Thursday, April 09, 2015

Bayou Corne - Comment Bump, Thursday, April 9 2015 - The same old song and dance

Kevin has left a new comment on your post "DHECC - Comment Bump, April 7, 2015 - Another snap...": 

Me, a non-lawyer, non-attorney, attended the first part of the "hearing" today where the 15 or so class members in the courtroom were allowed the opportunity to express their concerns, as best they could, to the court and the 20+ lawyers. I believe only 9 class members actually spoke on the record.

My personal, non-lawyer, lay person observations and personal opinions:

The judge started everything off with a prepared summary of high points of the litigation and settlement. His voice seemed shaky and strained at times, like his throat was closing. He seemed nervous. 

Too much to cover here - the transcript will be worth the price.

He said, since the article ran in the Louisiana Record, his office received numerous telephone calls from class members who said they would have objected to the attorney fee motion had they been given notice that it was filed. The judge said the original notice of the settlement and fairness hearing had some language in there about how the attorneys were going to eventually ask for 25% of the fund to cover fees. This notice, given some 8 or 9 months before the actual filing of the actual motion for attorney fees, was considered by the court to be adequate. The judge reminded everyone, especially the 9 vocal opponents, that nobody filed objections before the deadline in June or July of last year. 

The judge made a point of saying that the court, the special master and the lawyers followed the law in this matter, specifically class action law. Personally, I, a non-lawyer, disagree with that statement and would ask the court if it and the special master looked at Rule 23(h) and the recent caselaw on when notice of the filing of the actual fee motion must be given to the class members. How can people file objections to fee awards and expense reimbursements when they haven't seen any legal or factual argument supporting the award of those fees, and when they haven't seen any evidence to support the number of hours being billed and the legitimacy of the expenses being claimed? The cart was put before the horse!

The judge also sang the praises of Shelby Easterly and cited from Easterly's CV several class action cases where he had served as a special master or deputy special master or expert. I lost count of how many were cases where Calvin Fayard was also class counsel.

There was a moment when the judge was having trouble finding some specific language in the notice sent to the class members last year. One of the class members in the back row said "... and he expects us to understand that shit!"

1 issue raised by the class members was the fact that appraisals were performed for their property, yet they were never allowed to see or have copies of the appraisals until after the fairness hearing. One class member said he had to secretly take pics of his appraisal with his phone or I-Pad when his class counsel attorney came to his home to convince him why he should take the settlement and not opt out of the class. This class member said he found the appraisal failed to include all of his property - about $100k worth.

There was an objection by this same class member and others about the fact the class counsel contracted for the appraisals, but did not allow the class members to see the appraisals until after the fairness hearing. One said the majority of the class was forced to settle without ever receiving a copy of their appraisals.

They said they were misled by class counsel who gave them private settlement numbers before they ever received an offer from the special master, and long after the deadline to opt out of the settlement. When the special master sent their offers, some were as much as 50% less than what class counsel told them they would receive without any problem.

They said they were told by their counsel (class counsel) they could not object to the court about their allocation. They had to object to Easterly. They were told that Easterly may cut their settlement offers to zero if they went forward with objections.

They said they felt they were manipulated into not opting out of the settlement by the larger, unofficial figures given them by the lawyers. They were told that the settlement would go away if too many people opted out.

The class members also complained that they didn't know there was an "opt-out reserve" where part of the $48.1 million settlement was put aside in a separate account to try to settle with those people who did opt out of the settlement. 

For the majority of the 9 who openly expressed their concerns, the judge read aloud the amounts they received from the settlement for their property, subsistence while evacuated, etc. This definitely had the effect of pissing off other class members when they heard the amounts other had received. I personally think it also deterred others from saying their piece.

After the class members had their say, the judge sent them and class counsel across the hall to another courtroom to "vent" and try to work some of this out.

I left.


Anonymous said...

Calvin Fayard is on so many PSC/Class Counsels such as the Galveston Oil Spill, BP, this one here and others that one must wonder how many hours are in his day, 24 would not be enough. The pattern of poor notice, exaggerated settlement amounts vs. reality, and complete lack of transparency seems to be widespread. I expect that there will be plenty of objections filed against the BP Class Counsel fees. Too many good attorneys are watching and very pissed about the game being played. The PSC game of hide the ball and collect $600,000,000 as long as you fight to PRESERVE a horrible Class Settlement that looks as though BP drafted it w/o input from any Plaintiff's attorneys!

Kevin said...

The PSC has already taken the position that they aren't sure class members even have standing to object to their fees since the fees are being paid by BP; are not going to affect the amount any claimant receives; and, anyway, why should a class member care what they get paid since BP is paying the bill. I had correspondence with Stephen Herman on that very issue last year.

Ask Philadelphia attorney Arnold Levin how many hours are in Fayard and others' day. He sued Fayard and others over that and many other questionable billing practices.

There's a lot of proof out there. You just have to get the judges to unseal the critical time and expense records they always seal after a motion to seal is filed by class counsel.

Ashton O'Dwyer said...

Yeah! I wondered about that, too. So, who's going to challenge Fayard's claim to his piece of the pie? Some plaintiffs' lawyer with a "death wish"? Barbier (SPIT! GAG! VOMIT!)? Fayard is AMORAL, and he knows that I know it. In the aftermath of KATRINA, during the summer 2006, this "totally without moral compass individual" called me on the telephone and proposed that I compromise my personal integrity and allow him to approach his "close personal friend of long-standing", the "Dishonorable" Stanwood R. Duval, Jr., to consider "reconsideration", or "whatever", in connection with an already written opinion in the "Victims of KATRINA" litigation. See Record Document No. 10969 in Civil Action No. 05-4182 on the Eastern District docket. I IMMEDIATELY told him: "Calvin, THAT would be UNETHICAL!" Ashton O'Dwyer.