation of “clearly illegal conduct.” He ignores crucial qualifying language in the cases he cites. “In applying this principle ․, the court must not decide unsettled legal questions; any illegality or unconstitutionality must appear as a legal certainty on the face of the agreement before a settlement can be rejected on this basis.” (Armstrong, supra, 616 F.2d 305, 320, citing Robertson v. National Basketball Ass'n (2d Cir.1977) 556 F.2d 682, 686; Grunin v. International House of Pancakes [1975-1 Trade Cases ¶ 60,222] (8th Cir.1975) 513 F.2d 114, 123-124.) Here, no clearly illegal conduct appears authorized on the face of the settlement agreement. The settlement may allow defendants to conduct business in some respects as before, but the illegality of that conduct was hotly disputed and subject to substantial trial risks on plaintiffs' part. We reiterate that the court also found no per se violation in ruling on the motion for summary judgment.
Applying a properly deferential review of the superior court's decision, the relief offered in settlement does not appear out of line balanced against the merits of the case.
Defendants' ability to pay
If we assign no cash value to the injunction-like restraints in the agreement, the tickets and attorney fees alone, totaling $2,250,000, represent 2.14 percent of defendants' combined ticket-sale revenue for the four-year period preceding the complaint's filing. In response to defendants' citation of cases upholding settlements well under such a figure, Jenkins says there is no “magic number” and dismisses the revenue information as gained not through formal discovery but through the representation of counsel. We agree that there is no magic number but find nothing in Jenkins's argument to question the adequacy of the 2.14 percent amount. As for the information source, this was something conveyed to the court by class counsel Scarpulla, who stated by sworn declaration that the information was “supplied by defendants.” We are aware of no authority holding that a court in considering the fairness of a proposed settlement must have more formal discovery or direct information.
Complexity, etc., of further litigation
Jenkins concedes, “Undoubtedly, this case would have been complex, or would have been made complicated” yet asserts that “competent counsel representing the class” should have been able to do more for the class. He may feel that he would have been better counsel (cf. Rebney, supra, 220 Cal.App.3d 1117, 1140), but this sheds no light on the complexity factor, which we hold supports the judgment.
Opposition within the class
The 57 opt-outs and 123 objectors together represent a minuscule part (0.0036%) of the estimated 5 million class members, thus revealing insignificant opposition within the class, and Jenkins is the only objector to challenge the approval by an appeal. Such meager opposition, when raised by those who had notice of settlement terms and yet have eschewed the chance to opt out, has been called the work of “spoilers”-not a reason to block approval. (Marshall v. Holiday Magic, Inc. (9th Cir.1977) 550 F.2d 1173, 1177.) Given the enormous size of this class, no substantial opposition appears, even accounting for the use of published rather than individual notice.
Stage of proceedings/amount of discovery
Settlement came after 10 months of negotiations which had begun during the class certification stage. Certification came in early September 1993, and the final agreement was reached in late March 1994. Jenkins objects not so much to the stage of proceedings but to what he calls a woeful lack of discovery. We hold that while discovery could have been more extensive, it was not so inadequate that the superior court erred in this regard.
Courts are more confident of agreements reached, as here, after certification of the class has been attained, the reason being that class counsel have demonstrated a pursuit of their clients' interests and presumably dealt at arm's length in the process. (General Motors, supra, 55 F.3d 768, 814.) In this case, issues of liability, causation and damages explored in the months-long litigation of class certification overlapped many issues on the ultimate merits of the claims, and economics experts were enlisted on both sides to study them and render written opinions. Both experts were deposed as well. (Named plaintiffs were also deposed, although their testimony did not provide insight into defendants' conduct.) Extensive class action briefing also alerted the parties to key issues and positions. Also, the software license agreement was produced and was stressed as a focal point of litigation in order to counter arguments that individual issues would predominate at trial. Informal discovery also disclosed defendants' revenue for a four-year period. Jenkins belittles the exchange of information here through counsel. However: “[I]nformality in the discovery of information is desired. It is too often forgotten that a conference with or telephone call to opposing counsel may often achieve the results sought by formal discovery.” (Cotton v. Hinton (5th Cir.1977) 559 F.2d 1326, 1332.) Formal discovery is not critical. “What counts is knowledge of the case, not the particular source of that knowledge.” (Handschu v. Special Services Div. (S.D.N.Y.1985) 605 F.Supp. 1384, 1398.) Further, the parties were aware that a state antitrust probe into these defendants' practices had yielded a no-violation determination resting in part on an examination of materials from New York and federal investigations (fn. 2, ante ). Finally, class counsel Scarpulla declared that he had also reviewed the court files in the SJBO case, which had involved these same defendants (among others) and similar issues.3
The court's implicit finding of adequate discovery is supported.
