Ted Frank | |
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Born | December 14, 1968 |
Education | BA, Brandeis University; JD, University of Chicago |
Occupation | Lawyer |
Years active | 1995-present |
Theodore H. Frank (born December 14, 1968) is an American lawyer, legal writer and blogger, based in Washington, D.C..[1] He is the founder and president of the Center for Class Action Fairness (CCAF), established in 2009.[2][3] Particularly active in protecting consumers from their own class action lawyers, in product liability, and in civil procedure, the Wall Street Journal has referred to him as "a leading tort-reform advocate."[4]
Frank graduated from the Brandeis University in 1991 and the University of Chicago Law School in 1994 with a Juris Doctor. A litigator from 1995 to 2005 and former clerk for Frank H. Easterbrook on the Seventh Circuit Court of Appeals, Frank is also a former director and fellow of the Legal Center for the Public Interest at the American Enterprise Institute in Washington D.C.[5][6][7] As of 2011 he is an adjunct fellow at Manhattan Institute’s Center for Legal Policy, where he is also editor of the Institute's web magazine, PointofLaw.com. He is also on the Executive Committee of the Federalist Society's Litigation Practice Group and contributes regularly to conservative legal weblogs, and as of 2008, he is a member of the American Law Institute.[8]
Frank has been outspoken on and has written on issues such as product liability, tobacco litigation, asbestos litigation, medical malpractice, pharmaceuticals, and Hurricane Katrina, among other topics. He has written for several publications, including the Wall Street Journal and the Washington Post, as well as law reviews, and has appeared on news networks, including National Public Radio, the BBC, and Fox News. According to the book Game Change: Obama and the Clintons, McCain and Palin, and the Race of a Lifetime, Frank wrote the vetting report for vice-presidential candidate Sarah Palin for the John McCain campaign in the 2008 presidential election.[9]
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Frank was born in 1968. He is the nephew of Johanna Hurwitz and a cousin of Washington Post reporter Garance Franke-Ruta.[10]
He graduated from the Benjamin Franklin High School in New Orleans, then earned his Bachelor of Arts degree in Economics from Brandeis University in May 1991.[11] 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 in The New York Times.[12] He said, "The general feeling is that we're not forcing them to eat pork and they shouldn't be forcing us not to eat pork."[12] In 1994 Frank earned his Juris Doctor with high honors from the University of Chicago Law School.[13] At Chicago he earned Order of the Coif and served on the law review.[14] While at Chicago Law, he was a known presence on Usenet groups and researched urban legends; he was an early contributor to the Baseball Prospectus collective through essays on the Usenet group rec.sport.baseball.[15][16] He has also been described as one of the most notorious contributors along with snopes to an activity then known as "trolling for newbies" (the term "trolling" was not negative in connotation).[17][18]
After clerking for Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit, Frank entered private practice between 1995 and 2005 as a litigator on class action tort cases at law firms Kirkland & Ellis, Irell & Manella, and O’Melveny & Myers.[19] Among his earliest cases were two sudden acceleration cases, where he represented the automakers.[20] As part of his practice, Frank defended a lawsuit filed by the American Civil Liberties Union (ACLU) to delay the 2003 California gubernatorial recall election, defended Vioxx liability cases, and served on defense teams for antitrust and patent cases.[19]
"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?"
Frank joined the American Enterprise Institute as a fellow in 2005, and as the director of the Legal Center for the Public Interest he spoke and wrote about civil justice issues and securities law and legal liability.[19] The AEI offered him a fellowship to research the effects of the Class Action Fairness Act.[20] Frank also sits on the Executive Committee of the Federalist Society's Litigation Practice Group.
Frank is a leading proponent for tort reform in the United States. According to Frank, he became disillusioned at class action tactics, and the willingness of judges to approve settlements he felt were poor for consumers.[20] He has strongly criticized obesity lawsuits, calling them "rent-seeking vehicles that are neither good law nor good public policy."[22]
"Class-action lawsuits are becoming so prevalent that some legal experts worry the headlong rush to certify so many cases — and the settlements that result — may compromise fundamental principles of justice and place an unsustainable burden on an already creaky court system. The most barbed criticisms are aimed at settlements that increasingly line legal pockets with millions of dollars in fees while plaintiffs make do with paltry sums or, more controversially, coupons for compensatory goods or services. In some cases, the awards would be so inconsequential to individuals that the money goes into a public trust that may never directly benefit the aggrieved plaintiffs."
