Appeals from the Superior Court of the District of Columbia (CA-7467-98) (Hon. Geoffrey M. Alprin, Trial Judge) (Hon. Joan Zeldon, Trial Judge)
Before Terry, Farrell and Reid, Associate Judges
The opinion of the court was delivered by: Reid, Associate Judge
Argued April 24, 2002 and March 25, 2003
Before us are consolidated appeals involving challenges to the trial court's (1) denial of motions to intervene filed by appellants Joy Boyle, Daniel Owen and others (collectively "the consumer class member objectors") in a class action suit against various vitamin product manufacturers and distributors; and (2) final approval of the class action settlement agreement which, instead of a distribution to individual members of the consumer class, provides for a cy pres allocation to a fund administered by the District of Columbia "for the improvement of the health and/or nutrition of the citizens of the District  and/or the advancement of nutritional, dietary or agricultural science in the District ."
We conclude that it is unnecessary to resolve the consumer class objectors' intervention arguments, because the objectors filed written statements in opposition to the settlement agreement and were permitted to make oral arguments during the trial court's final hearing to determine the fairness of the agreement. Thus, the denial of intervention has caused them no prejudice. Moreover, we assume, without deciding, that Devlin v. Scardelletti, 536 U.S. 1 (2002), allows the consumer class member objectors to bring an appeal to this court without first achieving the status of an intervenor. On the merits, we reject the argument that class counsel had a conflict of interest in representing both the consumer and the commercial settlement classes. And we further hold that the trial court did not abuse its discretion in approving the final settlement agreement, and that a cy pres distribution on behalf of the District's consumer class is appropriate here, where there is no reasonable opportunity to award each individual member of the class an appropriate portion of the net monetary relief, amounting to the de minimis sum of approximately $1 per District resident.
In September 1998, Teresa Herminia Giral, a resident of the District of Columbia, and an indirect purchaser of vitamin products, filed a class action antitrust complaint against F. Hoffman LaRoche, Ltd. (one of the settling defendants in this case) and other distributors and sellers of vitamin products. *fn1 She primarily alleged that the defendants engaged in a conspiracy in restraint of trade through a price-fixing and market allocation scheme, in violation of the District of Columbia Antitrust Act, D.C. Code §§ 28-4501 et seq. (1996), and the District of Columbia Consumer Protection Procedures Act, D.C. Code §§ 28-3901 et seq. (1996). Subsequently, Ms. Giral added plaintiffs, consumers and businesses, from various states, as well as other defendants.
The Giral litigation was stayed in May 1999, to accommodate dispute resolution efforts. As a result of those efforts, the Giral plaintiffs filed a motion in December 2000, for preliminary approval of a partial settlement with seven primary defendants.
Also in December 2000, the District of Columbia successfully filed a motion to intervene on the side of the Giral plaintiffs, as parens patriae for District consumer residents. *fn2 Efforts to intervene made by commercial indirect purchasers of vitamin products who were residents of Minnesota, and by consumers led by Joy Boyle, *fn3 were unsuccessful as the trial court denied their motions in March 2001.
One month later, the trial court granted preliminary approval of the proposed settlement agreement, and scheduled a hearing to address the fairness of the agreement. Prior to the Fairness Hearing, consumers Daniel Owen and Elizabeth Huybens sought to intervene for the purpose of objecting to the settlement agreement, but their motion was denied. *fn4
Although the Boyle and Owen consumers' motions to intervene were denied, their opposition to the settlement agreement was conveyed through counsel at the February 2002 Fairness Hearing; and their written opposition was considered by the trial court. The trial court approved the settlement agreement on March 4, 2002, and the consumer class objectors noted an appeal.
The Boyle and Owen consumer class member objectors contend that the trial court erred in approving the settlement agreement, in part because: "All of the commercial class members have the opportunity to receive their proportionate shares of the commercial [c]lass settlement fund, but the consumer [c]lass members get nothing." They attribute the lack of a direct cash disbursement to members of the consumer class to "a clear conflict of interest" on the part of class counsel in their representation of the commercial class as well as the consumer class, and maintain that each class should have its own attorney "to ensure that the rights of each [c]lass member are adequately ...