Revista da EMERJ - V. 20 - N. 3 - Setembro/Dezembro - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 3, p. 199 - 229, Setembro - Dezembro. 2018  217 extensão do acordo 51 e o grau de discricionariedade do juízo para aprovar ou não o acordo 52 , e iv) a ausência de efetividade do acordo para os mem- bros efetivamente lesados pela conduta praticada pelo réu 53 . Por isso, o ordenamento, por um lado, traz expressa previsão de possibilidade de ajustes entre as partes nas três hipóteses 54 de ações coleti- vas contempladas pela Regra 23, ao mesmo tempo em que impõe requisi- tos especiais para o seu aperfeiçoamento 55 . Não custa lembrar que no caso And while the court recognized the second--the discrepancy between the class’s recovery and the attorneys’ fees - a more thorough opinion would have employed a Johnson-factor analysis to better illuminate the court’s misgivings and avoid the possibility of reversal. Though it can be argued that an otherwise acceptable settlement should be approved despite mis- givings about fees, a settlement unacceptable in both terms and the amount of attorneys’ fees should never be accepted. In the end, “Chevrolet-type results do not warrant Cadillac-size legal fees.” ALMON, Matthew. Cadillac-Size Legal Fees” and “Chevrolet-Type Results”: Settlement Scrutiny in Re Electronic Data Systems Corp. “Erisa” Litigation, 80 Tul. L. Rev. 2007. Acesso por meio do sítio Westlaw em 12 de janeiro de 2018. 51 “Specifically, we propose that for questions going to the adequacy of a settlement, where no warning signals of fraud or collusion are found, the court should act relatively deferentially by employing a lenient standard of scrutiny and appro- ving a settlement if it has a rational basis. An intermediate level of scrutiny should apply when the settlement presents facial issues that implicate the fairness of the settlement. Such facial issues include the allocation of settlement proceeds among subgroups in a class, the presence of coupon-type relief, “shotgun” settlements occurring very early in the litiga- tion, and settlements in overlapping class actions. In settlements with one or more of these characteristics, if the initial inquiry raises concerns, the court should demand a well-reasoned explanation for the choices made. Finally, where the components of a settlement present a direct conflict between the interests of class counsel and those of the class issues, such as issues related to attorneys’ fees, courts should employ exacting scrutiny and require convincing evidence that the proposal is reasonable”. Jonathan R. Macey. Geoffrey P. Miller. Judicial Review of Class Action Settlements, 1 J. Legal Analysis 167. Acesso por meio do sítio Westlaw em 15 de janeiro de 2018. 52 “The confusion and inconsistency in standards for review of class action settlements is due to a failure to recognize that different levels of scrutiny are suited to different questions. Courts should apply lenient scrutiny on questions going to the settlement’s adequacy, requiring only plausible justifications for decisions made in the absence of indicia of fraud, collusion, or conflict of interest. Courts should apply intermediate scrutiny to concerns about fairness--allocation issues, coupon relief, shotgun settlements, and potential “reverse auction” settlements in overlapping cases-- and should insist on well-reasoned explanations for why these concerns are unfounded. Exacting scrutiny is required for counsel fees. Overall, Rule 23(e)’ s requirement that a settlement be “reasonable” should be administered flexibly depending on the issue invol- ved”. MACEY, Jonathan R. MILLER, Geoffrey P. Judicial Review of Class Action Settlements, 1 J. Legal Analysis 167. Acesso por meio do sítio Westlaw em 16 de janeiro de 2018. 53 “The class action settlement is a business deal, a contract, between skilled negotiators (…). Yet it too is a contract that cannot stand on its own feet. The class action settlement lacks stability not because the masses have so much at stake that they are well informed and impassioned, but rather because the masses have so little at stake that they are ignorant and indifferent. The problem is not that their agents have sold them out, but that they do not even know they have agents. In the face of this apathy, the task once again falls to a court to legitimate the deal--and what better way to do so than to hold a hearing and name it “fairness.” (…) If the fairness hearing is to be anything more than dissimulation, the legal system must arm judges with tools that will enable them to do the job for real”. RUBENSTEIN, William B. Emerging Issues in Class Action Law. 53 UCLA L. Rev. 1435. Acesso por meio do sítio Westlaw em 18 de janeiro de 2018. 54 Class actions which are certified on basis that prosecution of separate actions would create risk of inconsistent or varying adjudications, or impairment of ability of nonparties to protect their interests, do not provide for absent class members to receive notice and to exclude themselves from class membership as a matter of right, and for this reason are often referred to as “mandatory class actions.” Fed. Rules Civ. Proc. Rule 23(b)(1), 28 U.S.C. A. Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). 55 Trata-se da regra prevista na alínea (e) da Regra 23 das Federal Rules of Civil Procedure: (e) Settlement, Voluntary Dis- missal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or com- promised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise: (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that