A New Jersey federal judge who took inspiration from one of her counterparts in New York and put the breaks on a Federal Trade Commission settlement still isn’t satisfied with the proposed deal.
On Wednesday U.S. District Judge Renée Marie Bumb in Camden ordered the FTC to explain why online advertiser Circa Direct LLC should be allowed to resolve accusations that it duped consumers without admitting any liability, leaving the public to guess at what really happened.
“[S]ettlement without an admission of liability forecloses a determination of the truth of the FTC’s allegations and leaves the public with no better appreciation of the truth of the matter than when the litigation began,” Bumb wrote in her 20-page ruling.
The FTC sued Circa Direct in April 2011, alleging that the company deceived consumers through online ads for acai berry weight-loss products disguised as news stories and reader comments. Circa and its lawyers at Venable agreed to a permanent injunction and an $11.5 million settlement just ten months later. But by then, unfortunately for both sides, U.S. District Court Jed Rakoff in Manhattan had issued his controversial November 2011 decision rejecting a $285 million Securities & Exchange Commission settlement with Citigroup over an ill-fated CDO. Rakoff concluded that the Citi deal wasn’t fair, adequate, reasonable, and in the public interest; in a Feb. 22 order, Judge Bumb demanded to know whether the Circa Direct settlement suffered similar problems and, if so, why she shouldn’t follow Rakoff’s lead and reject it.
The FTC and Circa’s lawyers at Venable did their best to defend the settlement (see here and here). Then, in March, the U.S. Court of Appeals for the Second Circuit suggested it would likely overturn Rakoff’s ruling in the SEC case. And in April, FTC Commissioner J. Thomas Rosch broke with the agency’s position and wrote a letter to Judge Bumb, urging her not to “rubber stamp” the Circa Direct deal.
Bumb took each of those developments into account in Wednesday’s ruling. In the end, she concluded that they “helped advance the Court’s inquiry” but still left her unable to sign off on the settlement.
The FTC had argued that an admission of liability in the case would have limited public value because consumers have no private right of action under the FTCA, and because Circa Direct was going to be left penniless by the settlement anyway. She asked for more briefing from the FTC on the issue, finding that the agency’s response “overlooks the critical interest of the public, on an important matter of public concern, in the truth concerning Defendants’ alleged deceptive conduct.”
Bumb, meanwhile, has yet to rule on a separate fracas that’s erupted between the FTC and Circa Direct over Venable’s accounting of $406,000 in legal fees and costs for its work on the case, and particularly $256,000 that the firm wants released from frozen Circa Direct assets. The FTC asserts that the proposed fee award is “excessive, duplicative, and unsupported.” Venable, the agency claims, ignored a restriction on Circa Direct’s spending tied to the asset freeze and “proceeded to staff the case with several attorneys, including two partners and bill a staggering 949 hours.”
The FTC took particular aim at Venable partner Edwin Larkin and Thomas Cohn for billing $600 per hour for their work on the case and (according to the agency) opting to bill for mundane legal work that should have been handled by junior lawyers. Venable countered that there was nothing excessive about the fees it charged or its staffing decisions, and that the FTC ensured a substantial legal bill by putting Circa Direct through the discovery mill when the company would have rather reached an immediate settlement.
We called Venable’s Larkin to ask about Bumb’s ruling and the fee dispute, but we didn’t hear back.