In April 2008, several members of Congress brought up the Lilly 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.[24] Frank was against the revision. He said, "To the extent every employee is a potential lawsuit, that is a cost of hiring an employee. As those costs go up, employers will hire fewer employees, and charge "insurance" to the employees they do hire by reducing their wages to account for the possibility of a future lawsuit. If the misnamed "Lilly Ledbetter Fair Pay Act" passes, the vast majority of workers will be worse off, as money that would have gone to pay employees will instead go to pay attorneys."[24] The law was eventually passed in January 2009.[24] Also in 2008, Frank objected to the Hot Coffee class action settlement over the "hidden sex scenes" in the video game Grand Theft Auto: San Andreas, in part[25] on the grounds that the settlement sought $1 million for attorneys' fees while paying the class members less than $27,000.[26][27] The New York Times quoted him as saying that it was possible that the plaintiff's class action attorneys were "selling out the class for attorneys’ fees."[28] According to Kotaku, the settlement was denied by the court.[29]
In February 2011, Frank was part of a three-member panel at Vanderbilt University in Tennessee which consisted of himself, James Blumstein, who is a law professor at the university, and Charlie Ross, a former State Senator in Mississippi, presenting their perspectives on how the business and people of the state would benefit from tort reform.[30] 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.[31]
Frank's outlook on reform has drawn criticism from the CEO of the Association of Trial Lawyers of America, Jon Haber, who believes that his views on tort reform are an "attack on the Constitution of the United States".[32] Haber said about Frank, "While defending large corporations should be expected, his suggestion that consumers would benefit by limiting their access to the nation's courts is too preposterous to let go unchallenged. The claim that the civil justice system is overrun by lawsuits that may transform the nation into a "banana republic", as Frank implies without irony or facts, is just plain laughable".[32] Frank defended himself on the PointofLaw.com weblog which he regularly contributes, maintained by Olson and sponsored by the Manhattan Institute,[33] "I presume Haber doesn't support the silliest of the lawsuits I suggested, so the question isn't whether the right should be limited (since we would agree that it should), but under what circumstances it should be limited. I suggest that consumers who have suffered no injury not be permitted to sue under "consumer fraud" statutes. Haber has no response to this. At no point does Haber specifically defend the lawsuits I actually criticize."[34]
Haber was critical of Frank's criticism of victims of Hurricane Katrina for pressuring insurance companies to pay what they feel is owed under their homeowners policy.[32] Frank responded by saying, "Almost every home-owners insurance policy in the United States has a clause excluding coverage for flood damage. (A government-subsidized flood insurance program makes it uneconomic for private insurance companies to include flood insurance in homeowners' policies. Insurers thus only offer the government policy.) Every insurance holder in America benefits from these exclusions by being able to receive affordable insurance for non-flood risks, because the price of the policy reflects the level of risk incurred by the insurer. Nevertheless, trial lawyers egged on by Mississippi's state attorney general, Jim Hood seek to retroactively rewrite the policies by suing insurers to force them to pay money for a risk they did not agree to assume."[34]
Haber was also critical on Frank's views on the long drawn-out Vioxx case. He said, "Frank defends Merck, his former client, which sold an anti-inflammation drug called Vioxx, all while hiding from doctors the fact that the drug was unsafe. Even though one FDA official said Vioxx led to as many as 55,000 deaths, Frank wants to limit the right of Americans to hold liable wrong-doers like Merck."[32] Frank initially defended himself on the PointofLaw.com weblog and claimed that the "55,000" number was completely invented, and that Merck never hid anything from doctors that it knew itself.[34] In an August 2011 article published in the The Washington Examiner, he further summed up his reasons for defending Merck. "A final sordid chapter in the tort litigation over Vioxx closed, as Judge Eldon 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."[35]
In a Wall Street Journal opinion piece in 2007, Frank said that the Department of Treasury and SEC should urge the Supreme Court to reject expanded securities litigation liability in Stoneridge v. Scientific-Atlanta.[36] Congressmen John Conyers, Jr. and Barney Frank criticized this op-ed in their saying that Frank's argument substituted policy considerations for the plain text of statute.[37][38] Frank rebutted the allegation on the Overlawyered weblog.[39] Also in 2007, Frank posted an article regarding tort trial lawyer Arthur Alan Wolk on Overlawyered, 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.[40] On appeal, the Reporters Committee for Freedom of the Press,[41] the Society of Professional Journalists,[42] the American Society of News Editors,[43] the New York Times,[44] the Washington Post,[44] the Associated Press,[44] and law professors and First Amendment experts Eugene Volokh[45] and Glenn Reynolds, among others, filed amicus briefs in support of the defendants saying that there was no actionable claim of libel.
