July 13, 2005
I'm a class member -- what should I do?
I was notified by email recently that I am a member of a class whose members include those who had ordered free business cards from Vista Print. Apparently the lead plaintiff thought that the shipping and handling fees ($4.95 for 250 cards) were excessive. I believe the counsel is Edwin Schreiber, whose name I could not find on your site.
According to the email, it seems that my only options are to opt out of the lawsuit, presumably for the purpose of pursuing my own damages, or be included by default. I am not looking for free legal advice, but having no beef with Vista Print, do I do the productive business community a better service by exempting myself from the class or by sticking around to bear witness to this kind of nonsense?
-- David Witkin, Irvine, CA
This may possibly be the single question we most often get asked by readers in letters to the editor. I have a few ideas as to possible answers, but in the mean time I'll open the comments section for (polite, to-the-point) reader discussion of the question. -- W.O.
Posted by Walter Olson at July 13, 2005 10:05 PM
I would appreciate a brief review of the general recourse the members of the class have against their own class attorneys, in intervention, in lawyer malpractice, in professional responsibility, in reining in unjust lawyer enrichment, in conflict of interest accountability.
When we have reached the point where lawyers can decide who their plaintiffs are, we have reached the point where "The Rule Of Lawyers" is fact, not opinion. I think that any lawyer who includes a plaintiff against his or her will should be disbarred.
Skating Zebra: While you may not be wrong (although disbarring's harsh, isn't it? Can't we save that for prosecutors who know of and do not disclose, let alone act on, exculpatory evidence in a capital case?) I think that, in fact, there is no such situation present.
David, the writer, wanted to know whether to "stay or should he go." He had an opt-out. He can write to the lawyer, or the court (although writing to the lawyer's probably faster... hopefully). Opt-in class actions make more sense in many situations. Opt-out classes can't possibly be unethical, can they? That's why there's judicial oversight, and intervenors, and interested defendants: so that the process has adversaries (although nobody's advocating for the public, it is to be hoped that the court will take into account both judicial and public resources and interests, to strike an acceptable balance between society's needs and the positions [and meritorious arguments] of the parties).
Sorry for the parenthesizing.
- a trial lawyer
You could opt out of the class and then contact defense counsel and offer to submit an affidavit or testify on behalf of the defendants. I do not know if defense counsel would take you up on your offer but at least you would know that you offered to do something.
Such a situation is indeed present (though not quite in this case) - many a person has found out that they were members AFTER the fact.
And disbarring is not harsh - when it's intentional, disbarring is mild.
And the prosecutor you mentioned should be disbarred AND spend several years in prison.
"That's why there's judicial oversight, and intervenors, and interested defendants: so that the process has adversaries ..."
This site exists as testament to the complete failure of all of those. Open your eyes - if you really are "a trial lawyer", you are surrounded by people who, by and large, make their money by pereverting justice.
If the general public considers opt-out unacceptable for spam, why in the world should it be acceptable for lawsuits?