Ted Frank | |
|---|---|
| Born | (1968-12-14)December 14, 1968 (age 56) |
| Education | Brandeis University (BA) University of Chicago (JD) |
| Occupation | Lawyer |
| Years active | 1995–present |
Theodore Harold Frank (born December 14, 1968) is an Americanlawyer, activist, and legal writer based inWashington, D.C.[1] He is the counsel of record and petitioner inFrank v. Gaos, the first Supreme Court case to deal with the issue ofcy pres inclass action settlements; he is one of the few Supreme Court attorneys ever to argue his own case.[2] He wrote thevetting report of vice-presidential candidateSarah Palin for theJohn McCaincampaign in the2008 presidential election.[3] He founded theCenter for Class Action Fairness (CCAF) in 2009; it temporarily merged with theCompetitive Enterprise Institute in 2015,[4][5] but as of 2019 CCAF is now part of the newHamilton Lincoln Law Institute, a free-market nonprofit public-interest law firm founded by Frank and his CCAF colleagueMelissa Holyoak.[6]
TheNew York Times calls him the "leading critic of abusive class-action settlements";[7] theWall Street Journal has referred to him as "a leadingtort-reform advocate"[8] and praised his work exposing dubious practices by plaintiffs' attorneys in class actions.[9][10]
Frank graduated fromBrandeis University in 1991, and theUniversity of Chicago Law School in 1994 with aJD degree. A litigator from 1995 to 2005, and a former clerk forFrank H. Easterbrook on theSeventh Circuit Court of Appeals, Frank was a director andfellow of theLegal Center for the Public Interest at theAmerican Enterprise Institute in Washington, D.C.[11][12][13] He was an adjunct fellow atManhattan Institute's Center for Legal Policy, where he was editor of the institute's web magazine,PointofLaw.com. He was on the executive committee of theFederalist Society's Litigation Practice Group and contributed to conservative legalweblogs, and, as of 2008, was a member of theAmerican Law Institute.[14]
Frank was born in 1968. He is a grandson of journalistNelson Frank, a nephew of authorJohanna Hurwitz, and a cousin of the politics editor ofThe Atlantic Online,Garance Franke-Ruta.[15]
He graduated from theBenjamin Franklin High School inNew Orleans, then earned hisBachelor of Arts degree in economics fromBrandeis University in May 1991.[16] He wrote columns for his campus newspaper and political magazines and was a member of the student senate. He objected to a campaign to stop serving pork at the Jewish university, which was noted inThe New York Times.[17]
In 1994 Frank earned hisJuris Doctor with high honors from theUniversity of Chicago Law School.[18] At Chicago he earnedOrder of the Coif and served on thelaw review.[19] While at Chicago Law, he was a known presence onUsenet groups and researchedurban legends; he was an early contributor to theBaseball Prospectus collective through essays on the Usenet group rec.sport.baseball.[20][21] He has also been described as a contributor along withsnopes of "trolling for newbies" and also as one of the "most consistent posters of serious research".[22][23]
Afterclerking for JudgeFrank H. Easterbrook of theUnited States Court of Appeals for the Seventh Circuit, Frank entered private practice between 1995 and 2005 as alitigator onclass actiontort cases atlaw firmsKirkland & Ellis,Irell & Manella, andO’Melveny & Myers.[24] Among his earliest cases were twosudden acceleration cases, where he represented the automakers.[25]
The whole point of a class action is to generate efficiencies that wouldn't be possible in individual actions—so why are the attorneys taking a one-third contingent fee instead of a much smaller percentage?
