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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 01-CV-600 and No. 02-CV-305
JOY BOYLE, et al., APPELLANTS,
TERESA HERMINIA GIRAL, et al., APPELLEES.
Appeals from the Superior Court of the
District of Columbia
(Hon. Geoffrey M. Alprin, Trial Judge)
(Hon. Joan Zeldon, Trial Judge)
(Argued April 24, 2002 and March 25, 2003
Decided April 10, 2003)
George A. Barton, with whom David Schertler and Lisa Fishberg were on the briefs,
John M. Majoras, with whom Julie E. McEvoy and Heather Guilette Walser were on
the briefs, for appellee Settling Defendants.
Jeffrey A. Bartos, with whom Jonathan Rolfe and Timothy D. Battin were on the
briefs, for appellee Class Plaintiffs.
Bennett Rushkoff, with whom Robert R. Rigsby, Corporation Counsel at the time the
brief was filed for appeal No. 01-CV-600, Arabella W. Teal, Corporation Counsel at the time
the brief was filed for appeal No. 02-CV-305, and Charles L. Reischel, Deputy Corporation
Counsel, were on the briefs, for appellee District of Columbia.
Before TERRY, FARRELL and REID, Associate Judges.
REID, Associate Judge: Before us are consolidated appeals involving challenges to
the trial court’s (1) denial of motions to intervene filed by appellants Joy Boyle, Daniel
Owen and others (collectively “the consumer class member objectors”) in a class action suit
against various vitamin product manufacturers and distributors; and (2) final approval of the
class action settlement agreement which, instead of a distribution to individual members of
the consumer class, provides for a cy pres allocation to a fund administered by the District
of Columbia “for the improvement of the health and/or nutrition of the citizens of the District
 and/or the advancement of nutritional, dietary or agricultural science in the District .”
We conclude that it is unnecessary to resolve the consumer class objectors’
intervention arguments, because the objectors filed written statements in opposition to the
settlement agreement and were permitted to make oral arguments during the trial court’s final
hearing to determine the fairness of the agreement. Thus, the denial of intervention has
caused them no prejudice.
Moreover, we assume, without deciding, that Devlin v.
Scardelletti, 536 U.S. 1 (2002), allows the consumer class member objectors to bring an
appeal to this court without first achieving the status of an intervenor. On the merits, we
reject the argument that class counsel had a conflict of interest in representing both the
consumer and the commercial settlement classes. And we further hold that the trial court
did not abuse its discretion in approving the final settlement agreement, and that a cy pres
distribution on behalf of the District’s consumer class is appropriate here, where there is no
reasonable opportunity to award each individual member of the class an appropriate portion
of the net monetary relief, amounting to the de minimis sum of approximately $1 per District
In September 1998, Teresa Herminia Giral, a resident of the District of Columbia, and
an indirect purchaser of vitamin products, filed a class action antitrust complaint against F.
Hoffman LaRoche, Ltd. (one of the settling defendants in this case) and other distributors
and sellers of vitamin products.1 She primarily alleged that the defendants engaged in a
conspiracy in restraint of trade through a price-fixing and market allocation scheme, in
violation of the District of Columbia Antitrust Act, D.C. Code §§ 28-4501 et seq. (1996), and
the District of Columbia Consumer Protection Procedures Act, D.C. Code §§ 28-3901 et seq.
(1996). Subsequently, Ms. Giral added plaintiffs, consumers and businesses, from various
states, as well as other defendants.
The Giral litigation was stayed in May 1999, to accommodate dispute resolution
efforts. As a result of those efforts, the Giral plaintiffs filed a motion in December 2000, for
preliminary approval of a partial settlement with seven primary defendants.
Also in December 2000, the District of Columbia successfully filed a motion to
intervene on the side of the Giral plaintiffs, as parens patriae for District consumer
residents.2 Efforts to intervene made by commercial indirect purchasers of vitamin products
The Giral plaintiffs filed a second amended complaint in 2001, which, in part, identified
the violation period as 1989 to September 1998.
