Another problem is that that the parties to the settlement went much further than they needed by including a national waiver of any claim under any state or local disabilities law, he added.
"The class members who signed off on this could not have had any idea what they were waiving," said Ferleger. "They couldn't realistically analyze all the state and local laws in the U.S. It is not a benefit to the class to waive everyone's rights under all state and local laws. The failure to give notice really is such a serious omission and so monumentally unfair to, for example, the Segway user in Kansas who never heard of this case and goes to local court to say a civil rights law is being violated and is barred from doing that."
The principle of a right to notice under (b)(2) and (b)(3) is not in Rule 23, he said, but is a judge-made rule, which "gives me hope for Supreme Court review." If he does get review, it would not be Ferleger's first appearance before the court. He argued and reargued in the landmark deinstitutionalization case, Pennhurst State School & Hosp. v. Halderman. He currently is serving as monitor of a Minnesota class action settlement on behalf of individuals put into restraints and seclusion at an institution for people with developmental disabilities who also were dangerous to public safety.
Since taking on DRAFT as a client, Ferleger has watched how the organization trains vets to use their Segways. "I met these young people, 18, 19, 21 years of age, who lost legs, arms, or have burns over significant parts of their bodies," he recounted. "They were so inspiring to meet, not just seeing their courage in theface of all these challenges but their determination to stand up on the Segway and look and be dignified."
Ferleger said he does not know how his colleagues in the civil rights arena will feel about his petition and his advocacy for a notice requirement in (b)(2) class actions, a very different rule from what his colleagues have operated under traditionally.
"The way in which class actions are now litigated and the risk of no notice is so great, I do think it should be changed," he said. "I'm not doing it just because a client says this will benefit me. I don’t believe in mouthpiece lawyering. I represent people and issues I care about."
Marcia Coyle can be contacted at mcoyle@alm.com.
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