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Pound Institute logo; image courtesy of www.poundinstitute.org.
Pound Institute logo; image courtesy of www.poundinstitute.org.

The Pound Civil Justice Institute recently announced the winner of its 2017 Appellate Advocacy Award. We at LegalReader offer our congratulations to F. Paul Bland, Jr. the Executive Director of the Public Justice Foundation, an organization dedicated to combatting economic and social injustice, protecting Earth’s sustainability and challenging government abuses and predatory corporate conduct.

F. Paul Bland, Jr.; image courtesy of www.publicjustice.net.
F. Paul Bland, Jr.; image courtesy of www.publicjustice.net.

Mr. Bland was selected by the officers and trustees of the Pound Institute for his exceptional work before the Ninth Circuit in the Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016) case. Mr. Bland handled the oral argument and wrote the brief with co-counsel Karla Gilbride, also of Public Justice, and Claire Prestel, who is now with James & Hoffman, Washington, D.C. Together, the appellate team convinced the Ninth Circuit to refuse Allstate’s efforts to dodge its liability to a multi-thousand member class. Allstate tried to employ a strategy known as “picking off” a plaintiff. The strategy involved settling with the named plaintiff, which could potentially have mooted the claims of the other class members if allowed.

At the district court level, it was determined on April 12, 2016 that the “pick off” strategy was not allowed. That court stated that the strategy would essentially render class actions useless as Allstate could simply continue “picking off” plaintiffs and thus avoid ever having the case tried.

Chen dealt with privacy violations under the Telephone Communications Protection Act (TCPA), alleging that Allstate sent several unsolicited text messages and automated calls to the plaintiffs’ cell phones. The TCPA limits such behavior via regulation of automatic dialers, prerecorded voice messages, faxes, and SMS text messages.

The U.S. Supreme Court addressed similar issues in its January 2016 decision in Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 2016 WL 228345. The Court held that a defendant’s unaccepted settlement offer did not moot the class action. However, Gomez did not address one key question, which was the permissibility of the “pick off” strategy in a situation in which the defendant actually deposited the settlement money into an escrow account and the district court entered a judgment for the plaintiff.

In Chen, Allstate tried to use the Gomez loophole by putting money into an escrow account in advance of an expected court order to the escrow agent to pay the plaintiff and mandating that Allstate cease its unsolicited communications to the named plaintiff. The defendant’s attempt at “picking off” the named plaintiff didn’t gain too much traction with the Ninth Circuit as a result of Mr. Bland and team’s hard work.

The Court held that the whole class would not be mooted even if Allstate’s settlement fully satisfied the named plaintiff’s individual claims. The Court’s reasoning matched that of the district court in that, if allowed, the “pick off” strategy would simply continue until each of the named plaintiff’s claims had been settled and the rest of the class would go without a chance for justice. In addition, the Court held that plaintiff’s claims couldn’t be rendered moot before he had a fair chance to seek formal class certification. The Court added, in dictum (a non-binding, non-precedential comment), that there are times when a class action is the only means for injured parties to seek relief.

Mr. Bland will receive the award at this year’s Pound Fellows reception, held during the annual American Association for Justice Convention. The event is on Sunday, July 23 from 5:30pm – 7:00pm at the Sheraton Boston Hotel. Attendees will include AAJ leaders, Pound Institute fellow and trustees, and 70 state court judges from the Institute’s 2017 Judges Forum.

From its website: “The Pound Civil Justice Institute is a national legal ‘think tank’ created by pioneering members of the trial bar and dedicated to ensuring access to justice for ordinary citizens. Through its activities, the Institute works to give lawyers, judges, legal educators and the public a balanced view of the issues affecting the U.S. civil justice system. The Pound Civil Justice Institute was established in 1956 as the Roscoe Pound–American Trial Lawyers Foundation by a group of lawyers to honor and build upon the work of Roscoe Pound (1870–1964). Pound served as Dean of the Harvard Law School from 1916 to 1936, and is acknowledged as the founder of sociological jurisprudence – an interdisciplinary approach to legal concepts in which the law is recognized as a dynamic system that is influenced by social conditions and that, in turn, influences society as a whole.”

From the Public Justice Foundation’s website: “The Public Justice Foundation is a not-for-profit, 501(c)(3) charitable membership organization that supports Public Justice’s cutting-edge litigation and educates the public about the critical issues it addresses. Our membership includes leading trial lawyers, appellate lawyers, consumer advocates, environmental attorneys, employment lawyers, civil rights attorneys, class action specialists, law professors, law students, public interest advocates, and other people who care about justice.”

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