ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE
Pro se plaintiff David Briggman has sued Augusta County Commonwealth Attorney Timothy Martin and Attorney General Mark Herring, moving for a preliminary injunction against Martin from enforcement of Virginia Code § 18.2-186.4 against plaintiff.
(Dkt. Nos. 2, 10.)
Martin moves to dismiss based on the Younger abstention doctrine.
(Dkt. No. 20.)
For the reasons that follow, the court will grant defendant’s motion to dismiss.1
Briggman uses social media platforms to publicize litigation involving Nexus and its senior officials.
Specifically, Briggman obtains court documents from publicly accessible websites and posts them to his social media pages.
Sometimes, these documents are unredacted, resulting in home addresses and social security numbers being published on Briggman’s social media sites.
This code section makes it unlawful to publish a person’s name, photograph, or home address when the publisher acted “with the intent to coerce, intimidate, or harass another person.” Id.
The criminal complaints were brought before a magistrate who made a probable cause determination.
It is unknown whether the Commonwealth’s Attorney will prosecute the complaints against Briggman.
Plaintiff concedes that he can only proceed against Martin in his official capacity.
A. Motion to Dismiss
Martin moves to dismiss under Rule 12(b)(6) based on the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971).
Courts in this circuit tend to analyze Younger motions under Rule 12(b)(1) instead of Rule 12(b)(6).
See, e.g., Kawai v. UaCearnaigh, 249 F.Supp.3d 821, 822 (D.S.C. 2017)
(granting motion to dismiss under Rule 12(b)(1) to the extent it will abstain from exercising jurisdiction under the Younger abstention doctrine);
but see, e.g., Knox v. Union Twp. Bd. of Educ., Civ. No. 2:13-5875 (KM) (MAH), 2015 WL 769930, at *5 n.7 (D.N.J. 2015)
(“Strictly speaking, Younger abstention is not analyzed under either Rule 12(b)(1) or 12(b)(6). A Younger motion to dismiss is in the nature of a 12(b)(6) motion in that matters outside of the pleadings are not to be considered.”).
The distinction is not material because Martin does not rely on matters outside the pleadings in support of his motion.
B. Younger Abstention
2 Under the Younger abstention doctrine, interests of comity and federalism counsel federal *2 courts to abstain from exercising jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern important state interests.
Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237-38 (1984).
Younger applies “when the requested relief would interfere with
(1) an ongoing state judicial proceeding, instituted prior to any substantial progress in the federal proceeding;
(2) implicates important, substantial, or vital state interests;
(3) provides an adequate opportunity for the plaintiff to raise the federal constitutional claim advanced in the federal lawsuit.”
United States v. South Carolina, 720 F.3d 518, 527 (4th Cir. 2013).
These requirements are satisfied in the instant case.
A court should disregard Younger’s mandate only where
(1) there is a showing of bad faith or harassment by state officials responsible for the prosecution;
(2) the state law to be applied in the criminal proceeding is flagrantly and patently violative of express constitutional prohibitions;
(3) other extraordinary circumstances exist that present a threat of immediate and irreparable injury.
Nivens v. Gilchrist, 444 F.3d 237, 241 (4th Cir. 2006).
Plaintiff argues that the bad faith exception to Younger applies here.
Plaintiff asserts that the voluminous number of criminal charges and civil actions brought against him and his wife are not made with any expectation of securing valid convictions but, rather, are part of a plan to employ arrests, seizures, and prosecutions under color of state law to harass plaintiff and drain his assets.
Bad faith in this context requires that “a prosecution has been brought without a reasonable expectation of obtaining a valid conviction.”
Suggs v. Brandon, 804 F.2d 274, 278 (4th Cir. 1986).
While Briggman alleges that two prior prosecutions have been disposed of in his favor, this does not mean that the Commonwealth Attorney does not have a reasonable expectation of obtaining a valid conviction these prosecutions go forward.
Of note, these charges only made their way to the Commonwealth Attorney after a probable cause determination by a magistrate.
Moreover, Martin *3 did not initiate these charges in the first instance.
If anyone is acting in bad faith, it would be the persons bringing the charges – Donovan and Moore, not the Commonwealth Attorney, who has yet to decide whether to pursue these charges.
Plaintiff also argues that the extraordinary circumstance exception applies, and he also argues that §18.2-186.4 is flagrantly and patently violative of constitutional provisions.
Plaintiff cites Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010), which held that a prosecution for violating Virginia Code § 59.1-443.2, which prohibits “intentionally communicating another individual’s social security number to the general public, ” violated the plaintiff’s right to political expression under the First Amendment, as applied to plaintiff.
This case is distinguishable because Briggman is not engaged in political speech criticizing the government.
Instead, he is attempting to expose the criminal wrongdoing of his ex-employer.
Moreover, § 18.2-186.4 has an intent requirement (intent to coerce, intimidate or harass another person) not present under § 59.1-443.2.
Ostergren did not foreclose the possibility that publishing personal information could fall into a category of speech that is unprotected.
615 F.3d at 271
(noting argument that publishing social security numbers could be unprotected speech in some circumstances).
Plaintiff also cites Sheehan v. Gregoire, 272 F.Supp.2d 1135 (W.D. Wash. 2003), which held that a law making the practice of publishing certain public officials’ personal identification information illegal was facially unconstitutional.
Both Sheehan and Ostergren involved different statutes and were not analyzed through the lens of the “flagrantly and patently unconstitutional” requirement for an exception to Younger.
At the hearing, plaintiff cited Tolbert v. City of Memphis, 568 F.Supp. 1285 (W.D. Tenn. 1983), which held that topless dancers challenging a public decency ordinance on First Amendment grounds had met the extraordinary circumstances exception to the Younger doctrine.
Among the circumstances cited by the court was that the defendant, the City of Memphis, was enforcing the ordinance in a selective and harassing manner.
Id. at 1288-89.
Plaintiff does not allege that the defendant in this action, Commonwealth Attorney Martin, is acting in such a manner.
Further, the court noted that any attempt to raise the constitutionality of the ordinance as a defense to state prosecution would be futile because the Supreme Court of Tennessee had previously upheld the constitutionality of the ordinance as adopted by another municipality.
Id. at 1290.
In this case, Briggman will have the opportunity raise his constitutional concerns in state court if the need arises.
For the foregoing reasons, the court will grant defendant’s motion to dismiss. The court will issue an appropriate order dismissing this action without prejudice.2 *5
Judge Albert Diaz Insults Americans Who Pay His Salary With $35 Payout and $1.3M Attorney Fee Deduction
Judge Albert Diaz insults the American homeowners and Judge Stephanie Thacker endorses opinion along with lower court Judge Tim Cullen.
DEMETRIUS ROBINSON; TAMARA ROBINSON,
Plaintiffs – Appellees,
NATIONSTAR MORTGAGE LLC,
Defendant – Appellee.
Amici Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Timothy J. Sullivan, Magistrate Judge. (8:14−cv−03667−TJS)
Argued: October 28, 2021 Decided: February 10, 2022
Amended: February 10, 2022
Before DIAZ and THACKER, Circuit Judges, and Thomas T. CULLEN, United States District Judge for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Diaz wrote the opinion, in which Judge Thacker and Judge Cullen joined.
