The dissident plaintiffs, through the Superior Court action, now seek
from class counsel the monetary relief that counsel could not obtain in
its negotiations with the State Department. While plaintiffs claim not to
be attacking the settlement or consent decree, or the adequacy of class
counsel's representation in negotiations with the State Department, it is
impossible to read that action as anything but a collateral attack on the
findings of this Court (and the Court of Appeals) that class counsel
fairly and adequately carried out its duties to the members of the
Dissident plaintiffs' complaint that class counsel failed zealously to
protect the individual interests of the plaintiffs, over those of the
class, has no merit. First, the dissident plaintiffs had their own
counsel representing their individual interests at the fairness hearing
and beyond. That procedure assured that the interests of the dissident
plaintiffs would be properly represented, and was the proper route to take
when the conflict arose over the settlement. See Maywalt v. Parker &
Parsley Petroleum Co., 67 F.3d 1072 (2d Cir. 1995). To argue that their
individual interests were not zealously prosecuted is to ignore the role
played by dissidents' individual counsel, who were retained while
settlement negotiations were ongoing, and who appeared as counsel in the
proceedings before this Court.
Second, the dissident plaintiffs' complaint that Akin, Gump and
Lawyers' Committee attorneys failed to advance their individual interests
runs counter to the requirements of class counsel in a class action.
Class counsel is required to act in the "best interests of the class
considered as a unit." Parker v. Anderson, 667 F.2d 1204, 1211 (5th
Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982).
The Manual for Complex Litigation states clearly that class counsel is
responsible for protecting the interests of the class, "even in
circumstances where the class representatives — their direct
clients — take a position that counsel consider contrary to those
interests." Manual for Complex Litigation (Third) § 30.43.
Clearly, the action in Superior Court thus attempts to relitigate
issues that have already been finally and fully litigated in this forum
— the appropriateness of the representation of these plaintiffs by
Akin, Gump and the Lawyers' Committee. That action can only be viewed as
an attempt to attack and relitigate the findings of this Court and the
Court of Appeals. As such, the dissident plaintiffs seek to burden class
counsel with the needless expense of "relitigation" in Superior Court. If
such a case were allowed to go forward, the consequences to future class
actions could be quite severe. First, the threat of a state malpractice
action, despite findings of fairness and adequacy of representation in
the class action, could discourage future class counsel from attempting
to settle and compromise a class action. This is especially true in cases
where the class numbers in the hundreds or thousands of individual
members — it would be near impossible to satisfy the individual
interests of every member of the class. And if class counsel did attempt
to satisfy all of those interests, counsel's hands would be impossibly
tied in any type of settlement negotiation. The result of such a policy
is clear: more protracted litigation without settlement or compromise of
the claims and allegations brought by the class. In actions where a class
seeks prospective and retroactive injunctive relief, such handcuffing
would sound a death knell to class counsel's ability to evaluate its case
and negotiate a workable settlement in the best interest of the class as
a whole, in a timely manner.
The threat of a malpractice suit of this kind could significantly
discourage attorneys from bringing future meritorious class actions.
Groups like the Lawyers' Committee, and law firms that are willing to
devote their resources essentially on a pro bono basis, would be greatly
discouraged from reaching out to help deserving class litigants if to do
so would likely expose them to the "double jeopardy" of a
state malpractice action.*fn4 In a world fraught with numerous
injustices that can only be vindicated through the vehicle of a class
action, attorneys should not be dissuaded from bringing meritorious
actions by the threat of a state court malpractice law suit.
The Court is concerned that allowing the malpractice action to proceed
necessarily implies a nullification of this Court's findings on the
adequacy of counsel's representation of the plaintiffs. It removes one of
the Court's most important functions in a class action — protecting
the interests of the class members through fairness hearings and other
procedures designed to assure that members of the class as a whole are not
compromised by the individual interests of a minority of the class, or
possibly by the vindictiveness of a few. The Court expects that its
findings on the fairness of a settlement, adequacy of notices, and
adequacy of class representation are final and have the force of law. The
dissident plaintiffs' attempt to relitigate this Court's findings through
the ruse of a so-called malpractice action would have the effect of
undermining the settlement and consent decree reached in this matter.
