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An Illinois county judge is flexing judicial muscle in a high-stakes class action against James Blair Down, the Canadian mastermind of an international lottery ring that bilked elderly Americans out of millions of dollars. Madison County Judge Nicholas Bryon has twice stepped in to scuttle the settlement, and now wants the money to go to charities if the original victims cannot be located. “[The court] is concerned about getting as much money back to the victims as possible,” the judge said. The judge may also be dispelling criticism raised by a 2001 Harvard study that Madison County, Ill., is the nation’s leader in class action filings. $120 MILLION SCAM Down ran a lottery scheme during the 1990s that authorities have estimated reaped more than $120 million. The ruse involved using telemarketers to entice people to buy into lottery ticket pools said to increase the chances of winning foreign and domestic lotteries. In 1998, Down pleaded guilty to a conspiracy charge that brought six months in an Oregon prison and a fine of $12 million. In the civil action before Byron, the two sides of the litigation had proposed a “claims-based” settlement in which Down would pay up to $10 million to reimburse plaintiffs who filed claims. K. Schuppert v. James Blair Down, No. 00-L-223. But in a potential class of 400,000 where only 800 plaintiffs have actually come forward, the judge expressed concern that the bulk of the money might never reach victims. His latest action stipulates that Down must deposit the full $10 million as a nonrefundable payment with the court. The money will be used to repay future claims, or, in the event that it remains unclaimed, it will be donated to charities. A study published in the Spring 2001 Harvard Journal of Law & Public Policy deemed Madison County, Ill., to be the nation’s leader in class actions filings on a per-capita basis. John H. Beisner, author of the study and a litigator at the Washington, D.C., office of O’Melveny & Myers, performed the research after noticing a spike in the number of class actions being filed in county courts. Since the counties had little or nothing to do with the parties or nature of the suit, Beisner speculated that other factors must be drawing plaintiffs’ attorneys there. The other factor, say critics, is a judiciary too quick to grant class certification and too soft on settlements that approve large attorney fees disproportionate to awards to members of the class. Beisner said it’s likely that the court has become more sensitive about its reputation. Other jurisdictions, such as Alabama’s, have changed after similar criticism, he said. In Down, Byron has been presented with a number of discrepancies from factions among the plaintiff class. H. Blair Hahn, a partner at Charleston, S.C.’s Richardson, Patrick, Westbrook & Brickman, is the court-appointed lead counsel for the class. Hahn has been repeatedly criticized by Jody Pope, a member of New York’s Kronish Lieb, who is representing about six plaintiffs raising objections to the settlement. Pope accuses Hahn of alleged poor discovery methods that have not exposed Down’s assets or located enough victims. Hahn stands by the settlement, which will allow him to petition the court for up to $2 million in attorney fees. He said he has worked on the case since the late 1990s and not yet seen a dime. His fee petition will be subject to court scrutiny. While Down’s wealth is circumspect, said Hahn, “we do know that we have claimants and full restitution is available to them in the settlement.”

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