Michael T. Houchin, LAW OFFICES OF RONALD A. MARRON, APLC,
San Diego, California, for Appellant.
Jonathan K. Tycko, TYCKO & ZAVAREEI LLP, Washington, D.C.;
Erik Wayne Kemp, SEVERSON & WERSON, San Francisco, California, for Appellees.
Ronald A. Marron, LAW OFFICES OF RONALD A. MARRON, APLC, San Diego, California;
Thomas J. Minton, GOLDMAN & MINTON, P.C., Baltimore, Maryland, for Appellant.
Dia Rasinariu, TYCKO & ZAVAREEI LLP, Washington, D.C., for Appellee Tamara Robinson.
Jan T. Chilton, SEVERSON & WERSON, San Francisco, California, for Appellee Nationstar Mortgage LLC.
Scott C. Borison, BORISON FIRM LLC, Baltimore, Maryland;
Jennifer S. Wagner, MOUNTAIN STATE JUSTICE, Morgantown, West Virginia, for Amici Curiae.
FEB 11, 2022 | REPUBLISHED BY LIT: FEB 13, 2022
DIAZ, Circuit Judge:
This case arises from a class action alleging that Nationstar Mortgage LLC violated federal and state consumer-protection laws in servicing the class members’ mortgage loans.
Following protracted litigation, Nationstar, and the Robinsons negotiated a $3,000,000 settlement.
Pia McAdams, a class member, objected to the settlement, arguing that the class notice was insufficient; the settlement was unfair, unreasonable, and inadequate; the release was unconstitutionally overbroad; and the attorneys’ fee award was improper.
A magistrate judge (acting on a referral by the district court) overruled McAdams’s objections.
On appeal, McAdams raises those same challenges and questions the magistrate judge’s jurisdiction.
Demetrius and Tamara Robinson filed a class action against Nationstar in the District of Maryland in 2014.
The Robinsons claimed Nationstar violated federal and state law by, among other things, failing to timely acknowledge receipt of class members’ loss mitigation applications,1 respond to the applications, and diligently obtain documents to process them.
The parties litigated the case for nearly six years. In 2020, the Robinsons and Nationstar filed a notice of settlement and a joint motion to proceed before a magistrate
An Insult from Court of Appeals for the 4th Cir. Judge Albert Diaz, joined by Thacker and Cullen.
This is Ochlocracy America and Y’ALL have a Choice.
Read the Opinion. Then Decide. #AmericaFirst https://t.co/qpi7zZ6bOO pic.twitter.com/AQ0yHgSV5P
— LawsInTexas (@lawsintexasusa) February 11, 2022
The magistrate judge (who had mediated the settlement), granted a motion for preliminary approval of the settlement and scheduled a fairness hearing before final approval.
The negotiated settlement created a relief fund of $3,000,000.
In order of priority, the parties proposed that the fund pay for
(1) administrative expenses up to $300,000,
(2) attorneys’ fees,
(3) a service award to the class representative—Demetrius Robinson,
(4) class claims.
Any remainder would go to a nonprofit that advocates for consumers.
The administrative expenses included the cost of providing class members with notice of the settlement.
The settlement proposed three types of notice—Email, Postcard, and Longform.
Both the Email and Postcard Notice informed class members of the amount of the settlement fund, how to submit a claim, how to opt out of the class, and where to find the Longform Notice.
The Longform Notice notified class members of the attorneys’ fee arrangement.
The notices didn’t estimate the recovery for each class member.
As for attorneys’ fees, Nationstar agreed (in a so-called “clear sailing” provision) not to oppose class counsel’s fee request so long as it didn’t exceed $1,300,000.
Class counsel submitted records accounting for over 3,000 billable hours.
Using the District of Maryland’s presumptively reasonable rates, the records supported $1,261,547.50 in fees.
Class counsel also submitted proof of $217,657.26 in unreimbursed expenses, for a total of $1,479,204.76 in costs and fees.
But counsel requested only a $1,300,000 award.
The value of a class member’s claim is determined by a points system.
Class members receive points for answering two questions—the first about Nationstar’s treatment of their mortgage account and the second about expenses the class member incurred.
The settlement funds remaining, after deducting administrative expenses, attorneys’ fees, and the class representative’s service award, are divided by the number of points claimed.
That number is then multiplied by a class member’s points to arrive at the settlement share for each claimant.
The proposed settlement also includes a release of claims.
Upon entry of the Final Approval Order and Judgment, each Settlement Class Member . . . will be deemed to have completely released and forever discharged the Released Parties, and each of them, from all actions . . . that were or could have been asserted by the Class Representative or Class Members in connection with the submission of loss mitigation applications during the Class Period.
McAdams, an absent class member2 who had sued Nationstar in California state court,3 objected to the settlement. She argued that the class notice was insufficient; the
Erie Guesses, Circuit Splits and 43% Paid out of $3M settlement in attorney fees in this WALL ST JUDICIAL OPINION sponsored by NATIONSTAR MORTGAGE in this case. Meet the author of the Opinion; Judge Albert Diaz… #thegreatresignation is what is required. Today. pic.twitter.com/yviueTxLTA
— LawsInTexas (@lawsintexasusa) February 12, 2022
settlement was unfair, unreasonable, and inadequate; the release was unconstitutionally overbroad; and the attorneys’ fee award was improper.
The magistrate judge overruled McAdams’s objections.
The judge found that the distribution of the notice was sufficient because over 97% of the nearly 350,000 class members received notice.
He also found that class members “had information to make the necessary decisions and . . . the ability to even get more information if they so desired.”
In support of that finding, the judge noted the low number of objectors (2), the low opt-out rate (.04%), and the high claims rate (13.8%).4
Turning to the settlement terms, the magistrate judge found them fair, reasonable, and adequate.
The judge considered the three relevant criteria under Federal Rule of Civil Procedure 23(e)(2)(C) and addressed the five adequacy factors from In re Jiffy Lube Securities Litigation, 927 F.2d 155, 159 (4th Cir. 1991).
The judge found: (1) “plaintiffs ha[d] viable claims”; (2) “Nationstar had very strong defenses”; (3) litigating the case to trial “would have likely been lengthy and it would certainly be quite, quite expensive”; (4) “Nationstar can pay the 3 million dollars”; and (5) “[o]nly 137 class members have opted
Do you remember his nomination and confirmation hearing? Fast forward to January 2022 and he was the first speaker in Federalist Society history to BAN MEDIA for his talk in their annual convention in Florida. He’s a plane wreck for citizens and a boon for Ochlocracy and Outlaws. pic.twitter.com/DEFIuEfT0Y
— LawsInTexas (@lawsintexasusa) February 12, 2022
out of the settlement, which is about 0.04 percent of the settlement class.”
See J.A. 810– 14.
The magistrate judge also addressed the breadth of the settlement’s release. He found the release was “not too broad” because a class settlement can release “claims based on the identical factual predicate[,] even if those claims” aren’t presented.
