Class Action Countermeasures : Class Action Lawyers & Attorneys : McGuireWoods Law Firm : Complex Litigation, Mass Torts

 Two weeks ago, when discussing Professor Miller's article on differences in contract law, I remarked that there has been no appellate opinion that looked at the individualized factual issues that arise in breach of contract cases where the plaintiff has alleged a violation of the implied duty of good faith and fair dealing. Turns out I was wrong.

In fact, the Eighth Circuit, in Avritt v. Reliastar Insurance Co., recently affirmed a denial of certification in a case where the duty of good faith and fair dealing was a primary issue.

An annuity is a low-risk, low-return investment. Basically, the investor pays into a fund, the fund earns interest, and then the fund pays back out in a series of installments at a later date. In this case, the Avritt plaintiffs alleged that one of Reliastar's annuities credited interest on recent deposits higher than it did on older deposits. They claimed that, because the higher interest rate captured the investors' attention, paying more than one interest rate constituted a bait-and-switch. The plaintiffs asserted claims under the Washington and California consumer-protection acts, but the meat of their claims was their breach-of-contract claim. They tried to convince the trial court that Reliastar's had breached its annuity contract because it had stated that it would only charge rates approved by its board, and there was no indication the board had approved these two separate rates. They also claimed that Reliastar had violated the duty of good faith and fair dealing.

The plaintiffs did not fare well on their breach of contract claims. The trial court (and the appellate court), expressed grave doubts about plaintiffs' proposed interpretation of the contract. But, more damning, the Eighth Circuit held that, even if plaintiffs had alleged a viable interpretation, deciding what the contract actually said would raise too many individualized issues to justify certification.

Assuming that the Avritts' interpretation of the contract is plausible, however, the existence of two or more reasonable interpretations opens the door for extrinsic evidence about what each party intended when it entered the contract. In addition to extrinsic evidence about Northern's intent, Reliastar would be entitled to introduce evidence about how the contract was explained in various sales discussions and whether each purchaser's understanding of the contract was consistent with the theory the Avritts now advance. Thus, Reliastar's liability to the entire class for breach of contract cannot be established with common evidence.

(Emphasis added, internal citations omitted.)

Nor was the Eighth Circuit any kinder to plaintiffs' good-faith-and-fair-dealing claim; it held that that, too, raised a number of individualized factual issues.

The duty of good faith and fair dealing, however, "arises only in connection with terms agreed to by the parties," and therefore does not create "a free-floating duty of good faith unattached to the underlying legal document." Applying these principles, the district court correctly determined that evidence of the representations made to each purchaser and the understanding that they attached to the contract would be essential to establishing liability.

(Emphasis added, internal citations omitted.) And that means that plaintiffs' allegations about good faith and fair dealing were subject to individualized evidence.

The court also denied certification of plaintiffs' deceptive-trade practices claims. But the important parts of this case, from a defense perspective, are the arguments it provides for defending contract class actions. As breach-of-contract class claims become more popular, it's vital that defense counsel recognize what individualized issues are implicated. Avritt identifies a number of individualized issues that the defense should not ignore.

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Class-action lawyers like long fact sections with many details. 

But Ernest Hemingway wrote a moving story using just six words:

For sale: baby shoes, never worn.

And Scottish comic-book team Grant Morrison and Frank Quitely told a famous superhero's origin in only eight:

Sometimes, if they're chosen properly, just a few words are best.

Happy Thanksgiving!

(Image used under fair use doctrine.)

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One of the peculiarities about class-action practice is how segmented it can be.  Because Rule 23 can apply to many different kinds of class actions--ranging from international human rights violations to the vagaries of various benefits plans--many lawyers will consider themselves "class action experts" even if all they've ever worked on are securities cases, or products-liability lawsuits.  

Rule 23 covers far more than just one subject area, something this blog has tried to reflect in its choice of cases.  But sometimes it helps to be able to call on specialists, practitioners who litigate one kind of class action and litigate it well.  That's why I'm pleased to report on a promising new trend: the emergence of the employment class action blog.  Seyfarth Shaw has just launched The Workplace Class Action Litigation Blog, helmed by partner Gerald L. Maatman, Jr. and co-authored by a number of associates and counsel, including an old colleague of mine, Rebecca Bjork.  Meanwhile, Greg Mersol of Baker Hostetler (home of venerable class action blog ClassActionBlawg) has launched the Employment Class Action Blog.  