D.C. Code § 28-4507 (b) authorizes the District to pursue a parens patriae action for its
(b) The Corporation Counsel may bring a civil action in
the name of the District of Columbia as parens patriae on behalf
of any individual residing in the District of Columbia in any
court of competent jurisdiction for injury sustained by such
individual to such individual’s property by reason of any
violation of [the Antitrust Act].
(1) The court shall award the District of
Columbia, as monetary relief, threefold the total damages
sustained by such natural persons, and the cost of suit, including
reasonable attorney’s fees.
who were residents of Minnesota, and by consumers led by Joy Boyle,3 were unsuccessful
as the trial court denied their motions in March 2001.
One month later, the trial court granted preliminary approval of the proposed
settlement agreement, and scheduled a hearing to address the fairness of the agreement.
Prior to the Fairness Hearing, consumers Daniel Owen and Elizabeth Huybens sought to
intervene for the purpose of objecting to the settlement agreement, but their motion was
Although the Boyle and Owen consumers’ motions to intervene were denied, their
opposition to the settlement agreement was conveyed through counsel at the February 2002
Fairness Hearing; and their written opposition was considered by the trial court. The trial
court approved the settlement agreement on March 4, 2002, and the consumer class objectors
noted an appeal.
(2) Monetary relief recovered in an action under
this subsection shall:
(A) be distributed in such manner as the
court may authorize; or
(B) be deemed a civil penalty by the court
and deposited with the District of Columbia, subject in either
case to the requirement that any distribution procedures adopted
shall first afford each person a reasonable opportunity to secure
each such person’s appropriate portion of the net monetary
Ms. Boyle is a resident of the District of Columbia. The other Boyle consumers
consisted of a former resident of the District, and two Kansas residents.
Mr. Owen and Ms. Huybens are both residents of the District.
The Boyle and Owen consumer class member objectors contend that the trial court
erred in approving the settlement agreement, in part because: “All of the commercial class
members have the opportunity to receive their proportionate shares of the commercial [c]lass
settlement fund, but the consumer [c]lass members get nothing.” They attribute the lack of
a direct cash disbursement to members of the consumer class to “a clear conflict of interest”
on the part of class counsel in their representation of the commercial class as well as the
consumer class, and maintain that each class should have its own attorney “to ensure that the
rights of each [c]lass member are adequately represented.” The Giral consumers, who
participated in the settlement negotiations, assert that the objectors’ conflict of interest
argument “is both legally and factually unsupportable.”
The Conflict of Interest Issue
We note at the outset that before the consumer and commercial classes were certified,
no objection was raised as to any actual or potential conflict on the part of class counsel.
Indeed, the conflict of interest allegation did not surface until approximately one month prior
to the February 2002 Fairness Hearing on the settlement agreement, long after the
commencement of the case in 1998, and the settlement negotiations. The basis of the
conflict alleged by the objectors appears to center on the distribution of settlement funds
directly to commercial class members, and only indirectly to consumer class members.5 No
In paragraph 16 of their January 2002 motion to intervene, the Owen consumers state:
disagreement with the amount of the settlement fund for the consumer class and for the
commercial class has been raised; indeed the settlement funds have been divided equally
between the consumer and the commercial classes.6
To determine the adequacy of representation by class counsel, which “factors in
competency and conflicts of class counsel,” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
626 n.20 (1997), we apply the following legal principle: “‘[A] class representative must be
part of the class and possess the same interest and suffer the same injury as the class
members.” Id. at 625-26 (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S.
395, 403 (1977) (internal quotation marks and other citation omitted)). In pressing their
allegation of a conflict of interest, the consumer class member objectors rely on Amchem and
Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). Neither case supports the objectors’
conclusory conflict of interest allegation.
Consumer intervenors object to the proposed consumer
class settlement because the [c]lass counsel have a conflict of
interest in representing both the [c]onsumer [c]lass members and
the [c]ommercial [c]lass members. The [c]ommercial [c]lass
members will receive their proportionate share of the
[c]ommercial [c]lass settlement amount of $2,233,000. The
[c]onsumer [c]lass members do not receive their proportionate
share of the [c]onsumer [c]lass settlement because their share
has been allocated to a political subdivision, a not-for-profit
corporation, or a charitable organization. As the remedy for the
commercial class is radically different from the remedy afforded
the [c]onsumer [c]lass, it is inappropriate for counsel to
purportedly represent both classes.