But he didn’t opine whether the release would bar class members’ pending claims in other jurisdictions, including McAdams’s California lawsuit.
Finally, the magistrate judge approved the proposed $1,300,000 attorneys’ fee request.
The fee, he said, was based on a presumptively reasonable rate, and using that rate, counsel had shown that their actual costs and fees exceeded their request.
The judge noted that concerns over Nationstar’s agreement not to object to the settlement were misplaced.
And he found “no collusion” between the parties because they negotiated the settlement “at arm’s length in the midst of contentious litigation.”
J.A. 812, 817.
This appeal followed.
McAdams first attacks the magistrate judge’s jurisdiction to approve the class action settlement, alleging that she didn’t consent to have a magistrate judge hear her case.
There’s no dispute that the magistrate judge could approve the class action and enter judgment only by consent of the parties.
28 U.S.C. § 636(c).
McAdams asserts that “parties” for purposes of § 636(c) include absent class members, like her.
This is a question of first impression in this circuit.
But every other circuit to address the issue has concluded that absent class members aren’t parties.
Koby v. ARS Nat’l Servs., Inc., 846 F.3d 1071, 1076 (9th Cir. 2017); Day v. Persels & Assocs., LLC, 729 F.3d 1309, 1316 (11th Cir. 2013); Dewey v. Volkswagen Aktiengesellschaft, 681 F.3d 170, 181 (3d Cir. 2012); Williams v. Gen. Elec. Cap. Auto Lease, Inc., 159 F.3d 266, 269 (7th Cir. 1998).
We now join them, holding that the magistrate judge had jurisdiction to approve the settlement.
We review questions of law de novo, including questions of statutory interpretation.
In re Lumber Liquidators Chinese-Manufactured Flooring Prods. Mktg., Sales Pracs. & Prods. Liab. Litig., 952 F.3d 471, 483 (4th Cir. 2020).
Similarly, “[w]e review . . . a lower court’s determination of its subject-matter jurisdiction de novo.”
Barlow v. Colgate Palmolive Co., 772 F.3d 1001, 1007 (4th Cir. 2014) (en banc).
“We begin, as always in deciding questions of statutory interpretation, with the text.”
Othi v. Holder, 734 F.3d 259, 265 (4th Cir. 2013).
28 U.S.C. § 636(c) authorizes magistrate judges to “conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case . . . . [u]pon the consent of the parties.”
Congress didn’t define “parties” in § 636.
Nor has the Supreme Court said whether absent class members are parties in this context.
See Devlin v. Scardelletti, 536 U.S. 1, 9–10 (2002)
(“Nonnamed class members, however, may be parties for some purposes and not for others. The label ‘party’ does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on context.”).
“We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import.”
Williams v. Taylor, 529 U.S. 420, 431 (2000) (cleaned up).
When Congress adopted the relevant language in § 636, the ordinary meaning of “party” included those whose names are designated as a plaintiff or defendant and those who can control the proceedings.
See Day, 729 F.3d at 1317.
Absent class members aren’t named parties, and they can’t control proceedings.
See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 810 (1985)
(“Unlike a defendant in a normal civil suit, an absent class-action plaintiff is not required to do anything. He may sit back and allow the litigation to run its course, content in knowing that there are safeguards provided for his protection.”).
So absent class members aren’t within the contemporary, common meaning of the term “parties” as used in § 636.
Nor do we believe Congress intended absent class members to be parties.
Interpreting “parties” to include absent class members would prevent magistrate judges from entering judgment against absent class members who haven’t given their explicit consent.
That reading “would virtually eliminate § 636(c) referrals to magistrate judges” by hindering the judgment’s preclusive effect.
Williams, 159 F.3d at 269.
Congress has limited the preclusive effect of judgments by restricting the definition of a party in other contexts.
See, e.g., 29 U.S.C. § 216(b)
(“No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.”).
But when it has done so, Congress has spoken clearly. Nothing in § 636 suggests Congress intended to limit the preclusive effect of judgments entered by magistrate judges.
McAdams doesn’t account for the adverse practical effects of administering class actions if her reading were to prevail.
The Ninth Circuit has observed that § 636 uses the term “parties” “multiple times in a way that cannot sensibly be read to include absent class members” because “[t]he identities of all absent class members will often not be known until later in the case.”
Koby, 846 F.3d at 1076; see, e.g., 28 U.S.C. § 636(c)(2)
(“[T]he clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate judge to exercise such jurisdiction.”).
“Even if the identities of all absent class members are known,” it would be unduly burdensome on the clerk of court to compile all their contact information and prohibitively expensive “even for the most well-funded district courts.”
Koby, 846 F.3d at 1077.
This case exemplifies the need to have a practical system for administering class actions.
The class here consists of almost 350,000 members.
McAdams’s reading of “parties” for purposes of § 636 would require notifying each of them of the intent to proceed before a magistrate judge.
“We doubt Congress would have imposed these substantial budgetary and manpower burdens on clerks’ offices across the country without making that intent explicit.”
Id. at 1077.
And to what end? In this case, over 97% of class members received notice of the settlement. 13.8% submitted claims. Only .04% opted out. So over 80% of the class received notice but didn’t act on it.
Yet under McAdams’s reading of § 636, the magistrate judge would be powerless to act.
Because the contemporary, common meaning of “parties” excludes absent class members and the statute lacks signs showing any legislative intent to classify them as such, we conclude “parties” as used in § 636 doesn’t include absent class members.
Since Nationstar and the Robinsons consented to having the magistrate judge preside over the fairness hearing, McAdams’s jurisdictional claim fails.5
McAdams next asserts that the settlement notice was inadequate because it didn’t include the attorneys’ fees to be deducted from the settlement fund, estimate individual class members’ recovery, or explain the distribution method.
The parties dispute our standard of review.
We haven’t spoken on this question, and our sister circuits are split.
Two circuits review a district court’s finding on the adequacy of class action notice for abuse of discretion.
Pollard v. Remington Arms Co., 896 F.3d 900, 905–06 (8th Cir. 2018); Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 438 (2d Cir. 2007).
Three others review the issue de novo.
In re Online DVD-Rental
$53 per hour to $1,557 per hour in attorney fee award is not a ‘windfall’ sayeth Second Circuit Court of Appeals.https://t.co/flKuGviUhu@AlisonFrankel @SDNYnews @uscourts @nypost @thedailybeast @nytimes @ReutersLegal @law360 @washingtonpost @dcexaminer @thehill @WSJopinion pic.twitter.com/IUYYXXTybM
— LawsInTexas (@lawsintexasusa) February 3, 2022
Antitrust Litig., 779 F.3d 934, 946 (9th Cir. 2015); DeJulius v. New England Health Care Emp. Pension Fund, 429 F.3d 935, 942 (10th Cir. 2005); Fidel v. Farley, 534 F.3d 508, 513 (6th Cir. 2008).
But even assuming de novo review is proper, the class notice was adequate.
McAdams’s challenge to the adequacy of the notice has both a constitutional and a procedural component.
To bind an absent class member, notice to the class must provide “minimal procedural due process protection.”
