Dry MaxIn the proverb, the dog in the manger can't benefit from eating the feed he's found in the barn, but he snarls and bites at the other beasts who could digest it and will starve without it. If I can't get a meal, neither can any of you.

The story came to mind last week.

The catalyst took the form of a class action. It had so many problems that the parties decided everyone — the class members, the defendants, and class counsel — should starve a little. 

But the Sixth Circuit, by a 2-1 vote, tossed the pact on the ground that it unduly favored the lawyers. In re Dry Max Pampers Litig., No. 11-4156 (6th Cir. Aug. 2, 2013). The majority did not explain what it believed the parties could have done, as a practical matter, to improve the settlement for the class. They also didn't say why the costs to the defendant of the relief for the class didn't weigh in favor of the settlement, giving the back of their hand by saying that relief that "interferes with the defendant's marketing plans" doesn't count. Id. slip op. 10

The dissenting judge noted that, "[a]lthough the relief offered to the unnamed class members may not be worth much, their claims appear to be worth even less." Id. at 15. He also pointed out that "the majority fashions a new test based largely on dicta from other circuits: if the fee award looks like 'preferential treatment' compared to the class relief, then the settlement is unfair." Id.

The court as dog-in-the-manger. Crappy result.