Boyd v. Bell Atlantic-Maryland, Inc.

WILNER, Judge. This appeal arises out of two class action suits in the Circuit Court for Prince George’s County — the Dotson and the Scrocco cases. Both actions, which were consolidated in the Circuit Court, are against Bell Atlantic-Maryland, Inc. (now known as Verizon) and the Maryland Public Service Commission (PSC). Over the objection of some members of the Dotson class, the court, on November 22, 2004, gave “final” approval to a settlement of the two actions, subject to certain further proceedings that would determine how a reserved amount of $12,500,000 would be divided between (1) a cy pres group of Bell Atlantic customers that likely includes most of the class members, and (2) the attorneys for the class and attorneys for certain objecting members of the class.

The objecting Dotson class members noted this appeal from the order approving the settlement. The Court of Special Appeals dismissed the appeal as one not allowed by law, and we granted certiorari to review that decision. We agree in part and disagree in part with the judgment of the Court of Special Appeals. In response to motions to dismiss the appeal, the appellants contend that the November 22 order is appealable because, notwithstanding that it does not finally resolve how much the class members (or anyone else) will actually receive from the settlement, it nonetheless constitutes a final judgment in the matter.

Alternatively, they note that one aspect of the order ⁶³ was a directive barring class members from asserting claims encompassed by the settlement in any other court or tribunal. They regard that directive as being in the nature of an injunction which, even if interlocutory in nature, is immediately appealable under Maryland Code, § 12 — 303(3)(i) of the Cts. & Jud. Proc. Article.

We shall hold that, whatever may have been the intention of the Circuit Court, the November 22 order does not constitute an appealable final judgment. As to the directive, we shall conclude that it is, indeed, in the nature of an interlocutory injunction that may be immediately appealed, but that it was an abuse of discretion for the court to enter that directive as part of what we conclude was an interlocutory order. BACKGROUND In the 1980’s and 1990’s, it became fashionable for sellers of goods, services, or credit to impose a “late fee” when their customers failed to pay amounts due on time. The rationale often expressed for those fees, in addition to permitting the seller to recover the time value of the money not paid when due, was that, when customers defaulted in that manner, collection efforts of one kind or another were often necessary, that the cost of those efforts should fall directly on the defaulting customers rather than indirectly on the larger base of compliant customers through higher charges for the goods or services provided, and that late fees were an appropriate way of so directing that burden.

There never was a legal impediment to the charging of late fees. In United Cable v. Burch, 354 Md. 658 , 732 A.2d 887 (1999), however, we pointed out that late fees were in the nature of interest on the unpaid amount due, that Article III, § 57 of the Maryland Constitution limited the legal rate of interest to 6% per annum unless otherwise provided by the General Assembly, and that, absent statutory authority to the contrary, any late fee in excess of that amount constituted an unlawful penalty. Because almost all late fees then charged by merchants exceeded the 6% per annum Constitutional limit, that decision sparked not only an immediate legislative re ⁶⁴ sponse permitting such higher fees but a host of additional opportunistic class action lawsuits, including the ones now before us. Unlike the merchant involved in United Cable — a largely unregulated cable television company — Bell Atlantic, a provider of telephone service, was a public utility subject to extensive regulation by the PSC.

See Maryland Code, Public Utility Companies Article, §§ 2-112 (general jurisdiction and powers of the PSC), 2-113 (general supervisory and regulatory power of PSC), 4-201 (requiring a public service company to charge “just and reasonable rates” for the utility services it renders), and 4-102 (empowering the Commission to set just and reasonable rates of public service companies). See also § 4-301, permitting the Commission to regulate a telephone company through “alternative forms of regulation.” As early as 1982, the PSC, by a formally adopted regulation, had authorized gas and electric utilities to charge a late fee to residential and business customers who did not pay within a fixed number of days after rendition of the monthly bill. The late fee initially authorized was 3% of the net bill, although that was lowered in 1985 to 1.5%. 1 See 9: 16 Md. Reg. 1608 (Aug. 6, 1982) and 12: 23 Md. Reg. 2223 (Nov. 8, 1985). In 1995, the Commission amended the regulation to generally permit telephone companies to charge their customers such a late fee as well.