Both blogs, while new, are already taking on distinctive voices.  The Employment Class Action Blog seems to be focusing more on developments in caselaw, while The Workplace Class Action Blog has cast its net wider to discuss developments in the news that may affect employment class actions.  Both approaches are valid, and both blogs bear further watching.  Add them to your RSS feed: I have.  

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If I may draw on my (necessarily narrow) experience as a class-action litigator, a rising number of class actions are asserting nationwide contract claims, and specifically claims for the breach of the duty of good faith and fair dealing. I could speculate on the reason for that (new class-action theories come into vogue; there has been no judicial opinion thoroughly examining whether a good-faith claim can be certified on a nationwide basis), but I'm really just mentioning it to explain why, as a defense lawyer, I'm glad to see Geoffrey Miller's  latest article in the Cardozo Law Review: "Bargains Bicoastal: New Light on Contract Theory."

Miller is a consummate empiricist, which makes him a great resource for class-action defense lawyers. Where other professors look at doctrine or theory, Miller usually zeroes in on data. In this article, he starts from one data point--more corporations choose New York law for their choice-of-law clauses in contracts--and asks why that might be so. His findings are particularly interesting to lawyers who defend multi-state class actions:

This Article ... compares New York and California across a range of contract law issues. As would be expected, the laws are similar in broad outline. Each state respects freedom of contract and each recognizes other social and moral objectives that occasionally trump private agreements. Each state’s law grows out of a dialectic process in which competing values are reconciled in different settings. Yet a closer analysis reveals substantial differences in tone and substance. New York and California are close siblings—children of the common law and a shared legal and political tradition. But they are far from identical twins.

The differences between New York and California contract law turn out to align with the formalist-contextualist distinction in contract theory. New York judges are formalists. Especially in commercial cases, they have little tolerance for attempts to re-write contracts to make them fairer or more equitable, and they look to the written agreement as the definitive source of interpretation. California judges, on the other hand, more willingly reform or reject contracts in the service of morality or public policy; they place less emphasis on the written agreement of the parties and seek instead to identify the contours of their commercial relationship within a broader context framed by principles of reason, equity, and substantial justice.

(Emphasis added.)  Why does this matter to class action defendants? Because it shows, in concrete fashion, why Judge Posner was right that "nuance can be important," even in contract law.

Class-action plaintiffs who bring contract claims often quote Judge Tjoflat's statement in Klay v. Humana that

A breach is a breach is a breach, whether you are on the sunny shores of California or enjoying a sweet autumn breeze in New Jersey.

Miller, by demonstrating why more corporations choose New York law to govern their contracts, provides a thorough examination of how these two states apply many of the same principles in completely different ways. In the process, he shows that, depending on the place, a breach may not be a breach; it may be a valid rejection of a contract against public policy, or a violation of the duty of good faith, or any number of other things.  And that is a valuable starting point for someone defending a multi-state class acton.

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 In Basic, Inc. v. Levinson, the Supreme Court recognized a rebuttable presumption of fraud on the market for securities-fraud cases. That presumption allowed for certification of a number of securities class actions. Plaintiffs since have taken that presumption and tried to apply it to various other sets of facts, most notably tobacco (although that attempt was ultimately unsuccessful) and drug marketing (also unsuccessfully). But the fact that class-action plaintiffs keep arguing for this presumption means that it's important for defense counsel to understand the theory underlying it.

So let's look at the actual Basic case. Basic, Inc. made chemical refractories for the steel industry. It became the subject of a merger bid. During the time it was talking with its merger partner, it made several statements denying that it was in merger talks. (Why do this? Announcing a merger would have put the company into play, wreaking havoc with its stock price, and jeopardizing the impending merger.) Once Basic publicly announced the merger, some of its shareholders filed a class action, claiming they had been harmed because they had sold shares after its denials depressed the stock price, and before it suspended trading in anticipation of the merger.

The trial court certified a class (presuming that the plaintiffs relied on Basic's public statements), but then granted summary judgment to Basic. The Sixth Circuit reversed the summary judgment, but affirmed the certification of the class. At that point, Basic filed a petition of certiorari to the Supreme Court.