As the consumer class member objectors indicate in their brief, $107,625,000 was
allocated to the commercial class and $107,625,000 to the consumer class. The District’s
share of the consumer class settlement funds “includes $522,000 to be paid into a District
of Columbia Class Escrow Account, for future distribution to designated charities and nonprofit groups, and $48,000 into a District of Columbia State Economic Impact Fund Escrow
Amchem and Ortiz, supra, concerned asbestos claims by persons who did not have
the same interest or injury due to differing levels of exposure to asbestos, and differing levels
of injury – from no manifestation of illness, which afforded time to seek maximum recovery
of damages, to life-threatening conditions requiring immediate recovery of monetary relief.
The record was replete with documentation of the differences in exposure and levels of
Here, in contrast to the claimants in Amchem and Ortiz, the consumer and
commercial classes suffered similar injuries in that they both paid for overpriced vitamin
products; and both classes have an interest not only in eliminating price-fixing and
manipulation of market allocation in the sale and distribution of vitamin products, but also
in deterring such conduct in the future. And, unlike Amchem and Ortiz, there is no factual
record to support the objectors’ conflict of interest allegation.
While the commercial class in the case before us is composed of indirect purchasers
of vitamin products for resale, and the consumer class consists of indirect purchasers of the
products for personal consumption, that distinction is insufficient, by itself, to overcome the
presumption of adequate, conflict-free representation by class counsel. See Vale Props.,
Ltd., v. Canterbury Tales, Inc., 431 A.2d 11, 15 (D.C. 1981) (“A presumption of adequate
representation will arise . . . when an existing party seeks the same ultimate objective as the
applicant”; and “‘[A] slight difference in interests between the applicant and the supposed
representative’ will not suffice to show inadequacy of representation.”) (citations omitted)).
Furthermore, no irregularity in the structure or process of the settlement negotiations, or the
behavior of class counsel, has been called to our attention, which would justify the objectors’
insistence on representation by “[class] counsel who were exclusively devoted to the interests
of the [c]onsumer [c]lass members, and who would not be tempted to subordinate the
interests of the [c]onsumer [c]lass in the pursuit of a satisfactory remedy for the
[c]ommercial [c]lass members.” Indeed the record on appeal is absolutely devoid of any hint
of a conflict of interest by class counsel, and the allegation was not even aired during the
There is an additional reason why the consumer class member objectors’ conclusory
conflict of interest allegation must be rejected. The District government, through its chief
legal officer, the Corporation Counsel, participated in the settlement negotiations on behalf
of District residents. A presumption of adequate representation exists where the government
is involved. See District of Columbia v. Greater Washington Cent. Labor Council, 442 A.2d
110, 120 (D.C. 1982); see also In re Toys “R” Us Antitrust Litig., 191 F.R.D. 347, 351
(E.D.N.Y. 2000) (“[T]he participation of [government attorneys] furnishes extra assurance
that consumers’ interests are protected.”). Since there is nothing in the record that rebuts that
presumption, we conclude that the interests of the consumers were protected not only by
class counsel, but also by government counsel. In fact, the trial court’s determination that
no conflict of interest existed is compelling in the absence of any factual record showing an
actual or potential conflict of interest on the part of class counsel. As the court stated:
The Court finds no conflict of interest [traceable to class
counsel’s representation of] both the [consumer class] and the
[commercial class]. No objection based on any alleged conflict
of interest has been raised by anyone other than lead counsel for
the four individual objectors (who did not argue this point in the
The Trial Court’s Approval of the Settlement Agreement
The consumer class member objectors’ main complaint about the settlement
agreement is that, unlike commercial class members, consumer class members will not
receive direct cash distributions. They vigorously attack the cy pres distribution approved
by the trial court, and contend that D.C. Code § 28-4507 (b)(2)(B) “mandates” that members
of the consumer class receive direct monetary relief.