See 22: 15 Md. Reg. 1120 (July 21, 1995); COMAR 20.30.03.01. Another part of the regulation, COMAR 20.30.03.03, required that the collection of late fee charges be consistent with the tariff provisions of the particular utility, however, which meant that it was subject to Commission approval. ⁶⁵ In June, 1995, Bell Atlantic sought PSC approval of an amended tariff that would permit the charging of late fees to business customers, and, in September of that year, it sought approval to charge late fees to residential customers. The amended tariffs were stated to be revenue-neutral, i.e., the additional revenue expected to be earned by Bell Atlantic from the late fees would be offset by reductions in other charges. In July, 1995, the Commission approved the amended tariff for business customers.

It initially rejected the proposed changes in the residential tariff but, in January, 1996, approved a revised application. Those approvals permitted Bell Atlantic, insofar as the PSC was concerned, to charge both residential and business customers the late fees authorized by the CO-MAR regulation, and the company proceeded to impose those fees. Between 1996 and 2000, Bell Atlantic collected nearly $59.1 million in late fees from residential customers and approximately $27.4 million from business customers. There is no contention that those additional revenues were not fully offset by the reductions specified in the amended tariffs. 2 It has been estimated that approximately $64 million of that amount was in excess of the 6% Constitutional limit.

In September, 1999, less than two months after our decision in United Cable was filed, four plaintiffs — the Dotson plaintiffs — filed the first of these actions on behalf of an alleged class of residential customers of Bell Atlantic. They averred that the 1.5% late fee charged by the company pursuant to the PSC-approved tariff was unlawful to the extent it exceeded the 6% per annum limitation set forth in Art. Ill, § 57 of the State Constitution. In their second amended complaint filed three months later, they sought (1) a declaratory judgment that the 1995 amendment to the COMAR regulation, permitting late fees to be charged by telephone companies, was ⁶⁶ invalid under Art. Ill, § 57 of the Constitution, (2) a judgment in favor of the plaintiff class in the amount of all late fees paid and the amount of profit earned by Bell Atlantic on those late fees, plus pre-judgment interest, and (3) an injunction prohibiting Bell Atlantic from collecting late fees in excess of 6% per annum. The counts seeking a monetary award were based on a claim for restitution of unlawful penalties (Count I) and unjust enrichment (Count II).

The declaratory judgment action was in Count III. In December, 1999, Bell Atlantic and the PSC moved to dismiss the action on a number of grounds, including that (1) the late fee did not violate Art. Ill, § 57 because it was approved by the PSC pursuant to power delegated to that agency by the General Assembly, (2) Count I, for restitution, failed to state a cause of action, (3) because the tariff allowing the late fee was revenue-neutral, there was no unjust enrichment of Bell Atlantic, and (4) the plaintiffs failed to challenge the COMAR regulation or the tariff before the PSC and therefore failed to exhaust available administrative remedies. A month later, the plaintiffs moved for partial summary judgment. In February, 2000, and in accordance with a stipulation, the court certified the Dotson class as consisting of all persons, other than the trial judge and members of his immediate family, who were current or former residential subscribers of telephone services provided by Bell Atlantic in Maryland and who paid to Bell Atlantic a late fee that exceeded 6% per annum within the applicable limitations period.

On April 21, 2000, a separate class action was filed in the Circuit Court on behalf of the business customers of Bell Atlantic who had paid late fees. That is the Scrocco action. The same kinds of claims were made in that action as in Dotson. While those proceedings were pending, the General Assembly, in its 2000 Session, enacted 2000 Md. Laws, ch. 59, which, through the addition of new § 14-1315 to the Commercial Law Article, expressly permitted the imposition of late fees, subject ⁶⁷ to certain limits and conditions.

