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Excerpts from FLIGHT ATTENDANTS' LAWYERS OBJECT TO SETTLEMENT

By DAVID LYONS, Miami Herald [06/29/98]

Television has The Practice. The movies had The Client.

Now playing at the Third District Court of Appeal: The Objectors, a squadron of attorneys from around the country who oppose a $349 million settlement of the second-hand smoke suit between Big Tobacco and thousands of the nation's flight attendants.

The settlement has been on hold since October, while lawyers fight it out.

The flight attendants' lawyers suggest the objectors are less than sincere. At least one bases his career on opposing deals. But the lawyers fighting the settlement say they have the attendants' best interests at heart.

They're arguing about a deal negotiated by the flight attendants' attorneys Stanley and Susan Rosenblatt before the case went to a state court jury. The complicated deal called for Big Tobacco to funnel $300 million into a research foundation that would study the effects of second-hand smoke on attendants who toiled aboard airliners. The industry was to make a $100 million down payment by April 1.

A big payout was earmarked for the Rosenblatts: $49 million in fees and costs. No payout was designated for any attendants -- the industry has always insisted that plaintiffs prove their cases individually. As a result, more than a half-dozen South Florida law firms offered to represent attendants who wish to press their claims in separate suits.

Objectors: ulterior motives?

The normally talkative Rosenblatts have declined comment, noting the case is on appeal. But in court filings, they have suggested the objectors are Johnnies-come-lately whose motives are born from self-interest.

They accused one lawyer of claiming to represent attendants who are not clients.

They were also sent reeling in April when objecting attorneys made an apparent bid for a piece of their fees. At a Miami meeting designed to scope out prospects for a compromise, the objecting lawyers suggested that a ``reallocation'' of the fees should be part of the solution, according to one lawyer familiar with the talks.

Is the settlement holdup really a holdup? Or do the objectors really believe the attendants could have been better served?

As class action lawsuits have grown in number, objections have become part of the settlement landscape.

``I know in general that this kind of tactic is quite frequent,'' said John Banzhaf III, professor of law at George Washington University, and executive director and chief counsel of Action on Smoking and Health. ``Some kind of settlement will be obtained. Objectors will come in and argue against it, and very frequently, what does result is some payment of attorneys' fees and they will go away.

Suspicious circumstances

``Putting aside Public Citizen, I have never heard of these folks,'' he said. ``I have never seen them at these proceedings. They have had no concern about flight attendants or environmental tobacco smoke. The fact the whole thing is over, and they suddenly come in, I would say is suspicious. I have no first-hand knowledge of their position.''

In court filings, the Rosenblatts' biggest target appears to be Jensen Beach lawyer Eric Olsen. They allege he represents phantom clients, and point to four people who have disavowed his representation after he claimed to be their lawyer.

``Undersigned counsel have never experienced a situation where there is no valid attorney / client relationship and the appeal is fictitious and a sham,'' the Rosenblatts wrote in one DCA filing.

``I had no incentive to include anybody who did not want to be included,'' he said in an interview. ``The Rosenblatts are igniting a diversionary fire. They are casting a lot of stones, none of which has anything to do with merits of the case.''

He said three attendants, who denied Olsen represented them, had given him ``tentative authority and later changed their mind.'' He said a ``clerical error in my office'' led to an erroneous declaration that he represented a fourth.

Lawrence Schonbrun, a Berkeley, Calif., lawyer who represents an attendant from his area, acknowledged that he concentrates on objecting to class action settlements -- but in the public interest. He said he has filed objections in 70 cases around the country.

While pleading for approval of the deal that was later granted by Miami-Dade Circuit Judge Robert Kaye, Stanley Rosenblatt argued that he had little choice.

He said that out of all the tobacco lawsuits pending nationally, the industry had never paid a dollar to any individual plaintiff while settling a case. Any attempt to force such a payment, Rosenblatt argued, would be a ``deal killer.''

Rosenblatt also conceded that he feared the jury might not back his clients. After the trial ended, one juror publicly confirmed he was leaning in the industry's favor, and suggested that others on the six-member panel were of the same mind.

In the end, Norma Broin, one of the named plaintiffs in the suit, proclaimed the settlement to be a victory.

But Banzhaf, the George Washington law professor, said the settlement still gives the attendants a chance to collect money for themselves. Although they must file new suits, the burden of proof is shifted to the defense and the industry has waived the statute of limitations.

``Obviously, we didn't get everything we wanted,'' he said, ``but that's a nature of the settlement.''

And no one has a chance for anything more until the case clears the appellate court, said Miami lawyer Frank Angones, whose firm is among those taking new cases.

``We have had several meetings to discuss strategy; there's nothing that we can do until the appeal is over,'' he said. ``I am certain the members of the class would like to get on with it.''

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