Our review of “a trial court’s approval of a settlement agreement under the local
parens patriae statute or in the analogous context of class actions . . . [is] limited,” and we
give “great weight [to the trial judge’s] views because he [or she] is exposed to the litigants,
and their strategies, positions and proofs.” Shepherd Park Citizens Ass’n v. General Cinema
Beverages of Washington, D.C., Inc., 584 A.2d 20, 22 (D.C. 1990) (citations omitted).
“Appellants must show that the [trial] [c]ourt abused its discretion: this generally requires
a showing either that the agreement in question was so manifestly unfair as to preclude
judicial approval, or that the court did not have sufficient facts before it to make an informed
judgment.” Id. at 22 (citation omitted).
The Honorable Joan Zeldon dismissed the objections of the consumer class member
objectors to the final approval of the settlement agreement because they were “not
meritorious”; there is nothing in the record to suggest that the settlement was “manifestly
unfair” or that the trial court had insufficient facts before it to make an informed judgment.
Shepherd Park, supra, 584 A.2d at 22. Specifically, the judge declared:
It would be utterly impracticable for the [s]ettlement to provide
individual compensation to the [c]onsumer [s]ettlement [c]lass
members. Very few consumers could be expected to have kept
proof of purchase of goods containing vitamins as far back, in
some cases, as 1990. The difficulty and cost of identifying and
paying individual claimants would likely use up the fund
provided for the [c]onsumer [c]lass [s]ettlement. The Court is
satisfied with the appropriateness of the entities selected to
receive settlement monies allocated for the [c]onsumer
[s]ettlement [c]lass, using a cy pres recovery approach, which
has been sanctioned by the District of Columbia Court of
Appeals. See Shepherd Park[, supra,] 584 A.2d [at] 26.
Based upon the affidavit of Neil Zola, Vice President for the Garden City Group, the
settlement administrator, the trial court considered the cy pres distribution for the consumer
class to be fair and reasonable:
Due to the impracticability of identifying particular
injured consumers of [i]ndirect [v]itamin [p]roducts during the
[r]elevant [p]eriod and the high costs of administering a direct
cash distribution to hundreds of thousands of District of
Columbia individual consumers relative to the average likely
award to those consumers, the Court finds that a cy pres
distribution administered by the District of Columbia
Corporation Counsel to eligible organizations for the express
purpose of ensuring the fund to be used for the improvement of
the health and/or nutrition of the citizens of the District of
Columbia and/or the advancement of nutritional, dietary or
agricultural science in the District of Columbia is fair,
reasonable, and adequate and in the best interests of the District
of Columbia [c]onsumer [s]ettlement [c]lass.
Nevertheless, the objectors urge us to reverse the trial court’s final approval of the settlement
agreement on the ground that it violates D.C. Code § 28-4507 (b)(2)(B), which requires that
“any distribution procedures adopted shall first afford each person [sustaining damages] a
reasonable opportunity to secure each such person’s appropriate portion of the net monetary
We do not accept the objectors’ argument that § 28-4507 (b)(2)(B) compels a direct
distribution of monetary relief to each member of the consumer class, and that the cy pres
distribution violates § 28-4507 (b)(2)(B) as a matter of law. “Subsection (b) authorizes the
District to sue [or, as in this case, to intervene] as parens patriae on behalf of its resident
natural persons for their injuries resulting from any antitrust violation set forth in [the District
of Columbia Antitrust Act].” COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE
JUDICIARY, REPORT ON BILL 3-107, THE DISTRICT OF COLUMBIA ANTITRUST ACT OF 1980,
October 8, 1980, at 15 (“Council Report”). We apply principles of statutory interpretation
to understand the meaning and scope of subsection (b) within the context of a class action
in which the District government intervenes as parens patriae, and in which the monetary
relief per consumer is de minimis.
We look to the plain meaning of a statute first, construing words according to their
ordinary meaning. See J. Parreco & Son v. Rental Hous. Comm’n, 567 A.2d 43, 45 (D.C.
