|This article is outdated. (April 2013)|
|Born||December 14, 1968|
|Education||BA, Brandeis University;
JD, University of Chicago
Theodore H. Frank (born December 14, 1968) is an American lawyer, activist, legal writer and blogger, based in Washington, D.C.. He is noted for writing the vetting report for vice-presidential candidate Sarah Palin for the John McCain campaign in the 2008 presidential election. He is the founder and president of the Center for Class Action Fairness (CCAF), established in 2009. The New York Times calls him the "leading critic of abusive class-action settlements"; the Wall Street Journal has referred to him as "a leading tort-reform advocate."
Frank graduated from the Brandeis University in 1991 and the University of Chicago Law School in 1994 with a Juris Doctor. A litigator from 1995 to 2005 and former clerk for Frank H. Easterbrook on the Seventh Circuit Court of Appeals, Frank was a director and fellow of the Legal Center for the Public Interest at the American Enterprise Institute in Washington D.C. As of 2011 he is an adjunct fellow at Manhattan Institute’s Center for Legal Policy, where he is also editor of the Institute's web magazine, PointofLaw.com. He is also on the Executive Committee of the Federalist Society's Litigation Practice Group and contributes regularly to conservative legal weblogs, and as of 2008, he is a member of the American Law Institute.
Background and early career
He graduated from the Benjamin Franklin High School in New Orleans, then earned his Bachelor of Arts degree in Economics from Brandeis University in May 1991. He wrote columns for his campus newspaper and political magazines and was a member of the student senate. He objected to a campaign to stop serving pork at the Jewish university, which was noted in The New York Times.
In 1994 Frank earned his Juris Doctor with high honors from the University of Chicago Law School. At Chicago he earned Order of the Coif and served on the law review. While at Chicago Law, he was a known presence on Usenet groups and researched urban legends; he was an early contributor to the Baseball Prospectus collective through essays on the Usenet group rec.sport.baseball. He has also been described as one of the most notorious contributors along with snopes to an activity then known as "trolling for newbies" (the term "trolling" was not negative in connotation).
After clerking for Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit, Frank entered private practice between 1995 and 2005 as a litigator on class action tort cases at law firms Kirkland & Ellis, Irell & Manella, and O’Melveny & Myers. Among his earliest cases were two sudden acceleration cases, where he represented the automakers. As part of his practice, Frank defended a lawsuit filed by the American Civil Liberties Union (ACLU) to delay the 2003 California gubernatorial recall election, defended Vioxx liability cases, and served on defense teams for antitrust and patent cases.
Advocacy of tort reform
Frank joined the American Enterprise Institute in 2005 when AEI offered him a fellowship to research the effects of the Class Action Fairness Act. As the director of the AEI Legal Center for the Public Interest he spoke and wrote about civil justice issues and liability. Frank also sits on the Executive Committee of the Federalist Society's Litigation Practice Group.
Frank is a leading proponent for tort reform in the United States. According to Frank, he became disillusioned at class action tactics, and the willingness of judges to approve settlements he felt were poor for consumers. He has strongly criticized obesity lawsuits, calling them "rent-seeking vehicles that are neither good law nor good public policy."
In April 2008, several members of Congress brought up the Lilly Ledbetter Fair Pay Act under Title VII, a revision of law "to state that prior acts outside the 180 day statute of limitations could be included", affecting employment financial issues. Frank was against the revision, saying that wages and hiring would be reduced to counter the possibility of litigation from a hired employee. The law was eventually passed in January 2009.
In February 2011, Frank was part of a three-member panel at Vanderbilt University in Tennessee which consisted of himself, James Blumstein, who is a law professor at the university, and Charlie Ross, a former State Senator in Mississippi, presenting their perspectives on how the business and people of the state would benefit from tort reform. Frank and the other panelists argued that "Tennessee’s current civil justice system is both inconsistent and unsustainable" and it was argued that, based on reforms in other states, a reform in this area could result in 30,000 jobs a year or 577 jobs each week in Tennessee and significantly improve the health system.
Issues and conflicts
In 2006, Frank published an op-ed in The Washington Post arguing for various tort reforms and criticizing the Association of Trial Lawyers of America for "show[ing] much more of an interest in benefiting trial lawyers than in fairness or justice. Jon Haber, CEO of ATLA, responded in the Post, accusing Frank of proposing to destroy "the nation's civil justice system to benefit the insurance industry, drug companies and other corporate powers", of a "laughable" claim that too many lawsuits "may transform the nation into a 'banana republic'", of "find[ing] the fight for justice trivial" and making "nothing more than an attack on the Constitution of the United States". The next day, Frank described Haber's op-ed as "a collection of ad hominems and insults and non sequiturs", "purport[ing] to be responding to [Frank, but] in fact responding to a fictional straw-man". He accused Haber of "dishonest change of subject: at no point does Haber defend the lawsuits I actually criticize", and ended by noting that Haber did not respond to "the most important part of my op-ed" about "trial lawyers ... trying to undo [the concept that a deal is a deal] retroactively".
