Posts Tagged ‘bucket of warm spit’

If you’re like me, at least once in your life you’ve received a mailed “Notice of Proposed Class Action Settlement.” In many instances, you aren’t required to do anything to get the so-called ‘benefits’ of the class action settlement.

However, as a bar-card carrying member of the tribe, I read the notice legalese, especially the part about how much the class action lawyers are getting paid.

Let me never be one to begrudge a lawyer’s payday — so long as the plaintiffs get genuine value consistent with the lawyers’ time and risk. Unfortunately, I’ve yet to receive a notice where the proposed remedy has been worth more than John Garner’s “bucket of warm spit.”

The reality is that too often, the class actions aren’t sensible. They don’t fix real client problems. And they don’t provide meaningful value. Indeed, the only ones making out are the lawyers.

Notably, there are exceptions. For example, there’s at least one class action lawyer calling out colleagues for filing what he terms, “lawyer’s cases.”  With unvarnished candor, he declares, “Stupid class action lawsuits filed by feckless lawyers are a disgrace.” See “Why ‘Class Action Attorney Fees’ Are Such Dirty Words.”

The foot-long.

https://upload.wikimedia.org/wikipedia/commons/9/9a/Spitoon1928Women.jpgThe rules judges and lawyers follow are supposed to govern the class action system. These rules say a class action settlement may not be approved unless it’s “fair, reasonable, and adequate.” 

In view of my own spittoon kicking experiences, I was happy to hear those rules were getting enforced thanks to last Friday’s 7th Circuit Appeals Court Opinion torpedoing the class action lawyers in the case of the foot-long Subway sandwich that wasn’t. In the words of Appeals Court Judge Diane Sykes, “Because the settlement yields fees for class counsel and “zero benefits for the class,” the class should not have been certified and the settlement should not have been approved.” The lower court was reversed.

The sub squabble sprang from a 2013 Facebook post by Australian Matt Corby whose tape measure indicated his Subway sandwich fell short of a foot-long. That was enough to get the class action bar interested. Or as the Court put it, “It went viral. Class-action litigation soon followed.”

Judge Sykes added, “In their haste to file suit, however, the lawyers neglected to consider whether the claims had any merit. They did not. Early discovery established that Subway’s unbaked bread sticks are uniform, and the baked rolls rarely fall short of 12 inches.”

For claimants’ counsel, however, no matter if there hadn’t been a compensable injury. They sandwiched in another claim instead — one for injunctive relief. And so they reached a settlement approved by the lower court.

In sum, the settlement required Subway’s 4-year implementation of steps to ensure as much as practicable that its foot-longs be at least a foot-long while at the same time acknowledging that notwithstanding such steps, chances were that natural baking variability would make such uniformity unattainable.

The size of the fees.

For plaintiffs’ lawyers, though, the heart of the hoagie was the parties’ agreement to cap class counsel fees at over half a million simoleons — $525,000.00 to be exact. It wasn’t the size of the sandwich in the fight but the size of the fees in the grinder that mattered. See “Lawsuit over Subway ‘footlong’ subs was a ‘racket’ benefiting only lawyers, judge says.”

Theodore Frank, a member of the class and as director of the Competitive Enterprise Institute’s Center for Class Action Fairness, a “professional objector to hollow class action settlements,” objected to the settlement on grounds it provided no meat to class members and only fed the lawyers.

Frank has a history of objecting to settlements that only benefit the lawyers and not the class, including a case relied on by the Court, In re Walgreen Co. Stockholder Litig., 832 F.3d 718 (7th Cir. 2016).

Citing Walgreen, the Court reversed. “A class action that “seeks only worthless benefits for the class” and “yields [only] fees for class counsel” is “no better than a racket” and “should be dismissed out of hand.” Id. at 724. That’s an apt description of this case.”

In an interview Friday, Theodore Frank declared, “It’s a great win for us and it’s an important principle that lawyers can’t bring class actions just to benefit themselves. They have actual duties to class members and when they structure litigation and settlements without any benefit to the class, courts shouldn’t tolerate that.” See “7th Circuit Says ‘Utterly Worthless’ Subway Footlong Settlement Has No Meat.”

So add the Subway case to the ignoble annals of cases like the too much ice Starbucks class action; the Jimmy Johns missing sprouts class action; the no berries in the Cap’n Crunch Crunchberry complaint and the no fruit in the Froot Loops litigation. And as I wait for the first solar eclipse eyeglass class action, there’s little doubt my expectations for more of the same will be met.


Credits: Out in Aber, Boxing Day 2009, by David Jones at Flickr; Spitoon1928Women.jpg at Wikimedia Commons, public domain; Matt Corby Facebook post; Guy dressed as a Subway sandwich, 2014 04 03, by booledozer at Flickr Creative Commons Attribution; A foot long for lunch, by Gordon Flood at Flickr Creative Commons Attribution; Subway sandwiches & salads, by Chris Harrison at Flickr Creative Commons Attribution; Waiting patiently, by Quinn Dombrowski at Creative Commons Attribution.