In 2003, Frank began contributing regularly toOverlawyered, a legalweblog edited byWalter Olson that advocates tort reform; he continued there through 2010.[27]
Frank joined theAmerican Enterprise Institute in 2005 when AEI offered him a fellowship to research the effects of theClass Action Fairness Act.[25] As the director of theAEI Legal Center for the Public Interest he spoke and wrote about civil justice issues and liability.[24][28][29][30][31] Frank also sits on the executive committee of theFederalist Society's Litigation Practice Group.[32]
Frank is a leading proponent fortort reform in the United States.[8] According to Frank, he became disillusioned at class action tactics, and the willingness of judges to approve settlements he felt were poor for consumers.[25] He has strongly criticized obesity lawsuits, calling them "rent-seeking vehicles that are neither good law nor good public policy."[33]
In April 2008, several members of Congress brought up theLilly Ledbetter Fair Pay Act under Title VII, a revision of law "to state that prior acts outside the 180-day statute of limitations could be included", affecting employment financial issues.[34] Frank was against the revision, saying that wages and hiring would be reduced to counter the possibility of litigation from a hired employee.[34] The law was eventually passed in January 2009.[34]
In February 2011, Frank was part of a three-member panel atVanderbilt University inTennessee which consisted of himself,James Blumstein, who is a law professor at the university, andCharlie Ross, a former State Senator inMississippi, presenting their perspectives on how the business and people of the state would benefit from tort reform.[35] Frank and the other panelists argued that "Tennessee’s current civil justice system is both inconsistent and unsustainable" and it was argued that, based on reforms in other states, a reform in this area could result in 30,000 jobs a year or 577 jobs each week in Tennessee and significantly improve the health system.[36]
In 2006, Frank published an op-ed inThe Washington Post arguing for various tort reforms and criticizing theAssociation of Trial Lawyers of America for "show[ing] much more of an interest in benefiting trial lawyers than in fairness or justice.[37]Jon Haber, CEO of ATLA, responded in thePost, accusing Frank of proposing to destroy "the nation's civil justice system to benefit the insurance industry, drug companies and other corporate powers", of a "laughable" claim that too many lawsuits "may transform the nation into a 'banana republic'", of "find[ing] the fight for justice trivial" and making "nothing more than an attack on the Constitution of the United States".[38]The next day, Frank described Haber's op-ed as "a collection of ad hominems and insults and non sequiturs", "purport[ing] to be responding to [Frank, but] in fact responding to a fictional straw-man". He accused Haber of "dishonest change of subject: at no point does Haber defend the lawsuits I actually criticize", and ended by noting that Haber did not respond to "the most important part of my op-ed" about "trial lawyers ... trying to undo [the concept that a deal is a deal] retroactively".[39]
In aWall Street Journal opinion piece in 2007, Frank said that theDepartment of Treasury andSEC should urge the Supreme Court to reject expandedsecurities litigation liability inStoneridge v. Scientific-Atlanta.[40] CongressmenJohn Conyers, Jr. andBarney Frank criticized this op-ed in their saying that Frank's argument substituted policy considerations for the plain text of statute.[41][42] Frank rebutted the allegation on theOverlawyered weblog.[43] Also in 2007, Frank posted an article regarding tort trial lawyerArthur Alan Wolk onOverlawyered, a website he has regularly posted on since 2003 about tort reform issues, that prompted Wolk to sue Frank for defamation. The case was dismissed as barred by the one year statute of limitations.[44] On appeal, theReporters Committee for Freedom of the Press,[45] theSociety of Professional Journalists,[46] theAmerican Society of News Editors,[47] theNew York Times,[48] theWashington Post,[48] theAssociated Press,[48] and law professors and First Amendment expertsEugene Volokh[49] andGlenn Reynolds, among others, filedamicus briefs in support of the defendants saying that there was no actionable claim of libel.
