On the Down low

The Madison County Record Jan. 30, 2005, 10:45am

Presiding last week over a notorious case in a notorious place, Madison County Judge Phillip J. Kardis took time to praise one lawyer for his “tremendous efforts” while assailing another for talking with the media.

The lawyer earning plaudits was Robert Forbes, Kardis’ former law partner whose wife works now as the judge’s court reporter.

The demerits went to Forbes’ opponent, New York lawyer Jody Pope. He was in Edwardsville to object to a settlement that would, among other things, enrich Forbes and his partners with hefty fees.

It’s another day, another outrage in the case of millionaire “Canadian con man” James Blair Down.

The Down saga is John Grisham material, a tale of five years, a $120 million telemarketing fraud, 400,000 “sick” senior citizens, a hefty South Carolina law firm, media-sensitive judges, and an Irish collection agency.

Mix them all up and it makes quite the metaphor for how Madison County got that national reputation.

It all started in 1998, when Down pled guilty to conspiring to mail gambling materials. He was sentenced to pay $12 million to his victims plus serve six months in an Oregon prison.

That Down remained a rich man-- allegedly worth $50 million—attracted an Irish collection agency and later the lawyers of South Carolina plaintiff’s firm Ness Motley. They saw a class action opportunity and smelled an easy settlement.

So in 2000, the South Carolinans moved ahead, filing a class action lawsuit against Down on behalf of 400,000 “elderly.. in declining mental or physical health.”

And they filed it in the best courthouse they could find—- ours.

According to sworn testimony, Ness Motley lawyer Blair Hahn said he chose Madison County because he thought he could “manipulate the court.” Hahn said here “his wishes would be granted.” And they were.

Ness Motley hired local class action impresarios Korein Tillery to file the lawsuit. And like clockwork, Judge Nicholas Byron froze Down’s assets, and settlement talks got underway.

The settlement Judge Byron approved guaranteed $2 million for Ness Motley, with rebates for Down’s victims—if they could meet a complicated proof of payment requirement, including finding decade-old receipts and getting their signatures notarized.

Only 450 victims were found, costing Down a mere $85,000.

$2 million for lawyers and $85,000 for victims grabbed press attention, leading a New York law professor to dub this “the most abusive class action settlement of the decade, if not the century.”

The national media piled on and Judge Byron relented, agreeing to revisit the matter for the “victims.” Which leads us to today.

Judge Kardis—assigned last year to replace Byron on the case-- has approved an eerily similar “new” settlement that could guarantee $1.5 million for his former partner Forbes and his co-counsel, Stephen “Phillip Morris” Tillery,

Victims will get repaid—if they can find them.

Here’s a better idea. Base the lawyers’ fees on how many class members actually see cash. The more victims collect, the more Forbes and Tillery can reap.

Let the lawyers wait just like the victims.

And let the media know how the “class hunt” is going so we can all gauge just how much "justice" is being served.

The lesson of James Blair Down is that "tremendous efforts" only result in larger fees for attorneys.

But brighter media lights—-- they can prevent such travesties from ever occurring in the first place.

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