Saturday, February 6, 2010

Judge Brett C. Klein Censured for Exercising Common Sense in a Class Action Suit

The California Commission on Judicial Performance censured retired Los Angeles Superior Court Judge Brett C. Klein last Tuesday and further banned him from presiding over future cases. In short, the Commission defrocked Judge Klein.

You might be wondering what His Honor did, what heinous acts he committed, to warrant the judicial death penalty.

Did the judge accept a bribe


Did he accept illegal campaign contributions?

No; remember he’s retired

Did His Honor fall asleep on the bench?

No, but a California Supreme Court Justice was not censured for nodding off on the bench during oral arguments in the late 1960's and 1970's.

Is he suffering from dementia?

His acts show too much wisdom for dementia

Has he acted injudiciously in sexually harassing someone in either his judicial or non-judicial capacity?

Not this judge

Has the judge practiced discrimination on the basis of race, sex, gender, sexual orientation, ethnicity, religion, national origin, or any other suspect classification?

If he has, it’s not in this case

Has the jurist exceeded his jurisdiction?

He’s a judge with general jurisdiction

So what did the Honorable Brett C. Klein do?

He exercised common sense.

The judge held that the attorney’s fees and payment in a class action suit should be paid in script, i.e., coupons, in multiples of $10.00, redeemable on purchases in defendant’s stores.

Defendant was accused of violating privacy laws in asking customers to show personal identification, information.

Class action suits serve a critical role in bringing justice to the less fortunate members of society and to individual claimants whose damages do not economically justify a regular law suit.

Some lawyers though abuse class action suits essentially to extort large attorneys’ fees from the defendants while delivering little benefits or justice to the victims.

Three examples illustrate these abuses. In one infamous Alabama class action settlement against the Bank of Boston, the class members received $8.76 each in a credit on their mortgages, but were assessed $91 each to cover the attorneys’ fees.

That reeks of some sort of fraud.

In another case, Cheerios purchasers received a coupon for a box of Cheerios, but the attorneys reaped $1.75 million in fees.

And then comes the classic Ford Explorer settlement. Class action suits were brought against Ford (and Firestone) for the safety issue of Explorers with Firestone tires rolling over at high speeds. A California suit was settled with the Explorer owners receiving a coupon for $500 off a new Explorer or $300 off any other Ford vehicle.

Why would you want to purchase a new Explorer, or other Ford product, if the one you’re driving is dangerous?

That common sense question did not bother the attorneys for the claimants. They received $25 million in fees, while few of the vouchers were redeemed.

Judge Klein was presented with a proposed settlement, giving $2,500 to the named plaintiff, $10 coupons to the class members, and $125,000 to the attorney.

He changed the settlement by holding both the named plaintiff and the attorney would be paid in $10 coupons. The site of the attorney receiving a stack of $10 vouchers adding up to $125,000 would be a great Kodak moment.

Judge Klein, quoted in the LA Times, explained the settlement “could only be fair if the lawyer was paid the same way.”

What a radical, but common sense, fair approach! Pay the lawyers in kind. If they reach a meaningful settlement, then their reward should be commensurate.

His Honor’s decision could be a wonderful precedence.

Unfortunately, the judge has been soundly rebuked for exercising sound judgment.

In addition, the reality is that the class action attorneys, as well as bankruptcy attorneys, go forum shopping for favorable jurisdictions, judges, and fees.

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