Presence of collusion
Class counsel related in detail the events leading to and influencing the settlement, including months of sometimes contentious discussions. No collusion appears from that recitation. (Rebney, supra, 220 Cal.App.3d 1117, 1139.) Jenkins nevertheless sees collusion in three aspects: (1) a simultaneous negotiation of attorney fees and class relief, (2) the move to disqualify him as class counsel while another attorney with a conflict was not challenged and (3) the onset of settlement talks occurring during class certification.
The first point fails. California courts do not deem every simultaneous negotiation an invalidating conflict; rather, they examine each case for abuse of discretion. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 924-925.) No abuse appears here. This is not a case where a single sum is negotiated for both the recovery and fees, creating a tension in later allocation. The fees here would not affect the $1.5 million dollar ticket distribution. Also, the $750,000 in fees was not fixed but was an outside figure, leaving it for the court to determine what amount was justified as reasonable. To the extent that simultaneous fee negotiations may sometimes risk downward pressure on class recovery (see General Motors, supra, 55 F.3d 768, 820), the record did not compel such a finding here.
The second point also fails. As defendants observe, the motion to disqualify Jenkins was prompted by the Bill Graham defendants, who were sued only in the Cravens action filed by Jenkins. Any other conflict was unimportant to them. Moreover, we do not agree with Jenkins's implicit assumption that a selective disqualification of him would necessarily connote collusion harmful to the class.
The third point is unpersuasive. The subject of settlement was first raised midway through the class certification fight, but settlement was not reached until 10 months later, nearly 7 months after plaintiffs had won class certification. That timing connotes arm's-length negotiation. (General Motors, supra, 55 F.3d 768, 814.)
Opinions of counsel
The opinions of experienced counsel are entitled to great weight so long as there has been arm's length bargaining engaged in after sufficient discovery to enable counsel to act intelligently. (Stull v. Baker, supra, 410 F.Supp. 1326, 1332-1333.) We have already found record support for the bargaining and discovery prerequisites. As for the qualifications of the many counsel who favored the settlement, Jenkins concedes their competency and experience. Although Alioto, counsel for other objectors, has comparable experience and opposed the settlement, his was a minority voice. The court could justifiably resolve this factor in favor of approval.
The court acted within its broad discretion in approving the settlement. Jenkins's constant refrain that the court “failed to consider almost all” relevant factors is meritless given the vociferous and pointed arguments for and against.
The judgment is affirmed.
1. In a footnote to his opening briefing on absent members' due process rights and again in his reply brief, Jenkins complains of being denied leave to file an oversize brief in objecting to the settlement. He fails to explain, however, how this personal aggrievement prejudiced him (Cal. Const., art. VI, § 13) or rose to due process dimension. The same is true of some personal, procedural complaints he improperly raises for the first time in his reply brief.
2. An August 5, 1992, letter from Chief Assistant Attorney General Roderick E. Walston to Senator Milton Marks, concerning a possible need for further legislation, stated in part: “[I]t is well known that Ticketmaster, particularly after its acquisition of Ticketron, occupies a significant market position in the field of retail ticket sales. Whenever any business entity possesses or acquires a significant market position in its field, questions naturally arise among those responsible for antitrust enforcement whether the entity possesses, or has acquired, monopoly power in violation of federal and state antitrust laws. Although we have conducted a preliminary review of the Ticketmaster situation, including review of extensive documentary evidence and the views of the U.S. Department of Justice and the New York Attorney General's office, no evidence has been brought to our attention indicating that Ticketmaster possesses unlawful monopoly power, or has improperly acquired monopoly power by its acquisition of Ticketron. Additionally, no evidence has been brought to our attention indicating that Ticketmaster has conspired with others to restrain trade. In short, no evidence of which we are aware indicates that Ticketmaster, either before or after its acquisition of Ticketron, has violated or is violating the antitrust laws.”We observe that recently, in July 1995, the United States Department of Justice similarly announced that it was dropping a federal antitrust probe into Ticketmaster and declining to bring suit. This was, of course, not known to the court below at the time of its judgment. (See also Sands v. Ticketmaster-New York, Inc. (App.Div.1994) 616 N.Y.S.2d 362, 363-364 [rejecting New York law antitrust, conspiracy and deceptive business practice challenges].)
3. Jenkins alludes to this court being “aware”-evidently from our prior opinion in the appeal upholding his disqualification order in the Cravens case (A061443)-that “the SJBO case was apparently subject to a protective order, so that any useful information was not available to counsel.” This is speculation. Our opinion in Cravens, part of the record before us, shows only that a stipulation and protective order barred disclosure of “all discovery materials designated confidential․” Nothing in our record shows which discovery materials might have been so designated. Thus nothing rebuts counsel Scarpulla's implicit representation that he examined useful material in the SJBO case.
SMITH, Associate Justice: