The Lawyer Whose Clients Didn’t Exist(theatlantic.com)
theatlantic.com
The Lawyer Whose Clients Didn’t Exist
https://www.theatlantic.com/magazine/archive/2020/05/bp-oil-spill-shrimpers-settlement/609082/
29 comments
The story doesn't really paint any of these people in a good light. The real question in my opinion, which the article does a poor job of addressing is at what point, could Watt have dropped people from the suit without compromising their ability to later file suit. It outlines that he basically knows the 40,000 number is bunk from very close to the beginning, but it's certainly hard to imagine there were no mechanisms from which he could have cut people out. Certainly seems from here like Watt pushed on in hopes he could get the money and figure out the rest later, knowing he could throw the people who sourced the clients under the bus if anything went left.
Can someone tl;dr?
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(But I'm still taking a look. The premise is wonderful, including that there is a Firefox version, which should be obvious but apparently isn't to many. )
I haven't read/grokked the whole thing, but here's a very brief. Class action suit against BP got complicated because the folks who were tasked with finding clients only gathered names of local shrimpers -- not enough to even find those folks again, much less prove damages.
And, in many cases, it appears that those folks also gathered names which were either made up or didn't belong to people who were affected. (Some examples in the article included "victims" who were dead, working abroad, and family pets.) A major question in the resulting lawsuit was whether the liability for these errors fell upon the people collecting names, or on the law firm for ignoring the problem after they recognized it.
[deleted]
Expect some loss with this compression...
In the wake of the Deepwater Horizon spill, a high-powered class-action attorney hires a team of field agents to recruit disenfranchised gulf fisherman as litigants.
The field agents established a network of local recruiters to outsource clientele acquisition. Said agents bumble the solicitation of clients/fisherman, accepting fraudulent documentation from per-head subcontractors ($10 to $50 per litigant found).
So, high-powered attorney receives documentation for tens of thousands of fisherman clientele to support his class action.... But, they don't exist. Realizing this, he pursues the case anyway since abandonment disadvantages the small fraction of clientele that are legitimate (in that they are unable to litigate against B.P. in the future).
High-powered attorney wins the class action, ensuring to stipulate that no recourse can be had in the event that the clientele are found to be non-existent (the known case).
The U.S. government drags high-powered attorney and recruiting staff into criminal court. He defends himself and establishes a defense claiming himself to be a victim of his field agents.
Field agents are sentenced to many years in prison and high-powered attorney is found not guilty by a jury of his peers.
You may need a TL;DR for this TL;DR.
In the wake of the Deepwater Horizon spill, a high-powered class-action attorney hires a team of field agents to recruit disenfranchised gulf fisherman as litigants.
The field agents established a network of local recruiters to outsource clientele acquisition. Said agents bumble the solicitation of clients/fisherman, accepting fraudulent documentation from per-head subcontractors ($10 to $50 per litigant found).
So, high-powered attorney receives documentation for tens of thousands of fisherman clientele to support his class action.... But, they don't exist. Realizing this, he pursues the case anyway since abandonment disadvantages the small fraction of clientele that are legitimate (in that they are unable to litigate against B.P. in the future).
High-powered attorney wins the class action, ensuring to stipulate that no recourse can be had in the event that the clientele are found to be non-existent (the known case).
The U.S. government drags high-powered attorney and recruiting staff into criminal court. He defends himself and establishes a defense claiming himself to be a victim of his field agents.
Field agents are sentenced to many years in prison and high-powered attorney is found not guilty by a jury of his peers.
You may need a TL;DR for this TL;DR.
Wow, this is why lawyers have a terrible reputation. Profiting handsomely while coconspirators rot in jail.
Maybe the article is painting him in this light but what other choice did he have? If he dropped the suit then all the legitimate people wouldn't have any recourse. The people who messed up were the field agents.
He could have properly investigated the identity of the claimants at any time. More like he didn't want to know.
The choice of not breaking the law in collecting names in the first place, of not knowingly going ahead with a case he knew was bogus.
His work was a scam from the start, he had the choice to stop or come clean at every point of the way.
He’s supposed to ensure the people represented exist. That responsibility shouldn’t go away because he paid some poor runners 10$ to write down the names.
Imagine a rule of law where that was a legitimate escape from consequences. I could sue your boss in your name for some made up bogus claim, and when you come out saying: “wtf, I never had any say in this!?” I could walk away clean with a “oh yea, that’s true and I knew that was the case from early on, but I paid this hobo 2$ to write down your name, and I had to carry on, just in case you’d want to actually bring the suit anyway”, while pocketing my cut of the case costs.
His work was a scam from the start, he had the choice to stop or come clean at every point of the way.
He’s supposed to ensure the people represented exist. That responsibility shouldn’t go away because he paid some poor runners 10$ to write down the names.
Imagine a rule of law where that was a legitimate escape from consequences. I could sue your boss in your name for some made up bogus claim, and when you come out saying: “wtf, I never had any say in this!?” I could walk away clean with a “oh yea, that’s true and I knew that was the case from early on, but I paid this hobo 2$ to write down your name, and I had to carry on, just in case you’d want to actually bring the suit anyway”, while pocketing my cut of the case costs.
> The people who messed up were the field agents.
I'm basing this on your TL;DR, but not only did he know (no way to get rid of the fakes?), it also sounds a little bit like he gave them some winks along the lines of "whatever if they're not real, just bring me claimants".
