Muchnick v. Thomson Corp.

STRAUB, Circuit Judge,

dissenting in part, concurring in part:

The majority observes that the Settlement in this case “was the product of an intense, protracted, adversarial mediation” with “highly respected and capable” mediators that provided assurance that the “ ‘proceedings were free of collusion and undue pressure.’ ” Maj. Op. at 252 (quoting D'Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir.2001)). While conceding this point, however, as well as that the Settlement offered “some ‘structural assurance of fair and adequate representation,’ ” Maj. Op. at 256 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 627, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)), the majority holds that the District Court abused its discretion in certifying the class because not “enough” was done to “satisfy [Federal] Rule [of Civil Procedure] 23(a)(4),” Maj. Op. at 252. I disagree. I respectfully dissent because it is my view that the named plaintiffs adequately represent the interests of all class members as required by Rule 23(a)(4) and that the District Court was well within its discretion to certify the class and approve the Settlement. I do concur with the majority that the Settlement’s release provision is permissible.

I. Class Certification

A. Standard of Review

We review a district court’s decisions to certify a class and approve a settlement for abuse of discretion. In re Nassau County Strip Search Cases, 461 F.3d 219, 224 (2d Cir.2006) (applying standard to class certification); Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir.2000) (applying standard to settlement approval). In assessing the reasonableness of a proposed settlement of a class action, “[t]he trial judge’s views are accorded great weight because he is exposed to the litigants, and their strategies, positions and proofs. Simply stated, he is on the firing line and can evaluate the action accordingly.” Joel A., 218 F.3d at 139 (internal quotation marks and ellipses omitted); see also TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 463 (2d Cir.1982) (“It is well settled that great weight must be accorded the views of the trial judge because exposure to the litigants and their strategies makes him uniquely aware of the strengths and weaknesses of the case and the risks of continued litigation.”). As the Supreme Court has observed, however, “a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold.” Amchem, 521 U.S. at 620, 117 S.Ct. 2231. Therefore, “where, as here, the district court simultaneously certifies a class and approves a settlement of the action, we will more rigorously scrutinize the district court’s analysis of the fairness, reasonableness and adequacy of both the negotiation process and the proposed settlement.” In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 292 (2d Cir.1992).1

B. Adequacy of Representation

The party seeking to certify a class bears the burden of satisfying Rule 23(a)’s *259four threshold requirements: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. See Fed. R.Civ.P. 23(a). As the objectors to the Settlement do not contest that the first three prerequisites are met here I, like the majority, confine my discussion to the fourth: adequacy of representation. In determining whether Rule 23(a)(4)’s adequacy requirement is satisfied, the most important factors are whether the class representatives have any “interests antagonistic to the interests of other class members,” and relatedly, whether the representatives “have an interest in vigorously pursuing the claims of the class,” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006). See Amchem, 521 U.S. at 625, 117 S.Ct. 2231 (“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent”). In answering these questions, the “terms of the settlement” and “the structure of negotiations” are relevant factors, but the focus must always remain on whether “the interests of those within the single class are ... aligned.” Amchem, 521 U.S. at 626-27, 117 S.Ct. 2231. Even if a conflict is discovered, it will not “necessarily defeat class certification — the conflict must be ‘fundamental.’ ” Denney, 443 F.3d at 268 (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 145 (2d Cir.2001)). While we have yet to explicitly define a “fundamental” conflict, such a conflict must go to the “very heart of the litigation,” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 246 (2d Cir.2007). See 6 Alba Conte & Herbert Newberg, Newberg on Class Actions § 18:14 (4th ed.2002) (discussing antitrust class actions); see also Gunnells v. Health-plan Servs., Inc., 348 F.3d 417, 430-31 (4th Cir.2003). It exists when “the interests of the class representative can be pursued only at the expense of the interests of all the class members.” 1 Conte & Newberg, supra, § 3:26. A “fundamental” conflict may not be “merely speculative or hypothetical.” 5 James Wm. Moore et al„ Moore’s Federal Practice § 23.25[2][b][ii] (3d ed.2011); accord In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 145.

The majority finds that the District Court exceeded its discretion in certifying the class because the “interests of class members who hold Category C claims fundamentally conflict with those of class members who hold Category A and B claims,” Maj. Op. at 254, and therefore concludes that the class members holding Category C claims are not adequately represented in the Settlement. Relying principally on Amchem and Central States, the majority contends that “[o]nly the creation of subclasses, and the advocacy of an attorney representing each subclass, can ensure that the interests of that particular subgroup are in fact adequately represented.” Maj. Op. at 252. Looking to these cases and the record before us, I find this conclusion unavailing.

