In re Samsung Top-Load Washing Mach. Mktg., Sales Pracs. & Prod. Liab. Litig., 997 F.3d 1077 (10th Cir. May 7, 2021)
This appeal arose from multi-district class action litigation brought by consumers owning Samsung brand top-load washing machines. Class counsel and the defendants negotiated a settlement agreement which included both a “kicker” (an agreement that allowed fees not awarded to class counsel to revert to defendants) and a “clear-sailing” agreement (an agreement that the defendants would not object to an award of attorney’s fees). As a matter of first impression, the Tenth Circuit held that the district court must apply heightened scrutiny when analyzing a class settlement containing these provisions, in order to assure that the class members receive fair and reasonable compensation. Applying this standard, the court held that the district court applied sufficient scrutiny and that it did not abuse its discretion by granting final approval of the settlement.