Third Circuit Judge Theodore McKee/courtesy photo Third Circuit Judge Theodore McKee/courtesy photo

The U.S. Court of Appeals for the Third Circuit has rejected a challenge to a $9.59 million settlement in a New Jersey class action over alleged rigging of bids for municipal tax sale certificates.

The September 2016 settlement is fair and reasonable, and the appellant’s allegations of unequal treatment of class members are unfounded, the appeals court said Sept. 6 in In Re: New Jersey Tax Sales Certificates Antitrust Litigation.

Plaintiff-appellant Arlene Davies, who claimed she was charged higher interest on tax certificates because of collusion by investors who buy the certificates, challenged a U.S. District Court judge’s approval of the settlement as an abuse of discretion.

But Third Circuit Judges Theodore McKee, Thomas Ambro and Jane Roth said there had been no erroneous finding of fact, errant conclusions of law or improper application of law to fact.

The settlement, approved in September 2016 by U.S. District Judge Michael Shipp, ended four years of litigation over the state’s statutory scheme regulating the sale of tax liens for unpaid property taxes. As the appeals court describes it, the auction process is designed to be competitive, with bidding opening at an interest rate of 18 percent, representing the interest that the defaulted property owner must pay on the tax debt. The interest rate decreases with each successive bid.

The class action involved a claim that bidders colluded to keep interest rates higher than they would otherwise have been in truly competitive auctions.

U.S. District Judge Michael Shipp, applying a test set out by the Third Circuit in a 1975 case, Girsh v. Jepsen, said the $9.59 million settlement was “within the range of reasonableness” given the “significant risks of establishing liability, damages, and maintaining a class action.”

Davies claimed Shipp underestimated the relative strength of the case based on guilty pleas by several defendants and representatives of defendant companies in a related criminal case. She also said Shipp gave “undue emphasis” to the generic litigation risks inherent in any class action, and by his supposition that antitrust class actions are difficult to prove.

But McKee, writing for the circuit panel, said he could not find that Shipp abused his discretion in acknowledging the limited value of the antitrust case. He cited the lack of specific information provided by the guilty pleas concerning which auctions were rigged or the degree to which rigging changed the interest rate on any individual lien.

The appeals court also found no abuse of discretion in Shipp’s discussion of the litigation risks. Davies, McKee said, supplied no authority for her assertion that Shipp emphasized risks inherent in any general class action or antitrust class action. Rather, Shipp provided support for his conclusion that antitrust class actions are complex to prosecute, the panel said. His observation “was reasonable in light of the elements plaintiffs must demonstrate to establish their claim under Section 1 of the Sherman Act, e.g., that the defendants engaged in a concerted action that produced anticompetitive effects within the relevant product and geographic markets, was illegal, and injured the class as a proximate result,” McKee wrote.

Davies alleged she owned property that was the subject of a tax lien that was the subject of one of the rigged auctions. She was also a plaintiff in a separate case in state court in New Jersey, in which she sought compensation for damages as a result of the conspiracy, but the court ruled against her, according to court documents. Based on that ruling, parties in the appeal argued whether Davies had Article III standing, since she had already been adjudicated not to have suffered any injury from conduct by defendants. In a footnote, the Third Circuit acknowledged that standing had been raised as an issue, but chose to assume Davies had standing and ruled on the merits.

According to the suit, the defendants frequented the auctions and would agree beforehand which liens each would bid on, often resulting in sales at 18 percent interest instead of lower rates.

The certified class consisted of owners of New Jersey real property between Jan. 1, 1998, and Feb. 28, 2009, who had certificates purchased by one of the defendants at auction for an interest rate above zero percent.

Shipp in 2014 refused to dismiss state and federal antitrust claims.

Bruce Greenberg of Lite DePalma Greenberg in Newark, who represents plaintiffs Gila Bauer, Melissa Jacobs, Frances Schmidt, Donald Schmidt, and Son Inc., said in an email about the ruling, “We are very pleased that the Third Circuit upheld Judge Shipp’s approval of the settlement in this case, which will provide millions of dollars in monetary relief and other benefits to the many New Jersey citizens who comprise the class.”

Davies’ lawyers, Dennis Drasco of Lum, Drasco & Positan in Roseland and Justin Weiner of Molo Lamken in Chicago, did not respond to requests for comment about the ruling.