1989). “The literal words of [a] statute, however, are ‘not the sole index to legislative
intent,’ but rather, are ‘to be read in the light of the statute taken as a whole, and are to be
given a sensible construction and one that would not work an obvious injustice.’” District
of Columbia v. Gallagher, 734 A.2d 1087, 1091 (D.C. 1999) (quoting Metzler v. Edwards,
53 A.2d 42, 44 (D.C. 1947) (footnotes omitted) (other citations omitted)). Furthermore, “‘if
divers statutes relate to the same thing, they ought all to be taken into consideration in
construing any one of them. . . .’” Luck v. District of Columbia, 617 A.2d 509, 514 (D.C.
1992) (quoting United States v. Freeman, 44 U.S. (3 How.) 556, 564-65 (1845) (other
citations omitted)). If related statutes conflict, we must reconcile them. See Gonzalez v.
United States, 498 A.2d 1172, 1174 (D.C. 1985).
A reading of the plain words of § 28-4507 (b)(2)(B), giving them their ordinary
meaning, establishes that a consumer is not guaranteed net monetary relief on an individual
basis. Rather, what is guaranteed is “a reasonable opportunity to secure . . . [an] appropriate
portion of the net monetary relief.” Here, after hearing oral arguments and examining
affidavits and the settlement negotiations, the trial court concluded that there was no
reasonable way to make a direct distribution of cash to each individual consumer. A similar
conclusion was reached by the United States District Court for the Southern District of New
York, and approved by the Second Circuit, in New York v. Reebok Int’l Ltd., 96 F.3d 44 (2d
Cir. 1996). There, the court faced language virtually identical to § 28-4507 (b)(2)(B) in
construing a provision of the federal antitrust law, 15 U.S.C. § 15e. As the court stated in
Section 15e provides that the settlement proceeds shall be
distributed in such manner as the district court in its discretion
may authorize, subject to the requirement that the procedure
adopted affords each beneficiary a “reasonable opportunity” to
secure his appropriate portion of the “net monetary relief.”
Because of the unlikelihood of there being any significant “net
monetary relief” for individual claimants if an attempt were
made to distribute the settlement proceeds among them, the
district court did not err in approving distribution to the States
and non-profit entities to be used in providing and improving
athletic equipment and facilities and related uses, areas in which
Reebok equipment plays a substantial role. Distribution in this
manner is not without judicial precedent. See New York v. Keds
Corp., 1994 U.S. Dist. LEXIS 3362 (S.D. N.Y. Mar. 21, 1994);
New York v. Dairylea Coop., Inc., [1985 U.S. Dist. LEXIS
18501] (S.D.N.Y. June 26, 1985).
Id. at 49.
Since the federal antitrust law is a “source” for the District of Columbia Antitrust Act,
see Council Report at 4, we will follow the Second Circuit’s interpretation and hold, in this
case, that the trial court did not err in granting final approval to the settlement agreement
because it does not violate D.C. Code § 28-4507 (b)(2)(B). There is no reasonable
opportunity to award each individual member of the consumer class an appropriate portion
of the net monetary relief, given the relatively small size of the District’s share of the
consumer settlement fund, the prohibitive costs of administering a distribution system, and
the difficulty of identifying District residents who were indirect purchasers of vitamin
We turn now to the appropriateness of a cy pres distribution.8 We determined that §
28-4507 (b)(2)(B) was not a bar in Shepherd Park, supra, to the approval of a distribution
of parens patriae settlement monies into a fund administered by the District of Columbia
The consumer class member objectors claim that not many consumers will seek a cash
distribution; therefore, the distribution system would be manageable. No record evidence
supports this claim. Equally significant, even if such evidence were part of the record,
distribution of all of the District’s consumer class settlement funds to a handful of consumers
would represent a windfall to them, and would not achieve the same objectives as would a
cy pres distribution.
“The term ‘cy pres’ appears to derive from the Norman-French term ‘cy pres comme
possible,’ meaning ‘as near as possible.’ Cy pres is a rule of construction which courts
employ to carry out the spirit of a trust’s terms when literal application of such terms is not
feasible.” Susan Beth Farmer, More Lessons From the Laboratories: Cy Pres Distributions
in Parens Patriae Antitrust Actions Brought By State Attorneys General, 68 FORDHAM L.
REV. 361, 406 n.212 (1999).