Under § 1 of ch. 59, effective June 1, 2000, late fees imposed in “consumer contracts” were limited to $10.00 per month or 10% per month of the payment amount that was past due, whichever was greater. That provision would remain in effect for only four months. Under § 2 of ch. 59, effective October 1, 2000, a consumer contract could provide, in the alternative, (1) a late fee of up to $5.00 per month or 10% of the amount past due, with a limit of three such late fees for any single payment amount past due, or (2) a late fee of 1.5% per month on the amount past due, with no limit on the number of times such fee could be charged on a single amount remaining past due. A late fee imposed under the new § 14-1315 was made subject to any additional limitations or conditions prescribed by any Federal, State, or local regulatory agency having jurisdiction over entities imposing the fee.

It is not entirely clear whether or how the caps were to apply to late fees charged by regulated utilities under residential tariffs. 3 The Legislature declared the law, which took effect June 1, 2000, applicable retroactively to “all late fees provided for in contracts entered into, or in effect, on or after November 5, 1995” and to “any case pending or filed on or after June 1, 2000.” See ch. 59, §§ 5, 6. In Dua v. Comcast Cable, 370 Md. ⁶⁸ 604, 805 A.2d 1061 (2002), we declared the retroactive application of that law unconstitutional. In May, 2000, after ch. 59 was enacted but before it took effect, the court ruled upon the pending motions to dismiss and for summary judgment. Dealing first with the motions to dismiss, the court found no merit in the general failure-to-exhaust-administrative-remedy defense.

As to the 1995 amendment to the COMAR regulation, the court concluded that the attack was on the Constitutional authority of the PSC to adopt the amendment and that a declaratory judgment action was appropriate to make that kind of attack. As to the tariff, the court held that the jurisdiction of the PSC extended to “rates” charged by regulated utilities and that a late fee was not a “rate.” Dealing then with the specific counts, the court dismissed the restitution claim in Count I on the ground that restitution is not a separately recognized cause of action but denied the motion to dismiss the unjust enrichment claim in Count II, on the ground that the revenue-neutral nature of the amendment to the tariff did not preclude a finding that it would be inequitable for Bell Atlantic to retain an otherwise illegal penalty. On the motion for summary judgment, the court concluded that the imposition of a late fee was in the nature of interest, that the Legislature had never delegated to the PSC the authority to modify the 6% per annum interest rate set in the Constitution, and that the 1995 amendment to the COMAR regulation was therefore invalid. In light of ch. 59, expressly permitting late fees in excess of the Constitutional rate, at least from and after June 1, 2000, the court denied the request for prospective injunctive relief.

It left open the issue of monetary relief under Count II (unjust enrichment). 4 The cases wended their way through the litigation thicket for the next 31 months. On December 9, 2002, the named plaintiffs in the Dotson and Scrocco cases entered into a ⁶⁹ Stipulation of Settlement with Bell Atlantic. The PSC was not a party to the Stipulation but did not oppose it. Under the Stipulation, Bell Atlantic agreed to make available up to $51.9 million, exclusive of attorneys’ fees and expenses and the cost of administering the settlement.

Apart from the named members of the classes, who were to receive a $500 incentive award, in order to receive a payment, the individual class members had to file a claim form with an Administrator who would be appointed to administer the settlement, and who, subject to final decision by the court, could reject a claim, or part of a claim in excess of $6.00, if it could not be verified. All claim forms would have to be filed within a defined claims period. If the claim form was not accompanied by a proof of payment a statement under penalty of perjury identifying the late fees paid by the member) or documentary evidence that more than $50 was paid in late fees, the member would receive $6.00, regardless of how much in the way of late fees that member actually paid. If the member submitted a proof of payment with the claim form and the claim (1) was not more than $50, and (2) was approved by the Administrator, he or she would receive an amount equal to 60% of the late fees paid by that member.