In Amchem, the class representatives, some of whom had medical conditions as a result of asbestos exposure and some of whom had not yet manifested any asbestos-related condition, “sought to act on behalf of a single giant class rather than on behalf of discrete subclasses.” Am-chem, 521 U.S. at 626, 117 S.Ct. 2231. In finding their representation inadequate, the Supreme Court looked to whether the interests of the class members conflicted in *260any respects, and concluded that they did. Namely, the “currently injured” sought “generous immediate payments,” while the “exposure-only” claimants sought to ensure “an ample, inflation-protected fund for the future.” Id. at 626, 117 S.Ct. 2231. The Court also found that the terms of the settlement prejudiced the interests of a subset of plaintiffs because the “essential allocation decisions designed to confine compensation and to limit defendants’ liability” — including caps on the number of claims payable for each type of disease per year and limits on the number of claimants who could opt out — disadvantaged exposure-only plaintiffs. Id. at 627, 117 S.Ct. 2231. Moreover, the Court held that the process of negotiation did not provide “structural assurance of fair and adequate representation for the diverse groups and individuals affected” because there existed adversity among subgroups, yet those subgroups were not represented individually so that they could aggressively pursue their own distinct interests. Id.

In Central States, a case in which “a capped settlement fund was allocated differently among categories of claims of different strength without separate counsel to protect each category’s interests,” Maj. Op. at 256, we held that it was an abuse of discretion for the district court to certify the class without subclasses. Cent. States, 504 F.3d at 246. The class members in Central States maintained employee benefit plans, though some were self-funded and others were insured with set premiums. See id. at 245. We found that “[s]elf-funded Plans differ[ed] significantly from insured or capitated Plans because only self-funded Plans assumed the direct risk of absorbing any increases in prescription drug costs that were caused by [the defendant’s] conduct.” Id. at 246. We explained that the conflict among the different types of “Plans [did] not represent a simple disagreement over potential differences in the computation of damages, since the relationship of the Plans to [the defendant] and its effect on each Plan [went] to the very heart of the litigation.” Id.

The concerns that drove Amchem and Central States are not present in this case. First and foremost, there is no fundamental conflict between class members here, as there was in Amchem and Central States. The named plaintiffs, like all class members in this case, had the same basic relationship with the defendants. They are all freelance authors who sold written works to print publishers for publication in newspapers, magazines, and other periodicals. They also each suffered similar injuries in that their works were reproduced in electronic and Internet databases without the plaintiffs receiving additional compensation. The only differences between A-, B-, and C-class plaintiffs — and the resulting allocation of the Settlement funds — are found squarely in the comparative strengths and weaknesses of the asserted claims. In re Holocaust Victim Assets Litig., 413 F.3d 183, 186 (2d Cir.2005) (per curiam) (holding that the district court did not exceed its discretion in allocating the bulk of class action settlement funds to one group of claimants because “allocation of a settlement of this magnitude and comprising such different types of claims must be based, at least in part, on the comparative strengths and weaknesses of the asserted legal claims”). And, even if a conflict exists due to the comparative strengths of the claims in this case, the District Court’s decision to certify the class was not an abuse of discretion because the conflict does not rise to such a level as to be “fundamental,” Denney, 443 F.3d at 268; see In re Pet Food Prods. Liab. Litig., 629 F.3d 333, 347 (3rd Cir.2010) (“The fact that the settlement fund allocates a larger percentage of the settlement to class mem*261bers with [higher value claims] does not demonstrate a conflict between groups. Instead, the different allocations reflect the relative value of the different claims.”).

