Nothing can be said to be certain, except death, taxes, and jackholes swooping in at the last minute to blow up class action settlements.
Class actions aren’t the perfect solution to all the world’s problems, but they are a lot closer to offering efficient public interest solutions than cherry-picking detractors would lead you to believe. There are trolls who spend their whole careers trying to undermine public confidence in class actions and from time to time they get help from judges trying to get their names in the papers, but Judge Posner put it best when he quipped, “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.”
The Hamilton Lincoln Law Institute — the very definition of the “usual suspects” in the effort to strip the downtrodden from the remotest sniff of justice — has found its way to the Flint Water Crisis cases. It’s actually a weird strategic move for the group, given that so much of the anti-class action public relations battle involves challenging superficially unsympathetic claims, allowing them to say “oh, we don’t hate all class actions just these bad ones” while pushing legal standards designed to unwind the whole project. Justice for people drinking poisoned water for years is one where you’d think the group would steer clear.
And maybe that’s what they were thinking too as this case has labored through the system for half a decade. But they’ve changed their mind at this late date, and Corey Stern of Levy Konigsberg is not going to let Hamilton Lincoln’s Frank Bednarz dance around this reality, roasting the anti-class action activist in a matter-of-fact response:
Mr. Bednarz first appeared in this case on or about March 22, 2021, roughly sixty-seven (67) days ago. (ECF Nos. 1481 & 1482). The first pleading filed on this docket occurred on February 8, 2016. (ECF No. 1). During the one-thousand nine- hundred and thirty-eight (1,938) days between the first filing and Mr. Bednarz’s appearance, on a macro-level some notable events occurred:
(1) Donald Trump was elected President;
(2) Hurricane Harvey caused $125,000,000 in damage to the Gulf Coast;
(3) The entire Brexit saga happened, beginning with a shocking vote, continuing through years of wrangling and negotiations under multiple Prime Ministers, and concluding at the end of 2020 when the transition period following the United Kingdom’s departure from the European Union ended;
(4) Donald Trump was impeached (twice);
(5) Three major hurricanes (Harvey, Irma and Maria) struck Texas, Florida and Puerto Rico, over five devastating weeks;
(6) Hurricane Michael became the first Category 5 hurricane to hit the United States since 1992;
(7) The Chicago Cubs won its first World Series in 108 years;
(8) Three Supreme Court Justices were nominated and confirmed;
(9) There was a Global Pandemic;
(10) The nation elected Joe Biden; and
(11) There was an insurrection in Washington D.C. and an attack on the Capitol.
Maybe they just hadn’t heard about the water thing in all this time? As the brief points out, it’s been a busy five years!
But seriously, the intervention is exactly as cynical as it appears:
Like a wolf in sheep’s clothing, Mr. Bednarz is attempting to derail the very settlement he claims should better benefit his clients. There were other options available—Mr. Bednarz could surely have submitted an amicus brief while the motion for preliminary approval of the settlement was pending—but he didn’t elect to offer a helping hand to the Court. Instead, as he (and his ultra-conservative organization, the Hamilton Lincoln Law Institute) has done time after time, Mr. Bednarz masquerades as a “consumer protection” advocate, when the real mission is to deprive most injured people of a day in court altogether. Make no mistake, he is playing what he sees as a game of tort-reform wherever he can across the United States, irrespective of the real human beings (including his clients) left in his ideological wake.
The crux of the attempted intervention is the claim that settlement conferences between the plaintiffs and defendants amounted to ex parte communications because… something something. Supposedly the claim that the captioned plaintiffs weren’t present despite counsel representing their interests as class members and the fact that they’d never even attempted to participate? It’s the sort of argument you’d expect from someone who’d never heard of a class action before as opposed to someone who does that work every day.
Or every other 1,939th day.
Finally, as has consistently been the case throughout the litigation, the Hall Objectors (like the many other objectors who may have different priorities from Mr. Bednarz and the Hall Objectors) have a remedy available to them. They, of course, do not need to have bone scans taken to participate in the settlement, and they do not have to participate in the settlement at all if they so choose. Like any member of a putative and as-yet uncertified class, they retain the freedom to opt out of the class altogether and prove up their claims on their own terms. In doing so, they can attempt to negotiate settlements as they see fit with the various defendants. Consequently, the public interest that Mr. Bednarz imagines throughout his brief simply rings hollow.
Almost as if it’s not really about the remedy as much as it’s about launching constant broadsides against litigation in the public interest in an effort to get in front of sympathetic if-not-ABA-qualified circuit judges installed in the last administration.
Hmmmmmm.
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.