If the member claimed more than $50, documentary evidence of the amount of late fees paid had to be submitted. Members who were current customers of Bell Atlantic would receive their payment in the form of a credit on their telephone bill. Former customers would receive a check. Because no minimum payment to class members was required — only the $6.00 or 60% based on approved claims — any part of the $51.9 million not paid to class members pursuant to the claim procedure would be retained by Bell Atlantic.

The Stipulation noted that class counsel had prosecuted the cases on a contingent fee basis. Bell Atlantic agreed to pay counsel, subject to the court’s approval, fees and expenses not exceeding $13 million, stated to be 20% of the “maximum total consideration made available by [Bell Atlantic] under this Settlement.” Counsel would apply to the court for approval of a $13 million award for fees and expenses, and Bell Atlantic ⁷⁰ agreed not to oppose that application. That, in the parlance of class action litigation, is known as a “clear sailing” provision. Finally, the Stipulation permitted class members, by April 11, 2003(1) to opt out of the settlement by mailing to the Administrator a request for exclusion, or (2) to file an objection to the fairness of the settlement with the court.

On December 12, 2002, three days after the signing of the Stipulation, the court gave preliminary approval to the settlement and set in motion the process for notifying class members. On April 11, 2003, Tamala Boyd and twelve other members of the Dotson settlement class (the Boyd Objectors), filed objections to the settlement. They argued that (1) a claims process for compensating class members was unnecessary and, based on the experience in other class action settlements and the lack of any minimum payment, would likely produce a very small payout, which they estimated would not exceed $5 million, (2) given the expected small payout to class members, the unopposed $13 million counsel fee would probably constitute 70% or more of the total payout by Bell Atlantic and was unreasonable for that reason, (3) the fee was also unreasonable in light of the work performed by counsel, (4) the notice to class members was deficient in failing to disclose the dollar amount of the counsel fee, and (5) in particular, for those members who were not current customers of Bell Atlantic and who did not receive the notice through an insert with their telephone bills, the published notice, consisting of one advertisement in USA Today and a posting on the Internet, was inadequate. Upon the filing of those objections, the judge handling the case recused himself, and the case was assigned to another judge.

After a hearing on the objections, the court, on November 12, 2003, denied final approval of the settlement. The court recognized that, although Maryland Rule 2-231 required court approval of any settlement of a class action, it did not articulate any standards for determining either the fairness or the adequacy of a settlement. The court decided to follow the approach taken by the U.S. District Court in In re Montgomery County Real Estate Antitrust Litigation, 83 ⁷¹ F.R.D. 305, 315-17 (D.Md.1979). As to fairness, it concluded that the focus was on the presence or absence of collusion among the parties: “Because of the danger of counsel’s compromising a suit for an inadequate amount for the sake of insuring a fee, the court is obligated to ascertain that the settlement was reached as a result of good faith bargaining at arm’s length.

The good faith of the parties is reflected in such factors as the posture of the case at the time settlement is proposed, the extent of discovery that has been conducted, the circumstances surrounding the negotiations and the experience of counsel.” 83 F.R.D. at 315. (Citations omitted). With respect to adequacy, the court determined that the focus was on the likelihood of the plaintiffs recovery on the merits against the amount offered in settlement: “In assessing adequacy of the proposed settlement, courts should weigh the amount tendered to the plaintiffs against such factors as (1) the relative strength of the plaintiffs case on the merits; (2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial; (3) the anticipated duration and expense of additional litigation; (4) the solvency of the defendants and the likelihood of recovery on a litigated judgment; (5) the degree of opposition to the settlement.” Id. at 316. (Citations omitted).

