Editor's note: This article has been revised from an earlier version to clarify attorney Ted Frank's relationship to the Center for Class Action Fairness and to clarify the CCAF played no role in this litigation.
Seizing on a federal judge’s order barring “serial” class action settlement objector Christopher Bandas from further objecting to class action settlements, a group of lawyers seeking to cash in on a sizable settlement in a controversy-plagued class action against Pella Windows have asked a federal judge to box out other objectors from collecting off their deal, because Bandas had been among those objectors.
On Feb. 5, a group of attorneys, led by Robert A. Clifford, of the Clifford Law Offices, of Chicago, filed a motion in Chicago federal court, asking the judge to consider the decision issued against Bandas.
Ted Frank
But the attorneys, representing a class of potentially thousands of plaintiffs, went further still, saying, just as Bandas was blocked out of the deal, so, too, should other objectors, which include lawsuit reform advocate Ted Frank.
“Equity and fairness demand that (Frank and the other objectors) be denied the relief each seeks,” Clifford wrote in the Feb. 5 brief. “They waged a bet in Mr. Bandas’ well-established model, all for financial gain; but, alas, the model is now crestfallen. That does not entitle them to more money.”
The demand drew a sharp response this week from Frank, who noted his objection to the Pella Windows lawsuit settlement resulted in a decision from the U.S. Seventh Circuit Court of Appeals which resulted in the court reworking the deal to add millions of dollars to the pot for plaintiffs, not just their lawyers.
“There is of course some irony in Palintiffs’… strategy of attempting to tie Frank to abusive objection practices,” Frank’s attorneys wrote in their Feb. 12 reply. “As Frank explained … the Seventh Circuit agreed with his arguments. There is nothing abusive about a successful objection…
“Especially this objection and appeal, which unquestionably benefitted the class to the tune of millions of dollars.”
TORTURED PAST
The exchange come as a federal judge had been working toward ultimately latching shut the class action lawsuit case, and ending its tortured run through Chicago’s federal courts.
In 2006, plaintiffs filed suit in the U.S. District Court for the Northern District of Illinois against Pella, claiming its ProLine Series of windows allowed water to infiltrate houses, damaging wood frames and eventually the structure of the house itself.
The lawsuit was initially brought by Leonard Saltzman, a dentist whose son-in-law, lawyer Paul Weiss, served as lead counsel for the plaintiffs. At the time, Saltzman’s daughter and Weiss’ wife, Jamie E. Weiss, also served as a partner at Weiss’ firm.
Other plaintiffs were later added to the action.
In 2013, U.S. District Judge James Zagel approved a settlement agreement, ostensibly worth $90 million overall, but also worth $11 million to Weiss and others from his firm, Complex Litigation Group, of suburban Hinsdale.
However, other plaintiffs objected to the settlement, asserting an ongoing feud between Weiss and a law partner and disciplinary proceedings launched by state regulators against Weiss had left him unfit to continue to lead the case. They said Weiss had simply used the case to run up the amount of fees he and his wife would earn.
Among those objectors was a man identified as Michael Schulz, who was represented by Frank.
Frank, a tort reform advocate, is the founder of the Center for Class Action Fairness. The CCAF was not involved in the Pella case.
Frank has regularly argued objections to class action settlements alleged to be lopsided in favor of lawyers at the expense of the members of the plaintiffs' class the lawyers claim to represent.
The objection to the Pella settlement ultimately landed before the Seventh Circuit appeals court, which savaged the deal for awarding plaintiffs’ lawyers $11 million in fees up front, while securing no guarantee class members would receive any real benefit.
The Seventh Circuit judges threw Weiss and his firm off the case, along with lead plaintiff Saltzman, and substituted in the Clifford firm, as well as attorneys from the Lang Law Office, of Crystal Lake; Morgan & Morgan Complex Litigation Group, of Tampa, Fla.; the Rhine Law Firm, of Wilmington, N.C.; and the Moor Law Office, of Chicago.
In February 2018, the plaintiffs and Pella returned with a new settlement, this time offering $35 million, including $25 million for class members and $9 million to the plaintiffs’ lawyers.
SPOTLIGHT ON BANDAS
In May, Frank asked the court to also award him $1.5 million from the settlement for his work on behalf of Schulz, which he noted helped undo the original settlement deal and produce the new deal.
However, as the Pella settlement talks were continuing, the spotlight elsewhere fell on Bandas.
In the Pella litigation, Bandas, of Corpus Christi, Texas, had initially represented Schulz, and had handed him off to Frank, under an agreement granting Bandas a share of whatever fees Frank may ultimately receive under a new Pella settlement.
But in late 2016, Bandas was sued by the Chicago plaintiffs’ law firm of Edelson P.C., who accused the Texas lawyer of masterminding a scheme to use the class action settlement objection process to essentially extort money from other lawyers trying to close their deals.
The Edelson lawsuit centered on Bandas’ alleged conduct in leading an effort to bog down a settlement in a class action lawsuit Edelson had led against Gannett Co. for allegedly violating a federal telecommunications law.
In the Gannett case, Edelson accused Bandas of agreeing to drop his objections in exchange for $225,000.
However, Edelson noted the Gannett case served as only an example of Bandas’ conduct in a host of other lawsuits across the country. Edelson called him a “professional” and “serial” objector, and accused him of racketeering.
A federal judge ultimately threw out the racketeering charges, but allowed the case to continue on Edelson’s assertions Bandas had improperly practiced law in Illinois.
In January 2019, the judge in the Edelson lawsuit against Bandas granted Bandas’ request to end the action. In that motion, Bandas admitted to “unethical, improper and misleading conduct.”
U.S. District Judge Rebecca Pallmeyer slapped a permanent injunction on Bandas, prohibiting him from practicing law in Illinois or from representing anyone objecting to class action settlements in “any state or federal court.”
On Feb. 13, Judge Pallmeyer also refused Bandas’ request to “clarify” her ruling and limit the objection prohibition to cases involving Edelson.
Edelson had argued against that request, saying Bandas had requested the change merely to allow him to continue to collect on the Pella settlement objection.
Following Pallmeyer’s January ruling, Clifford filed his Feb. 8 motion, asking U.S. District Judge Sharon Johnson Coleman, who is presiding in the Pella case, to take that ruling into consideration, and prohibit Frank and others who represented objectors from collecting attorney fees from the Pella objections.
In his response, Frank said he was not implicated in any way in the Edelson lawsuit or the Bandas decision.
“To be sure, Frank’s agreement with Bandas required Frank to share a portion of any attorneys’ fee award that might result from the successful appeal of an objection to the original settlement that Bandas filed,” Frank wrote. “That successful appeal does not in any way equate to Bandas having ‘caused’ Frank’s recent filing seeking fees…
“As Frank explained in his fee application, his efforts on appeal were a but-for cause of that settlement. At most, the only effect of the Edelson order on Frank or Schulz is to forbid Bandas from sharing in any fees awarded to Frank.”
Judge Coleman has ordered hearings on the question.