The Court took on the case, in part to

determine whether a person who traded a corporation's shares on a securities exchange after the issuance of a materially misleading statement by the corporation may invoke a rebuttable presumption that, in trading, he relied on the integrity of the price set by the market.

In doing so, the Court set out its statement of the fraud-on-the-market theory. As abridged:

The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company's stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants' fraud and the plaintiffs' purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations ...

The modern securities markets, literally involving millions of shares changing hands daily, differ from the face-to-face transactions contemplated by early fraud cases, and our understanding of Rule 10b-5's reliance requirement must encompass these differences ...

In drafting that Act, Congress expressly relied on the premise that securities markets are affected by information, and enacted legislation to facilitate an investor's reliance on the integrity of those markets ... Recent empirical studies have tended to confirm Congress' premise that the market price of shares traded on well-developed markets reflects all publicly available information, and, hence, any material misrepresentations. ...

Any showing that severs the link between the alleged misrepresentation and either the price received (or paid) by the plaintiff, or his decision to trade at a fair market price, will be sufficient to rebut the presumption of reliance.

(Internal footnotes and quotation omitted.)

As one might expect, allowing a presumption of reliance under any circumstances is hardly a defense-oriented ruling. However, in the limited circumstances of the Basic case (a freely-traded market for securities, where public information rapidly translated into changes in stock price), the holding makes economic sense. More importantly, Basic's actual holding provides defense lawyers with several avenues of opposing class certification.

First, it limits "fraud on the market" to securities markets, where information is freely disseminated. That means that markets for consumer goods, for example, are not subject to fraud on the market theories, and plaintiffs will still have to prove individual reliance in cases like these. In fact, few markets have the characteristics that allow for a Basic presumption.

Second, it provides a way to argue against even securities fraud cases. The Court held that the Basic presumption is rebuttable. That means that if the defendant can show why it is that the alleged misrepresentation did not cause (or could not have caused) the harm, the plaintiff is not entitled to the presumption.

Fraud class actions are not going away any time soon. As a result, it is fair to expect that plaintiffs will try to avoid the problems of proving reliance on fraudulent statements any way they can. If for no other reason than that, the Basic presumption will remain an important piece of legal doctrine for class-action lawyers for some time to come.

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Last March, dean of class action scholarship John Coffee Jr. published an article in the Columbia Law Review titled "Litigation Governance: Taking Accountability Seriously." Coffee's argument is that, from a corporate governance perspective, there are two ways to keep an organization's leaders accountable: "exit" and "voice." In other words, judges and legislators can make it easier for shareholders to leave an organization, or they can give them a greater voice in governing it. He then tries to apply those principles to class actions and other forms of collective redress. Specifically, he worries about how the current class-action regime may not really hold plaintiffs' counsel accountable during the course of a lawsuit:

Perhaps more importantly, an intense, low visibility competition has arisen for the coveted position of class counsel because the winner of this competition stands to capture significant rents. This competition has been the underlying cause of recent scandals within the plaintiffs' bar. Although the nature of this competition has recently changed, its latest manifestation - pay-to-play contributions by plaintiffs' law firms to public pension funds - may enable some competitors to undercut the very reforms that Congress established to control class action abuses. The vulnerability of these reforms, it will be argued, flows directly from the class action's special governance rules and reveals the dangers of relying primarily on "voice," rather than "exit."

(Internal footnote omitted.)  Coffee focuses on the "exit" method (which he identifies as opt-outs under Rule 23(b)(3)).  As a result, he spends much of his time analyzing the European model of certifying "opt-in" actions or--as they're sometimes called across the Atlantic--"collective redress." He notes that allowing for opt-in litigation (much like the FLSA collective action) usually does a better job of aligning counsel's interests with their clients', and that technology has made opting in more feasible in large-scale class actions. Given that many class actions generally have very low participation rates, encouraging opt-in classes would, at the very least, reduce exorbitant fees and remove the need for using the increasingly controversial

However, in the process, he also provides a good policy argument for defendants who seek to oppose certification. It's difficult to regulate exit, but courts already have a way to regulate voice that Coffee does not consider: enforcing the adequacy requirement. If courts were stricter about policing the adequacy of the named plaintiff--specifically, her ability to independently oversee her counsel--the plaintiff could potentially do a better job of policing counsel herself. How could courts do this?

