Brett Stuff
Judging the Judges
Term Year: 2018

Theodore H. Frank, et al., Petitioners v. Paloma Gaos, Individually and on behalf of all others similarly situated, et al.

Summary Analysis

DATE: 2019-03-20
DOCKET: 17-961
NAME: Theodore H. Frank, et al., Petitioners v. Paloma Gaos, Individually and on behalf of all others similarly situated, et al.

   AUTHOR: Per Curiam
   JOINING: Roberts, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh
   GOOD: No

OPINION: Dissenting
   AUTHOR: Thomas
   JOINING: None
   GOOD: Yes

Case Commentary

To my understanding, The Court (in a per curiam Decision) denied standing to the Plaintiffs; and so, did not review the underlying merits of the case.

Thomas correctly noted (these being my interpretation of his words, so who knows how far off I am) that infringement of a right is damage enough to have standing (i.e. to have a right to bring an action). And so, he is the only one who talked about the underlying case.

I'm willing to surmise no one else wanted to talk about the case or sign their name to the Per Curiam Decision, because they knew if they did, they would be wrong.

Of course, that does not explain why nobody else agreed with Thomas. I mean, I could guess. But none of my reasons would wind up being very flattering. So, I will leave it all well enough alone.

In the context of this case, cy pres means the beneficial settlement (non-lawyer and administrative fees) went to Third Party Charities and not to any defendants... unless they were the initial litigants, in which case (I am led to believe) administrative fees were awarded.

Thomas (quite rightly) observed that if Class Members only receive Third Party Charity Contributions, they have essentially received nothing. Now, that might not always be the case, but when The Class is wide enough, it is hard to imagine any group of charities would adequately represent all members of The Class. After all, even if a charity worked to supports the Effected Rights of The Class, that does not mean all members of The Class support those rights... think Gun Control, Birth Control, or similarly Contested Issues.

So, given a Non-Settlement (a Non-Beneficial Settlement), Thomas noted (or at least, this is how I read his Opinion) that not only is this defacto evidence that The Class was not Adequately Represented but that the Settlement is Unfair.

And under the law, any Class Action Settlement must be "fair, reasonable, and adequate."

Finally, let me note that Thomas was the first Justice whose name meant anything to me, as he seems to have a habit of being an outlier... an outlier I tend to agree with... or agree with often enough.

Judging the Judges

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I am anxious to see (in my end of year analysis) how frequently I agree with Thomas.

After all, in the next case, Thomas is an outlier, again. But I wind up disagreeing with him.

So, who knows how that end of year analysis is going to look.

© copyright 2019 Brett Paufler
A Personal Opinion/Editorial