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As lawyers are wont to do, we bloviate. Last week there was an insufferably long-winded exchange among a gaggle of them on a listserv. The emails were so prolific and the discussion so tiresome, I deleted most of them unread. It was much ado about what to include or exclude in an email disclaimer. It was wordsmithing by committee.

All lawyers have CYA disclaimers in their business emails and on their websites. That’s not news. And no, “CYA” does not mean “Call Your Attorney.”

What’s more, the concern wasn’t the further protection of a client’s confidences or of a lawyer’s ample backside.

Nor was it to safeguard against a reader’s unplanned reliance on something a lawyer publicly posted online as tantamount to legal advice given to an unintended client.

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/4/48/LordHeeHaw.png/120px-LordHeeHaw.pngNo, the tedious back-and-forth concerned if and how lawyers can protect themselves through a disclaimer when their public pronouncements are used against them in subsequent litigation — if that lawyer has taken a position inconsistent with what they previously posted. The moral it would seem is you can’t talk out of both sides of your mouth.

Email disclaimers generally.

File:1830 Persian Guard Artillery.jpgBut lest I am accused of hypocrisy about disclaimers. Let me quickly hoist myself with my own petard. I use them, too. All my law firm emails contain a disclaimer.

Everyone uses them — even though they’re paid as much mind as the warning tag on a mattress. Besides says defense lawyer Josh Camson, “Reminder: Email Disclaimers Are Annoying and Pointless.” Or as another lawyer explains, “The proliferation of predictable yada-yada at the bottom of messages means that people have long since stopped paying any attention to it.” So why all that lawyer jawboning?

Some disclaimers are longer.1 Some are shorter. But all are variations on the same redundant theme:

“This email may contain information that is privileged or confidential.  If you are not an intended recipient, please notify the sender by reply email and then delete this email without using, copying or disclosing it.  This email does not create an attorney-client relationship with you if you are not already a client of this law firm, and shall not be deemed to constitute or create a contract or to contain an electronic signature of the sender.”


“This email is not intended, nor shall it be deemed, unless otherwise expressly provided in writing, to (1) constitute or provide legal advice or counsel, unless the recipient already has an attorney-client relationship with the firm or me; (2) create an attorney-client relationship; or (3) contain my electronic, or other implied, signature. TAX ADVICE DISCLAIMER: To the extent that this email or any attachment contains legal advice, this written advice is not intended or written to be used, and it cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer.”

Lawyer as advocate.

But putting aside that disclaimers may or may not be worth that proverbial bucket of warm spit, in all the hand-wringing the obvious was missed. So what that lawyers take public advocacy positions for a cause or a client. Lawyers aren’t empty vessels of objectivity. Lawyers are advocates. Or so said Lord Henry Brougham, the overly quoted foil favored by the ethical pundit class.

File:Henry Peter Brougham.jpg193 years ago Lord Brougham bombastically declared, [A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to bring his country into confusion.”2

In law school, students are taught the principle of thinking like a lawyer, which means lawyers can make arguments on any side of any question. Lawyer jokes3 aside, this doesn’t necessarily make us duplicitous.

In order to be advocates, we follow in the steps of the ancient Greek philosophers like Protagoras who taught his students to argue from both points of view — because truth cannot be limited to just one side of the argument.

Then again, maybe I missed the whole point of that lawyer listserv anxiety. Perhaps wordy disclaimers and the attendant discussion were meant to achieve what Elayne Boosler secured, “I have six locks on my door all in a row. When I go out, I lock every other one. I figure no matter how long somebody stands there picking the locks, they are always locking three.”


[1] A dozen years ago, one business disclaimer achieved the singular notoriety of being the longest email disclaimer coming in at almost 1100 words. I have little doubt that a committee of lawyers had a hand in its creation.

[2] Comment to ABA Model Rule 3.1: Meritorious Claims & Contentions states, in part, Comment [1],“The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.” But see, for examples, Ethics, Zealous Advocacy, and the Criminal Defense Attorney and Lord Brougham’s Bromide: Good Lawyers as Bad Citizens, 30 Loy.L.A.L.Rev 119 (1996) Available at htt://digitalcommons.lmu.edu/llr/vol30/iss1/16

[3] How does an attorney sleep? A: First he lies on one side, then he lies on the other.


Photo Credits: “Snow Geese on the Ground,” by Alejandro Erickson at Flickr via Creative Commons-license requiring attribution; William Joyce, also known as “Lord Haw Haw”, by Norman McCabe, Warner Brothers Animation at Wikimedia Commons, public domain;”Persian 19th Century Soldiers,” 1830_Persian_Guard_Artillery.jpg at Wikimedia Commons, public domain; ChicagoCourtroomSpitoon_retouched.jpg Wikipedia Commons, public domain;Henry Peter Brougham, 1st Baron Brougham and Vaux, at Wikipedia Commons, public domain ; Don Quixote and his sidekick Sancho Panza. Quixo-panza.jpg ‎By Gustave Dore, at Wikipedia, public domain.

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