In a Wall Street Journal opinion piece in 2007, Frank said that the Department of Treasury and SEC should urge the Supreme Court to reject expanded securities litigation liability in Stoneridge v. Scientific-Atlanta. Congressmen John Conyers, Jr. and Barney Frank criticized this op-ed in their saying that Frank's argument substituted policy considerations for the plain text of statute. Frank rebutted the allegation on the Overlawyered weblog. Also in 2007, Frank posted an article regarding tort trial lawyer Arthur Alan Wolk on Overlawyered, a website he has regularly posted on since 2003 about tort reform issues, that prompted Wolk to sue Frank for defamation. The case was dismissed as barred by the one year statute of limitations. On appeal, the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the American Society of News Editors, the New York Times, the Washington Post, the Associated Press, and law professors and First Amendment experts Eugene Volokh and Glenn Reynolds, among others, filed amicus briefs in support of the defendants saying that there was no actionable claim of libel.
Frank, who worked on the Vioxx case early in his career, was called "perhaps the loudest critic of the Vioxx litigation," and debated trial lawyer Mark Lanier about the issue. Frank continued his criticism in a 2011 article. "A final sordid chapter in the tort litigation over Vioxx closed, as Judge Eldon Fallon divvied up $315 million to be paid to the plaintiffs' attorneys who worked on the litigation. This sum was in addition to the more than $1.2 billion already paid to such attorneys. When you add in what Merck paid to plaintiffs and for its own attorneys, the Vioxx litigation cost it more than $7 billion. Yet Merck almost certainly did not do anything wrong. Even as an unsympathetic corporate defendant, it won the vast majority of cases that went to trial, and another dozen or more that plaintiffs' attorneys dismissed on the eve of trial rather than risk the publicity of a certain loss. Even in the handful of cases that Merck lost at trial, such as the $253 million verdict in the Ernst case that generated much of the publicity that led to tens of thousands of cases being filed, Merck won reversals of most of those on appeal because the verdicts were based on conclusory junk-science expert testimony that should not have been admitted into evidence." Lanier defended the settlement as fair.
Sarah Palin vetting
According to the book Game Change: Obama and the Clintons, McCain and Palin, and the Race of a Lifetime, on the weekend before John McCain made his vice-presidential pick, McCain's advisor Arthur Culvahouse asked Ted Frank to prepare a written report on Sarah Palin, "Thrown together from scratch in less than forty hours, the document highlighted her vulnerabilities: "Democrats upset at McCain's anti-Obama 'celebrity' advertisements will mock Palin as an inexperienced beauty queen whose main national exposure was a photo-spread in Vogue in February 2008. Even in campaigning for governor, she made a number of gaffes, and the Anchorage Daily News expressed concern that she often seemed 'unprepared or over her head' in a campaign run by a friend." " The book also says that Frank worked on the vetting of Senator Joe Lieberman. The report was widely criticized; GQ has cited the report as "the most infamous document in veep-vetting history." In Mark Halperin and John Heilemann's book Race of a Lifetime: How Obama Won the White House (2011), they describe the vetting at length. Frank has defended the report as "exhaustive" and covering "almost everything that would eventually dog her on the campaign trail." In the HBO film Game Change, Frank was played by Brian d'Arcy James.
Center for Class Action Fairness
In 2009, Frank founded the non-profit Center for Class Action Fairness (CCAF) to represent consumers dissatisfied with their counsel in class actions and class action settlements. According to The American Lawyer, as of March 2013, the CCAF had successfully challenged two dozen settlements.
Frank founded CCAF after his successful objection to the proposed class action settlement in the Grand Theft Auto consumer fraud case. Under the settlement, class members who had bought a Grand Theft Auto: San Andreas video game with a hidden, sexually explicit easter egg would have received less than $30,000, while the plaintiffs' attorneys would receive $1 million in legal fees. The court rejected the settlement on other grounds, but the case spurred Frank to devote himself to objecting to class action settlements, and he left AEI.
CCAF has objected to settlements throughout the United States, in cases where class action lawyers receive cash payments but the plaintiff class receives only discount coupons for further products and services from the defendant company. CCAF argues in those cases that few of the coupons are ever used, so the actual payment to plaintiffs is much lower than the stated amounts. In 2010, CCAF successfully objected to a coupon settlement in a Central District of California class action alleging consumer fraud in the sale of Honda Civic Hybrids; the settlement would have provided $2.95 million in attorneys' fees, but only coupons to the class. Frank was reported to have said, "coupons are nearly worthless because so few of the intended beneficiaries will find it worthwhile to fill in all the necessary paperwork." The CCAF has also been involved in the case surrounding the allegations of email spamming by Ameritrade in 2009. The case brought Frank before Northern District of California Chief Judge Vaughn Walker, where he challenged the fairness of a TD Ameritrade settlement, which consists of coupons for antivirus software. Frank "argued that the court should not award, or should at least limit, the requested $1.87 million in attorney fees." Judge Walker rejected the Ameritrade settlement in October 2009.
