Objector Enterprise Exposed in Depositions

Posted on 1 March 2017.

Class Counsel:  “Beyond simply filing the objection and whatever benefit there is to the adversarial process of filing the objection, is there any concrete substantive additional benefit that you can point to…in exchange for the dismissal of the appeal and the corresponding payment of money that you received?”

Attorney Fortman:  “No.  The answer is no.”

(Fortman Deposition Excerpts at 35:18-36:1)

In a nationwide class action involving overheating dishwashers, class counsel motioned for and received discovery from numerous serial objectors and their counsel, including deposition testimony.  Depositions of John C. Kress and Jonathan E. Fortman (who, along with Steve A. Miller, operate what could be referred to as an “objection enterprise”) shed light on the way serial objectors operate and the benefits they receive.

As noted above, Attorney Fortman noted that no substantive changes were made to at least four settlements wherein the objectors received a payment in exchange for dismissing their appeal.  Attorney Kress, in his deposition noted that “it is not uncommon under certain circumstances that the objectors’ attorneys are awarded attorneys’ fees by class counsel at that stage (the appellate stage) of the proceedings” (John C. Kress Deposition Excerpts at 19:9-12).  It is notable that these payments tend to happen following an appeal, since the Federal Rules of Appellate Procedure do not require the disclosure of any payments made in conjunction with these “side agreements.”

Attorneys Kress and Fortman both contend that, while they do not bring any actual change to the settlements they object to, simply by objecting they add value to the adversarial process (Kress Deposition at 23:8-19; Fortman Deposition at 36:13-37:5).