Monday, August 31, 2009

Second email to Judge Benton

From: RDShatt
Sent: 8/31/2009 8:16:55 A.M. Central Daylight Time

Dear Judge Benton,

I would like to expand on my email that I sent you over the weekend.

I have two contentions that I think are deserving of more attention than they have heretofore received. The two contentions have a connection to each other I believe.

First is the one I indicated in the prior email, to wit, I contend that class action litigation such as this case does not promote an objective of the law to lessen corporate wrongdoing, and such litigation is in fact counterproductive to that end and it undermines the fostering and inculcation of ethical business conduct. My argumentation to this effect is set out at length in the previously cited article of mine: Does the Law Undermine Business Ethics?

Second, I contend that this litigation is very questionable in serving the social utility of "doing justice." The main reason it is questionable is that I believe insufficient attention is paid to the extent to which this litigation at bottom is only about making transfers of amounts by and among parties in interest who are not culpable of any wrongdoing. It is possible there has been wrongdoing by corporate officers and employees or other individuals, and as a result some innocent parties have received a benefit from the wrongdoing and other innocent parties have had a loss or cost imposed on them. Whether or not there has been such wrongdoing, the case against the corporation should be considered as an unjust enrichment case, and nothing more. The facts and circumstances of all the persons who have been unjustly enriched and at whose expense they have been unjustly enriched are likely highly variable and somewhat indeterminate, and it is likely there has not been adequate investigation, or opportunity for argument, as to persons who are contended to have been unjustly enriched, the particular facts about whether or not he was unjustly enriched or, if he was unjustly enriched, about whether more is being taken from him in the litigation than the amount by which he was unjustly enriched.

The reason I believe insufficient attention is paid to viewing the case as being nothing more than an unjust enrichment case is a certain blindness that has arisen in the law because the plaintiffs' lawyers get their riches by and large out of the pockets of parties in interest who are innocent of wrongdoing. In order to do that, they want to bang the drum of corporate wrongdoing and do not want any reasonable and thoughtful consideration of factors such as who the wrongdoing individuals are, how much those individuals benefited from their wrongdoing, how much they being called on or not called on to compensate harmed parties, and to what extent is it fair and just in the situation to have innocent parties in interest pay for an alleged loss.Having stated the foregoing reason of the explanation for my second contention,

I think you will readily discern its connection to my first contention.

I hope you will reflect on my two contentions. If you think they have merit and they persuade you that litigation such as this class action has less social utility and does less to serve the ends of justice than you previously thought, I hope you will signify that by reducing the amount of attorneys fees you would otherwise approve.

Thank you for your attention.

Robert Shattuck

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