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Quoting fictional hero Don Quixote and the rock band Pink Floyd, a Dallas lawyer convinced the Texas Supreme Court to take another look at his challenge of a $10 million settlement of a class action against Southwestern Bell Telephone Co. Michael Northrup, a senior staff attorney at Cowles & Thompson, put the settlement in Jose Mireles, et al. v. Southwestern Bell Telephone Co. on hold in 2001 by filing an appeal. Mireles, filed in 1998, challenged allegedly improper charges that Southwestern Bell — now known as SBC Communications — billed to its customers for municipal fees that the company had to pay for the right to place its telephone polls and wires on city-owned land. The settlement would provide $8 million to the state’s Telecommunications Infrastructure Fund (TIF) Board and $2 million in fees to the plaintiffs lawyers, but no money would go to class members. Northrup, who represents himself pro se in Northrup, et al. v. Southwestern Bell, et al., says he first learned of the settlement in early 2000 through a notice inserted in his phone bill. He questions the fairness of the settlement. “I’m not aware of any other class action settlement where the entire recovery by the class is just given away,” says Northrup, a member of the class. Northrup has lost his appeal at every level so far. The 357th District Court in Brownsville approved the settlement despite Northrup’s objections to the settlement proposal and to the notice provided class members. In February 2002, the 13th Court of Appeals affirmed the trial court’s order. In affirming the trial court’s order approving the settlement, the 13th Court said, “While we have not located a Texas case addressing the efficacy of cy pres distribution of a class action settlement, these types of settlement arrangement have been found to be fair by other courts around the country,” Justice J. Bonner Dorsey wrote. Justices Linda Yanez and Errlinda Castillo joined in the opinion. The Texas Supreme Court denied Northrup’s petition for review in March, but granted his motion for rehearing last month. Osler McCarthy, the court’s spokesman, says four justices can grant a rehearing. In a response to Northrup’s motion for rehearing, SBC Communications argued that the cy pres mechanism — which allows a trial court to design a means to distribute settlement funds when the costs of distribution outweigh the individual share to which each class member is entitled — is widely used in many jurisdictions. Class counsel Jeffrey Tillotson, a shareholder in Dallas’ Lynn Tillotson & Pinker, estimates that the recovery per class member in Mireles would amount to between $1 and $2. However, the Texas Supreme Court never has ruled on the use of cy pres settlement. Northrup, an appellate lawyer, took a different approach in his brief for the rehearing motion. The brief begins: “Countless times, I have been asked why? Why would I pour thousands of dollars of my own money and countless hours of my own personal time into challenging the trial court’s approval of this [settlement]. …” Later in the brief, Northrup answered the question with a quote from Don Quixote: “I hope to add some measure of grace to the world.” In a response, the class plaintiffs argued that Northrup, like the hero he quotes, is “tilting at windmills.” Tillotson says the basic reason for a lawyer to pursue such a quest should be to add value to the process. “In my opinion, he’s made things immeasurably worse for class members,” Tillotson says of Northrup. David F. Brown, SBC Communications’ in-house lawyer in charge of the Mireles case, says the company believes it ultimately would have prevailed had the suit gone to trial but decided to settle rather than spending millions of dollars more on attorney fees. Brown says the settlement would benefit class members, if not directly, as a whole by providing cash and service credits to improve telecommunications around the state. The agency that would administer the settlement funds remains an unsettled issue. Gov. Rick Perry vetoed the appropriations for the TIF Board in June, although the fund still exists. A rider in the 2004-2005 appropriations bill places the Texas Supreme Court in charge of the settlement funds. But a provision in H.B. 28 — a measure being considered by the Legislature in the third special session — would repeal the rider. Decisions on H.B. 28 had not been finalized by presstime. Northrup contended in his brief seeking a rehearing at the state Supreme Court that the court of appeals issued a “superficial opinion” that did not address his objections. He questions whether anyone is paying attention to his complaints. “Is there anybody out there?” Northrup asked repeatedly in the brief, with a footnote attributing the quotation to Pink Floyd in “The Wall.” In their response brief, the class plaintiffs contended that Northrup failed to raise some issues with the trial court and thus waived those issues on appeal.

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