Phillips Petroleum Co., 472 U.S. at 811–12.
“The [absent class member] must receive notice plus an opportunity to be heard and participate in the litigation.”
Id. at 812.
That notice must be “reasonably calculated, under all the circumstances, to apprise [absent class members] of the pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).
On the procedural front, Federal Rule of Civil Procedure 23(e) governs notice to absent class members. It requires “direct notice in a reasonable manner to all class members who would be bound by the proposal.”
Fed. R. Civ. P. 23(e)(1)(B).
But it doesn’t specify what the notice must say. Rather, the notice need only “fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings.”
Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005) (cleaned up).
Put another way, “Rule 23(e) requires notice that describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.”
In re Online DVD-Rental Antitrust Litig., 779 F.3d at 946 (cleaned up).
Here, the magistrate judge approved three types of notice—Email, Postcard, and Longform.6
The settlement administrator emailed notice to class members for whom it had an email address.
It also mailed notice to class members for whom it had a physical address.
And it searched the National Change of Address database to update the addresses for those whose Postcard Notice was returned as undeliverable.
Both the Email and Postcard Notice informed class members that there was a $3,000,000 settlement fund, explained how to file a claim, and presented the option to opt- out.
They also listed a website and telephone number where class members could get the Longform Notice.
The Longform Notice explained the settlement in greater detail.
Among other things, it stated that class counsel intended to request up to $1,300,000 in attorneys’ fees and costs, that this amount would be deducted before any payout to the class, and that class members submitting valid claims would receive proportionate shares of the settlement fund.7
In other words, the Longform Notice included two of the three pieces of
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— LawsInTexas (@lawsintexasusa) February 4, 2022
information—the attorneys’ fees to be deducted from the settlement fund and the distribution method—which McAdams complains is missing.
Nor was the notice inadequate because it didn’t estimate the class members’ recovery.
In general, it would be difficult, if not impossible, for parties to reliably predict the number of valid claims when drafting notices.
Indeed, the Longform Notice acknowledges this difficulty:
“The amount of this payment will depend on how many Settlement Class Members file valid claims and how each Settlement Class Member answers questions in the Claim Form.”
And even if an estimated recovery is appropriate in some cases, McAdams makes no compelling argument for one here.
There’s nothing in the record suggesting the parties had a reliable method of estimating the percentage of class members who would file claims, let alone the average number of points they would claim.
Nor could the parties know that the magistrate judge would approve the proposed award of attorneys’ fees.
Without some evidence proving an average recovery calculation would be reliable, we think it inappropriate to impose such a requirement.
See, e.g, Does 1-2 v. Déjà Vu Servs., Inc., 925 F.3d 886, 901 (6th Cir. 2019)
(“Objectors cite no authority that requires a notice to state how much money each class member would receive, nor do they explain how the notice could have accurately stated the amount each [class member] was eligible to receive from the cash pool.”).
In sum, we find the methods of notice here fairly apprised class members of the proceedings as well as their options.
Class members had access to information about the total settlement, attorneys’ fees, and distribution method.
The notices also provided them with the means to find more information if they wanted it.
Thus, the notices were adequate.
McAdams next contests the magistrate judge’s finding that the settlement was fair, reasonable, and adequate. She asserts that the magistrate judge neglected to estimate the average recovery, and thus the settlement fund won’t adequately compensate the class members.
“We review a district court’s approval of a class-action settlement for an abuse of discretion.”
In re Lumber Liquidators, 952 F.3d at 483.
Rule 23 requires courts to find that class settlements are “fair, reasonable, and adequate” before approving them.
Fed. R Civ. P. 23(e)(2).
When reviewing the adequacy of a settlement, the court must consider
“(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims;
(iii) the terms of any proposed award of attorneys’ fees, including timing of payment;
(iv) any agreement required to be identified.”
Id. at 23(e)(2)(C).
We have identified five other factors for assessing a settlement’s adequacy:
“(1) the relative strength of the plaintiffs’ case on the merits;
(2) the existence of any difficulties of proof or strong defenses the plaintiffs are likely to encounter if the case goes to trial;
(3) the anticipated duration and expense of additional litigation;
(4) the solvency of the defendant and the likelihood of recovery on a litigated judgment;
(5) the degree of opposition to the settlement.”
In re Lumber Liquidators, 952 F.3d at 484 (citing In re Jiffy Lube, 927 F.2d at 159).
Here, the magistrate judge considered the three relevant Rule 23(e)(2) criteria.8
(i) “[t]here was a great risk [for the plaintiffs] to proceed to trial given the logistical difficulties and Nationstar’s defense”;
(ii) “[t]he point system alloc[a]tion in the settlement agreement ensure[d] that those with the greater loss will be compensated to a greater degree”;
(iii) “the proposed attorneys’ fees and costs in this case [were] fair and reasonable given the contentious nature of this case and the amount of time spent in litigation.”
The magistrate judge also weighed the five Jiffy Lube factors.
(1) “plaintiffs ha[d] viable claims”;
(2) “Nationstar had very strong defenses”;
(3) litigating the case to trial “would have likely been lengthy and it would certainly be quite, quite expensive”;
(4) “Nationstar can pay the 3 million dollars”;
(5) “[o]nly 137 class members have opted out of the settlement, which is about 0.04 percent of the settlement class.”
J.A. 810, 813–14.
McAdams doesn’t claim that the magistrate judge failed to address these factors; nor does she argue that he improperly weighed them.
Instead, she complains that the magistrate judge “failed to make a ‘rough estimate’ of what class members would have received had they prevailed at trial.”
Appellant’s Br. at 25.
But we have never required such an estimate.
Even the out-of-circuit cases McAdams cites don’t require an estimate in every case.
See Lusk v. Five Guys Enters. LLC, No. 17-cv-00762, 2019 WL 7048791,
at *7 (E.D. Cal. Dec. 23, 2019)
(explaining that a rough estimate of a plaintiff’s recovery is “meaningless” when one of its components lacks “factual and evidentiary foundation”).
And we’re not persuaded to impose this new requirement here.
In any event, while the magistrate judge didn’t estimate the potential recovery should the case proceed to trial, he found that most class members “probably only had nominal damages.”
That’s consistent with the resulting settlement.
At the fairness hearing, the judge said that 13.8% of the nearly 350,000 class members submitted claims.
He also noted that $1,300,000 in attorneys’ fees and costs would be deducted from the $3,000,000 fund.
Using only that information, one could roughly estimate that the average class member would recover $35, an amount that would adequately compensate a plaintiff with only nominal damages.
We’re satisfied that the magistrate judge correctly analyzed all the relevant Rule 23 criteria and thus didn’t abuse his discretion in finding the settlement agreement adequately compensated the plaintiffs.
McAdams also argues that the settlement release is “ambiguous, overbroad, and beyond the permissible scope of release for class action settlements.” Appellant’s Br. at 17.
A court can approve a release of claims that share an “identical factual predicate” with claims alleged in a case.
Berry v. Schulman, 807 F.3d 600, 616 (4th Cir. 2015).
