Opinion ghostwritten by winning side challenged at SCOTUS - Reuters

Credit reporting company Equifax Inc. corporate offices are pictured in Atlanta, Georgia, U.S., September 8, 2017. REUTERS/Tami Chappell

(Reuters) - Does this sound OK to you? A federal trial judge hands over the responsibility of drafting a case-ending opinion to lawyers on one side, then adopts that side’s draft verbatim, without allowing opposing counsel a chance to weigh in on the decision.

It doesn't to Ted Frank.

Frank, founder of the Hamilton Lincoln Law Institute, hired counsel from Consovoy McCarthy and the Antonin Scalia Law School's Supreme Court Clinic to file his new petition for Supreme Court review of the 11th U.S. Circuit Court of Appeals’ decision last summer to affirm approval of a $380.5 million data breach class action settlement with Equifax Inc.

The petition, which was also filed on behalf of Equifax objector David Watkins, contends that the 11th Circuit violated the objectors’ due process rights by upholding an ex parte trial court opinion written by class counsel and issued by the judge without input from the objectors.

“The decision below conflicts with this court’s cases and other circuits’ precedent on crucial due process questions,” the petition said. “When judges task litigants with writing all or parts of a judicial opinion, they threaten the treasured promise that ‘our system of law’ strives ‘to prevent even the probability of unfairness.’”

Class counsel from Doffermyre Shields Canfield & Knowles; DiCello Levitt Gutzler; and Stueve Siegel Hanson did not respond to my email query on the new Supreme Court petition. Nor did Equifax counsel from King & Spalding. Neither class counsel nor the company filed a response to a previous petition from a different objector challenging approval of the Equifax settlement. The justices are slated to consider that petition at their conference on Friday.

The Supreme Court is the last stop in Frank’s relentless quest to show that U.S. District Judge Thomas Thrash of Atlanta improperly signed his name to an opinion ghostwritten by class counsel in the Equifax class action.

Thrash approved the $380.5 million Equifax settlement, which has been described as the biggest and most comprehensive settlement of a data breach class action in U.S. history, from the bench in 2019, after a day-long fairness hearing. The judge asked class counsel to draft an opinion memorializing his findings, in accord with a local rule that says orders announced in court “shall be prepared in writing by the attorney for the prevailing party.”

The local rule also says drafts of such orders must be provided to each party. In the Equifax case, class counsel’s draft opinion was not filed in the public docket. Equifax’s counsel at King & Spalding saw it, but objectors and their lawyers did not. Thrash ended up signing a 122-page opinion – tens of thousands of words longer than the transcript of his courtroom order approving the deal – that was harshly critical of objectors to the class action settlement, including Frank.

Frank suspected that the opinion, including the attacks on him and other Equifax protestors, had been entirely ghostwritten by plaintiffs' lawyers. He lobbied Thrash and a motions panel at the 11th Circuit to disclose class counsel’s draft opinion in the public record of the Equifax case. Class counsel resisted at every turn. The draft opinion has never been made public.

When objectors presented oral arguments against the Equifax settlement at the 11th Circuit, the court wasn’t happy about the alleged ghostwriting of Thrash’s approval opinion or the secrecy surrounding class counsel’s draft. The appellate judges said they would assume that the trial judge had adopted class counsel’s draft verbatim, since no one would say otherwise.

But the 11th Circuit's June 3 opinion said the alleged ghostwriting – though condemnable – did not justify upending approval of the settlement because “the process by which the district court adopted the proposed order was not fundamentally unfair.” Frank and the other objectors had a chance to argue their challenge at the fairness hearing, the appeals court said. They also had an opportunity to move for reconsideration after Thrash issued his opinion, the 11th Circuit said. The trial judge even amended the opinion in response to a reconsideration motion from one objector, the appeals court said, so that was not a hollow procedure.

Frank's new Supreme Court petition argues that objectors have a due process right to be heard before the trial judge issues an opinion – not after the fact, in a motion for reconsideration. The Supreme Court said as much, according to Frank’s lawyers, in 1985’s Anderson v. City of Bessemer, which said that in order to confirm one side’s written version of the facts of the case, it is critical for trial judges to give the other side an opportunity to” respond. Due process cannot reasonably require less when the ghostwritten document is not just findings of fact but the opinion itself--the legal reasoning evidencing the court’s exercise of discretion,” the petition said.

Frank’s filing cited precedent from the 3rd and 4th Circuits that, according to the petition, creates a circuit split on whether trial judges can adopt opinions ghostwritten by counsel for one of the parties. The 4th Circuit moderated its blanket prohibition on the practice after the Supreme Court’s ruling in Anderson, the petition said, but still insists that the other side must have a chance to respond and the final opinion must reflect the trial court’s exercise of independent judgment.

The 3rd Circuit was even more definitive in 2004’s Bright v. Westmoreland County, which involved a trial court opinion adopted verbatim from the defendants’ draft opinion in a case brought by the estate of a woman killed by a man on probation. The appeals court vacated the trial court’s ruling. “Courts and judges exist to provide neutral fora,” the 3rd Circuit said. “Any degree of impropriety, or even the appearance thereof, undermines our legitimacy and effectiveness.”

Frank’s petition contends that Thrash’s opinion approving the Equifax deal would not have survived in the 3rd or 4th Circuits.

“If a judge isn’t exercising independent discretion, there isn’t fair process,” Frank said. “There is a very clear circuit split.”

Read more:

11th Circuit’s Equifax decision is full of good news for class action bar

11th Circuit concerned about 'ghostwritten' opinion but likely to approve $380.5 million Equifax deal

Ted Frank wants to see class counsel’s ex parte draft opinion in Equifax case

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Alison Frankel

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin. Reach her at alison.frankel@thomsonreuters.com

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