Federal Judge Recognizes That Ted Frank Is A Vexatious Whiner
Serial class action objector gets a proper benchslap.
Judge Anuraag “Raag” Singhal of the Southern District of Florida finally brought well-deserved justice to victims of Johnson & Johnson hawking a carcinogen-laced sunscreen. He could’ve provided relief earlier except — as Judge Singhal notes — “This Order is a long time coming. Were it not for the sole objection, it would have been entered six months ago.”
Sole objection? There was an ultimately frivolous objection to a public interest lawsuit? WHO COULD POSSIBLY HAVE RAISED IT?
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It’s Ted Frank. It’s always Ted Frank. Even when he has minions sign documents, it’s Ted Frank.
Frank will, of course, say that he’s on the side of the victims when he rolls in at the 11th hour to prevent lawyers from getting paid for pursuing the public interest class action that he never possibly would. Judge Posner observed years ago “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.” Ted Frank’s zeal for protecting the victims seems to only show up when it’s time to get the victims $31.50 by whittling down the incentive that got the victim the first $30.
Class action lawyers launch lawsuits out of their own pockets that most firms would charge millions to pursue. And that lose a lot! They try to make it up on the ones they win while always maintaining fairness to the victims. These objections are part of a long-term strategy to disincentivize class action attorneys from ever pursuing these cases. But usually the organization does a better job of hiding the fact that it’s just trying to upend justice:
[W]hen asked what would make the settlement more fair in the eyes of the objector, the response as noted in the introduction to this Order was, in effect, “a better settlement.” But, as President Teddy Roosevelt famously noted, “complaining about a problem without posing a solution is called whining.”
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Hamilton Lincoln will whine all day — and Frank threw an epic Twitter tantrum when we pointed out the Institute’s efforts to frustrate the Flint water settlement — because posturing as if they represent serious issues is the whole game. They don’t like getting called out for the role they play in making it harder for folks to get a measure of justice because they need to drape themselves in victim rhetoric.
We know there were more than 209,000 claims filed. Let’s assume each of those individuals had gone to local attorneys seeking representation on this matter. And let’s assume that after a free consultation, each individual decided to go forward for personal and principle reasons and that each was able to afford their lawyer’s $125 fee. The Court has selected this fee example because it is the cost to hire counsel in this jurisdiction for a speeding ticket where one is traveling ten miles above the speed limit. Most people with common sense would assume a report regarding a product with a potential carcinogen might cause more concern than a traffic infraction, but in any case, in this scenario the lawyers’ collective fees would total $26,125,000 and no one would say a word. Here the fees sought are well less than 10% of that number. The lawyers have done their work. There is nothing at all collusive. Claimants availed themselves of top lawyers without leaving their homes or even spending one dime.
In that passage, Judge Singhal footnotes that $26 million is less than Elizabeth Holmes spent on her defense, putting the cost of litigation in perspective. The good folks at Law.com got Frank’s reaction to this:
Frank, in an email, called those cases “non sequiturs” since they did not involve Federal Rule 23 of Civil Procedure, which governs class actions. He added: “There weren’t any Rule 23(e) objections in those two cases because there was no class action settlement and no proposed resolution of absent class members’ rights requiring notice and a hearing.”
Dude! Don’t say the quiet part out loud! “The cost of high-quality legal counsel doesn’t matter until the lawyers try to send the majority of the benefit to poor people without practical access to the judicial system” is not the winning argument you think it is.
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Federal Judge Slams Attorney Ted Frank for Holding Up Approval of J&J Sunscreen Settlement [Law.com]
Earlier: Guy Trying To Blow Up Flint Water Settlement Fee App Treated To Brutal Response Brief Roasting
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
