UCLRG Status Report 4/15/13
Group Poll Results
Over 90% of the respondents wanted us to change from requesting a Writ of Mandate to requesting a Class Action suit. The UCLRG Legal Defense Fund Board met and approved the change.
We were offered about $40K in new funding to support the change. 126 responses were received, 30 people were willing to donate to support the writ of mandate, and 107 were willing to donate to support a Class Action. The results would give us about $65K, including previous donations, as a starting point for negotiating with our lawyers.
Some comments of interest:
IS THERE A LIST OF THOSE WHO WERE THE ORIGINAL PLAINTIFS?
The current and original plaintiffs are the same; Joe Requa, Donna Ventura, Jay Davis, Wendell Moen.
Assuming 5000 retirees, $100 each should be more than a fair share
What is the per person if everyone opted in?
what is potential # of retirees in Class Action?
amounts are / year. could be higher if believed not contributing fair share
The longer this thing drags, more and more people will drop out.
At the time of transition, LLNS showed a slide indicating in excess of 5000 retirees. In addition, some of them would have dependents that belong to the class. By now, at least some have passed away. We believe 5000 to 6000 in the class now would be a fair estimate.
We have no access to a list of the people who might be in the class, so we are working with the people we have found or have found us. We have about 850 email addresses; some of them are no longer valid, presumably because they have changed addresses and either failed to notify us or have lost interest. We reach about 800 people, some not in the class. Some in the class canŐt afford to contribute. Given the small number of people we can reach, we decided to operate as a charity, asking people who can afford to cover the cost to provide funding for everyone. We will continue as long as our donors are willing to support us.
Let's see if the Mandate works before spending extra money on the Class Action.
Why was that not a Class Action at the beginning?
Past comments were that Class Action was slower path. What precipitated change?
How much effort would be required to actually expand the suit to a Class Action?
We began shortly after UC announced that LLNS would be providing our medical benefits. At the time, the LLNS contract required them to provide us with medical benefits Ňsubstantially equivalentÓ to those provided by UC. We never had any legal relation with LLNS and we didnŐt approve the transfer of liability from UC to LLNS so the transfer was clearly illegal.
LLNS claimed in their policies and procedures, in spite of their contract, that they
had no legal responsibility to provide medical benefits to LLNL retirees.
As soon as the contract was signed LLNS began to plan to modify our medical benefits, ignoring the Ňessentially equivalentÓ benefit requirement. When we complained to UC General Consul Jeffery Blair, he stalled us. Shortly thereafter, LLNS, NNSA and UC put through modification 42 to the LLNS contract specifying LLNS could modify the requirement for retiree medical benefits retroactive to the signing of the contract. LLNS then notified us that they hadnŐt breached the contract.
We and our lawyers misjudged what would be required to force UC to resume providing our medical benefits. The management contract between UC and DOE/NNSA provided that DOE would pay any unfunded liabilities resulting from unfunded legal awards. We believed that UC would recognize itŐs mistake and use the Writ of Mandate suit to reinstate us and assure that DOE/NASSA would have to pick up the bill. We tried for a quick and easy resolution with minimal damage but failed to achieve it.
The fact that UC is providing retiree medical benefits to its other retirees, including retirees from LBNL, isnŐt enough to convince the Court that they should be providing them to us. We have to show the Court that UC is required to provide them because of an implied contract or Estoppel. If we have to go to that level of proof, we should get what we have proved we are owed, including damages. That is the reason we plan to change to a Class Action suit.
We are investigating the cost, difficulty and time required to change to a Class Action. Clearly defining, certifying and notifying the class as well as the motion to amend our action will add to the cost and difficulty and lengthen the time required. Our lawyers would like $75K for the Class Action work and $25K to begin discovery. We are negotiating an agreement with them that provides some amount up front with us promising best efforts to raise the rest.
Attorney fees in a Class Action may encourage UC to settle.
Any idea whether Class Action lawyers would or would not work on contingency?
Both AttorneyŐs fees and Damages are sticks to encourage UC to settle. They may also increase the attention of higher managers who may be ignoring us at the moment.
We have mentioned the possibility of Class Action contingency financing to our lawyers and our Vice President has located some potential Class Action law firms that might be interested. We think the Appeals Court ruling would be a good sales brochure since it lays out our case very well.
Implications of Contingency Financing:
We have recently received a notice that we are a member of a Class Action suit being settled by mutual agreement rather than a Court award. Looking at the numbers, the lawyers receive the following:
1/3 of the award for contingency fees.
All costs of the case.
Totaling it all up, the lawyers get over half of the award plus their fees. The plaintiffs get the leftovers. From what we have seen, this seems to be a typical pattern.
Since we have paid a significant amount to develop our case, we would expect to get that amount back out of the attorneyŐs fees, if we make a contingency agreement. In place of what get back, the attorneys would get their full fee, rather than the reduced fee they are charging, and payment for all the work they have written off. We would try to negotiate a lower contingency fee because the attorneys can better assess the chances of winning, given the background work we have done. We might even get more than half the award.
Changing from requesting a Writ of Mandate to a Class Action for damages will ŇmonetizeÓ the case, providing an award pool to draw on to pay for the case. That means that even if we canŐt afford to complete the case, we should go ahead with the conversion in hopes of attracting a contingency sponsor.
Our own lawyers are in the best position to assess the chances of winning and would be the first ones we would offer it to. If they arenŐt in a position to take it, either because They canŐt afford the gamble or because they donŐt think the probability of winning is high enough, we will see if we can find a hungrier law firm interested in the case.