The tenth circuit examines the “Kicker” and “Clear-Sailing” provisions in the settlements of class actions

In a first impression case, the United States Court of Appeals for the Tenth Circuit clarified the role of district courts in deciding class action settlement agreements that contain “kick” agreements and of “clearance”. In re Marketing of Samsung Top-Load washing machines, sales practices and product liability litigation, – F.3d. -, 2021 WL 1825685 (10th Cir. 7 May 2021). The circuit court ruled that district courts should apply “scrutiny” to settlement agreements containing these provisions, because “the ‘presence of the two agreements in a settlement agreement also suggests that class members may not receive all reasonable benefits ”. Identifier. at 7 O’clock.

Underlying collective action

In 2015, some Samsung top load washing machines experienced a weakness in their door mechanisms which allowed “water to escape from the machine.” Identifier. at 2 hours. Samsung, in conjunction with the Consumer Product Safety Commission, announced a voluntary recall program, which (1) provided free repair and a one-year warranty, (2) offered consumers a discount for the purchase of a new washer, or (3) offered some consumers a full refund. Identifier. This voluntary recall program has failed to appease consumers, who have filed alleged class actions across the country against Samsung and numerous retailers who sold the machines. The Judicial Panel on Multidistrict Litigation (JPML) consolidated the various lawsuits into a single lawsuit that took place in the Western District of Oklahoma.

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