Second, the named plaintiffs in this case “have an interest in vigorously pursuing the claims of the class,” Denney, 443 F.3d at 268, as many of them hold a variety of A-, B-, and/or C-class claims. To the extent that the existence of some class representatives holding only registered copyrights creates a conflict, such conflict is significantly mitigated by the presence of other named plaintiffs holding unregistered copyrights and is not “fundamental,” id. Named plaintiffs Letty Pogrebin, James Gleick, and Marie Winn each hold at least some unregistered copyrights and had an incentive to secure the best settlement for all three classes of claims and the highest possible compensation in each category. Moreover, the associational plaintiffs that participated in the negotiations certainly have members who hold unregistered copyrights and they had an incentive to “advance! ] the interests of all authors.” Maj. Op. at 252-53. The fact that class representatives here hold a variety of claims across the spectrum eliminates the risk of fundamental conflict among subgroups within the class, precisely because there are no easily defined subgroups. See, e.g., In re Pet Food Prods. Liab. Litig., 629 F.3d at 347 (observing that “the fact that the fund was allocated so that a greater percentage of the settlement value was designated for certain class members [need not] demonstrate!] a conflict between groups,” especially when “many class members were members of both ... groups”). This is underlined by the majority’s discussion of the difficulty in creating subclasses in this case. See Maj. Op. at 256-58.

Despite the lack of fundamental conflicts between the named plaintiffs and the class as a whole, the majority attempts to craft “simple[],” “logical,” and “efficient and straightforward” subclasses to guide the District Court on remand. Maj. Op. at 257. It suggests creating three subclasses, each representing the unique interests of Category A, B, and C plaintiffs. While it recognizes that “some class members would fall into more than one subclass, [the majority] can see no reason why that would be fatal.” Maj. Op. at 257. Of course I agree, should the parties and the District Court follow this suggestion, that such a structure would not be fatal because, at bottom, plaintiffs holding Category A-, B-, and C-class claims all want the same thing: as much compensation as possible for the same injury. It may be that the current scheme allows for some competition among the subgroups, but our cases do not hold that all competition must be eliminated, and, moreover, the majority concedes that even its suggested alternative would present conflict amongst subclass members because many of the plaintiffs possess more than one type of claim. In noting its suggested subclasses’ deficiencies as well as admitting that it is not normally the province of our court to offer these types of suggestions in the first instance, the majority exposes why the District Court’s approval of the Settlement was the correct course of action: The District Court was “uniquely aware of the strengths and weaknesses of the case and the risks of continued litigation,” TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 463 (2d Cir.1982), and properly concluded that the plaintiffs need not be segregated into subclasses because any conflicts that could be eased by division into subclasses were not “fundamental,” Denney, 443 F.3d at 268.

Third, unlike the settlement terms in Amchem and Central States, this Settlement does not unfairly disadvantage one portion of the class. No claims unique to a *262portion of the class are forfeited without compensation, no hard claim or opt-out limits exist, and no awards are postponed without adjustments for inflation. The majority finds that the “C-reduction” provides strong evidence that the named plaintiffs inadequately represented class members with C-class claims because “only one category was targeted for this penalty without credible justification.” Maj. Op. at 254. While it is true that the “C-reduction” disadvantages C-elass claims, this disadvantage does not suggest an intra-class conflict because it is only a result of the inherent lower value of the C-class claims. See In re Pet Food Prods. Liab. Litig., 629 F.3d 333 at 347.

The “C-reduction” and the different award structures for registered and unregistered copyright holders reflect the relative strengths and weaknesses of the respective claims as well as the practical fact that the overwhelming majority of claims at issue in this case — 99%—are C-class claims. Unregistered copyright holders may not maintain a suit for copyright infringement.2 17 U.S.C. § 411(a) (providing that, with some exceptions, “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made”). This precondition weakens the claims of unregistered copyright holders because the authors would have to expend energy to complete the registration process as well as pay $30 to properly register each of then' unregistered works. Cf. City of Detroit v. Grinnell Corp., 495 F.2d 448, 455 (2d Cir. 1974) (“The proposed settlement cannot be judged without reference to the strength of plaintiffs’ claims. The most important factor is the strength of the case for plaintiffs on the merits, balanced against the amount offered in settlement.”). Likewise, if unregistered copyright holders ultimately were to register in order to bring suit, they would not be entitled to judicial presumptions that benefit copyright holders who had registered within five years of their work’s creation. See 17 U.S.C. § 410(c); Boisson v. Banian, Ltd., 273 F.3d 262, 267-68 (2d Cir.2001). Accordingly, at trial, claimants holding unregistered works would have to prove originality, copyrightability, and compliance with statutory formalities — a costly, and perhaps losing, exercise that other claimants could forego.

