[Watchdogs] A Member Owner's Response to the Three Individual Plaintiffs' Brief

[Milton Hawkins]

One Member/Owner's Response to the Appellees' Brief

of John Worrall, Linda Evans and Glenn Van Shellenbeck, 

Individually and as Representatives of Others Similarly Situated,

in Response to the Brief of David Allen Hall

 

The three individual plaintiffs in the PEC case-John Worrall, Linda Evans,
and Glenn Van Shellenbeck-have now filed their own brief in opposition to
the appeal filed by David Allen Hall.  This development should be of
particular interest to us member/owners because these three plaintiffs have
been appointed "class representatives," and as such the courts consider them
to be representing our interests, and acting on our behalf.

 

The nature of the argument presented in the brief these three filed can be
demonstrated sufficiently if one considers just a single statement from it:

 

His [Hall's] entire appeal . . . is founded on the theory that the
Settlement Class should not have to forgo any benefits received and that it
should have no duties or obligations under the Settlement.  [page 7]

 

That no evidence is offered for this assertion is not surprising, for none
could be offered.  The first clause of the "theory" concerns a matter of
common sense, with which anyone would agree: Why should members have to give
up benefits they deserve?  The benefits of the litigation are real, and
though often exaggerated (Claudia Grisales and the Austin American-Statesman
deserve at least equal credit), they are acknowledged by all.

 

The second clause of the "theory" is an invention foreign to Hall's brief.
He does not argue that the members of the class should have no duties or
obligations.  He does argue that, under the circumstances that prevailed in
this case, the members should not have the burden of these specific duties
and obligations.

 

The question has to do with the conditions under which the duties and
obligations were imposed.  Had there been sufficient and timely public
information about the proceedings, had there been adequate notice, had there
been appropriate provision for participation, or the choice not to
participate, for the member/owners who would ultimately be compelled to form
the class, there would have been an argument for their recognition of the
duty and obligation the plaintiffs seek to impose on them.

 

But when people are forced to attend a party not of their making, and to
accept the choice of entertainment without so much as a "by your leave," and
are given no opportunity to influence the proceedings in any meaningful way,
they rightly resent being handed a check when the affair ends.  Victims
rarely feel like saying "Thank you," much less paying for the privilege of
being used.

 

In this case, the settlement agreement was reached on March 10, 2008, and
read into the record on that same day, a full three weeks and more before
the trial court appointed class representatives and class counsel.  The
trial court entered an Order Provisionally Approving Settlement on April 2,
2008, and only then were the class representatives and counsel appointed.

 

On April 8, 2008, the trial court approved the notice, and that same day
notices were put in the mail for delivery to member/owners.  Thus it was
that, one to several days later, those unsuspecting individuals were
informed for the first time that they were somehow affected by a lawsuit,
and were actually in danger of losing some undefined rights if they did not
take certain actions by a certain date, specifically, May 2, 2008.

 

The notice revealed no specific benefits that the average person would
recognize as affecting him or her in any material way, aside from some vague
discussion of a bill credit that was said to be still subject to
restrictions and conditions.  It did not even inform the addressee that he
or she was a member of the class whose claims, whatever they might have
been, were being released.  The notice said that some "defendants" would
have to pay up to $4 million for "expenses, attorneys' fees and bonuses to
the named class representatives," but it did not inform him or her that the
Settlement Agreement obligated the members of the class to pay $1.6 million
of that amount.

 

Without an initial invitation, without sufficient information from the
outset, without their own legal representation, or any representation, for
that matter, prior to the agreement's having been reached, without the
opportunity to participate or provide any input whatsoever while the
Settlement Agreement was being negotiated, and without adequate and timely
notification of the results of that negotiation, it is not surprising that
many member/owners objected to the procedure, and to the Settlement
Agreement itself.  Almost three hundred of them took the time and made the
effort to file written objections with the court.  Others made their
objections in person at the Fairness Hearing in Austin.

 

Had they been treated fairly from the beginning, been invited to
participate, been given effective legal representation, been kept informed,
and been properly and adequately notified of the outcome, they might have
felt some duty and obligation.  The argument of David Hall's brief does not
preclude that eventuality.  What it does argue is that given the way the
members of the class were treated, they do not owe the duty or deserve the
obligation the Settlement Agreement would place upon them. 

 

Given the limited benefits the class members are to receive, offset as these
benefits are by the extent of the individual defendants' benefits (unlimited
civil immunity and retained claims to benefits), and given the members'
inability to participate and lack of representation, they have every right
to conclude that the bill is too high.

 

They might have welcomed the opportunity to pay a smaller bill, or to accept
a different burden, but such an opportunity was never offered.  Yet they are
now being characterized as thoughtless ingrates and freeloaders.

 

The plaintiffs close this section of their brief with another overstated
construction of their own invention:

 

Now that the benefits of the Settlement are in place and practically
irretrievable, Hall's position is that the Class should be able to reap
those hard earned benefits but give nothing in return.

 

Hall, as has been stated, admits, even praises, the benefits the lawsuit and
its attendant publicity produced.  But the possibilities for "something in
return" from class members were, and are still, much more extensive than the
payment, obligation, and duty imposed by the Settlement Agreement and the
"nothing" posed in the plaintiffs' misrepresentation of Hall's position.

 

Reasonable people, treated reasonably, can reach fair decisions about duty,
obligation, and compensation.  But when their involvement is forced upon
them, and is in fact limited to covering the expenses, they deserve to have
at least some say in the price to be paid.  That is David Hall's position,
when accurately stated, as I see it.

 

 

NOTES: You can find Hall's Appeal Brief at this link (posted on August 13,
2008.):

http://pec4u.org/pipermail/watchdogs/attachments/20080813/3cc7c5ba/attachmen
t-0001.doc   

 

You can also download his brief from the Austin American-Statesman web site.
Use this link:

http://alt.coxnewsweb.com/statesman/pdf/09/090708_pec_brief.pdf

 

 

I don't know if the plaintiffs have posted the brief they've filed on our
behalf.  

 

Here's the lead sentence from "Summary of the Argument," a section of the
"Appellees' Brief of John Worrall, Linda Evans and Glenn Van Shellenbeck,
Individually and as Representatives of Others Similarly Situated [you and
me]," filed last month by their attorneys William Ikard, Anne Wynne, William
Kilgarlin, and Graham Blair:

 

Plaintiffs/Appellees adopt, join and incorporate by reference the Arguments
set forth in the Appellees' Brief of Pedernales Electric Cooperative, Inc.
('PEC'), O.C. Harmon, et al. [this includes Bennie and Bud, plus R.B. Felps,
Val Smith, and Vi Cloud] in response to the Brief of David Allen Hall.  [my
emphasis]

 

 

And here is their conclusion: 

 

For all of the reasons set forth in Appellees' Brief of Pedernales Electric
Cooperative, Inc., O.C. Harmon, et al. [Bennie, Bud, and the rest again] in
response to the Brief of David Allen Hall, as well as those stated herein,
Plaintiffs/Appellees respectfully urge this Court to affirm the Trial
Court's Judgment.  The Settlement was fair, reasonable and adequate. . . ."
[my emphasis]

 

These three "class representatives," our spokespersons, as it were, are by
this action defending the immunity the Settlement Agreement provides for
Bennie and Bud and the defendant directors and a host of others-and they are
doing it for us.

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