Applying those standards, the court found the settlement agreement unacceptable. The court’s objection was not based on the amount of payout to the class members but on the fee. One independent basis for that objection was the court’s determination that the notice to class members was deficient in not containing sufficient information regarding the $13 million counsel fee. With respect to the amount of the fee, the court rejected counsel’s attempt to support the fee on the basis of the extraordinary effort allegedly expended in opposing ch. 59, the court concluding that such lobbying activity may have been less for the benefit of the class than “to ⁷² preserve potential fees earned in this and other cases.” It rejected counsel’s claim that the value of the settlement was $64.9 million (the $51.9 million set aside for class members and the $18 million set aside for the fee), calling that number a “phantom,” and thus rejected as well the assertion that the $13 million fee represented only 20% of the value of the settlement.

The essence of the court’s objection was that the transactional cost — particularly the $13 million counsel fee— “for restoring moneys illegally charged and collected as ‘late fees’ ranging from $6.00 to $50.00 by Bell Atlantic from individual and business customers are not justified by the small benefit received be Members of the Classes of customers affected ...” Concomitant with the order denying final approval of the settlement, the court, by separate order, granted a motion by the Boyd Objectors to intervene in the action. It subsequently certified the Scrocco class, dealt with a number of other pending motions, and scheduled trial for late November, 2004. In the Spring of 2004, the parties asked retired Judge John McAuliffe to attempt to mediate the dispute. A mediation session was held on April 8, 2004, with all parties, including the Boyd Objectors, participating.

As a result of Judge McAuliffe’s efforts and negotiations following the mediation session, the parties, other than the Boyd Objectors, reached a second settlement agreement on June 1, 2004, which, on June 23, 2004, over the objection of the Boyd Objectors, received preliminary approval of the court. The new agreement differed in a number of respects from the first one. It required Bell Atlantic to pay a minimum of $13.5 million, but not more than $52.9 million, plus any attorneys’ fees and expenses awarded by the court, up to $12.5 million. Any class member who timely submitted a valid claim pursuant to the first settlement agreement was excused from having to submit another claim.

Payment to other class members would be essentially as provided in the first settlement agreement, i.e., members submitting a timely claim in proper form but without any proof of payment would receive $6.00, while those submitting a timely claim accompanied by a ⁷³ proof of payment would receive 60% of all late fees paid. If the claim was for more than $50, however, further documentation in the form of bills and checks was required. There appear to be four principal differences between the first and second settlements. The first difference was the minimum payment requirement of $13.5 million, which was to be implemented as follows: if the total amount of valid claims timely filed by class members in both actions was less than $51.9 million, Bell Atlantic would distribute, as a cy pres benefit to its current customers, a minimum amount equal to $13.5 million less the cost of administering the settlement (the total cost of mail notice, publication notice, notice to first settlement claimants, website notice, and fees and expenses of the Settlement Administrator).

That benefit was to be in the form of a credit applied to the customers’ telephone bills. The second major change dealt with counsel fees. Section III. B. of the agreement provided that, prior to the fairness hearing, class counsel would petition the court for approval of an award not to exceed $12.5 million in fees and expenses and that the fee petition would be based on a percentage of the total settlement benefits obtained “for the Settlement Class,” not to exceed one-third, or class counsel’s “lodestar” with a reasonable risk multiplier, plus reimbursement of counsel’s costs and expenses, which the defendants, as before, agreed not to oppose.

The agreement provided that Bell Atlantic would not be required to pay more than $12.5 million in counsel fees and expenses and that, if less than that amount was awarded by the court, the difference would be distributed to the cy pres group — Bell Atlantic’s current customers — on an equal basis in the form of a credit on their telephone bills. The third difference was a waiver by Bell Atlantic of its possible right to recoup the cost of the settlement by means of a rate increase. The traditional method by which thé PSC regulated public utility rates was to (1) calculate the fair value of the utility’s property used and useful in providing service to the public, (2) determine the utility’s cost of capital — its required rate of return, (3) multiply that rate of return against ⁷⁴ the value of the rate base to determine the amount of income to which the utility was entitled, and (4) require the utility to file tariffs that would produce only that level of income. See Building Owners v. Public Service Com’n, 93 Md.App. 741, 753 , 614 A.2d 1006, 1012 (1992).

