Ted Frank thinks such a brief is just a “de facto amicus brief.”

In April, On the Case scribe Alison Frankel wrote about a kerfluffle over attorneys fees in a class action settlement with Dell Inc. over allegations the company didn’t fully pay a $50 rebate it had offered. Theodore Frank of the Center for Class Action Fairness is representing a class member objecting to the settlement and the approximately $7 million in accompanying attorneys’ fees approved by the district court judge in October 2011.

Frank filed his initial briefing with the 9th Circuit Court of Appeals in mid-March. On April 4, the judge who had approved the settlement, Ronald Whyte of San Jose federal court, issued a second order explaining why he approved the fee request. In the order, Whyte said the court had “inadvertently failed to file and serve its written order onattorneys’ fees.”

Frank was not pleased with the timing, and told On The Case at the time that the new order amounted to a de facto amicus brief supporting the settlement. He filed a motion asking the 9th Circuit to disregard the April order, arguing that the lower court no longer had jurisdiction and that such an order unfairly interfered with the appellate process.