The Volokh Conspiracy

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Guest Post by Adam Schulman on KBJ's Opinion in Ross v. Lockheed Martin

"Ketanji Brown Jackson — protecting the rights of class members; U.W. Clemon — protecting the pocketbook of his plaintiffs’-side law firm"


NBC News published a letter that U.W. Clemon, a former federal judge, wrote to President Biden. Clemon urged Biden not to nominate Ketanji Brown Jackson to the Supreme Court in light of her decision in Ross v. Lockheed Martin Corp. In this case, Judge Jackson rejected a proposed class action settlement.

I am happy to share a guest post from Adam Schulman at the Hamilton Lincoln Law Institute, an expert in class-action cases. (For purposes of full disclosure, I have many connections with HLLI, and its predecessor organization, the Center for Class Action Fairness, which represented me).

Ketanji Brown Jackson — protecting the rights of class members; U.W. Clemon — protecting the pocketbook of his plaintiffs'-side law firm

District court judges face hydraulic pressure to clear their dockets by facilitating and approving the settlement of cases. But when they are presented with settlements that propose to settle the claims of thousands or millions of unconsenting class members, district court judges are supposed to shepherd the best interests of those class members. They are supposed to act, in the legal vernacular, as a "fiduciary" for those class members who are not at the bargaining table. They are not supposed to be a rubber stamp of the desires of the plaintiffs' attorneys and the defendants.

As reported by NBC, however, however, last week retired Alabama federal judge U.W. Clemon sent a letter to President Biden urging him not to nominate Judge Ketanji Brown Jackson to the Supreme Court vacancy left in the wake of Justice Breyer's retirement. In his letter Clemon effectively faults Jackson for taking her duty to absent class members too seriously when she rejected the proposed settlement in Ross v. Lockheed Martin Corp., 267 F. Supp. 3d 174 (2017). Clemon is wrong; the proposed settlement in Ross was not "designed to benefit" the employees in the case. To her credit, Jackson discharged her duty to protect class members exactly as the law requires.

Let me explain the various defects of the proposed settlement in Ross that Jackson correctly identified in her opinion denying settlement approval.

  • The proposed notice to class members did not provide any "sense of how giving particular answers on the claim form [would] likely influence the amount of a class member's recovery."
  • If class members did not complete the "extensive" claim form, they would lose their right to sue yet "would become ineligible to recover any compensation from the settlement fund."
  • There was a "gross imbalance" between the claims actually at issue in the case and the claims released under the proposed settlement. In other words, the settlement asked the employees to give up more than the law permitted.
  • Lockheed Martin would have been legally immunized from misconduct that occurred after the class members were given a chance to exit the settlement.
  • The proposed class was not cohesive because the discrimination, if any, against the employees was individualized and differed person to person.
  • The settling parties had not fully evaluated the class members' claims; indeed, they wanted to settle within a few months of filing suit.

Each of these legal conclusions is nigh indisputable under the operative law. Of course, Ross is just a sample size of one case and one settlement, but it portends well for Judge Jackson's view of the rule of law. For it is far too common for district court judges to succumb to the wishes of the settling parties against the best interests of class members whose claims are actually at stake. My organization, the Hamilton Lincoln Law Institute and its Center for Class Action Fairness, have been fighting similar abuses for years.

Conversely, retired Judge Clemon's letter makes one wonder whether class members whose claims were discharged in his court received the due consideration that they were owed. However cynical, it is more likely Clemon's objection is simply sour grapes, because he himself is counsel at the plaintiff-side firm who was lead counsel in Ross and negotiated the very settlement was denied approval by Judge Jackson. He joined there six months before Judge Jackson rejected their flawed settlement.  Clemon's letter to Biden neglects to mention that small detail—the decision Clemon bemoans just so happened to cost his firm more than $6 million.

I find it very problematic that Clemon did not disclose that his firm was on the losing end of Jackson's ruling. There is a blatant conflict of interest here. But this episode does show that the knives are out for Jackson, the presumptive front-runner. The next few weeks will get ugly.