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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"

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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.

NEXT: Funny Oral Argument Moments

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  1. I am curious to see what the usual Blackman haters will say about this post. (I think it's a useful and informative contribution to the conversation about potential Supreme Court nominees.)

    1. Michael,
      Even before reading your comment; I was going to write here that this seemed like a thoughtful and even-handed post by Blackman. I don't often do this (because I, IMO, rarely have the opportunity to do so following a Blackman post), but I have been, and will continue to be, perfectly happy to applaud him when he makes non-crazy points.

      I suspect that many (most, even??) of the usual Blackman haters will voice somewhat similar sentiments in this thread.

      1. Agreed. It would be nice if VCer posts were less predictable as to political leaning than they currently are (ie if contributors weighed cause advocacy less and truth more, regardless whose ox was gored). This article seems a refreshing step in that direction.

      2. Even before reading your comment; I was going to write here that this seemed like a thoughtful and even-handed post by Blackman.

        That's because it isn't by Blackman! He's just passing along someone else's post.

    2. I think it's a useful and informative contribution to the conversation about potential Supreme Court nominees.

      I agree!

      That should have been your clue that Prof. Blackman didn't write it.

  2. “But this episode does show that the knives are out for Jackson, the presumptive front-runner.”

    How long before Michael Avenatti accuses her of having organized rape parties in high school?

    1. It’s sublimely satisfying to know that Kavanaugh is on SCOTUS for as long as he wants to be, while Avenatti‘s life and career are essentially over.

      1. Now you know, albeit fleetingly, how great it is to be on the right side of history, on the winning side of the American culture war, and secure in the knowledge that our nation will continue to improve against the wishes and efforts of our remaining clingers.

        This is how the liberal-libertarian mainstream gets to enjoy every day in modern America. Conservatives can only imagine, in their disaffectedness, how great it is.

        1. WTF are you on about?

          And, bro, “clingers”? Get a new joke. It’s pathetic at this point.

          1. In the late 19th century we had gunslingers. Artie Poo fancies himself as a cliche' slinger. Quite pathetic that he carried his schtick out from Mommy's basement even before the Bat Soup Flu.

          2. "Shut Up, Kirkland Explained".

            :-0)

  3. I don't know if Mr. Schulman reads the comments here but I'm curious if he's familiar with the class action lawsuit against SoCal Gas for that blowout in Porter Ranch, CA a few years ago.

    From what I understand they need 98% of the class members to agree to a settlement in order for it to be approved. Is that normal? If so, why wouldn't all class actions work like that?

    Does it vary by state?

    1. Mr. Moroni,
      I am unaware of the settlement you reference, but I have never seen any class action settlements operate that way. All states have pretty much the same version of class action procedure.

      Many class actions have a clause that says "if more than 2% of the class members opt out" then the settlement essentially self destructs (called a "blow out clause"). But that is different than requiring affirmative consent. The other possibility I can think of is that it was a "mass action" rather than a "class action." Mass actions require affirmative consent before the plaintiffs are bound, and sometimes there will be a global settlement that requires a certain percentage of the plaintiffs to opt-in to activate the deal. (not sure I've never seen anything like 98% threshold though)

  4. Roman,

    Press coverage shows that, while there was a pending class action in the Porter Ranch case, the settlement was of a mass action, not a class action.

    1. Okay. I don’t really know what the distinction is between the two.

      1. Okay. I don’t really know what the distinction is between the two.

        To oversimplify a bit:

        A class action is a device by which a single plaintiff or small group of plaintiffs actually represents all the other class members. The latter — called "absent" class members for literal reasons — are not directly participants in the suit, but they are bound by whatever happens in the case — win, lose, settle — unless they affirmatively choose to opt out. The representative plaintiffs make all the decisions and control the litigation. (I mean, in real life the attorneys do, but that's the theory.) The issues are litigated once.

        A mass action is a lot of individual plaintiffs, each of whom is an actual participant working together in a consolidated case. But each person's claims are independent. Each mass action participant must decide whether to accept a settlement; their fellow plaintiffs doing so does not bind them. Of course, because each participant is an individual participant, each one has to participate in discovery, produce medical records, etc. Not so, in a class action.

        Personal injury mass torts — "this drug/product caused this terrible injury" — are typically mass actions rather than class actions, because there are so many individualized considerations for each plaintiff.

        1. Thank you for the clarification.

          This is definitely a mass tort.

          In theory couldn't the company being sued demand either 98% opt in or no more than 2% opt out for a settlement to happen?

          Wouldn't a company want to avoid a bunch of individual lawsuits after they settle?

          1. As Adam explained: yes, a defendant can make an offer that's contingent on a high level of participation (whether few opt-outs, or most people opting in), for exactly the reason you describe: the point of settling a class/mass action is to buy peace.

            In the case that is the topic of this post — Ross v. Lockheed — that's clearly what happened. Lockheed said to itself, "We can settle this quickly and relatively cheaply, and buy ourselves immunity from racial discrimination suits across the board." That was one of the things that bothered KBJ: it would've required all black employees of Lockheed to surrender all racial discrimination claims, even those with nothing to do with the claim that instigated the suit.

  5. It appears "hydraulic" has joined "exponential" in the list of hijacked words that have lost their specificity and now just mean "big ass".

    1. I sympathize with this complaint.

  6. We should have appointed counsel for class action plaintiffs, to protect them from their own lawyers, like we have appointed counsel for criminal defendants to protect them from government lawyers.

    1. Do you realize that in the vast majority of cases the appointed counsel for a criminal defendant is a government lawyer?

  7. Is Ketanji Brown Jackson still a Black Woman? If so, I don't see how this ruling could possibly be relevant to her appointment to the Supreme Court.

  8. This was a very fact specific case. Even if Judge Clemon is rigbt and Judge Jackson bent a little farther in the direction of the wmployees’ interests than the law strictly required, I couldn’t imagine President Biden holding that against her.

    Moreover, I don’t think any President should make a decision about appointing a Supreme Court Justice because somebody disagrees with their rulings in a single complex, fact-specific case.

    Nobody is asserting Judge Jackson acted in any way corruptly in this matter, and this is a complex, fact-specific area of the law where judges have some discretion.

    There may be reasons to prefer someone else to Judge Jackson. There may be reasons to question Judge Jackson’s fitness. But bringing up something like this smells of desperation, of grasping at straws.

    1. This was a very fact specific case. Even if Judge Clemon is rigbt and Judge Jackson bent a little farther in the direction of the wmployees’ interests than the law strictly required, I couldn’t imagine President Biden holding that against her.

      I've read the pleadings. Jackson didn't bend the law at all. In fact, reading it, my initial thought was, "How on earth could this survive WalMart v. Dukes? This sounds like an identical theory." And, lo and behold, that's exactly what the problem was.

      Of course, holding a single district court ruling against someone would indeed be stupid, but that doesn't mean that politics can't work that way.

  9. Maybe Judge Clemon actually wants to improve Judge Jackson’s chances? I suspect the letter will have this effect.

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