Having found that the dissident plaintiffs are to be collaterally
estopped from relitigating this Court's decision in Thomas v.
Christopher, through the guise of a state court action styled as a
malpractice lawsuit or otherwise, the Court now considers the
appropriateness of injunctive relief.
To succeed, movants must demonstrate a likelihood of success on the
merits, that irreparable injury will result without injunctive relief,
that no other parties will be harmed by a grant of such relief, and that
the public interest is served by the issuance of the injunction.
Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841,
844 (D.C.Cir. 1977); Serono Laboratories v. Shalala, 158 F.3d 1313
(D.C.Cir. 1998). As discussed above, movants have demonstrated a
likelihood of success on the merits.
The injury to class counsel, by having to endure wasteful relitigation
in state court of an issue already finally decided by this Court is
clearly irreparable. See Laskey, 638 F.2d at 957; Golden, 786 F.2d at
1428-29; Ennis, 542 F.2d at 49-50. Additionally, the Court finds that the
potential for nullification or compromise of the Court's judgment in the
underlying matter is sufficient alone to constitute irreparable injury to
class counsel and class members who have received the benefit of the
settlement and consent decree. See Royal Ins. Co. v. Quinn-L Capital
Corp., 759 F. Supp. 1216, 1237 (N.D.Tex. 1990), rev'd in part on other
grounds, 960 F.2d 1286 (5th Cir. 1992).
The harm to other parties, particularly the dissident plaintiffs who
brought the malpractice suit, is limited at best. Those plaintiffs, as
class members, were entitled to receive the benefits resulting from the
settlement of the class action. Those plaintiffs already have been given
an adequate forum (i.e. at the fairness hearing) to air their individual
grievances. Their objections were taken into account by this Court. After
hearing their objections to the settlement, the Court granted them the
right to opt out of the settlement. Although the Court of Appeals did not
agree with this determination, the dissidents' position was given full
consideration. Fairness does not require that plaintiffs be afforded
still another opportunity to air their grievances in the form of a
malpractice action in state court.
What is more, injunctive relief in this case is in the public
interest. The public interest favors finality of Court judgments.
Further, injunctive relief will promote the justifiable use of the
federal class action device in meritorious cases without exposing counsel
to duplicative state court lawsuits when class counsel properly
discharges their duties to the class as a whole. The public interest is
served by reducing the potential for the constant relitigation of issues
between this nation's state and federal court systems. Royal, 759 F.
Supp. at 1237-38.
In accordance with the above an injunction will issue precluding the,
dissident plaintiffs from prosecuting their action in Superior Court.
This matter comes before the Court on class counsel's application for
preliminary and permanent injunctive relief. Class counsel seeks to enjoin
prosecution of a lawsuit styled Thomas, et al v. Akin, Gump, Strauss,
Hauer & Feld, L.L.P., et al., C.A. No. 1898-99, which is currently filed
in the Superior Court for the District of Columbia.
A hearing was held on class counsel's application for relief on October
29, 1999, and parties' positions were fully briefed and argued. For the
reasons set forth in the accompanying Memorandum Opinion, it is, this
Seventh day of December, 1999:
ORDERED that class counsel's application for permanent injunctive
relief is GRANTED, and it is further
ORDERED that Walter J. Thomas, Alan B.C. Latimer, Mary Cynthia Smoot,
Odie Fields, and Alfred Neal, and their officers, agents, servants,
employees, and attorneys, and those persons in active concert or
participation with them, acting individually or as representatives of a
class, are hereby enjoined from prosecuting the lawsuit styled Thomas, et
al v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., et al., C.A. No. 1898-99
in the Superior Court for the District of Columbia.