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Posner Benchslaps Galore: Judges, Attorneys and Plaintiffs -- No One Is Safe

By Gabriella Khorasanee, JD on June 04, 2014 | Last updated on March 21, 2019

Has anyone ever time-lined Judge Posner's benchslaps? I wonder what the longest time frame sans benchslap has been. Probably not very long, and on Monday, he made the latest benchslap to a judge, attorney and plaintiff -- no one was safe.

Obviously, the parties didn't read our post on how to avoid a benchslap, or about that attorney who faked an illness because this case is the most deserving -- that we've read -- that called for benchslaps all around.

The Pella Class Action

Almost eight years ago, a suit was filed against Pella Corporation, a manufacturer of windows, for allegedly making faulty windows subject to leaking, causing damage to the window frame, and in some cases to the home. The class action was divided into two subclasses: one subclass of plaintiffs who had already replaced their windows, and the other subclass consisted of plaintiffs who had not.

Here are some other notable, but non-obvious facts: the lead plaintiff was the father-in-law of the lead plaintiffs' counsel. Lead plaintiff's daughter (lead counsel's wife) was also one of the attorneys on the case.

The Pella Class Action Settlement

The Pella class action settlement was rife with "red flags that the judge failed to see." From the amounts that plaintiffs would actually receive, to the notices, to the grouping of subclasses together, to the offer of a "coupon" for future purchase as a remedy, to the $2 million advance given to lead counsel, to the pending ethics actions and lawsuits against lead counsel, suffice it to say that the class action settlement benefitted no one other than lead counsel and Pella Corporation.

The Benchslaps

Judge Posner wasn't having it. Though he acknowledged that class actions can often be inequitable, here there were "red flags" that the district court simply missed. Benchslapping the district court judge, Judge Posner stated, "In sum, almost every danger sign in a class action settlement that our court and other courts have warned district judges to be on the lookout for was present in this case."

Then he dealt the final blow to both lead plaintiff and lead counsel by removing them from the case. Now, with potential conflicts lifted, the settlement was rejected, and the case reversed and remanded.

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