Frank has also been outspoken on several unrelated issues. In August 2007 he criticized Michael Moore, and dismissed his documentary film Sicko as "misleading numerical gloss."[46] He is also critical of Wikipedia and has written, "Wikipedia in general suffers from a severe bias; articles about controversial topics reward persistence over accuracy."[47][48]
"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 public-interest non-profit law firm Center for Class Action Fairness (CCAF) to represent consumers dissatisfied with their counsel in class actions and class action settlements.[2][3] According to The American Lawyer, as of March 2011, the CCAF had filed objections to 17 settlements, with eight objections pending in federal district courts, and had been successful on six of them.[49]
Frank, at his own expense, traveled to New York and filed a successful objection to the proposed class action settlement in the Grand Theft Auto consumer fraud case where class members who had bought a “Grand Theft Auto” computer game with a hidden, sexually explicit easter egg would have received less than $30,000, while the plaintiffs' attorneys would receive $1 million in legal fees.[2][28][50][51][52] Spurred by complaints about excessive sexual content in the game, class action attorneys sued its makers, Take Two Interactive Software. Although the software giant had received only $27,000 in claims from irate consumers, it agreed to a settlement in which the plaintiffs’ lawyers themselves would collect $1 million.[2] Frank's case succeeded and the settlement was halted.[53]
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.[54] In 2010, CCAF successfully objected to a coupon settlement in a Central District of California class action alleging consumer fraud in the sale of Honda Civic Hybrids; the settlement would have provided $2.95 million in attorneys' fees, but only coupons to the class.[1][55][56] 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."[57] The CCAF has also been involved in the case surrounding the allegations of email spamming by Ameritrade in 2009.[58] The case brought Frank before Northern District of California Chief Judge Vaughn Walker, where he challenged the fairness of a TD Ameritrade settlement, which consists 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."[58] Judge Walker rejected the Ameritrade settlement in October 2009.[59]
"In these desperate economic times, we're looking for ways to stimulate the economy. One cheap way to do so without increasing government debt is to stop making it profitable for trial lawyers to bring meritless cases that impose what is effectively a multibillion-dollar litigation tax on productive sectors of the economy. We can't litigate our way to prosperity."
