“Practice Changes” that Merely Memorialize Past Conduct Are Not Injunctive Relief for Article III Purposes in Class Settlements

Case: Moses v. The New York Times Company, No. 24-2979 (2d Cir. Feb. 10, 2026) (Summary Order, nonprecedential)
Court: United States Court of Appeals for the Second Circuit
Posture: Objector appeal from final approval of a revised class settlement

1. Introduction

Plaintiff-Appellee Maribel Moses brought a putative class action on behalf of California subscribers alleging that The New York Times Company’s subscriptions were automatically renewed without proper notice, purportedly violating the California Automatic Renewal Law, Cal. Bus. & Prof. Code §§ 17600, et seq. After an earlier settlement was partially vacated on appeal in Moses v. New York Times Co., 79 F.4th 235 (2d Cir. 2023) (“Moses I”), the parties returned to mediation, revoked the first settlement, and executed a new settlement in April 2024.

Objector-Appellant Eric Alan Isaacson appealed the district court’s final approval, raising multiple challenges: (1) alleged lack of Article III standing for injunctive relief, (2) alleged lack of classwide standing under TransUnion LLC v. Ramirez, (3) alleged failure to adequately evaluate the last two City of Detroit v. Grinnell Corp. factors, (4) alleged misapplication of the attorneys’ fee standard, and (5) alleged illegality/unreasonableness of the class representative’s incentive award.

2. Summary of the Opinion

The Second Circuit affirmed. Applying abuse-of-discretion review to settlement approval, it held:

• The settlement did not “permit injunctive relief” because the “Practice Changes” provision merely memorialized steps already taken by the New York Times and did not bind it going forward.
• All class members had Article III standing because they shared the same alleged injury as Moses—being charged for what California law characterizes as an “unconditional gift” when required renewal notices are not provided—and claimants would have to demonstrate that injury to recover.
• The district court adequately evaluated the eighth and ninth Grinnell factors using a reasonable benchmark for “best possible recovery” (class size × approximately one month’s subscription value), concluding the fund was about 74% of that benchmark.
• The court applied the correct standard to attorneys’ fees by evaluating the Goldberger v. Integrated Resources, Inc. factors, not merely rubber-stamping a one-third percentage.
• The incentive award challenge was foreclosed in large part by Moses I (rejecting a per se ban) and was reasonable on the record given Moses’s contributions.

3. Analysis

3.1. Precedents Cited (and How They Drive the Result)

Standards of review and appellate restraint

• Fikes Wholesale, Inc. v. HSBC Bank USA, N.A., 62 F.4th 704 (2d Cir. 2023) and Hyland v. Navient Corp., 48 F.4th 110 (2d Cir. 2022): Cited for the abuse-of-discretion standard in settlement approval appeals, reinforcing that objectors must show a legal error, clearly erroneous factfinding, or a decision outside permissible bounds.
• JTH Tax, LLC v. Agnant, 62 F.4th 658 (2d Cir. 2023) and Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir. 2001): Provide the Second Circuit’s articulation of when discretion is “exceeded.” This framing is consequential: the panel treats Isaacson’s objections as challenges to whether the district court stayed within the acceptable range of judgment, not as invitations to reweigh the settlement anew.

Article III standing and “injunctive relief through settlement”

• Berni v. Barilla S.P.A., 964 F.3d 141 (2d Cir. 2020): Supplies the controlling principle that courts cannot approve injunctive relief in a class settlement where plaintiffs would lack Article III standing to seek it. The panel then narrows the battlefield: it agrees with the principle but holds it is not triggered because the settlement’s “Practice Changes” are not truly injunctive.

Class standing and uninjured class members

• TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016) (Roberts, C.J., concurring)): Isaacson invokes these to argue federal courts cannot award relief to uninjured class members. The panel answers by characterizing the class injury as uniform and by emphasizing that “no claimant would receive any award” absent proof of that injury.
• Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006): Provides the formulation that a class satisfies Article III when “defined in such a way that anyone within it would have standing.” This case anchors the panel’s conclusion that the class definition and claims process ensure only injured persons recover.
• Hyland v. Navient Corp., 48 F.4th 110 (2d Cir. 2022) (quoting Amador v. Andrews, 655 F.3d 89 (2d Cir. 2011)): Used to state that once the named plaintiff establishes standing for the shared injury, standing is established “for the entire class” (in the sense relevant at settlement approval).
• Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229 (2d Cir. 2007): Cited in the footnote to reject the notion that different standing burdens apply at settlement depending on whether the class proceeds under Rule 23(b)(2) or 23(b)(3). The panel treats the “one named plaintiff with standing” concept as applicable in this settlement posture.
• Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651 (9th Cir.2022) (en banc): The panel distinguishes it as addressing litigation-class certification issues, not the settlement-stage standing question presented here.

Settlement fairness: Rule 23(e) and the Grinnell framework

• City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974): Provides the nine-factor rubric traditionally used to evaluate the substantive fairness of class settlements. Isaacson’s principal fairness critique targets factors (8) and (9) (“best possible recovery” comparisons).
• Moses v. New York Times Co., 79 F.4th 235 (2d Cir. 2023) (“Moses I”): Reaffirmed that the Grinnell factors “remain a useful framework” even after the 2018 amendment to Rule 23(e). That prior appellate instruction is pivotal: it legitimizes the district court’s continued reliance on Grinnell and blunts objections based on updated Rule 23 language.
• Newman v. Stein, 464 F.2d 689 (2d Cir. 1972): Supplies the “range of reasonableness” concept; the panel uses it to validate the district court’s use of an estimated benchmark rather than an exact “best possible recovery” figure.