Frank, who worked on theVioxx case early in his career, was called "perhaps the loudest critic of the Vioxx litigation," and debated trial lawyerMark Lanier about the issue.[50] Frank continued his criticism in a 2011 article. "A final sordid chapter in the tort litigation over Vioxx closed, as JudgeEldon Fallon divvied up $315 million to be paid to the plaintiffs' attorneys who worked on the litigation. This sum was in addition to the more than $1.2 billion already paid to such attorneys. When you add in what Merck paid to plaintiffs and for its own attorneys, the Vioxx litigation cost it more than $7 billion. Yet Merck almost certainly did not do anything wrong. Even as an unsympathetic corporate defendant, it won the vast majority of cases that went to trial, and another dozen or more that plaintiffs' attorneys dismissed on the eve of trial rather than risk the publicity of a certain loss. Even in the handful of cases that Merck lost at trial, such as the $253 million verdict in the Ernst case that generated much of the publicity that led to tens of thousands of cases being filed, Merck won reversals of most of those on appeal because the verdicts were based on conclusory junk-science expert testimony that should not have been admitted into evidence."[28] Lanier defended the settlement as fair.[50]
According to the bookGame Change: Obama and the Clintons, McCain and Palin, and the Race of a Lifetime, on the weekend beforeJohn McCain made his vice-presidential pick, McCain's advisorArthur Culvahouse asked Ted Frank to prepare a written report onSarah Palin, "Thrown together from scratch in less than forty hours, the document highlighted her vulnerabilities: "Democrats upset at McCain's anti-Obama 'celebrity' advertisements will mock Palin as an inexperienced beauty queen whose main national exposure was a photo-spread inVogue in February 2008. Even in campaigning for governor, she made a number of gaffes, and theAnchorage Daily News expressed concern that she often seemed 'unprepared or over her head' in a campaign run by a friend." The book also says that Frank worked on the vetting of SenatorJoe Lieberman.[3] The report was widely criticized;[51][52][53]GQ has cited the report as "the most infamous document in veep-vetting history."[54] InMark Halperin andJohn Heilemann's bookRace of a Lifetime: How Obama Won the White House (2011), they describe the vetting at length.[55] Frank has defended the report as "exhaustive" and covering "almost everything that would eventually dog her on the campaign trail."[54] In theHBO filmGame Change, Frank was played byBrian d'Arcy James.[54]
Operating largely on donations, the CCAF in a short period has gained a reputation as a formidable check on highly questionable practices that have gone unchallenged precisely because they are the product of collusive parties and allied judges. The advent of a committed and aggressive watchdog like CCAF is, to those familiar with these scams, like sunlight and Lysol.
In 2009, Frank founded the non-profit Center for Class Action Fairness (CCAF) to represent consumers dissatisfied with their counsel inclass actions and class action settlements.[4][5] CCAF is now part of the Hamilton Lincoln Law Institute, which Frank co-founded in late 2018.[6] It aims to expose settlement flaws, which he says often pay more to trial lawyers than to their clients.[56] His goal "is to make it more difficult and less profitable for lawyers to pursue what he considers to be abusive suits."[57][58] CCAF has won over $100 million for class members and several landmark cases.[59][60] In a securities case involvingCitigroup, Frank exposed overbilling by the plaintiffs lawyers and won $26.7 million for shareholders.[61][62] Frank won reversal of a "worthless" settlement involvingSubwayfootlong sandwiches paying class members nothing.[63]
Frank founded CCAF after his successful objection to the proposed class action settlement in theGrand Theft Auto consumer fraud case. Under the settlement, class members who had bought aGrand Theft Auto: San Andreas video game with a hidden, sexually expliciteaster egg would have received less than $30,000, while the plaintiffs' attorneys would receive $1 million in legal fees.[4][64][65][66][67][68] The court rejected the settlement on other grounds, but the case spurred Frank to devote himself to objecting to class action settlements, and he left AEI.[69][70]
CCAF has objected to settlements throughout the United States, in cases where class action lawyers receive cash payments but the plaintiff class receives only discount coupons for further products and services from the defendant company. CCAF argues in those cases that few of the coupons are ever used, so the actual payment to plaintiffs is much lower than the stated amounts.[71] In 2010, CCAF successfully objected to acoupon settlement in aCentral District of California class action alleging consumer fraud in the sale ofHonda Civic Hybrids; the settlement would have provided $2.95 million in attorneys' fees, but only coupons to the class.[1][72][73] Frank was reported to have said, "coupons are nearly worthless because so few of the intended beneficiaries will find it worthwhile to fill in all the necessary paperwork."[74] The CCAF has also been involved in the case surrounding the allegations ofemail spamming byTD Ameritrade in 2009.[75] The case brought Frank before Northern District of California Chief JudgeVaughn Walker, where he challenged the fairness of a settlement, which consisted of coupons for antivirus software. Frank "argued that the court should not award, or should at least limit, the requested $1.87 million in attorney fees."[75] Judge Walker rejected the settlement in October 2009.[76]
