Who could argue against the laudable goal of racial and
gender diversity in class-action litigation? Ted Frank, that's
who.
The class-action gadfly from the Center for Class Action
Fairness has filed a brief at the U.S. Court of Appeals for the Second Circuit that challenges U.S. District Judge Harold Baer
Jr.'s approval of the settlement of an antitrust class action against the satellite-radio giant Sirius. Frank's brief
outlines the many, many ways in which he believes Baer erred in
approving the deal, which Frank contends is worth nothing to
Sirius subscribers. Most of his arguments are familiar
objections to a settlement that doesn't confer a cash payout to
class members.
But the last of Frank's points is provocative indeed. He
argued that when Baer appointed class counsel, he violated the
U.S. Constitution by ordering the law firms to include minority
and female lawyers on their litigation teams. Baer's imposition
of quotas, Frank asserted, is inconsistent with U.S. Supreme
Court precedent on racial preferences -- not to mention an
improper manipulation of the class's representation.
"The interests of the class are to obtain the best result
possible at the lowest cost in attorneys' fees," the brief
said. "The fact that class counsel must comply with quotas and
choose case staffing based on race or gender infringes on their
duty to the class by impermissibly altering their legal
obligation under class action law and may interfere with their
ability to provide the best representation for the class."
Baer has been calling on class counsel to include minority
and women lawyers on their teams since 2007, when he included
that requirement in the order appointing firms to represent a
class suing JPMorgan Chase. Frank said in an interview Friday
that the judge's order may be a violation of the Due Process
and Equal Protection clauses, just as excluding jurors from a
trial on the basis of their race is unconstitutional. "We have
lots of precedent that the judicial system is supposed to be
above this," he said. "It's counter to what America stands
for."
Frank said he understands the "certain sensitivities" in
challenging a judge for encouraging diversity, and is risking
"ad hominem attacks" for taking this stand. But he said his
client, whose wife and child are Hispanic, "understands the
importance of a government that is race neutral."
The Center for Individual Rights will be filing an amicus
brief at the Second Circuit backing Frank's assertion that
Baer's order is unconstitutional, according to general counsel
Michael Rosman. "The court has asked class counsel to make sure
that lawyers assigned to the case reflect race and gender
metrics," Rosman said. "That a part of the U.S. government
instructing private entities to use race in a decision process.
... Judge Baer has no good reason for that, or if he does, he
has not specified that reason."
But class counsel James Sabella of Grant & Eisenhofer said
that Frank's argument is fatally flawed: Lawyers for the class
would have been a diverse group regardless of Baer's
instruction. "Judge Baer didn't order anybody to do anything,"
Sabella said. "The firms involved in this case have diverse
workforces. ... The fact is, we had a lot of women on the team
because we have a lot of women lawyers." Sabella called Frank's
constitutional challenge "bizarre to raise on appeal."
Sabella explained that because Baer's call for diversity
had no impact on the way the case was litigated or the fees
class counsel were awarded, it would be perverse to overturn
the agreement on those grounds. "What would [Frank] want --
that we redo the case except this time we staff it with all
white men?" Sabella said. "[Frank] has a very conservative
political agenda. This appeal reveals more about his agenda
than about the case."
I left a message with Sirius counsel Brian Grube of Jones
Day but didn't get a response. I also called Baer's chambers
but didn't hear back from the judge. Frank previously
challenged Baer's diversity order in the lower court, but Baer
did not address the point when he approved the Sirius
settlement over objections by Frank and several other class
members.
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
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