Claims have an “identical factual predicate” when they “depend upon the very same set of facts.”
TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456, 460 (2d Cir. 1982) (quoting Nat’l Super Spuds, Inc. v. N.Y. Mercantile Exch., 660 F.2d 9, 18 n.7 (2d Cir. 1981)).
We have twice held that a class action settlement can dispose of unalleged claims relying on an identical factual predicate.
In re MI Windows & Doors, Inc., Prod. Liab. Litig., 860 F.3d 218, 225 (4th Cir. 2017); Berry, 807 F.3d at 616.
Here, the release provides that “each Settlement Class Member . . . will be deemed to have . . . discharged the Released Parties . . . from all actions . . . in connection with the submission of loss mitigation applications during the Class Period.”
As the magistrate judge recognized, this is “a broad release.”
It encompasses a large swath of claims that might have been brought.
But nothing on the face of the release purports to apply to cases with a different factual predicate. Rather, the release is tied to cases arising out of a set action and time frame.
Our inquiry ends there.
Neither we nor the magistrate judge can decide the outer limit of the release’s scope. To do so would be advisory.
See Pelt v. Utah, 539 F.3d 1271, 1285 (10th Cir. 2008)
(“It is well settled that a court adjudicating a class action cannot predetermine the res judicata effects of its own judgment; that can only be determined in a subsequent suit.”).
Whether the release covers claims not alleged in the class action complaint is for a court enforcing the release to decide.
In fact, that’s exactly what happened with McAdams’s California claims.
In that case, McAdams alleges that Nationstar violated California law by falsely telling her that it was processing her loan modification application while it continued to foreclose on her home.
McAdams, 2021 WL 4462909, at *1.
The California court considered the release’s scope and found that her claims weren’t barred. Id. at *4–6.
The magistrate judge didn’t abuse his discretion in approving the release.
Finally, McAdams contends that the magistrate judge abused his discretion by approving the $1,300,000 attorneys’ fee request.
She raises three challenges to this ruling:
(1) the magistrate judge didn’t comply with Rule 23(h)(3)’s requirement that he “find the facts and state [his] legal conclusions”;
(2) the attorneys’ fee award constitutes an unacceptably large portion of the overall award;
(3) the “clear sailing” provision is impermissible.
All three challenges fail.
“We  review an award of attorney’s fees for an abuse of discretion.”
In re Lumber Liquidators, 952 F.3d at 483. Thus, our “review is sharply circumscribed, and [the] fee award must not be overturned unless it is clearly wrong.”
Berry, 807 F.3d at 617 (cleaned up).
McAdams’s first argument is frivolous.
True, the magistrate judge had to “find the facts and state [his] legal conclusions.”
Fed R. Civ. P. 23(h)(3).
But he did so. He stated at the fairness hearing:
“Both sides are represented by skilled counsel[,] and I have concluded that the proposed attorneys’ fees and costs in this case are fair and reasonable given the contentious nature of this case and the amount of time spent in litigation.”
The judge elaborated:
I don’t accept and I reject Ms. McAdams’ suggestion that the settlement was somehow collusive with respect to plaintiffs’ attorney fees.
The parties negotiated the settlement at arm’s length in the midst of contentious litigation.
Ms. McAdams complained that because defendants do not object to the attorneys’ fees request, the Court is deprived of the necessary adversary process to determine a reasonable award, the whole clear sailing provision.
But Ms. McAdams herself only presents general arguments about the fee award. She doesn’t cite to any work that counsel performed that was unwarranted or unnecessary or duplicative or provide evidence that the rates charged by counsel are unreasonable.
An award of 1.3 million dollars for attorneys’ fees and expenses is reasonable in this case.
Class counsels’ fee award is based on the presumptively reasonable rate set forth in our court’s local rules.
Class counsel has supported their request of [sic] billing records and other competent evidence to support their request. Lawyers routinely complain that these rates are too low, especially the rates that pertain to more experienced attorneys.
Counsel seeks 86 percent of their reasonable fee under the lodestar method. This is a significant reduction.
The Court has reviewed class counsels’ motion for attorneys’ fees and finds that the fees claimed are reasonable.
Because the magistrate judge “referred to Plaintiffs attorneys’ substantially uncontradicted evidence and arguments that the requested fees are justified by their work on the case,” he complied with Rule 23(h)(3).
CLRB Hanson Indus., LLC v. Weiss & Assocs., PC, 465 F. App’x 617, 619 (9th Cir. 2012).
McAdams’s second argument, that the attorneys’ fees constitute an unacceptably large portion of the overall settlement, fares no better.
There are two main methods for calculating the reasonableness of attorneys’ fees—the lodestar method and the percentage- of-recovery method.
The lodestar method calculates reasonable fees “by multiplying the number of reasonable hours expended times a reasonable rate.”
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013) (cleaned up).
“[T]here is a ‘strong presumption’ that the lodestar figure is reasonable.”
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010).
The percentage-of-recovery method considers the portion of the total settlement fund that will go to attorneys’ fees. In re Lumber Liquidators, 952 F.3d at 481.
A district court may choose the method it deems appropriate based on its judgment and the facts of the case.
See Jones v. Dominion Res. Servs., Inc., 601 F. Supp. 2d 756, 760 (S.D. W. Va. 2009)
(“The Fourth Circuit has neither announced a preferred method for determining the reasonableness of attorneys’ fees in common fund class actions nor identified factors for district courts to apply when using the percentage method.”).
Here, the magistrate judge chose the lodestar method for assessing the fee request.
Using the presumptively reasonable rates set forth in the District of Maryland’s Local Rules, class counsel documented earned fees of $1,261,547.50. See D. Md. Local R. App. B(3).
They also proved $217,657.26 in unreimbursed expenses, for $1,479,204.76 in costs and fees.
But counsel requested only $1,300,000.
As the magistrate judge correctly recognized, we presume that figure is reasonable because it’s less than the lodestar figure.
McAdams doesn’t challenge counsel’s billing practices. Instead, she contends the fee award isn’t reasonable under the percentage-of-recovery method.
Counsel’s fees totaled $1,300,000, 43% of the common fund. We acknowledge that this percentage approaches the upper limit of a permissible recovery.
But it isn’t unheard of.
See In re SmithKline Beckman Corp. Sec. Litig., 751 F. Supp. 525, 533 (E.D. Pa. 1990)
(“Courts have allowed attorney compensation ranging from 19 to 45% of the settlement fund created.”).
Because the fee award isn’t so far afield of a standard recovery, we can’t, without more, find that the percentage-of-recovery calculation outweighs the strong presumption that the award is reasonable.
Nor does McAdams’s third argument, that the fee award is unreasonable due to the “clear sailing” provision, hold water.
“[Clear sailing] agreements are troubling because they demonstrate that class counsel negotiated some aspect of their fee arrangement with the defendant, when counsel’s ethical obligation is to the class.”
Newberg on Class Actions § 13:9 (5th ed.).
But they are “not per se unreasonable.”
Bezdek v. Vibram USA, Inc., 809 F.3d 78, 84 (1st Cir. 2015).
