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April 1, 2026
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Class counsels' lack of candor in connection with prior class settlements detoured a class certification motion, resulting in the withdrawal of one firm and the requirement that the remaining class counsel recruit a new one. In Henry v. Brown University, et. al, 22-CV-00125, former students sued seventeen universities for price fixing in the Northern District of Illinois. Represented by three law firms, the plaintiffs contend the schools agreed on a method for calculating financial aid and shared pricing information with each other in violation of the Sherman Act.
Over the course of four years, plaintiffs reached class settlements with 12 of the defendants. In support of their motions to approve those settlements, which included proposed attorneys' fee awards of one-third of the roughly $319 million total settlements, the firms represented that their work on the case had been done on a “contingent,” or “wholly contingent” basis. One for the firms - Gilbert Litigators & Counselors ("GLC") - however, had received payment for a portion of its fees and all of its costs from a litigation funding company. The settlements were approved without disclosure of the funding agreement.
Plaintiffs then moved to certify a class with respect to the remaining defendants and the funding arrangement came to light. Analyzing Rule 23(a)(4)'s adequacy of representation requirement, Judge Kennelly concluded that GLC's lack of candor in connection with the prior settlement approvals undermined its ability to adequately represent the class. Having read the tea leaves after a series of hearings, plaintiffs amended their class certification motion to propose that only two firms - not GLC - be appointed class counsel. Judge Kennelly found the removal of GLC alone was insufficient because the other firms had been aware of GLC's funding arrangement, and though they did not have such agreements themselves they improperly adopted GLC's false contingency representations in submissions to approve the class settlements.
Judge Kennelly, however, rejected the defendants proposed remedy of denying the class certification motion, in part because he already approved a settlement class that mirrored the class proposed for the remaining defendants and over 74,000 members had submitted claims. He concluded denying certification would deliver defendants a windfall at the expense of the class. Instead, he found “the appropriate measure—both to protect the class and avoid unfairly prejudicing it—is to require bringing in new lead counsel outside the current group.”
Note: The author is local counsel for of the remaining defendants.
The ability of a court to trust counsel matters, particularly when counsel represents a class. Here counsel have impaired that trust in a significant way.
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