CCAF has been effective in challenging disclosure-only settlements, the result of litigation when twocompanies merge. Disclosure-only settlements can generate legal fees for lawyers but no money for the shareholders they represent. Frank objected to a settlement involvingWalgreens and a Swiss pharmacy chain. JudgeRichard Posner, one of the most influentialfederal judges not on theSupreme Court, said “The type of class action illustrated by this case … is no better than a racket. It must end.”[57]
Some attorneys question how much weight some of Frank's objections should be given. Brian Kabateck, a class action plaintiffs' lawyer with Kabateck Brown Kellner, says that “He has delayed otherwise good settlements for, in some cases, years.” He also questioned Frank's motivation. Frank says his motivation is to improve the system, although he admits to having advocated for these changes for a long time.[56] ButBloombergBusinessWeek reports that “substantially fewer merger lawsuits are being filed today” and attributes that to Frank and those he's encouraged.[57] CCAF does not accept payments to drop objections to settlements, although sometimes their clients will.[56] CCAF won an appeal in theUnited States Court of Appeals for the Seventh Circuit over the right of class members to challenge payments to objectors.[77] The case was remanded to the district court to allow Frank to conduct discovery into the allegedly improper payments.[78] Upon review, the district court rejected Frank's challenge to the payments, finding that "the record failed to confirm Frank's suspicions of blackmail or other wrongdoing."[78] Frank won reversal of this decision on appeal, and the Seventh Circuit ordered disgorgement.[79]
Frank is one of the notable critics of the use ofcy pres in the class action system, and testified against the practice before Congress.[80] At CCAF he won several cases restoringcy pres awards of millions of dollars to consumers and shareholders.[81][82][83]
In 2013, Frank unsuccessfully sought certiorari to a challenge to an all-cy-pres settlement involvingFacebook inMarek v. Lane; however, Chief JusticeJohn Roberts wrote separately to suggest the Court had “fundamental concerns” about the issue.[7][82]
Frank challenged a 2014cy pres settlement involving Google.[84][a] Under the proposed settlement terms, the three lawyers in the case would receive over $2 million (an hourly rate of $1000/hour) and the named plaintiffs would receive $5,000 apiece, while an additional $6 million would be given to several privacy groups ascy pres in lieu of compensation to then remaining unnamed class action members, due to the cost of administering the payout to those estimated 129 million individuals and the low amount of compensation (an estimated four cents if every class member made a claim). The privacy groups that would receive some of the money included each of the three lawyers'alma maters and several groups that Google has supported. The district court judge in the case, JudgeEdward Davila, noted "the elephant in the room is that many of them are law schools that you attended. ... I’m disappointed that the usual suspects are still usual."[85] Bloomberg News stated that Judge Davlia remarked that the lack of transparency in selecting the recipients of the money "raises a red flag" and "doesn’t pass the smell test", although it was nonetheless approved.[85]
TheNinth Circuit Court of Appeals upheld the use ofcy pres, noting that otherwise the estimated 129 million web users that could theoretically receive damages from the suit would receive "a paltry 4 cents in recovery." Frank had argued that similar settlements such asFraley v. Facebook had successfully distributed small sums to large classes through a claims process; because few class members make claims, $15 and more were easily distributed to claimants.[86]
Frank successfully sought a writ ofcertiorari at the U.S. Supreme Court. The Center for Constitutional Jurisprudence,Cato Institute,Center for Individual Rights, and Attorney General of Arizona, in a brief joined by 15 other states,[87] filedamicus curiae briefs urging the court to grantcertiorari.[86]The court grantedcertiorari on April 30, 2018.[86] Frank argued the case October 31, 2018.
In response to theChick-fil-A same-sex marriage controversy, Frank created the "Chicken Offset" website to permit gay-rights supporters to offset their purchases ofChick-fil-A with donations to charities that supported gay people.[88][89] Frank also co-hosted a benefit to protect same-sex marriage inMaryland.[90]
The general feeling is that we're not forcing them to eat pork and they shouldn't be forcing us not to eat pork.
To be fair, not all trolls are slimeballs. On some message boards, veteran posters with a mischievous bent occasionally go "newbie trolling.
The two most notorious trollers in AFU, Ted Frank andsnopes, are also two of the most consistent posters of serious research.
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