“Rather, courts are directed to give extra scrutiny to such agreements.”
Id.; accord In re Southwest Airlines Voucher Litig., 799 F.3d 701, 712–13 (7th Cir. 2015); In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 949 (9th Cir. 2011).
That’s precisely what the magistrate judge did here.
He rejected the “suggestion that the settlement was somehow collusive” and found that the parties negotiated the settlement “at arm’s length in the midst of contentious litigation” that spanned six years and included “a Motion to Dismiss, two Motions for Summary Judgment, a contested Motion for Class Certification, numerous discovery motions, [and] numerous depositions.”
J.A. 807, 817.
And he noted that class counsel “supported their request [with] billing records and other competent evidence.”
McAdams doesn’t challenge these findings.
Offering only generalized objections to clear sailing provisions, she doesn’t point to a single example in the over 150 pages of billing records indicating class counsel breached their ethical obligations.
We reject McAdams’s challenge to the fee award.
For the reasons given, the magistrate judge’s judgment is
Several Charges Including Obstructing Justice Earns Matthew LumHo Lengthy Jail Term, Whilst Judge Is Guilty of Same Charge
Former DoD OIG Official Sentenced for Accepting Bribes and Defrauding the United States by Senior Judge Liam O’Grady, who enhanced sentence.
Former DoD OIG Official Sentenced for Accepting Bribes and Defrauding the United States
Meanwhile, Senior Judge Liam O’Grady has heard 66 cases since 2010 in the Alexandria, Va., federal courthouse while his wife was invested in plaintiffs or defendants, Amazon.
JAN 14, 2022 | REPUBLISHED BY LIT: JAN 16, 2022
ALEXANDRIA, Va. – A former official of the U.S. Department of Defense’s Office of Inspector General (DoD OIG) was sentenced today to 7.5 years in prison for accepting bribes and defrauding the government, among other crimes, in relation to a contract he oversaw at the DoD OIG.
According to court documents, Matthew K. LumHo, 47, of Fairfax Station, was employed at the DoD OIG’s Information Services Directorate.
In that position, LumHo oversaw and administered a prime federal contract designed to allow federal agencies in the National Capital Region to order routine telecommunications services and equipment from one of two national telecommunications companies.
Beginning no later than 2012, LumHo solicited and accepted bribes from co-conspirator William S. Wilson, in exchange for steering what nominally was intended to be telecommunications or information technology services through the prime government contract, through an intermediary telecommunications company, to Wilson’s company.
Wilson’s company received all of this business without any competition, despite its lack of any relevant experience or expertise, and despite having no employees based in or near northern Virginia, where all the work was to be performed.
Wilson and LumHo disguised the bribes by falsely masking them as payroll payments to a relative of LumHo for a job that did not in fact exist, with the bribes being deposited into an account that LumHo in fact controlled.
As the scheme progressed, LumHo, who was supposed to be safeguarding the contract, knowingly authorized numerous false and fraudulent service orders through the prime contract.
The false service orders typically described the items supposedly being provided to the government as specialized IT-related support services, when in fact the co-conspirators were simply buying standard, commercially available items, dramatically marking up the price, and billing the government as though it had been provided with the specialized IT-related services.
LumHo and Wilson also used fraudulent service orders to conceal bribes in the form of high-end camera equipment and stereo equipment sent from Wilson to LumHo, thereby defrauding the government into to paying for the very bribes themselves.
The evidence adduced at trial further demonstrated that the co-conspirators repeatedly sought to interfere with the criminal investigation by creating false documentation, making false statements to law enforcement officials, lying on a financial disclosure form, committing perjury during sworn civil deposition testimony, and tampering or attempting to tamper with a witness.
In addition, at sentencing, Senior U.S. District Judge Liam O’Grady found that LumHo had obstructed justice by committing perjury when he testified at trial.
Co-conspirator Ronald A. Capallia, Jr., pleaded guilty on January 25, 2018, to his role in the conspiracy and was sentenced to one year and one day in prison on September 14, 2021.
Today, LumHo was sentenced to 90 months in prison.
Co-conspirator William S. Wilson is scheduled to be sentenced on February 4, 2022.
Jessica D. Aber, U.S. Attorney for the Eastern District of Virginia; Wayne A. Jacobs, Special Agent in Charge of the FBI Washington Field Office Criminal Division; and Kelly P. Mayo, Deputy Inspector General for Investigations at the Department of Defense’s Office of Inspector General, made the announcement after sentencing by Senior U.S. District Judge Liam O’Grady.
Assistant U.S. Attorneys Matthew Burke and Russell L. Carlberg prosecuted the case.
A copy of this press release is located on the website of the U.S. Attorney’s Office for the Eastern District of Virginia. Related court documents and information are located on the website of the District Court for the Eastern District of Virginia or on PACER by searching for Case No. 1:17-cr-222.
USAO – Virginia, Eastern
Updated January 14, 2022
Federal Judge Liam O’Grady Didn’t Read Chief Justice John Roberts Year End Report
Federal Judge Steps Aside From High-Profile Amazon Case, Citing Financial Conflict
The WSJ notified judge of his family’s Amazon stockholding; a new judge has been assigned
JAN 11, 2022 | REPUBLISHED BY LIT: JAN 12, 2022
A federal judge removed himself from a nearly two-year-old Amazon.com Inc. case, citing a financial conflict, after a Wall Street Journal report about his family’s Amazon stockholdings.
U.S. District Judge Liam O’Grady had ruled in Amazon’s favor during the 20 months he oversaw the civil case, in which the online retailer accuses two former employees of taking kickbacks from a real-estate developer and violating Amazon’s conflict-of-interest policies.
In December, Judge O’Grady notified parties in the case in a Virginia federal court that his wife had owned about $22,000 in Amazon stock.
Following the Journal’s questions about the Amazon holdings, his wife’s investment adviser sold the stock on Dec. 3. Judge O’Grady’s conflict in the case was the subject of a Dec. 30 Journal article.
In an order Monday, Judge O’Grady said he was reluctant to step aside because his wife no longer owned the stock and the defendants in the case who had asked him to recuse offered no evidence that he was biased in Amazon’s favor. Judge O’Grady previously told the Journal he didn’t know his wife owned Amazon shares.
“However, perception of the fair administration of justice—both by the public and by the parties in the case—is of the highest importance to the Court,” Judge O’Grady wrote.
The recusal by Judge O’Grady, who has been on the bench since 2007, means a new judge will take over a busy case with nearly 500 docket entries and more than 4,000 pages of legal filings, likely creating costly delays for the litigants.
A WSJ review found that Judge Liam O’Grady has heard 66 cases since 2010 in the Alexandria, Va., federal courthouse while his wife was invested in plaintiffs or defendants.
The case was reassigned on Monday to Judge Michael Nachmanoff, who took his seat on the U.S. District Court for the Eastern District of Virginia late last year.
The Amazon suit is one of 66 cases since 2010 that Judge O’Grady has heard in the Alexandria, Va., federal courthouse while his wife was invested in plaintiffs or defendants, a Journal review found. Judge O’Grady said in an email that he was reviewing his case lists and disclosure forms and would notify parties of conflicts.