Finally, “the structure of negotiations” in this case provided assurance that the named plaintiffs adequately represented the interests of A-, B-, and C-class claimants. Unlike the attorneys in Amchem, who lacked any ongoing attorney-client relationship with exposure-only claimants, see Amchem, 521 U.S. at 601-02, 117 S.Ct. 2231, and in Ortiz v. Fibreboard Corp., 527 U.S. 815, 857 n. 31, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999), where the named plaintiffs were not even “named [until] after the agreement in principle was reached,” the attorneys conducting the negotiations here represented holders of all three species of claims from the outset. Further, unlike Amchem, which was never intended to be litigated, see Amchem, 521 U.S. at 601, 117 S.Ct. 2231, there is no *263indication that this suit was brought exclusively for the purposes of settlement. On the contrary, litigation apparently was a realistic possibility, and mediator Kenneth R. Feinberg, Esq., noted that “[a]t various times, it appeared likely that the mediation process and negotiations would break down[,] resulting in a return to the courtroom.” In addition, there is no indication here that settlement of any single type of claim (A, B, or C) was the immediate focus of the parties, nor that settlement of another type of claim was tacked on belatedly and thus potentially leveraged to ensure the successful completion of the original settlement talks. This is unlike Amchem, where one defendant refused to settle present claims until future claims were included. In Amchem, plaintiffs’ representatives had an incentive to bargain away exposure-only claimants’ rights in order to ensure a generous settlement for their original, currently-injured clients. No such incentive existed here. Also, these negotiations, unlike those in Am-chem, occurred under the direction of an impartial mediator who could search out each party’s respective strengths and weaknesses, advise them to adjust their positions accordingly, and vouch that each side fully represented its clients to the best of its ability. Indeed, mediator Feinberg stated in a sworn declaration that “[a]ll members of the defined class ... were adequately represented during the lengthy course of the mediation” and that “[a]ll sides exhibited great skill and determination ... resulting in a comprehensive settlement of a very complex matter which [he] believe[s] is the fairest resolution which could be obtained.” The participation of mediator Feinberg in this case, while by no means ensuring fully adequate representation, does make it more likely that the parties reached the limits of compromise. See generally D Amato v. Deutsche Bank, 236 F.3d 78, 85 (2d Cir. 2001) (“This Court has noted that a court-appointed mediator’s involvement in precertification settlement negotiations helps to ensure that the proceedings were free of collusion and undue pressure.”).

In sum, Amchem and Central States both turned on the existence of a fundamental conflict between class members that was never mitigated.3 In this case, on the other hand, C-class claimants merely have less valuable claims than other class members, and the resulting Settlement, and specifically the “C-reduetion,” only reflects the C-claims’ inherent lower value.4 *264The valid distinctions among A-, B-, and C-class claims simply did not exist between the present and future claims at issue in Amchem or between the different benefit plans in Central States. Furthermore, the Settlement in this case had strong structural protections not found in Amchem. Accordingly, the “fundamental” intra-class conflict so evident in Amchem is not present here. The District Court exercised sound discretion in finding that the adequacy of representation requirement was met.

II. The Objectors’ Other Challenges to the Settlement

Beyond their challenge to the District Court’s certification of the class, the objectors to the Settlement also contend that (1) approval of the Settlement was impermissible because it released claims beyond the factual predicate of the case and (2) the approval process denied them procedural due process. As I find that the Settlement’s release pertaining to future uses by publishers and their sublicensees was permissible, I join the majority’s opinion in that respect. Because I would affirm the District Court’s decision to certify the class, I now turn to the objectors’ procedural challenges to the Settlement.

First, the objectors claim that the District Court lacked sufficient information to evaluate the Settlement at the preliminary approval stage. Second, they claim that because the parties did not produce their damages study until six days before the final approval hearing, after the deadlines for objecting and opting out, the objectors were denied the opportunity to properly frame their objections and to opt out in a timely fashion. Third, they claim that the District Court improperly required objeetors to appear in person at the fairness hearings. These arguments are all merit-less.

A. The Absence of the Damages Report at the Preliminary Approval Stage Did Not Deny Due Process

The objectors assert that the District Court had before it “no evidence of the Settlement’s adequacy presented with the motion for preliminary approval.” In particular, they claim that because the District Court lacked a damages report, it could not evaluate, as required by City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974), whether the Settlement was reasonable in light of (1) the best possible recovery and (2) all the attendant risks of litigation.

It is true that the District Court had scant information at the preliminary approval phase. In connection with the original motion for preliminary approval, the parties only cursorily briefed the issue of how the risks of litigation impacted the Settlement. Although the parties submitted twenty-two declarations with their motion, none addressed the issue of the Settlement’s fairness; instead, they all concerned efforts by defendants to locate records as to the identity of class members. The hearing itself was quick and fairly non-inquisitive.