Gay rights activism
In response to the Chick-fil-A same-sex marriage controversy, Frank created the "Chicken Offset" website to permit gay-rights supporters to offset their purchases of Chick-fil-A with donations to charities that supported gays. Frank also co-hosted a benefit to protect same-sex marriage in Maryland.
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- Special to the New York Times (28 May 1988). "'Pigtown' at Brandeis U. Protests Food Policy". New York Times. "The general feeling is that we're not forcing them to eat pork and they shouldn't be forcing us not to eat pork."
- O'Brien, John (July 16, 2007), Attorney: W. Va. SC ignoring law for benefit of trial lawyers, The West Virginia Record. Retrieved September 1, 2007.
- Frank wrote a student comment, "The Economic Interest Test and Collective Action Problems in Antitrust Tie-in Cases", 61 U. Chi. L. Rev. 639.
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- Cecil Adams (2000-05-14). "The Straight Dope". Retrieved 2007-08-26. "To be fair, not all trolls are slimeballs. On some message boards, veteran posters with a mischievous bent occasionally go "newbie trolling."
- See Michele Tepper, "Usenet Communities and the Cultural Politics of Information" in David Porter, ed., Internet Culture (1997) at 48 ("[T]he two most notorious trollers in AFU, Ted Frank and snopes, are also two of the most consistent posters of serious research.").
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- "About". Overlawyered. 2012-11-03. Retrieved 2012-11-07.
- Frank, Ted (17 August 2011). "Manhattan Moment: Win or lose, trial lawyers get millions in Vioxx fees". The Washington Examiner.
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- Mauro, Tony (21 August 2007). "Observers Speculate Justices Could Rejoin Securities Issue". New York Law Journal.
- "Publications » The Federalist Society". Fed-soc.org. Retrieved 2012-11-07.
- Theodore H. Frank (2006). "A Taxonomy of Obesity Litigation". University of Arkansas at Little Rock Law Review. SSRN 926536.
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- "Lawsuit Abuse Reform Will Give Tennesseans Long Overdue Benefits". Tennessee Center for Policy Research. March 2011. Retrieved 21 August 2011.
- Frank, Ted (September 7, 2006). "End Open-Ended Litigation". The Washington Post.
- [[Jon Haber|Haber, Jon]] (October 21, 2006). "A Response to 'End Open-Ended Litigation'". The Washington Post.
- Frank, Ted (October 22, 2006). "A Response to 'End Open-Ended Litigation'". Point of Law.
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- Stoneridge v. Scientific-Atlanta amicus filed, United States House of Representatives, 30 July 2007
- "MOTION FOR LEAVE TO FILE A BRIEF AS AMICI CURIAE AFTER THE FILING DEADLINE AND BRIEF AMICI CURIAE OF THE HONORABLE JOHN CONYERS, JR. AND BARNEY FRANK, IN SUPPORT OF PETITIONER". University of Denver Sturm College of Law. 30 July 2007. Retrieved 23 August 2011.
- "Stoneridge: Wherein I am a footnote". Overlawyered.com. 31 July 2007. Retrieved 23 August 2011.
- "Wolk v. Olson". United States District Court Eastern District of Pennsylvania. Retrieved 23 August 2011.
- "BRIEF OF AMICI CURIAE THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 19 MEDIA ORGANIZATIONS IN SUPPORT OF DEFENDANTS-APPELLEES". Reporters Committee for Freedom of the Press. 6 December 2010. Retrieved 21 August 2011.
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- Wolk v. Olson, No. 10-3352 (3d Cir.) docket
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- "Hardly a ‘class’ act Legally Speaking". Rockwall Herald-Banner (Texas). 6 May 2011. Retrieved 20 August 2011.
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- "Did Lawyers Inflate Fees in Hot Coffee Class Action Suit?". Gamepolitics.com. 27 May 2008. Retrieved 23 August 2008.
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- Moser, Kate (23 September 2009). "Class Action Avenger Discusses Coupon Crusades". Legal Pad. Cal Law. Retrieved 25 September 2009.
- TD Ameritrade Accountholder Litigation, No. 07-CV-2852, 2009 U.S. Dist. LEXIS 126407 (N.D. Cal. Oct. 23, 2009).
- Greenwood, Arin (5 August 2012). "Chick-fil-A Offsets: Ted Frank, D.C. Lawyer, Offers Chicken From Chain With No Guilt". Huffington Post.
- Sprigman, Chris (8 August 2012). "The Birth of the "Chicken Offset"". Freakonomics.
- Geidner, Chris (20 July 2012). "Cato Scholar Hosting Benefit To Protect Maryland’s New Marriage Equality Bill". Buzzfeed.