His participation in those cases violated a 1974 federal law that requires judges to disqualify themselves from cases involving parties in which they, their spouses or their minor children have a financial interest, such as individual stocks. Investments in mutual or index funds are exempted.
At a Jan. 6 hearing in response to the defendants’ request for his recusal, Judge O’Grady said that he had mistakenly believed his wife’s account was a mutual fund and had “no familiarity with it.” A Georgia-based investment adviser handles all the trades for his wife, he said.
In the hearing, Judge O’Grady bemoaned an ethics regime in which “my docket is entirely dependent on some Atlanta broker’s decision on what stock to buy and sell at any given time when I get no notice about it until the end of the year.” He called it a “trap” for district judges.
Federal law mandates that judges make a reasonable effort to inform themselves about their spouses’ financial interests. They are required by the federal judiciary to maintain recusal lists of companies in which they or their families are invested and update it regularly.
“Up-to-date recusal lists are the most effective tool for conflict screening,” Judge Roslynn Mauskopf, director of the Administrative Office of the U.S. Courts, said in an October memorandum sent to all judges.
Judge O’Grady, 71 years old, is among 136 judges for whom the Journal has identified stock conflicts as part of a yearlong investigation. The investigation and further reviews by judges who were contacted by the Journal have identified more than 950 cases since 2010 with recusal violations.
The Amazon case, filed in April 2020, centers on more than $400 million in development projects in northern Virginia, where Amazon has established huge data farms. They are the lifeblood of Amazon Web Services Inc., the retailer’s cloud-computing arm.
The racketeering lawsuit alleges that two former employees steered contracts to a developer, Northstar Commercial Partners, in return for millions of dollars of kickbacks. The former employees and developer have denied the allegations.
At last week’s hearing, Judge O’Grady said that the “idea that I would steer this case in Amazon’s favor because I felt that my wife’s $22,000 investment in Amazon’s stock would be at risk if I didn’t is literally—is almost insane.” He noted that he had ruled against Amazon in a counterfeiting case in May.
A spokesman for Amazon, which opposed the request for Judge O’Grady’s recusal, didn’t respond to a request for comment.
“We look forward to resolving this case on the merits,” said Stanley Garnett, a lawyer for Northstar founder Brian Watson. The former employees declined to comment.
An Amazon Suit Encounters a Snag: a Judge With a Conflict of Interest
Nearly two years into kickback case against ex-employees and a vendor, an Amazon stockholding by the judge’s wife threatens costly delays
DEC 30, 2021 | REPUBLISHED BY LIT: JAN 12, 2022
For nearly two years, U.S. District Judge Liam O’Grady has handed Amazon.com Inc. a string of court victories in a continuing suit in which it accuses two former employees of taking kickbacks from a real-estate developer and violating Amazon’s conflict-of-interest policies.
All that time, Judge O’Grady had a conflict of his own: a financial interest that under federal law barred him from hearing the case in the first place.
Throughout the case, Judge O’Grady’s wife owned Amazon stock. Judges are forbidden by a Watergate-era law to hear cases involving companies in which they or their spouses have a financial interest, however small.
After The Wall Street Journal contacted Judge O’Grady about the conflict, his wife’s investment adviser earlier this month sold the Amazon shares, valued at more than $20,000.
Now the question is whether he will continue overseeing the high-profile litigation.
“I should have disqualified myself,” Judge O’Grady said in a Dec. 1 email. He said he would remove himself from the case if asked to. After learning of the conflict, the defendants—the two ex-Amazon employees and a Colorado real-estate developer—asked the judge to step aside in a Dec. 21 court filing, on which he hasn’t yet ruled. A hearing is scheduled for Jan. 6.
Judge O’Grady is by all accounts a skilled and accomplished lawyer who has sat on the federal bench since 2007, handling major espionage, drug and government-leak cases, as well as complex patent litigation. Yet by his own admission he misunderstood how federal law applied to his situation. He said he mistakenly believed his wife’s account was a mutual fund, which doesn’t require judges to disqualify themselves.
A recusal by Judge O’Grady from the Amazon case would create duplication of work and compounded costs as a new judge gets up to speed. The case already has featured about a half-dozen hearings and has nearly 500 docket entries with more than 4,000 pages of court filings.
Defendants’ legal fees so far have totaled between $1.5 million and $2 million, according to people familiar with the case. Amazon’s are likely higher. The company is represented by Gibson, Dunn & Crutcher LLP, a global firm that charges more than $1,000 an hour for the services of some of its lawyers.
Corporate litigation in federal courts can be staggeringly expensive because it tends to be complex, said William G. Ross, a law professor at Samford University in Alabama who has written books on attorney billing. “Even a small amount of duplication of work by counsel for both plaintiffs and defendants as the result of a judge’s tardy recusal therefore can impose huge financial costs on both parties,” he said.
Judge O’Grady, in disclosing the Amazon stockholding to the parties, said in a Dec. 14 notice that his recusal would “substantially affect the progress of this case.”
A Journal review found 65 additional cases Judge O’Grady has heard in the Alexandria, Va., federal courthouse while his wife was invested in plaintiffs or defendants, among them Bank of America Corp., International Business Machines Corp. and Verizon Communications Inc.
That ranks him third in the list of federal judges with the most recusal failures in the Journal’s investigation of judges who presided in cases involving companies in which they, their spouses or their minor children were invested.
The Journal in September reported finding 131 such judges, who heard 685 conflicted cases between 2010 and 2018. It has since found violations by five more judges, and some of the 131 judges have identified more suits where they should have recused themselves, pushing the case total above 950.
Parties in past litigation who are notified of judicial conflicts can request to have their suits reheard.
A new judge was assigned to an asbestos case in South Carolina last week after the widow of a deceased veteran objected to the previous judge’s ownership of investments in some of the defendant companies.
In two other recusal violations, the appearance of a conflict for the judges has become enmeshed with arguments on appeal in circuit courts in New York and California.
Most cases in the Journal review are long since decided, in large part because the Administrative Office of the U.S. Courts hasn’t yet released the most recent financial disclosures.
Judge O’Grady’s Amazon case is a knottier situation: Not only is it a lawsuit that is still in progress, but it is a complex one.
The extent of judicial recusal failures contrasts with statements by the Administrative Office of the U.S. Courts describing a robust training and ethics program to make sure judges know how to comply with a 1974 federal law and the Code of Conduct for U.S. Judges.
Interviews and email exchanges with more than 40 federal judges revealed wide variation in their financial literacy and grasp of their obligations—which include a duty to be aware of any holdings they have that might pose a conflict with a case they’re assigned.
Some judges said they didn’t know what was on their annual financial disclosure forms, despite having signed them.
“They aren’t paying attention, and some of them probably think they are fulfilling their ethical obligations by not paying attention,” said Renee Knake Jefferson, a legal-ethics professor at the University of Houston Law Center.
The House has approved a bill, awaiting Senate action, that would increase public access to judges’ financial disclosure forms, which now are available to the public only by written request and can take months or even years to process. The bill would put them online, and soon after they are filed.