However, our standard of review does not focus on whether a specific piece of information was present at any single stage of proceedings. Instead, we focus more generally on whether, at the end of the process, the District Court had before it sufficient information to grant final approval. In a nutshell, “[t]he question becomes whether or not the District Court *265had before it sufficient facts intelligently to approve the settlement offer.” Grinnell, 495 F.2d at 462-63; see also In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 170 (2d Cir.1987) (rejecting claim that failure to hold preliminary approval hearing was error because, regardless of whether hearing was held, the district court “was thoroughly informed of the strengths and weaknesses of the parties’ positions”), cert. denied, 484 U.S. 1004, 108 S.Ct. 695, 98 L.Ed.2d 648 (1988).

In this case, it is clear that by the time the District Court approved the Settlement, it had before it sufficient materials to evaluate the Settlement thoroughly and intelligently. Over the course of the litigation, it held three hearings and reviewed exhaustive briefing, much of which was authored by the objectors’ counsel and thus raised the very issues presented on appeal. The District Court had ample materials to evaluate both the class certification decision and the Settlement, and the record includes numerous declarations by the parties and their experts describing the strengths and weaknesses of the claims and potential amounts of recovery, as well as two declarations by mediator Feinberg describing the settlement process. The objectors themselves concede that the parties “filed a veritable avalanche of pleadings to support the settlement, including arguments, declarations, and exhibits.”

In response to the objectors’ motion to vacate the preliminary approval, the parties submitted a declaration from mediator Feinberg in which he asserted that “$18 million is absolutely the most that good-faith negotiators acting at aims length could agree upon,” and that the sum was “substantially in excess” of what “defendant companies were willing to pay at the outset of the mediation.” The District Court then held a substantial hearing on the motion to vacate the preliminary approval, during which counsel for the objectors was heard at length on the substance of their objections, including those going to the fairness of the Settlement. See, e.g., TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 463 (2d Cir.1982) (affirming district court order approving Settlement when “[t]he District Court approved the Settlement only after giving comprehensive consideration to all relevant factors and listening carefully to each contention of the objectors”).

Following the hearing, the Court received several written objections in declaratory form, including objections as to the fairness of the Settlement. Thereafter, when it was discovered that new infringements had occurred during the pendency of the suit, the District Court held a second round of preliminary approval briefing and a second preliminary approval hearing. At that hearing, which was lengthy, counsel for the objectors again discussed the objections to the Settlement’s fairness.

In addition, on the motion for final settlement approval, the parties submitted extensive briefing on the issues of whether the Settlement was fair in light of the total possible recovery and the risks of litigation. They also submitted another twelve declarations. Included within these submissions was defendants’ original mediation brief, in which they specifically cataloged their view of the legal weaknesses of plaintiffs’ claims and their view of actual damages. In addition, mediator Feinberg submitted another declaration describing the adversarial negotiating process. Further, before it granted final approval, the District Court received the damages study that the objectors reference, in which bulk damages were measured using three dif*266ferent methodologies.5 Last, before granting final approval, the District Court held yet another lengthy hearing, at which counsel for the objectors again spoke at length.

Given the extensive process and copious submissions below, it is of no moment that the District Court had few materials before it at the first preliminary approval hearing. Prior to final approval, the Court received and reviewed “sufficient materials to evaluate the Settlement” and to determine, among other things, that the Settlement was reasonable in light of possible recoveries and the risks of litigation. Malchman v. Davis, 706 F.2d 426, 434 (2d Cir.1983).

B. Objectors Had Adequate Opportunity to Lodge Objections Based On the Damages Study

The objectors assert that because the damages study was submitted to the District Court after the deadline for objecting to the Settlement, class members were deprived of the opportunity to base their objections on the study. However, the objectors did file objections based on the damages study, which the District Court accepted, even though they were untimely. Accordingly, class members had the opportunity to base objections on the study, and any argument to the contrary fails.

