The case of the class-action con

AS A LAWYER who has been fighting the class-action lawsuit con game for 15 years, I know the indictment last week of one of the most prominent law firms in the business focuses long-overdue attention on our dysfunctional legal system. But charging Milberg Weiss Bershad & Schulman with allegedly paying illegal kickbacks to plaintiffs is akin to charging Al Capone with income-tax evasion. A much bigger problem remains unaddressed.

Law firms that specialize in class-action lawsuits have for many years exploited the same shameful business practices of the companies they sue, such as operating as a cartel-like syndicate and overcharging clients. In the process, these members of the bar have perverted what was established in the 1960s as a noble effort to give minority groups access to the civil courts.

Milberg Weiss -- considered the Darth Vader of plaintiff law firms -- has earned well over a billion dollars in legal fees by taking American businesses to court over claims of stock fraud, defective products and unfair business practices. Attorneys such as San Diego-based William Lerach, a former principal of the firm, and Melvyn I. Weiss have made staggering personal fortunes using the law as a bludgeon to scare large businesses into paying them to go away.

Another lawyer, the late Wendell H. Gauthier of New Orleans, made so much money in the case against breast implant makers and in the case resulting from the 1986 San Juan, Puerto Rico, Dupont Plaza Hotel fire that he was able to buy a chunk of the New Orleans Saints football team.

Meanwhile, real victims of bad corporate behavior often receive little more than a coupon worth a few dollars toward a purchase from the very company being sued. I have objected to the legal fees awarded lawyers in about 150 class-action lawsuits, with limited success. In the process, I have accumulated a long list of case studies demonstrating how dysfunctional this system is. Here are a few examples:

* Class-action lawyers sued the Bank of Boston in 1993, claiming that the bank had charged customers excessive escrow fees. Lawyers for both sides put together a settlement that ended up awarding each customer between $2.19 and $8.76, while counsel got more than $8.5 million in fees. The judge then allowed the bank to charge its customers for its share of those legal fees, as much as $91 each. One of the customers who objected to this settlement was subsequently sued by the class-action lawyers for $25 million.

* When class-action lawyers got wind of the accidental release of sulfuric acid from a General Chemical Corp. plant in Richmond, Calif., in 1993, they sent recruiters into nearby neighborhoods to sign up “victims,” 60,000 in all. Some 30,000 people had flooded local hospitals, but doctors could find only a handful who had been injured. Rather than risk a trial and huge legal fees, the company settled the case for $180 million, of which the judge awarded $50 million to the lawyers. The average settlement for the victims: less than $1,000.

* A few years ago, an enterprising lawyer read that one of Intel Corp.’s computer chips was not quite as fast as originally rated and that the problem had been corrected. Several class-action law firms filed a suit, even though there was no evidence that anyone had been misled. Intel folded without a fight, offering 450,000 potential victims -- most of whom didn’t even know they owned an Intel chip -- rebate coupons worth $50 each. Only 159 people responded. Over my objection, the judge gave in to the lawyers’ demands for fees of $1.5 million.

* In 1994, class-action lawyers sued Packard Bell for selling computers containing reconditioned and recycled parts. Even though both sides agreed that the recycled parts had lower failure rates than new ones, and even though the settlement involved only an agreement by Packard to disclose the recycled parts in future instruction manuals, the judge awarded the lawyers $3.95 million in legal fees -- two months after the case was filed.

* In Texas last year, a federal judge threw out a silicosis class action after discovering that claims of injuries cooked up by the lawyers, doctors and screening companies were fraudulent: “These diagnoses were about litigation rather than healthcare ... manufactured for money.”

The best outcome in the Milberg Weiss case would be for the public to get really angry about how judges and the defendant corporations have helped class-action lawyers manipulate the system at the expense of the rest of us. In the clubby atmosphere of the courtroom, there are no participants with clean hands. Lawyers for defendant companies and lawyers for the plaintiff class both win, enjoying the lion’s share of every payday. Judges are loath to rock the boat.

Most disturbing to me, who came of age as an activist in the civil rights movement, is how greed has twisted the law away from its original intent. A panel of legal academics in the mid1960s paved the way for changes in federal court that made it possible for one plaintiff to automatically represent an entire class of people. The change allowed lawyers to take on a single disenfranchised client -- such as a black family being denied equal access to housing -- and claim to represent all those who may have been similarly discriminated against and, if successful, earn a fee from the defendant based on the entire class, regardless of how many people actually benefited.

I have watched with dismay, as helping others became for class-action lawyers merely an unintended consequence of cashing in by working the legal system to pick the deepest corporate pockets. I hope I’m not the only lawyer rooting for the U.S. attorney in Los Angeles to pull the thread that unravels this broader scandal. The future of justice in America may depend on it.