In 2010, Frank and the CCAF, citing American Law Institute guidelines on cy-près, objected to Apple's settlement of a securities class action over their backdating, arguing that giving money to third parties affiliated with the class counsel instead of to the class was a breach of fiduciary duty.[60][61] Frank stated that, "The magnitude of the settlement compared to the original claims demonstrates that it is an extortionate nuisance settlement, being made because it would cost more to defend the suit than to pay the attorneys to go away."[60] In response to CCAF's objection, the parties amended the settlement by reallocating the $2.5 million originally proposed as cy-près to class members; the court awarded CCAF attorneys' fees for their role in winning $2.5 million for the class.[61][62]
In April 2011, Frank and the CCAF filed an objection to the $3.4 billion taxpayer funded Cobell Indian Trust settlement, which the federal government had agreed to in December 2009, which had established a $1.5 billion Trust Accounting and Administration Fund and a $1.9 billion Trust Land Consolidation Fund to buy fractionated land interests.[63] Under the agreed settlement, a maximum of $99.9 million had been allocated for the lawyers fees but they had demanded $223 million.[63] Acting on behalf of Kimberly Craven, a Sisseton-Wahpeton Ovate tribe member, Frank argued that the case was about pure greed, stating that it included "an ‘outrageous’ fee request that has resulted in bipartisan criticism" and that the Class Counsel were "more interested in maximizing their personal recovery than the interests of the class."[63]
In May 2011, the Center for Class Action Fairness filed a lengthy brief in Missouri, challenging a settlement which gave lawyers who sued A.G. Edwards $21 million in fees for negotiating an agreement that provided a total of $6 million for some customers and three annual coupons valued at $8.22 apiece for the rest.[64] St. Louis Judge Angela T. Quigless of the Missouri Court of Appeals rejected the case, ruling that, “In cases involving complex litigation or in the class action context, a one-third contingent fee award is not unreasonable.”[64]
In August 2011, the CCAF successfully won a case at a federal appeals court in California in which they objected to class action settlements and attorneys' fees in litigation regarding Bluetooth headsets. The original case over the headsets had been filed when lawyers had noticed news articles about potential hearing loss and headsets and filed suits on behalf of millions of Motorola and Plantronics customers.[65] The prior settlement would have effectively paid consumers nothing but given the lawyers who negotiated the pact $850,000 in fees,[66] amended by Frank and his firm.[65] Frank regards the case as a milestone in his fight to prevent abuses.[67] Frank also filed an objection to a settlement in an antitrust case against Sirius XM Radio, which provided nothing for the plaintiffs, but a 100 percent payout of $13 million for the attorneys.[67] Judge Harold Baer, Jr. ruled on 24 August that the settlement terms "demonstrate sufficient fairness, adequacy and reasonableness" and rejected Frank's claims.[68] Frank vowed to appeal, saying, "You don't like to lose, but it's a good case to take to the appellate court."[68]
In 2003, together with Walter Olson, he began contributing regularly to Overlawyered, a legal weblog that advocates tort reform. His work is found in law reviews, the Wall Street Journal, the Washington Post, The American, and National Review Online. As head of AEI's Liability Project his opinions and analysis of liability litigation have been quoted in the New York Times, BusinessWeek, The Washington Examiner, and the New York Law Journal.[35][69][70][71] Areas of interest and expertise include product liability, asbestos litigation, medical malpractice, and pharmaceuticals such as Vioxx and he has been outspoken on health issues.[72][73]
Frank has written articles in several books and journals, including work in the books by the American Bar Association, 2002 Annual Review of Antitrust Developments (2003)[74] and Market Power Handbook: Competition Law and Economic Foundations (2005).[75][76] Articles written for journals include "The Economic Interest Test and Collective Action Problems in Antitrust Tie-in Cases", written whilst at the University of Chicago (1994),[77] "A Taxonomy of Obesity Litigation" (2006),[78] "West Virginia Supreme Court Strikes Down Learned Intermediary Rule" with James M. Beck (October 2007),[79] and "Did the Right Make America a Lawsuit Nation?" in Thomas Geoghegan’s See You in Court: How the Right Made America a Lawsuit Nation, (2008).[80]
According to the book Game Change: Obama and the Clintons, McCain and Palin, and the Race of a Lifetime, on the weekend before John McCain made his vice-presidential pick, McCain's advisor Arthur Culvahouse asked Ted Frank to prepare a written report on Sarah 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 in Vogue in February 2008. Even in campaigning for governor, she made a number of gaffes, and the Anchorage 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 Senator Joe Lieberman.[9]
Frank is regularly invited to speak on class action issues and related cases in venues such as the Washington Legal Foundation, the Federalist Society of Washington, D.C. and Houston, Vanderbilt University, the University of Alberta Faculty of Law, the American Constitution Society and at the federal societies of University of Chicago Law School,[81] Florida State University College of Law, George Washington University Law School, Stetson University Law School,[82] and the University of Miami Law School. Between December 5–7, 2010, Frank was invited to speak at the 5th Annual Judicial Symposium on Civil Justice Issues.[83] He has appeared on ABC News Now, Good Morning America on ABC, The World on BBC4, Your World with Neil Cavuto on Fox News, RNN-TV News, the Politics and Money programme of Bloomberg TV and has made five appearances on C-SPAN with the AEI.[76][84][85]