Consumer 'advocate' Byron reluctantly decertifies GEICO class action

Steve Korris Jun. 22, 2006, 10:35am

Circuit Judge Nicholas Byron

Bradley Lakin

Sheila Carmody

Madison County Circuit Judge Nicholas Byron shut down a Lakin Law Firm class action lawsuit, but it broke his heart.

At a June 8 hearing he heaped praise on attorney Brad Lakin, threatened his own critics and pleaded for new laws to protect consumers.

He told Lakin, "In spite of the innuendos and the harsh public statements that have been applied to your firm – harsh and without any basis at all – nevertheless I find your firm to have been very, very ethical and efficient in these matters."

Byron called himself the ship of consumerism and said, "It's time for the captain, whoever that captain is, to raise the warning flag. Send relief, please."

He decertified a class action that he certified in 2004 against insurer GEICO, in obedience to last year's Illinois Supreme Court decision in Avery vs. State Farm.

Plaintiffs Myron Billups and Patricia Singleton alleged five years ago that GEICO cheated them on total loss payouts for wrecked vehicles.

At the hearing GEICO attorney Sheila Carmody of Phoenix said, "This case is much like Avery. You are not going to find many cases that fit as well."

She said GEICO did not deceive the plaintiffs and the plaintiffs suffered no damages.

When Lakin's turn came, Byron told him he had hurdles to overcome. Byron said if he got a case like this again he would be reluctant to determine a class action.

"I don't think that ought to be the law but unfortunately I am not a Supreme Court justice," Byron said. "And I do follow our Supreme Court whether I agree with them or not."

Lakin said GEICO purchased software knowing it would save millions. He said GEICO tried to dupe consumers.

He said that with GEICO data, plaintiffs could calculate aggregate damage and damage per vehicle.

Byron offered Carmody two minutes for rebuttal but in seconds he told her not to waste her time.

Law abiding

"Sit down," he said. "I've heard enough."

"I cast no aspersions against anybody, certainly not the Supreme Court," Byron said. "I am bound by the Supreme Court. They are the law of the land."

Byron continued.

"It's just like when the Supreme Court of the United States decided that President Bush is the president. Even though I disagreed with it I accepted that and I acknowledge him as my president.

"How's that, okay? I'm that kind of person. I follow the law even when I disagree with it."

He also said, "Do I disagree with this entire approach? Well, let me put it this way. I'm not alone when I disagree with it. I can voice my opinion. This is still a free country.

"I'm sure people will appreciate my opinions, even though sometimes I wonder about certain elements in this country."

Lakin asked Byron if decertification applied only to the plaintiffs' consumer fraud claim or also to their breach of contract claim.

Westward/eastward bound?

"I am consuming the class," Byron said.

GEICO attorney Sheila Carmody of Phoenix said, "Decertifying the class."

"I am decertifying the class," he said.

Byron told Lakin his firm prevailed in most class actions, but the Supreme Court drastically changed the concept of complex class actions.

He told Lakin, "If you want that kind of action I think, move across to Missouri. Well, I don't know if Missouri is any better at this point but Pennsylvania, Maryland, New York, other places probably would do better.

"If you want to take appeal, which I would suggest that you do for clarification by the Fifth, I think there's so many issues that have been left unanswered.

"Of course if they rule I will be bound by them unless of course they are overruled by the Supreme Court.

"I think you owe it to the consumer to take an appeal on it."

Byron brought up the Price case, in which the Supreme Court reversed his $10 billion verdict by finding that Federal Trade Commission authorization for advertising of "light" cigarettes preempted state claims.

He said, "You mean to tell me the various commissions promulgated by Congress of the United States is going to have jurisdiction over federal or state law? No more than I think the insurance commission would have.

"These agencies are there to regulate and certainly, in the interest of consumer fraud – although I might editorialize here and say they sure did a poor job with lights and less tar.

"I have the freedom to say this and I have. And this, based on the decision and based on the fact that we have cited it – I am very much concerned with that aspect of the decision.

"The media has been so harsh to me, almost making reference to me in a most derogatory, unethical way – and that will be addressed later."

Consumer advocate

Byron said, "The consumer in this country is the most important element of the economy. It's the ultimate. And I address the car manufacturers, car insurers, the food suppliers. The consumer has rights. They should have more rights.

"We need appropriate laws. We need more adept, succinct laws. And unfortunately in this situation I am bound by what we have and this is the reason for my ruling."

Carmody said, "Thank you your honor."

Byron said, "And if anybody wants to condemn me for that, they may."

He told Carmody to prepare a proposed order and run it past Lakin.

Byron said, "We will have a hearing on the order because I would personally like to see you take an appeal on this and maybe it goes back up to the Supreme Court, for the Supreme Court to reevaluate its position."

He said, "I don't know. I just work here."

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