May 7, 2020 / 10:17 PM / 20 days ago

Equifax judge orders disclosure of class counsel’s draft ‘opinion’

(Reuters) - U.S. District Judge Thomas Thrash of Atlanta ordered the disclosure Thursday of a controversial draft opinion written by class counsel in the Equifax data breach case. Class counsel’s draft opinion was submitted to Judge Thrash after he granted final approval to a $380.5 million settlement at the conclusion of a hearing last December but before the judge issued a 122-page decision (2020 WL 256132) in January that was harshly critical of objectors to the deal.

Judge Thrash called on class counsel from Doffermyre Shields Canfield & Knowles, DiCello Levitt Gutzler and Stueve Siegel Hanson to file the draft opinion in the Equifax docket “as soon as reasonably possible.” Class counsel did not immediately respond to an email requesting comment on the order.

Class action watchdog Ted Frank of the Hamilton Lincoln Law Institute contends that the draft opinion may show that the trial judge improperly adopted accusations by class counsel. As I’ve reported, Frank filed a motion last month at the 11th U.S. Circuit Court of Appeals, where he and other objectors are challenging approval of the Equifax settlement, calling for disclosure of the draft opinion.

Frank argued that Judge Thrash’s 122-page decision was dramatically more detailed than his oral order approving the settlement, raising the prospect that the judge simply adopted the draft submitted by class counsel. The written opinion also contained detailed criticism of Frank and other objectors that was not part of Judge Thrash’s oral decision, in which the judge merely acknowledged class counsel’s presentation on the objectors and said that, in his judgment, “most of the objections that were voiced here today did not take into consideration the best interest of the class itself.”

Frank’s motion for disclosure of the draft opinion argued that if the trial judge adopted class counsel’s draft as his own, without providing Frank an opportunity to respond to what he contends were mischaracterizations of his conduct, the approval order must be overturned by the 11th Circuit. He cited In re Colony Square (819 F.2d 272), a 1987 opinion in which the 11th Circuit said that it “strongly disapproved” of a federal bankruptcy judge signing his name to orders ghostwritten by an insurance company angling to take position of the debtor’s $100 million commercial property.

Oddly, the 11th Circuit denied Frank’s motion to supplement the appellate record on Thursday, moments before Judge Thrash ordered disclosure of the draft opinion in the trial court docket.

Frank told me he’s looking forward to seeing the draft opinion. “We hope nothing improper happened but we won’t know until we see it,” he said.

Class counsel have maintained in filings before Judge Thrash and at the 11th Circuit that neither they nor Judge Thrash did anything improper – or even out of the ordinary.

Judge Thrash asked class counsel at the conclusion of the fairness hearing to prepare a draft order memorializing his decision from the bench to approve the settlement. That’s entirely routine, class counsel said. Moreover, the record of the Equifax case leaves no doubt that Judge Thrash was thoroughly engaged in the case and independently evaluated the settlement and objections to it. The judge held a four-hour fairness hearing before granting final approval of the deal, class counsel argued. And all of the objectors, including Frank, had an opportunity at that hearing to rebut class counsel’s allegations about their records, class counsel argued. So disclosure of the draft opinion, “would benefit no one other than perhaps Frank,” they told the 11th Circuit.

Equifax’s lawyers at King & Spalding also told the 11th Circuit that there was “nothing improper” about Judge Thrash’s request for a draft order from class counsel after his approval of the settlement. Equifax took no position in the trial or appellate court on whether the draft opinion should be disclosed.

The disclosure demand by Frank and another objector has taken quite a quirky course. They first asked Judge Thrash to enter the draft opinion in the trial docket in January, after he issued his 122-page written decision. Class counsel said in response that they had no objection to putting their proposed order in the record but said Judge Thrash would be within his rights to deny Frank’s motion because “the facts clearly demonstrate that the court conducted its own analysis prior to entering the final approval order.”

Judge Thrash did not specifically rule on the motion to disclose the draft opinion in January or February. But when he issued an amended opinion in March, removing one sentence about an objector other than Frank, the judge said all other pending post-decision motions were denied. Frank then asked the 11th Circuit to weigh in.

Class counsel said it was not clear whether Judge Thrash meant to deny Frank’s disclosure motion in that amended March decision. On May 1, after they filed their 11th Circuit brief opposing disclosure, they also filed a notice before Judge Thrash in the trial court. The notice informed the trial judge of the appellate dispute over the draft opinion, asserting that Frank appeared to be seeking disclosure to bolster his theory that Judge Thrash committed an abuse of discretion. Class counsel said they wanted the trial judge to be aware of their argument to the 11th Circuit that disclosure was of no benefit to the class.

I know, this is all quite a procedural muddle, even more so because Judge Thrash and the 11th Circuit have now issued divergent orders on disclosure of the draft opinion. Class counsel informed the trial judge of the appellate court ruling in a notice filed Thursday afternoon. As of late Thursday afternoon, they had not yet complied with Judge Thrash’s order to enter the draft opinion in the trial court record.

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