I'm basing this on your TL;DR, but not only did he know (no way to get rid of the fakes?), it also sounds a little bit like he gave them some winks along the lines of "whatever if they're not real, just bring me claimants".
You'd be surprised. In law enforcement we'd get served with the craziest stuff from criminal targets that were attorneys. They'd literally try to bluff us into believing that whatever statute, evidence, or investigative methods relevant to the case were futile and would end up costing the agency millions in damages awards. In a case like the one in this article, if you can bluff a jury, you're golden. You could literally shoot someone in the public square and get away with it if you convince the jury it was reasonable.
[deleted]
“Realizing this, he pursues the case anyway since abandonment disadvantages the small fraction of clientele that are legitimate“
Let’s not attribute to well intentions what can accurately be attributed to entirely selfish monetary reasons. He pushed on because doing so meant he didn’t loose millions of dollars invested, and would net him millions as well as recognition and power. At no point did he give a damn about the numbers being fake or the people involved. The fact that he had someone to throw under the bus let him comfortably continue the scam. That seems extremely obvious.
The only reason the repercussions of people being pulled off the list is mentioned is because it would open up him to suits from the affected people because he knowingly included them without their knowledge in the first place.
Let’s not attribute to well intentions what can accurately be attributed to entirely selfish monetary reasons. He pushed on because doing so meant he didn’t loose millions of dollars invested, and would net him millions as well as recognition and power. At no point did he give a damn about the numbers being fake or the people involved. The fact that he had someone to throw under the bus let him comfortably continue the scam. That seems extremely obvious.
The only reason the repercussions of people being pulled off the list is mentioned is because it would open up him to suits from the affected people because he knowingly included them without their knowledge in the first place.
This is almost exactly the plot of a John Grisham novel - https://en.wikipedia.org/wiki/The_Rooster_Bar
That's an excellent TL; DR. Thank you!
Wow. This actually inspired me to read the story, because that's crazy.
There is no need for these class action cases.
Where there is a legitimate class of injured plaintiffs, treat them under the worker's comp statutes.
Worker's compensation only applies to employees. Shrimp fishermen are not employees of BP; opiate addicts are not employees of Purdue Pharma; passengers are not employees of cruise lines, and so on.
Besides, worker's compensation isn't geared to handle large classes of plaintiffs either! The entire point of the mass tort / class action system is that it's a way of handling a large group of plaintiffs in a single case. Worker's compensation works with one plaintiff at a time, which means that a large group of plaintiffs (like the 40,000 alleged here) would completely overwhelm the courts.
Besides, worker's compensation isn't geared to handle large classes of plaintiffs either! The entire point of the mass tort / class action system is that it's a way of handling a large group of plaintiffs in a single case. Worker's compensation works with one plaintiff at a time, which means that a large group of plaintiffs (like the 40,000 alleged here) would completely overwhelm the courts.
How would you get the appropriate party (here, BP) to pay for the damages that they caused? Under this theory, only the employers of injured employees would foot the bill.
Class actions are cheap and efficient, especially where the alternative is thousands of individual cases.
Perhaps it would be a good idea to read the article before commenting like that.
Near the end it has this gem: "...Yale Law School professor emeritus Peter Schuck, the author of Agent Orange on Trial: Mass Toxic Disasters in the Courts. While they can empower the so-called little guy to go after corporate wrongdoers, mass torts are vulnerable to exploitation and manipulation, he argues. Even when everything’s on the up-and-up, they’re “an extremely inefficient way of compensating victims,” Schuck told me. They take a long time to litigate, have high transaction costs (up to 40 percent of the total outlay, according to Schuck), and can lead to unpredictable rewards."
So given the law professor calls class actions (mass torts) inefficient with high transaction costs, what is the opinion "Class actions are cheap and efficient..." based on?
Near the end it has this gem: "...Yale Law School professor emeritus Peter Schuck, the author of Agent Orange on Trial: Mass Toxic Disasters in the Courts. While they can empower the so-called little guy to go after corporate wrongdoers, mass torts are vulnerable to exploitation and manipulation, he argues. Even when everything’s on the up-and-up, they’re “an extremely inefficient way of compensating victims,” Schuck told me. They take a long time to litigate, have high transaction costs (up to 40 percent of the total outlay, according to Schuck), and can lead to unpredictable rewards."
So given the law professor calls class actions (mass torts) inefficient with high transaction costs, what is the opinion "Class actions are cheap and efficient..." based on?
Personal experience as a class action litigant and as a lawyer in a class action on both sides.
I don't know why one legal professor's book about a class action by an entire nation involving a weapon of war is relevant to a discussion of wholly civil class actions.
Of course a class action is inefficient for addressing the injuries of war; that should be addressed by diplomacy.
I don't know why one legal professor's book about a class action by an entire nation involving a weapon of war is relevant to a discussion of wholly civil class actions.
Of course a class action is inefficient for addressing the injuries of war; that should be addressed by diplomacy.
Efficiency is not the purpose of the courts, and especially not of tort law. If we were to make anything about the courts less capricious, I wouldn't start with one of the only tools we have for controlling the evil deeds of corporations.
Don’t these criticisms apply equally (if not more) to the alternative of thousands of individual suits?
They do. That one book is really about one country trying to sue another country for the use of military weapons against enemy combatants that knowingly and deliberately used civilian populations as human shields.
They should be suing their own government.
They should be suing their own government.
There are other options. This is a place where the state has the opportunity to justify its existence