Newly appointed federal judges get conflict-screening training in orientation sessions, said Judge Jennifer Elrod, who heads the ethics committee for the federal judiciary’s policy-making body.
They also can participate in training seminars sponsored by the judiciary’s education and research arm, she said.
The director of the Administrative Office of the U.S. Courts, Judge Roslynn Mauskopf, reminded federal judges in an October memo that they are required to keep informed about the financial interests of their spouses, and that they may not rely on accounts controlled by financial advisers to avoid their recusal obligations.
Judge O’Grady said he hadn’t had a chance to read the memo.
The judge has about 60 criminal defendants and 200 lawsuits on his docket currently and presides over more than twice that many matters in a full year.
Judge O’Grady said he believed he received instruction on conflicts during an orientation before he joined the federal bench but couldn’t recall.
“I seriously doubt any course back then included any of the more sophisticated nuances that apply to my situation,” said the judge.
He said he didn’t appreciate the difference between his wife’s managed account and a mutual fund. He said he didn’t review her account statements and had no idea she owned Amazon stock.
Judge O’Grady, 71, said his wife never personally purchased or sold a stock in the account, instead relying on her adviser. He said that his wife’s family’s accountant prepared the portion of the judge’s disclosure forms covering the account, and that he and his wife have never had a conversation about buying or selling stocks. She confirmed that account.
Before joining the federal bench, Judge O’Grady was a federal prosecutor, a lawyer specializing in patent law and a federal magistrate judge.
The U.S. attorney’s office for the Eastern District of Virginia named an annual award for him, given to the prosecutor who devotes the most time to mentoring.
Helen Fahey, a former U.S. attorney, called him “an attorney of the greatest integrity, whether he was a defense attorney or prosecutor.”
The Amazon case, filed in April 2020, centers on more than $400 million in development projects in northern Virginia, where Amazon has established huge data farms. They are the lifeblood of Amazon Web Services Inc., the retailer’s cloud-computing arm.
Beginning in 2018, Amazon entered into lease agreements with Denver-based Northstar Commercial Partners for nine data centers on three sites. The developer bought land and constructed shell facilities for Amazon, which then built out the interiors.
Amazon alleged in its suit that two employees, assigned to solicit developers and obtain bids for real-estate deals, steered the lease contracts to Northstar in return for millions of dollars in kickbacks.
The suit names as defendants the two ex-employees, Casey Kirschner and Carleton Nelson ; WDC Holdings LLC, which does business as Northstar, and Northstar founder Brian Watson ; and several other corporate entities created for the Amazon deals. It alleges racketeering, fraud, conspiracy, breach of contract and unjust enrichment, among other claims.
Amazon said it fired Mr. Nelson in 2019, for reasons unrelated to the Northstar leases, and fired Mr. Kirschner last year.
The two have said their contracts allowed for outside business activity. “My only hope in defending myself against its false allegations is that the process will be fair and impartial. This doesn’t feel like either,” Mr. Nelson said. Mr. Kirschner declined to comment.
Mr. Watson of Northstar said his company’s bid went through layers of review at Amazon and won on the merits. He said he was unaware that any referral fees Northstar paid in connection with the Amazon leases were destined for Messrs. Kirschner and Nelson.
“We delivered those buildings, and to our knowledge, Amazon is still fully occupying those buildings,” he said.
Amazon said in its suit that a confidential informant formerly associated with Northstar emailed Amazon founder Jeff Bezos in December 2019, triggering an internal investigation.
Federal prosecutors in Virginia have disclosed the existence of an FBI investigation involving Messrs. Nelson and Kirschner. Lawyers for Northstar and Mr. Nelson declined to comment on the criminal probe, as did Mr. Kirschner. The U.S. Attorney’s Office for the Eastern District of Virginia also declined to comment on the criminal investigation, now nearly two years old. No charges have been filed.
The day after Amazon filed its suit, Judge O’Grady ordered Northstar to place millions of dollars in escrow, preserving funds for Amazon to collect if it won.
The judge issued the order at Amazon’s request, before giving Northstar a chance to respond. A month later, he converted his temporary order into an injunction, after hearing from both sides. Judge O’Grady said Northstar would have to secure about $21 million to ensure that Amazon would get relief if it won the case and Northstar collapsed. This represented fees the developer got from its contracts with Amazon, the judge said.
“We have a corporation and a CEO of a corporation who is under great stress, clearly looking at a criminal proceeding, as well as his termination of leaseholds and business partners having withdrawn from the company, and that there’s great risk that Northstar’s value is going to be insolvent,” Judge O’Grady said at the injunction hearing.
In a ruling in July 2020, he said the public interest favored the injunction, writing: “Amazon has brought significant development to the greater D.C. area, and hopes to continue to invest in northern Virginia in the coming years. Trusted business partners will be necessary to secure ongoing development in the public interest.”
Mr. Watson and Northstar appealed the escrow ruling. Their lawyer told an appeals court that Judge O’Grady appeared to be favoring Amazon because of its market power. The Fourth U.S. Circuit Court of Appeals upheld the injunction this summer, saying: “We reject Northstar’s baseless charge against the integrity and impartiality of the district court.”
Northstar and Mr. Watson have yet to secure the $21 million. They can’t afford it, Mr. Watson’s lawyer, Stanley Garnett, said in an October filing.
Judge O’Grady held the developer in civil contempt later that month for failing to come up with the money. He has appointed a receiver to ensure compliance with the injunction.
In asking Judge O’Grady to step aside, defense lawyers cited his rulings in Amazon’s favor and said a reasonable observer might conclude that the judge knew about his wife’s Amazon stock but decided to hear the case anyway. “This litigation has, obviously, not gone well for the Northstar Defendants,” the lawyers wrote.
Amazon said in a Dec. 28 filing that Judge O’Grady had no reason to recuse after his wife sold the Amazon stock. “Defendants make much of their lack of success in the litigation, but the reason things have ‘not gone well for’ them in this case and related actions is that there is clear evidence of their widespread fraud and kickback scheme,” Amazon’s lawyers wrote.
Virginia Judge Behavin’ Like an Outlaw On the Bench, Pulls a Pistol On Counsel During Trial
Upset Paralegal With Sketchy Past Criminally Charged for Allegedly Republishing Unredacted Court Documents
Virginia Supreme Court Confirms the Need for Independent Judicial Oversight
Meanwhile In N. Virginia the (Now Dead) Sheriff and Several EDA Staff were Stealing Upwards of $17M
The Virginia State Bar’s Delayed Response is Underwhelming, Erroneous and Transparent.
The Virginia State Bar is Interested in Threesomes but Not Criminal Perjury
Editors Choice2 years ago
Meanwhile In N. Virginia the (Now Dead) Sheriff and Several EDA Staff were Stealing Upwards of $17M
Acceleration2 years ago
The Virginia State Bar’s Delayed Response is Underwhelming, Erroneous and Transparent.
Appellate Circuit2 years ago
The Virginia State Bar is Interested in Threesomes but Not Criminal Perjury