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Fung v. Florida Joint Underwriters Association3/12/2003
orney had negotiated a large fee at the expense of the plaintiff class, preserve the fee award and order greater relief on the merits. Evans v. Jeff D., 475 U.S. 717, 726-27 (emphasis added; footnotes omitted); see Levenson v. American Laser Corp., 438 So. 2d 179, 182-84 (Fla. 2d DCA 1983); see also Security Ins. Co. of Hartford v. Puig, 728 So. 2d 292, 294 (Fla. 3d DCA 1999).
The judgment now before us runs afoul of the just stated principles because it approves part of the settlement--the financial terms for the class--while reserving to the court the right to approve an attorney's fee different from the one the parties have negotiated. That is not permissible.
In the present case the trial court may receive the report of the special master and come to a conclusion regarding the reasonableness of the attorney's fee. If the court concludes that the fee is reasonable, that issue is resolved. If the court concludes that the fee is unreasonable, then the court may reject the settlement in its entirety, and advise the parties what modifications to the agreement may make it acceptable to the court. It would then be up to the parties whether to modify the agreement or not.
In closing, we reiterate that the trial court has the authority to conduct whatever inquiry the court feels appropriate regarding the fairness of a proposed class action settlement. Certainly the trial court's conscientiousness in that regard in this case is to be commended. However, in the end the choices available to the court are acceptance or rejection of the settlement as a whole.
For the reasons stated, we reverse the judgment and remand for further proceedings consistent herewith.
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