In 1995, the General Assembly enacted what is now codified as § 4-301 of the Public Utility Companies Article, which allows the PSC to regulate the rates charged by telephone companies by alternative means. In November, 1996, the PSC, acting pursuant to that authority, adopted an alternative form of regulating telephone company rates, what it termed a Price Cap Form of Alternative Regulation. See In the Matter of the Inquiry into Alternative Forms of Regulating Telephone Companies, Md. PSC, Case No. 8715, Order No. 73011, 1996 WL 769751 (1996). Under the Price Cap Order, Bell Atlantic’s then current rates for residential and business basic services were frozen for three years, following which they would be subject to an indexing formula that considered three factors: an upward adjustment for inflation, a downward adjustment for increased productivity, and an “exogenous costs change factor,” which the order referred to as the “Z factor.” Exogenous changes involved “factors that are out of [Bell Atlantic’s] control and do not affect the entire economy ...” The order permitted Bell Atlantic to propose price adjustments to account for costs “triggered by administrative, legislative or judicial action that are beyond the control of [Bell Atlantic] and not otherwise included in the price cap formula.” It specified, however, that: “Before a cost item is eligible for Z factor treatment, the proponent must demonstrate that: the cost is the result of an exogenous event; this event occurred after implementation of the price cap plan; the cost is clearly beyond management’s control; the cost is not a normal cost of doing business; the event has a disproportionate impact on telecommunications providers; the event has a major impact on [Bell Atlantic’s] costs; the costs proposed are reasonable; and that actual costs can be used to measure the impact of ⁷⁵ the change, or the impact can be measured with reasonable certainty.” The notion that amounts paid out in settlement of the class action suits qualified as an exogenous event that would permit Bell Atlantic to receive a rate increase under the Price Cap Order was not mentioned in the first settlement agreement.

The second agreement noted that Bell Atlantic had asserted that prospect throughout the litigation, however, and, as part of the second settlement agreement, Bell Atlantic agreed “to forbear from pursuing such recoupment right” as well as from exercising “any legal or equitable right that [Bell Atlantic] has to recoup the cost of this Settlement by invoking the exogenous change provisions of the Price Cap Order.” Finally, unlike the first settlement, PSC was a party to this one. The preliminary approval of the second settlement agreement triggered the sending of new notices to the class members and, like the order giving preliminary approval to the earlier settlement, made provision for class members, by October 14, 2004, to opt out of the settlement or to object to it. The Notice also stated that “[o]nce the Court has entered a non-appealable final judgment approving this Settlement, Settlement Class Members will release, and be forever barred from suing, [Bell Atlantic] and other Released Persons for all Released Claims as those terms are defined in the Stipulation of Settlement.” At the end of the claims period, a total of 24,108 claims had been filed by residential and business customers, 17,569 of which had been filed pursuant to the first settlement and were “grandfathered” by the second settlement agreement, and 6,539 of which were filed pursuant to the second round of notices. The total amount of those claims, residential and business, from the first and second round of notices, was $227,334.

Among the 24,108 claims filed, 3,027 were regarded by the Administrator as potentially duplicate or invalid for some reason. Because the validity of those claims had yet to ⁷⁶ be resolved, the actual value of the claims remained, at the time, still uncertain. During this period, two of the Boyd Objectors, Kamuhanda and Mitchell, decided to obtain their own counsel, and they began filing separate papers and pleadings. In October, 2004, both the Boyd Objectors and the Kamuhanda Objectors filed objections to the proposed settlement.

They argued that the requested fee was excessive, that class counsel had done insufficient discovery in order to determine which Bell Atlantic customers actually paid late fees, and that counsel did not adequately represent the class. The Boyd Objectors sought to remove class counsel for those reasons. Their major objection was that the requested fee of $12.5 million was excessive in relation to the benefit conferred on the class. In that regard, they took special aim at class counsel’s and Bell