Attorneys’ fees and incentive awards

• Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000): Supplies the six-factor “reasonableness” test for fee awards in class actions. The panel relies on the hearing record showing the district court evaluated these factors, including hours expended and litigation risk.
• Moses v. New York Times Co., 79 F.4th 235 (2d Cir. 2023) (“Moses I”): Controls the incentive-award issue by rejecting Isaacson’s per se illegality argument and recognizing incentive awards are commonly approved within a typical range (noted there as $1,000–$20,000).

3.2. Legal Reasoning

(A) “Practice Changes” were not injunctive relief (so standing-to-seek-an-injunction did not matter)

The court begins with common ground: under Berni v. Barilla S.P.A., courts cannot “permit injunctive relief through class settlement” where plaintiffs lack Article III standing to pursue it. The decisive move is definitional: the panel treats the “Practice Changes” clause as descriptive rather than coercive. Because it memorializes steps “already” taken and “in no way prohibits” the defendant from reversing course, it is not injunctive relief at all. Thus, Isaacson’s standing attack is misdirected; the settlement is characterized as conferring “only monetary relief.”

(B) Classwide standing: the alleged injury is shared and gatekept by the claims process

Addressing TransUnion, the panel emphasizes that the class members “share Moses’s injury.” Moses’s declaration established a concrete economic harm: California law allegedly entitled her to at least one month as an “unconditional gift” if proper renewal notice was not given, yet she was charged for it. The panel further relies on the settlement’s structure—“No claimant would receive any award without demonstrating that they suffered exactly that injury”—to reject the premise that relief would flow to uninjured persons.

(C) Grinnell factors (8) and (9): approximations can be sufficient

Isaacson argued the district court could not evaluate the “best possible recovery” without an exact number. The panel endorses a pragmatic approach: using (class size × about $4, representing an estimated one-month subscription) as a benchmark for maximum recovery, the district court calculated the settlement fund as approximately 74% of that figure. Invoking Newman v. Stein’s “range of reasonableness,” the panel holds the court did not have to demand an “exact value” to conduct a rational comparison.

(D) Attorneys’ fees: percentage alone is not enough, but the record showed a Goldberger analysis

The court rejects the characterization that the district court simply blessed a one-third fee. It notes the district court’s analysis of: (i) the 1,069 hours expended plus anticipated future work, (ii) the novel/risky theory of liability, (iii) counsel’s experience and quality of representation, and only then (iv) the one-third proportion and its acceptance in other cases. That sequencing matters: it demonstrates the fee award was anchored in the Goldberger “reasonableness” factors, not a reflexive percentage.

(E) Incentive awards: not per se unlawful; reasonableness turns on contributions

The panel treats the per se illegality argument as foreclosed by Moses I. On reasonableness, it emphasizes Moses’s documented involvement (investigation, complaint drafting support, and document production) and the acceptance of incentive awards in the general range described in Moses I, affirming the $5,000 award despite the smaller per-capita recovery.

3.3. Impact

• Settlement drafting and “injunctive” optics: The order signals that defendants can include “practice changes” language without triggering Berni-type standing problems if the clause is non-binding and merely recites existing conduct. Future objectors will likely focus on whether such provisions are, in substance, enforceable forward-looking commitments.
• Standing challenges at settlement approval: The decision illustrates a path for resisting TransUnion-based objections: define the class so that membership implies injury (per Denney) and structure the claims process so recovery requires proof of the same injury the named plaintiff alleges.
• Fairness analysis tolerates reasonable benchmarks: By approving the use of an estimated “best recovery” benchmark rather than insisting on precision, the order supports a practical approach where the nature of statutory damages/benefits and business records may make exact computation costly at the approval stage.
• Fees and incentive awards: The order reinforces that district courts should make an explicit Goldberger record and will receive deference when they do; it also continues the Second Circuit’s post-Moses I trajectory of permitting incentive awards subject to contribution-based reasonableness review.

4. Complex Concepts Simplified

• Article III standing: The constitutional requirement that a plaintiff seeking relief in federal court must show a concrete injury traceable to the defendant and likely to be redressed by the court.
• Injunctive relief: A court order requiring a party to do (or stop doing) something in the future. The panel held the settlement’s “Practice Changes” were not injunctive because they did not bind future conduct.
• Rule 23(e)(2): The federal rule requiring a court to approve a class settlement only after finding it “fair, reasonable, and adequate.”
• Grinnell factors: The Second Circuit’s traditional nine considerations used to test settlement fairness (e.g., litigation risks, reaction of the class, and how the settlement compares to best/likely recoveries).
• Non-reversionary fund: A settlement fund that does not revert back to the defendant if not fully claimed; it remains committed to settlement purposes as specified.
• Goldberger factors: The Second Circuit’s six-factor test for whether attorneys’ fees are reasonable (time spent, complexity, risk, quality, fee compared to recovery, and public policy).
• Incentive award: A payment to the named plaintiff(s) for effort and risk undertaken in representing the class, evaluated for fairness and proportionality to contributions.

5. Conclusion

Although nonprecedential, the Second Circuit’s order in Moses v. The New York Times Company offers a clear template for analyzing objector challenges to class settlements: (1) “practice changes” language is not injunctive relief if it imposes no forward-looking constraint; (2) TransUnion concerns can be met where the class is defined by a shared injury and recovery is conditioned on proving it; (3) district courts may evaluate “best possible recovery” with reasonable benchmarks rather than exactitude; and (4) robust on-the-record application of Goldberger and contribution-based review of incentive awards will typically withstand abuse-of-discretion review.