Monday, December 11, 2017

Why We Hate Lawyers

Saturday, June 8, 2002

The other day, I opened my mailbox, and mixed in between the ubiquitous junk mail (“You may have already won...”) and the recurrent pile of bills (which sparked a deja vu epiphany “Didn’t I just pay these?”), was a missive bearing the phrase “Important Legal Notice.”

Now, like most people, I lead a fairly nondescript life, and endeavor not to run afoul of the law, be it civil or criminal. So I was warily curious as to the circumstances that would warrant delivery of an “Important Legal Notice.” With subtle trepidation, I tore open the envelope and perused the contents.

It was a Notice of Pendancy of Class Action, which simply meant someone was suing someone else and I had been invited along for the ride. The someone of the first part was a Mr. Gerald D. Broder and the someone of the second part was MBNA, a large bank and issuer of credit cards (and ubiquitous junk mail).

It seems Mr. Broder had obtained a credit card through an MBNA offer of a special low interest rate on cash advances. The offer stated MBNA “may” allocate payments to cash advances before purchases. This, of course, means MBNA could, at its discretion, apply the payment toward the cash advance balance (at the lower interest rate) or the purchases balance (at the higher rate). Mr. Broder claims MBNA’s solicitation was misleading and should have used the word “will” instead of “may.” So he is suing MBNA for fraud and breach of contract.

Ignoring the obviously shaky legal merits of the case, ephemeral dollar signs danced like sugar plums before my eyes. A wave of good will flooded over me, as I imagined what a kind man Mr. Broder must be, to invite me, a complete stranger, to share in his good fortune, should he recover damages from the scoundrels! And how would I spend this windfall from Providence? Amidst the beckoning siren call of the beaches of Nice, I flipped the pages to ascertain an inkling of the amount of my pending good fortune.

Surely, over the years as a customer of MBNA, I too must have been victimized by this dastardly ploy, as evidenced by my unsolicited admission to the class of litigants. Then, on page four, preceding the caveat “assuming plaintiff were 100 percent successful at trial” (okay, so this is the high end of what we might recover), was the telltale phrase “A significant factor relied upon by plaintiff and Class Counsel is that the $3.57 made available to each member of the class under the terms of the proposed settlement represents a significant percentage of the maximum amount recoverable, assuming plaintiff were 100 percent successful at trial.” Quickly, my mind translated the legalease to everyday parlance: If we win all of what we are asking for, the most any class member gets is $3.57; but this amount may be reduced if we get less than what we are asking.

No, I thought. I must have misread it. I could not have wasted all that time reading four pages of legalease to discover that my angel of Providence was cheaper than the tooth fairy! Surely, Mr. Broder would not sue MBNA to recover $3.57? And surely, Mr. Broder’s lawyers would not take on such a case. No, this required continued reading, at least to page six.

Alas, it was on page six that the truth did out. While listing no exact size, the class consists of the potential millions of present and former MBNA cardholders, each entitled to $3.57 (or less) should we win, and Mr. Broder, who is named as “class representative.” You see, in a class action lawsuit with thousands (or millions) of plaintiffs, someone’s name has to go on the paperwork as what they call the “lead” plaintiff; otherwise the case title would be longer than the case. For lending his name to the case, Mr. Broder’s attorneys asked that he receive a little bit more than his other plaintiffs, sort of a “first among equals” position. Thus, they decided that an extra $9,996.43, just to round it out to an even $10,000, would help compensate Mr. Broder for the use of his name.

Of course, Mr. Broder’s attorneys, the law firm of Lowey, Dannenberg, Bemporad & Selinger. P.C., also asked the court to award it a modest amount in legal fees (after all, it is helping people like me get as much as $3.57 in damages) not to exceed $2.5 million, to be paid by MBNA.

I’m glad they put the “not to exceed” in their request; otherwise the court might have gone hog-wild and thrown $5 million at them. How considerate and responsible of Mr. Broder’s lawyers!

So, Mr. Broder stands to gain $10,000 for doing nothing, his lawyers stand to gain $2.5 million for doing considerably more than nothing, and I, and my fellow victimized consumers may get as much as $3.57. More than likely, MBNA will settle the suit , and those numbers may be discounted by 25 percent.

Is there something wrong with this picture? Is there something wrong with a legal system where lawyers can initiate a class action suit using a straw man (purchased for less than 1/2 of one percent of their profits) to compel a large corporation to settle a nuisance suit for millions of dollars?

And lawyers still wonder why we hate lawyers.

Wednesday, December 6, 2017

Rosalie’s World

I saw a photograph of a pretty, 13-year-old girl on my newsfeed followed by a headline stating she had been hospitalized after a suicide attempt. Rosalie Avila, 13, of Yucaipa, CA had been "severely" bullied for years by classmates, in school and on social media, who told her she wasn't pretty and her teeth were ugly. In her diary, she had written: “They told me I was ugly today. They were making fun of me today about my teeth.” She hanged herself in her bedroom on November 28 and was admitted to Loma Linda Children's Hospital.

As I read this, in my mind I was composing a note to Rosalie. I would tell her she was, in fact, a very pretty girl and that she was prettier than most of the girls I had gone to school with when I was 13. I would tell her that the braces she wore would straighten her teeth and leave a beautiful, permanent smile on her face for years to come. I wanted to leave a positive, encouraging post on her Facebook page, knowing that others would also, and that this little girl would come home to literally 10,000 messages from strangers to counter the vicious venom of a handful of children. I wanted to provide a counterbalance to place the messages she was getting from these "mean girls" into perspective, which is sadly lacking at that age when we are most susceptible to peer pressure.

You're NOT ugly, Rosalie. You may not believe your parents when they tell you you're beautiful because parents have to say that, but strangers don't have to. So take it from a stranger, you are pretty. And 10,000 other strangers will agree with me.

But before I could write the first line my eyes scrolled down to the next headline. Rosalie was taken off life support on December 4. In three weeks, when other families are gathered around the Christmas tree celebrating the festive season, Rosalie’s parents, Freddie and Charlene Avila, and her five siblings will be gathered beside her grave in mourning. 

The more I learned about Rosalie, the more I felt a kinship. She “always got good grades,” and she wanted to be a writer and a lawyer “so she could make the world a better place.” Instead, the world – her world – destroyed her. It's a world filled with evil souls housed in bodies of varying ages. Despite their youth, I've no doubt Rosalie's tormentors are truly evil. They're not wayward children; or bad kids; or even mean girls. They're evil. Rosalie’s family got a small taste of what the 13-year-old had been experiencing when someone sent them a photograph of a bed on social media captioned: “Hey Mom. Next time don’t tuck me in this. Tuck me in THIS,” pointing to an image of an open grave with Rosalie’s face Photoshopped over it.

I was told it was a good thing I didn’t have the opportunity to leave my message for Rosalie because it would be “creepy” for a grown man to tell a 13-year-old she’s pretty. “You don’t even know her; people will think you’re a predator.” What a sad world we live in. Here in Rosalie’s World of 2017 that would be creepy and possibly expose me to legal jeopardy; I would have thought the messages sent to Rosalie – and now to her parents – were creepy and that the senders of those should be the ones subject to legal consequences. Rosalie’s World isn’t the world I grew up in. Sure, we had bullying, but not to this extreme or this degree of malevolence. As a society, we need to reevaluate how our world devolved into Rosalie’s World and what we must do to change it back.