Censure for Judge Who Ordered Attorney Be Paid In Gift Cards, Like Class Members

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Last year, Los Angeles County Judge Brett Klein was presented with a proposed class-action settlement in which the plaintiffs' attorney would get $125,000, but class members would get only a $10 gift card, usable only at the store that allegedly violated the law in the first place.  That is an example of the much-maligned "coupon settlement," in which a defendant can end up profiting from breaking the law because a consumer must buy something from the defendant to redeem the coupon.  These can sometimes be okay, but Judge Klein didn't think this settlement was fair.

A Gift for You!  Another L.A. County judge, Susan Bryant-Deason, had tentatively approved the settlement, but she became ill and Klein ended up presiding over the fairness hearing.  In a ruling that caught my eye when it came out last year, he ordered that the attorney also be paid in $10 gift cards, just like the people he represented.  Under Klein's order, Neil Fineman was to receive 12,500 gift cards that he could put toward the purchase of any merchandise he liked, as long as he liked the women's clothing at Windsor Fashions.

That seemed like justice to me.  But it turns out that someone (it's not clear who) filed a complaint with the state Commission on Judicial Performance over this incident.  On February 2, the Commission censured Judge Klein (who has since retired), rather than, as the person who alerted me to the story suggested, giving him a medal.

According to the CJP's notice of proceedings, Klein was charged with violations including "willful misconduct in office" for his actions related to the settlement hearing.  The notice alleged, among other things, that Klein had "engaged in a pattern of sarcasm and improper remarks toward the attorneys" (it's good to know, but a little surprising, that this is actually against the rules) before modifying the proposed order.  He forwarded a copy of his final order to a local paper, which reported on it (as I did) "with approval."  Apparently, though, Klein himself later had second thoughts, and on his own motion ordered reconsideration of his ruling.  The reconsidering was done by Judge Bryant-Deason, who reinstated the order as originally proposed and approved the settlement.

In its February 2 decision, the CJP found that Klein's conduct displayed bias and something called "embroilment," and reflected "a failure to be patient, dignified, and courteous to those appearing before him."  I have to say that the transcript excerpts, which you can read for yourself in the decision, do not seem nearly as bad as this makes it sound.  (Or as uncommon.)  While sending the order to the paper is certainly unusual, it's not like it would have gone unnoticed otherwise, and as Klein said this week, "I'm a bit startled to be criticized for furnishing a public document to a journalist."  He stood by his criticism of the settlement, saying he thought it "would only be fair if the lawyer was paid the same way."

As the decision notes, Klein, who had been on the bench for nearly 20 years, stipulated to the result, possibly because he had retired anyway and so need not care.  Lost in all this, of course, is the issue of the settlement itself, which as approved still requires the allegedly wronged consumers to go spend more money at the defendant's store in order to benefit from the settlement.  Klein may have gone about this the wrong way, but his gift-card-fee requirement is still a great idea.

Link: Los Angeles Times