• Allow discovery into the nature of plaintiff's relationship with her lawyer. Courts have already deemed family members and close friends to be inadequate class plaintiffs, but they have also allowed a number of close business and personal relationships to go unchallenged.
• Consider whether the lawsuit originated with the lawyer or the plaintiff. Courts frown on lawyers who craft a complaint and then recruit the plaintiff in individual lawsuits. There is little reason to assume that a recruited plaintiff has the independence to oversee her counsel when their interests might conflict with the class's.
• Examine what the plaintiff has done her homework. Courts are clear that plaintiffs do not need to be experts in the subject matter of the lawsuit to be adequate, which makes some sense. A plaintiff in an ERISA suit, for example, need not know the ins and outs of the statute like her lawyers should. But if the plaintiff has not read the complaint, does not keep tabs on the case with counsel, or offers an understanding of the case that contradicts her counsel's, the court has strong evidence that the plaintiff cannot independently oversee counsel.

I'm realistic. I don't expect a revolution in enforcing adequacy. Courts have long known the "open secret" that lawyers make the decisions about class actions instead of their clients.  And the prevalence of pay-to-play practices with large institutional clients in securities actions suggests that some plaintiffs' counsel are determined to co-opt their clients.  Nonetheless many courts gloss over adequacy when the defense raises it. Some of this may be inertia: why upset a system that may provide some rough justice. But some of this is also framing. When challenging adequacy, defense counsel should consider couching their arguments in terms of the ability to oversee counsel, rather than stressing more stringent, hard-to-meet standards like expertise.
 

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Yesterday, the Supreme Court heard oral argument on Concepcion v. AT&T, which posed the question of whether the Ninth Circuit had properly disregarded AT&T's consumer arbitration clause as unconscionable because it did not allow classwide arbitrations. As I mentioned yesterday, much of the advance reporting and commentary (with a few exceptions) painted the argument as the harbinger of an apocalyptic battle over the future of the consumer class action.

The reality was more sedate. Most reports on the argument (which Slate's Dahlia Lithwick described as "some kind of hideous jargon spill in the Gulf of Mexico") have stressed that the Court treated this primarily as an issue of federalism, specifically when to interfere with state law. Justice Scalia, usually considered the one of the most conservative (and therefore both pro-business and pro-state) Justices, focused his questioning heavily on issues of federalism. Specifically, he asked:

Are we going to tell the State of California what it has to consider unconscionable?

Justice Kagan--appointed by former University of Chicago Law School (go Maroons!) colleague President Obama and therefore expected to be pro-consumer--appeared to agree with Scalia's analysis:

It may be a good unconscionability doctrine or it may be a bad unconscionability doctrine, but it’s the state’s unconscionability doctrine.

Justice Alito (aided by some questions from Chief Justice Roberts) focused more on whether unconscionability can properly include unfairness to parties not currently before the court:

Traditional unconscionability in California and elsewhere focuses on unfairness to the party who is before the tribunal. So here it would be unfairness to the Concepcions, rather than unfairness to other members of the class who are not before the court.

What does this mean for the future of arbitration clauses? Several studies have shown that the more questions the Justices ask of a side, the likelier it is to lose.  In this case, at least according to published news reports, counsel for AT&T had to answer more and tougher questions than Deepak Gupta of Public Citizen, counsel for the respondent. While some of the questions Justices Alito and Roberts asked indicate a possible line of argument for upholding AT&T's arbitration clause, the early money would favor an opinion affirming the Ninth Circuit. Given that Circuit's reputation, that would make this opinion truly noteworthy. Of course, the Court will have the last word sometime in Spring 2011.

NOTE - This entry has been corrected.  It originally misidentified Public Citizen as "Public Justice." 

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Today, the United States Supreme Court hears oral argument in Concepcion v. AT&T, a case on appeal from the Ninth Circuit concerning whether the Federal Arbitration Act preempts states like California from requiring arbitration clauses to allow for classwide arbitration. (The venerable SCOTUSBlog has an excellent roundup of the issues and briefing.)

I'm not interested in pre-gaming the argument. (Although if I were a betting man, I'd lay odds on the Roberts Court finding in favor of AT&T.) I'm more interested in the rash of stories and op-eds (like this one from Vanderbilt Professor Brian Fitzpatrick) that make claims like

If the case is decided the way many observers predict, it could end class-action litigation in America as we know it.

