Dawn Geske Jul. 20, 2016, 10:09am

SAN FRANCISCO – A class-action judgment will be reviewed by the California Supreme Court examining a 74-year-old law that requires objectors to procedurally intervene.

Unnamed class member Francesca Muller is appealing how the attorney fees were determined in a class-action suit against Restoration Hardware in the case of Hernandez v. Muller. Muller filed a complaint that class members were not given notice of the attorneys’ fee application in the lawsuit that challenged the retailer over its use of zip codes.

While Muller stated that she didn’t object to the $9.1 million sought by the counsel for the $36.4 million judgement, she has filed two complaints. One complaint challenges whether class members were entitled to notice of the fee request of the judgment and the other argues how the attorney fees were calculated.

Muller’s right to appeal the case has been moved to review by the California Supreme Court, which the objector is at odds over with a 74-year-old case that the Supreme Court still uses.

“There’s a 74-year-case the California Supreme Court decided a long time ago that said unnamed class members in class action have to formally intervene to be able to appeal," said Lawrence Schonbrun, executive director of Class Action Watch and attorney for the objector, told the Northern California Record. "What’s happened is in spite of the fact that the California Supreme Court said that a long time ago, numerous courts of appeal in California have adopted the federal approach, which is that you don’t have to formally intervene and just have to file an objection and appear at the fairness hearing."

The appeals court has dismissed the appeal stating that the objector hasn’t followed the proper procedures as required for an unnamed class member. The appeal is being challenged in the California Supreme Court, which may or may use the 74-year-old case as a guideline.

“If the Supreme Court of California is going to make this old case the law or is going to adopt a more modern view, which many other appellate courts have adopted,” said Schonbrun. “The court of appeals refused to get to the merits of either argument. They dismissed the appeal saying you haven’t formally intervened and they cited this 74-year-old California Supreme Court case to support their dismissal of the appeal on procedural grounds."

Through the appeal to the Supreme Court, Schonbrun on behalf of his client is looking to throw out the 74-year old case and prove that his client has followed procedures based upon current modern laws.

“We’re seeking to have the court of appeals be required to rule on the merits of the objection and we’re asking the Supreme Court to acknowledge its 74-year-old decision is no longer good law,” he said.

While attorney fees are commonly taken from the class settlement under the common settlement fund, Muller wants the fees examined to decide if they should be taken a percentage of the settlement or should be based on the amount of time put into the case by the attorneys, whichever is more appropriate.

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