Cardizem, a blood pressure and
angina medicine whose maker
paid to avoid generic competition.

May a district court require a party’s counsel to pay costs under Federal Rule of Civil Procedure 54(d) or 28 U.S.C. section 1920?  Heck no, the Sixth Circuit held today in In re Cardizem Antitrust Litig., No. 05-2375 (6th Cir. Feb. 22, 2007).  The decision let the lawyer for a lady who objected to an $80 million antitrust settlement (and whose objection cost the plaintiff class hundreds of thousands of dollars in administrative costs) off the hook — at least for now.

The court also — charmingly, in Blawgletter’s view — suggested a gentle disagreement with a sister circuit.  The dust-up concerns Gaddis v. United States, 381 F.3d 444 (5th Cir. 2004) (en banc), in which the New Orleans group held that section 1920(6) allows assessment of costs for "court appointed experts" beyond specific kinds that Federal Rule of Evidence 706 authorizes.  "We offer the following thoughts about the question — non-binding, non-exhaustive, not-even-rising-to-the-level-of-dicta — only to avoid the impression that the grounds on which we based our decision today intimate that the Fifth Circuit’s Gaddis decision is beyond second guessing."

Blawgletter speculates that the "not-even-rising-to-the-level-of-dicta" disclaimer will deter district court not a whit in giving the advice lots of weight.  But Blawgletter also wonders what impact the sub-dicta will exert on objectors in general.  Blawgletter understands that class action plaintiffs lawyers hate opportunistic objections to settlements.  If the objecting party must reimburse costs, will class members think twice before making silly objections?  Blawgletter sure hopes so.

Barry Barnett

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