You could say I'm biased. Class actions form the foundation of my practice. I write a blog about class-action strategy (and welcome to it). I just published a book on how to litigate class actions.  But it's simply not true that class actions will disappear if the Supreme Court rules in favor of AT&T on this issue.

Here are the assumptions that inform my conclusion. Class actions are big business for many attorneys. And class action lawyers are endlessly resourceful. The Private Securities Litigation Reform Act did not kill securities class actions. Nor, despite similar warnings, did the Class Action Fairness Act end consumer class-action litigation.

Does this mean that I think that Concepcion will have no effect on class actions? Hardly. If the Supreme Court rules in favor of AT&T, defendants will have a powerful tool for making sure that plaintiffs' attorneys can't gin up minor complaints into bet-the-company litigation. It will be more difficult to bring certain kinds of consumer class actions; most notably the kind where the claims do not describe harms consumer care about. (How do we know when consumers don't care? They don't bother to claim their money. For many consumer class-action claims, the response rate is very low--between 2 and 20 percent. This is one of the reasons why cy pres relief is so popular among plaintiffs' lawyers, and so controversial otherwise.)

But reducing the number of low-merit consumer class actions does not mean there will be no consumer class actions; there are many consumer class actions where there is no contract (and hence no arbitration clause) at issue. Nor does it mean that there will be no way for wronged consumers to get redress. Among other methods:

• Many companies provide voluntary customer-satisfaction programs.
• Many companies will be providing attractive bilateral arbitration provisions. (AT&T's covered most costs, and provided a $7,500 bonus to consumers who got more than AT&T had first offered.)
• State consumer-protection laws that offer attorneys' fees still exist. (So do lemon laws.)
• State and federal consumer-protection agencies exist.

Moreover, there are a number of different kinds of class actions that an arbitration clause likely would not apply to. Among those are:

• Consumer class actions that do not involve form contracts.
• Various antitrust class actions.
• Securities class actions.
• Environmental class actions.
• Civil rights class actions.
• Labor and employment class actions.

I don't believe I live in a world where corporations can do no wrong. Some can and do; and deterring wrongdoing is a noble policy goal. But I also don't live in a world where all class-action plaintiffs' lawyers selflessly bring only meritorious claims. Many don't; and those claims do nothing to deter actual wrongdoing. Finding the proper balance between under- and over-deterrence of corporate misconduct is not easy. It's a game of constant adjustment, and no matter which way the Supreme Court rules in Concepcion, either plaintiffs or defendants will have some adjusting to do. But if the Supreme Court rules in favor of AT&T, class actions will not disappear. It will just be harder to bring the kinds of class actions that will provide little actual relief for the class. And, if I were a betting man, I'd lay money on the side that says that even then, there will still be consumer class actions for me to defend.

UPDATE (12 November 2010) - Welcome Overlawyered readers!  If you haven't already, please also check out Ted Frank's post at Point of Law, which very lucidly covers similar points.  Also, look here for a brief postgame analysis of the argument.

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Earlier this week, the Seventh Circuit, in an opinion by Judge Richard Posner, granted an injunction to Sears under the All Writs Act to block a class action that had been filed in federal court in California. The opinion, Thorogood v. Sears, Roebuck & Co., is noteworthy for a couple of reasons. First, it extends relief under the All Writs Act to defendants facing copycat class actions in other jurisdictions. Second, it does so in response to a plaintiff's attempt to leverage a settlement using the threat of class-action discovery.

Steven Thorogood, the nominal plaintiff here, filed a class action against Sears after he bought a Kenmore stainless-steel dryer, which, as it turned out, was not 100% stainless steel. Instead,

part of the front of the drum—a part the user would see only if he craned his head inside the drum—is made of a ceramic-coated “mild” steel, which is not stainless steel because it doesn’t contain chromium. Thorogood alleged that the “mild” steel in the drum rusted, and stained his clothes.

His lawyer, Clinton Krislov (who just ran for Illinois comptroller) convinced an Illinois federal trial court to certify a consumer-fraud class, but the Seventh Circuit reversed it on a Rule 23(f) appeal, finding that there were no common issues justifying certification. It later affirmed the denial of attorneys' fees after Sears made an offer of judgment to Thorogood personally. 

