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The U.S. Supreme Court is expected to decide as early as next week whether to hear the appeal of a Sixth Circuit decision upholding a class-action settlement that distributed only $1.6 million to consumers but yielded $2.4 million for the attorneys who represented them. Objectors and the attorneys general of 17 states urge the court to take the case and hand down tighter rules on how lower courts consider the value of a settlement for calculating legal fees.

Blackman v. Gascho reprepresents a split between the Sixth Circuit and the Seventh, which adopted a stricter test of fairness penned by Judge Richard Posner in a typically acerbic opinion, Pearson v. NBTY. In that decision (which quotes FORBES at page 7), Posner rejected a settlement that would have yielded lawyers $1.9 million in fees based on the plaintiff lawyers’ estimated value of $20.2 million, when less than $1 million was actually paid out to class members.

It’s that difference between what lawyers say a settlement is worth and what it actually delivers that leads critics to accuse plaintiff lawyers of colluding with the companies they sue to present an attractive-sounding deal to the court that is really just trading a release from claims for rich fees.

The “Posner Rule” is to “judge settlements by what they actually deliver to the class,” said Ted Frank, a lawyer with the Competitive Enterprise Institute’s Center for Class Action Fairness who represents the objectors in Global Fitness. “It’s a problem when the attorneys compromise the class to take more fees for themselves.”

In Global Fitness plaintiff lawyers sued the fitness chain on behalf of consumers they say paid excessive monthly fees. They told the court the settlement was worth more than $8 million, justifying their fee. But even though they had names and addresses of class members and indeed sent them notice of the pending settlement so they could object, the lawyers didn’t insist upon sending money directly to their clients. As is typical in most consumer class actions, a tiny percentage of the class submitted claims and only $1.6 million was distributed. The rest reverted to the defendant, a procedure critics say rewards the company for paying the lawyers a big fee.

“This isn’t a case where it was hard to get money to the class,” said Frank. “They knew the addresses. They knew what every class member was owed. They could have mailed checks.”

The plaintiff lawyers, Isaac Wiles Burkholder & Teeter and Vorys Sater Seymour, said a direct-mail approach wouldn’t work because some of the addresses were out of date. They have urged the court not to take an appeal of the Sixth Circuit’s approval. The Supreme Court may decide whether to grant certiorari at its Feb. 13 conference.