C. No Due Process Violation Occurred By Requiring Objectors to Appear at the Fairness Hearing

In Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985), the Supreme Court held that “minimal procedural due process protection” within the context of class actions required that plaintiffs receive “notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel,” and the opportunity to opt out of the settlement. Here, the District Court attempted to satisfy that standard by allowing class members the opportunity to appear, in person or through counsel, and to object to the Settlement, as well as to opt out. The District Court’s requirement that objectors appear in person or through counsel at the fairness hearing does not rise to the level of a due process violation. See, e.g., Spark v. MBNA, 48 Fed.Appx. 385, 391 (3d Cir. 2002) (unpublished opinion) (holding that personal appearance requirement did not violate due process).

CONCLUSION

In sum, the District Court was well within its discretion, even when reviewed at a heightened level, to certify the class and approve the Settlement. As the majority notes, “at some point there must be an end to reclassification with separate counsel,” Maj. Op. at 256 (citing Ortiz v. Fibreboard Corp., 527 U.S. 815, 819, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999)), and it is especially unnecessary to require such reclassification and subclasses where, as in this case, any conflict that exists is not “fundamental,” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006). Today’s opinion may seriously hamper settlement negotiations in complex class action lawsuits, as parties that participate in “intense, protracted, adversarial mediation” with proceedings “free of collusion and undue pressure,” Maj. Op at 256 (internal quotation marks omitted), will fear being told by our Court at the conclusion of their work that they have not done “enough,” Maj. Op. at 252-53, to satisfy Rule 23(a)(4)’s requirement that the “representative parties ... fairly and adequately protect the interests of the class,” Fed. *267R.Civ.P. 23(a). After today’s opinion, plaintiffs may proceed by breaking into numerous and unnecessary subclasses that could stall mediation proceedings and lead to protracted litigation. Thus, and for the reasons stated above, I respectfully dissent in part and would affirm the District Court’s order in its entirety certifying the class and approving the Settlement.

. The objectors to the Settlement argue that "deference to the district court should be reduced [further] in this case” because "deference is premised on the judge’s familiarity with the case” and "the [District [Cjourt had no occasion to become familiar with the issues.” I find this argument meritless and agree with the majority that we employ our normal "abuse of discretion” analysis, albeit with some "heightened [] attention,” Am-chem, 521 U.S. at 620, 117 S.Ct. 2231, to the certification decision because it was made for settlement purposes only. Maj. Op. at 249. The District Court’s involvement with this *259case was intensive and it "comprehensively explored all relevant factors,” Malchman v. Davis, 706 F.2d 426, 434 (2d Cir.1983), in analyzing the Settlement. See infra Section II.A.

. In Reed Elsevier, Inc. v. Muchnick,-U.S. -, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010), the Supreme Court held that § 411(a)’s registration requirement was “a precondition to filing a claim that does not restrict a federal court’s subject-matter jurisdiction,” id. at 1241, and did not address whether § 411(a) "is a mandatory precondition to suit that ... district courts may or should enforce sua sponte by dismissing copyright infringement claims involving unregistered works,” id. at 1249. It is clear, however, that § 411(a) imposes some substantial obstacle to the success of suits for infringement of unregistered copyright claims.

. The majority contends that, in distinguishing Central States, I fail to account for Ortiz. Ortiz does not control here. While Ortiz notes that the presence of some class members with “more valuable claims” may be "a second instance of disparate interests within the certified class,” Ortiz v. Fibreboard Corp., 527 U.S. 815, 857, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999), the Court found the class inadequate because “it is obvious after Am-chem that a class divided between holders of present and future claims ... requires division into homogeneous subclasses under Rule 23(c)(4)(B),” and “[n]o such procedure was employed,” id. at 856, 119 S.Ct. 2295. In this case, the class is not divided between holders of present and future claims and "the requirements of structural protection applicable to all class actions under Rule 23(a)(4)” were firmly in place. Id. at 857, 119 S.Ct. 2295.

. As I agree with the majority that the C-class claims’ inferior recovery under the Settlement is not determinative evidence of inadequate representation, I need not belabor this point by opining on it further. I must note, however, that objectors further attempt to fold this case under Amchem by arguing that C-class claimants are just like the exposure-only claimants because they are "holders of ... future claims” that mature at a later date (here, upon registration). This argument fails because C-class claimants possess a present injury insofar as their copyrights have already been infringed. Also, C-class claims do not concern only unregistered copyrights; they also concern copyrights registered after De*264cember 31, 2002. Moreover, the C-class compensation scheme proceeds in rational, linear fashion: as the original price of the work increases, the author’s compensation increases. The flat fees account for the $30 registration fee discussed above.

. This information was identical to that presented by the plaintiffs at mediation.