To: Molnarsettlement@tgcginc.com, JPowell@KilpatrickStockton.com
CC: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, cvergara@OMM.com
Sent: 2/26/2010 7:24:26 A.M. Central Standard Time
Subj: Complaint about Molnar v. 1-800-Flowers class action lawsuit
[Copy of this email sent by US Mail to Judge Sinanian
and also to Judge Lichtman of the Los Angeles Superior Court]
February 26, 2010
The Honorable Zaven V. Sinanian
Los Angeles Superior Court
111 North Hill Street, Los Angeles, California 90012
Re: Complaint about Molnar v. 1-800-Flowers Retail, Inc. Case Number BC382828
Dear Judge Sinanian,
Upon receipt of the class action notice, I sent an email to the Board of Directors of 1-800-Flowers, with copies to counsel, complaining about the Molnar case. The text of my email is appended below.
As my email states, I believe we have a closed legal system in which judges and lawyers are out of touch with economics, business ethics and genuine justice. As my email further states, I am availing of the upcoming 2010 elections to go outside the legal system to register my complaint about class action lawsuits such as the Molnar case. (If you are interested in what I am saying and doing, you may learn more by going to my blog and this webpage in my blog:
(In support of my contention about our closed legal system, I would further like to point out that the ABA Justice Center ostensibly solicits the participation of "involved citizens," but it has made no reply to several emails I have sent to it asking to participate in its activities as an "involved citizen." See this link in my blog: http://robertshattuck.blogspot.com/2009/11/aba-justice-center-follow-up.html.)
Although I don't think judges pay attention to small class action objectors, this is what I said in an objection I filed in another class action in the Los Angeles Superior Court, to wit, Papadakis v.. Northwestern Mutual Life Insurance Company, Los Angeles Superior Court Case No. BC 322788:
In exercising its discretion as to approval of the settlement and attorney fees, the court is obligated under the law to be reasonable and not to approve something that has no reasonableness.
Reasonableness is properly determined with reference to a standard based on social utility and cost benefit principles. If there is little or no social utility of the litigation or if it has disutility, attorney fees that are approved should not greatly exceed the social utility. Social utility is not subject to hard and fast quantification, and a subjective evaluation and weighing of factors and considerations is unavoidable.
The basic question is what is the social utility of this litigation and how does that compare to the cost of the litigation in terms of legal fees of all the plaintiffs' and defense attorneys and the time burden on non-attorneys, such as defendant's employees, who are called on to participate in the litigation.
It is contended that this litigation has little or no social utility and, in fact, has a significant component of negative disutility.
First, this litigation does not promote an objective of the law to lessen corporate wrongdoing, and this litigation is in fact is counterproductive to that end and it undermines the fostering and inculcation of ethical business conduct. Extensive argumentation in support of this contention is set out in Exhibit A hereto, entitled "Does the Law Undermine Business Ethics?"
Further this litigation is very questionable in serving the social utility of "doing justice." The main reason it is questionable is that it is likely there has been insufficient attention paid to the extent to which this litigation is 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 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 wrongdoing, the case 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 below objectors have been in the plaintiff class in several class action lawsuits in which there has been wrongdoing or alleged wrongdoing and in which the litigation resulted mainly in transfers by and among innocent parties in interest who were not culpable of any wrongdoing and in which little or no attention was paid to which of the innocent parties were unjustly enriched, the amount of their respective unjust enrichments, and whether there was any correlation between the amount required to be borne by an innocent party in interest and the amount by which the party was unjustly enriched. These class action lawsuits had no or negative social utility on balance and various objections were made to them. Because these objections are illustrative about the lack of social utility, and may serve as enlightenment about the lack of social utility of this litigation, these objections relative to these other class action lawsuits are appended below as Exhibit B (a credit card currency conversion fee class action lawsuit), Exhibit C (a Charter cable TV internal wire maintenance fee), Exhibit D (a Xerox securities class action), and Exhibit E (Middlesex County Retirement System) and also as Exhibit F an analysis of a Tyco securities class action for which there was not status as a member of the plaintiff class and as Exhibit G an analysis of certain Enron litigation for which there was not status as a member of the plaintiff class .If the social utility of this litigation is to be evaluated and judged under the foregoing criteria of (i) does it tend to lessen or tend to promote corporate wrongdoing, and (ii) to what extent does it serve justice by having innocent parties in interest who have been unjustly enriched to pay over their unjust enrichment, it is probably the case that more factual development is needed as to clause (ii). Defendant's counsel would be an appropriate attorney to do that factual development.Absent such further factual development showing that more plaintiffs' fees are warranted based on social utility, we contend that the social utility of this litigation does not warrant plaintiffs attorneys fees in excess of $1,000,000.
In the Papadakis case, Judge Lichtman approved plaintiffs' attorneys fees of $27,785,214 and expenses of $4,119,039. http://www.nmclass.com/pdf.
In my view, fee approvals such as in the Papadakis case exhibit a mindlessness of looking at precedents for class action attorneys fees (which were themselves mindless) without any critical thinking about social utility as articulated above.
If judges decline to think critically about social utility and do not take social utility into account in approving attorneys fees, that encourages more dysfunctional class action litigation (as opposed to discouraging the same by reducing attorneys fees that are approved to reflect social utility), and it warrants citizens going outside the legal system to try to correct the matter.
In December of last year I sent emails to announced candidates for the U.S. House of Representatives and the Senate reading as follows:
With all due respect, Your Honor, I believe you will base your approval of attorneys fees on mindless precedent and will not engage in social utility analysis. Thus, I hope you will respect my decision to try to publicize this matter to candidates and to the voters in the 2010 elections.
(Perhaps I am too negative in my views about judges being oblivious to social utility considerations. I would refer you to recent actions of Judge Phillips of the Central District of California, Eastern Divison, in a "coupon" class action case involving Honda that is reported on here: http://centerforclassactionfairness.blogspot.com/2010/02/victory-in-honda-case.html .)
3812 Spring Valley Circle
Birmingham, AL 35223
[email sent to Board of Directors of 1-800-Flowers]
To: firstname.lastname@example.org, email@example.com
CC: Molnarsettlement@tgcginc.com, JPowell@KilpatrickStockton.com
Sent: 1/21/2010 7:02:21 A.M. Central Standard Time
Subj: To Board of Directors: Complaint about Molnar class action lawsuit
Ladies and Gentlemen:
I have received notice of the Molnar class action lawsuit and settlement (http://www.molnarsettlement.com/).
I believe that plaintiffs lawyers and many of their class action lawsuits (such as this one) impede our nation's economic recovery and impair business ethics.
Based on my personal experience arising from receiving class action notices (see, e.g.Papadakis v. Northwestern Mutual Life ), I believe this is a closed legal system in which the judges and the lawyers are out of touch with economics, business ethics and genuine justice.
As a result, I am availing of the upcoming 2010 elections to go outside the legal system to register my complaint about what goes on, which you may learn about here in a blog of mine. I hope to hold up the Molnar litigation as a case in point for criticism.
Whether I will bother filing an objection with the court in the Molnar litigation remains to be seen.
Defendant corporations and their Boards of Directors are in a far better position than Ito try to fend off the predations of the plaintiffs' lawyers. If they choose to cave because the legal system is lacking in rudimentary reasonableness and common sense, that highlights the futility of a person like myself objecting to the court.
I hope the directors will be supportive of Senatorial and Congressional candidates who take a position against plaintiffs' lawyers in the 2010 elections.