Corporation Counsel.9 But, since the appellant objectors’ in Shepard Park were in fact
arguing for a cy pres distribution (rather than for the funds to be deposited into the District
of Columbia anti-trust fund), we have not had occasion before to consider whether § 28-4507
(b)(2)(B) requires at least a portion of the class settlement funds to be distributed to
consumer class members before a cy pres distribution can be made.
Although cy pres distributions (also known as fluid recoveries) in class actions
received early criticism, see Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir. 1973),
that criticism has diminished considerably. Such distributions, including the entire amount
of the consumer settlement fund rather than just the residue, are being used or advocated
increasingly where direct distribution of settlement funds to individual class members is
impractical; and where important consumer goals, such as disgorgement of ill-gotten gains
from and deterrence of future over-pricing and manipulation of market allocation by the
offending entities, can be achieved.10 See, e.g., Reebok, supra; New York Keds Corp., supra;
We approved the “deposit of [civil] penalty [funds] in the [District of Columbia]
antitrust fund” under D.C. Code § 28-4516 because of “the sheer impracticality of providing
individual compensation under D.C. Code § 28-4507 (b)(2)(B).” As we pointed out, “very
few consumers could be expected to have kept receipts or other proof of purchase for soft
drinks, purchased four to five years earlier, and the amount estimated to be due each affected
consumer was about forty-five cents. Thus the trial court sensibly concluded that the costs
of distributing the recovery to affected purchasers would greatly exceed any individual
benefit to them.” Shepherd Park, supra, 584 A.2d at 26.
See Stan Karas, Note, The Role of Fluid Recovery in Consumer Protection Litigation:
Kraus v. Trinity Management Services, 90 CAL. L. REV. 959 (1994); Farmer, supra; Natalie
A. DeJarlais, Note, The Consumer Trust Fund: A Cy Pres Solution to Undistributed Funds
in Consumer Class Actions, 38 HASTINGS L. J. 729 (April 1987). The DeJarlais Note
indicates: “In the class action context, cy pres mechanisms have become both useful and
controversial means of distributing benefits to the ‘next best’ class when injured class
members, for whatever reason, cannot be compensated individually.” Id. at 730 and n.11.
The cy pres distribution in class actions is deemed controversial because there are two
separate schools of thought regarding such distributions. One school insists that class
see also In re “Agent Orange” Prod. Liab. Litig., 818 F.2d 179 (2d Cir. 1987). We agree
with the trial court that a cy pres distribution in this case is appropriate.11 “The infeasibility
of [direct] distribution [to individual members of the consumer class] was ample justification
for placing the money in a fund available for [activities] in the public interest,” Shepherd
Park, supra, 584 A.2d at 26. We are satisfied that the fund will benefit consumers; as the
District notes in its brief:
The proposed recipients under the cy pres plan would serve
District of Columbia residents by expanding pediatric services,
operating a medical clinic, counseling pregnant adolescents,
offering health-related education to schoolchildren, and
enforcing the District’s consumer protection law.
Under the circumstances, we discern no abuse of discretion in the trial court’s approval of
the settlement agreement.
counsel have a fiduciary duty to ensure direct distribution to class members; the other
advocates the cy pres distribution for circumstances where the cost of individual distribution
is prohibitive or the fund is too small to warrant individual recovery. See Stephen Gardner,
National Association of Consumer Advocates Standards and Guidelines for Litigating and
Settling Consumer Class Actions, 772 PLI/Comm 441, 469 (1998).
There is statutory support for the appropriateness of a cy pres distribution in the
District. For example, § 28-3911 (a) of the Consumer Protection Procedures Act recognizes
that “cy pres payments [may be] made to support consumer protection activities by the
Corporation Counsel,” and may be deposited into a Consumer Protection Fund, which is akin
to the type of distribution anticipated in this case. In addition, § 28-4508 (c) of the Antitrust
Act permits purchasers involved in a consumer class action to prove damages “on a classwide basis, without requiring proof of such matters by each individual member of the class.”
And while this subsection provides a formula for calculating “[t]he percentage of total
damages attributable to a member of [the consumer] class,” it does not prohibit a class-wide
solution in the form of a cy pres distribution.
Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.