Undeterred, Krislov filed a copycat class action in California federal court (Murray). The California court originally ruled that it was barred by collateral estoppel, but after a few amendments to the complaint, it reversed its ruling and allowed discovery to begin. At that point, Krislov's co-counsel sent a letter to Sears telling it:

that discovery is proceeding and “will involve Plaintiff’s counsel delving into the full extent of Defendants’ alleged wrongdoing” in order to justify not only equitable relief but also punitive damages—which are potentially very large given the size of the class and the possible preclusive use of any judgments favorable to the plaintiffs in suits brought in other states. The letter continues: “as we progress through the various stages of this litigation, the cost of settlement will necessarily increase . . . . At this point, we may want to consider whether an appropriate olive branch for resolution can be mutually created on a class wide basis commensurate with the status of the case. If interested, please pick up the telephone and call me. In the meantime, Plaintiff will continue to diligently and timely prosecute this case to an appropriate result.” In other words, unless Sears settles now (implicitly for modest relief for the class and an agreement with class counsel to recommend to the judge generous fees for Krislov and Boling), it will incur the considerable cost of responding to class counsel’s distended project of “delving” and assume the risk of a very large adverse judgment.

(Emphasis added.)  Faced with the prospect of plaintiffs' counsel commencing invasive and expensive discovery to leverage a settlement, Sears requested an injunction from the Seventh Circuit. The court, in an opinion by Judge Richard Posner, granted the request. After noting the in terrorem effect of plaintiff's discovery threat, he observed that:

quite apart from the green light that such a ruling would give to extortionate class action practice, a denial of relief would make no sense in a case like this, in which the class (Thorogood’s) was certified, albeit later decertified at our direction. Class counsel had and took the opportunity to litigate the certification issue fully—so that to say that a ruling against certification could not be the basis of an injunction would be inconsistent with the doctrine of collateral estoppel itself. There is no denying that a final ruling against certification has collateral estoppel effect. And the basis of the injunction sought in this case is simply the need for enforcing collateral estoppel more effectively than by forcing the defendant to plead it as a defense in case after case.

This is not the first time the Seventh Circuit has granted relief to a class-action defendant under the All Writs Act. But this opinion is noteworthy for the strong language Judge Posner uses in criticizing plaintiff's conduct, and the plain language he uses in describing the dilemma Sears faced.  It's also noteworthy for its explicit suggestion that a class-action defendant may seek an injunction before it has to assert collateral estoppel in a new case.  

(Also noteworthy, at least for this blog, is that the court cited the Class Acton Playbook in its discussion of plaintiff's strategic use of discovery.)

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 Over the last ten days, Judge Baer issued a followup order in the Gildan Activewear case and gave an interview to the New York Law Journal discussing his reasoning. The order--which found both plaintiffs' firms to be adequate, and stressed that it was not criticizing their hiring practices--was pretty much a non-event. But Judge Baer's interview--in which he reaffirmed his belief that he has both the power and the responsibility to review a firm's diversity in discharging his Rule 23(f) function, has led to additional blog commentary. My own opinion on whether he can do so (probably yes) and whether he should (depends entirely on your conceptions of the proper role of government and preferences for disadvantaged minorities) hasn't changed. But the more I read about the reactions from both self-identified conservatives and liberals to Judge Baer's order, the more I become convinced that it may be a foreseeable, if unintended, consequence of using "public case" arguments to justify filing and certifying class actions.

The federal government does employ--with strict limts--some minority preferences in federal contracting. And, if one makes the argument (as academics like Brian Fitzpatrick and Myriam Gilles and plaintiffs' lawyers like Elizabeth Cabreser and Steve Berman do) that a class action is really a case on behalf of the public at large for deterring corporate misconduct, it's not a great stretch to see a securities class action as a contract from the federal judiciary (or public pension fund) to prosecute a case for the public good. (That may be why one tactic for recruiting institutional named plaintiffs--"pay to play"--bears the same name as a major concern for government regulation.)

Am I saying that class-action lawyers should be subject to minority-contracting rules? Most emphatically not. What I am saying is that rhetoric can have real-world consequences. In this case, if plaintiffs' lawyers successfully convince judges that they are quasi-public servants, they may find themselves being regulated much like public servants.

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