Firm’s Dead Lead Plaintiff Litigated as if He Were Alive (1)

Welcome back to the Big Law Business column. I’m Roy Strom, and today we look at a plaintiffs’ law firm whose clients have died while litigating multiple class actions over bank “junk fees.” Sign up to receive this column in your Inbox on Thursday mornings.

When Fred Burnside sat down to Google the name of a lead plaintiff in a class action case against his client, he didn’t expect this: The man had been dead for years.

A research team at his law firm, Davis Wright Tremaine, confirmed his findings with a death certificate. Joe Villanueva had died six months after filing the class action lawsuit against Burnside’s client, Rabobank, in 2018.

In the ensuing five years, Villanueva’s attorneys had been litigated as if he were alive. They made seven-figure settlement demands; rejected settlement offers; filed amended complaints; and certified in court records that their deceased client had reviewed documents provided by the defendant, according to a motion for sanctions filed by Burnside.

Burnside last month alerted California’s Contra Costa County Superior Court to death. He argued the plaintiffs’ firm breached a litany of ethics rules and says they’re not competent to lead the class action, which would likely be scuttled if the lawyers were thrown out of the case.

He wants more than $1 million in fees for Rabobank, which itself no longer exists after being acquired by Mechanics Bank in 2019.

Villanueva’s attorneys this week told the court they were unaware their client had died. They are seeking to have Villanueva’s father take over the role of lead plaintiff.

The lead law firm representing Villanueva, Washington DC-based Kaliel Gold, is a regular filer of class actions that target banks and credit unions for charging a slew of allegedly unfair or undisclosed “junk fees.”

Led by 2005 Yale Law School graduate Jeffrey Kaliel, the firm has appeared in at least 175 cases in federal court, mostly since 2018, according to a Bloomberg Law search.

Kaliel Gold, which consists of four lawyers, according to its website, has earned handsome fees. In 2021, the firm earned more than $10 million in a $75 million settlement with Bank of America. In September, it earned part of a $2.6 million attorney fee award in a different case against Bank of America. And the firm earned more than $2 million itself in a 2021 settlement with Capital One over ATM fees.

It is difficult to count how many cases it has settled, but it appears to be dozens.

Kaliel Gold did not respond to multiple requests for comment. Burnside declined to comment for this story.

Dead Plaintiffs

Kaliel Gold has represented lead plaintiffs that died in at least three other cases since August 2022 besides Villanueva’s, according to court records.

Defense lawyers alerted the court to two of those deaths, and a plaintiffs’ lawyer working with Kaliel Gold alerted the court in the third. Unlike in the Villanueva case, courts were alerted much more quickly in the other three instances: between 25 days and eight months following the death.

There was substantive litigation after the plaintiff died in one of the other cases.

In that case, against Metro Credit Union in Massachusetts state court, a motion to dismiss was denied after the plaintiff died, while the court was unaware of the death. The plaintiffs’ lawyers then argued their client should be protected from a subpoena for more records, arguing it would invade the plaintiff’s privacy and was sought to cause “embarrassment.” The plaintiff had been dead for more than six months at the time of the filing, according to an obituary later filed in the case.

Nevertheless, the defendants eventually agreed to substitute a relative for the plaintiff, and the case was settled.

That’s similar to what happened in another case in an Oklahoma state court. After the lead plaintiff died in September last year, a defense attorney notified the court the next month. The case was settled on behalf of a representative of the plaintiff’s estate in December 2022.

And a Kaliel Gold co-counsel alerted a judge in the US District Court for the Northern District of New York that the plaintiff died in another case, which is still pending.

Fight Ahead

Kaliel Gold appears to be in for a fight in the Villanueva case.

Burnside and a team of Davis Wright Tremaine attorneys argued the plaintiffs’ counsel violated more than 10 rules from the California Rules of Professional Conduct or local court rules by continuing to litigate after the client’s death. (For what it’s worth, Davis Wright Tremaine took over the case in February, and Burnside testified he learned of the plaintiff’s death while preparing for a deposition.)

To list some of the alleged violations, quoted from the motion:

  • Plaintiffs’ counsel cannot have abided by their client’s decision about whether to settle because he was dead.
  • Litigating a case for five years on behalf of a dead client is the very definition of improper delay and unnecessary expense.
  • Plaintiffs’ counsel attended mediation, filed appellate documents, arbitrated a dispute (in the process claiming that Plaintiff could suffer future injury due to Rabobank’s practices), represented that their client had reviewed documents produced in 2021 (years after his death), and raised new legal theories on behalf of a dead client. These were knowingly false statements.

“Because this lawsuit has become nothing more than a vehicle to generate attorneys’ fees for Plaintiff’s counsel, the only remedy commensurate with the gravity and extent of counsel’s misconduct is dismissal with prejudice,” Burnside wrote. “Plaintiff himself will not be harmed by dismissal, because he is dead and has no ongoing interest in this litigation.”

The plaintiffs’ attorneys’ response provided no substantive objection to the alleged ethical violations. The court is set to hear arguments in the Villanueva case in February.

Jan Jacobowitz, a legal ethics advisor and former Director of the Professional Responsibility and Ethics Program (PREP) at the University of Miami’s School of Law, said that if the allegations in the motion are true, the Villanueva case “provided a roadmap for a law school course in professional ethics.”

“I can’t even use this on my final exam because I think it’s too obvious,” she said. “If I’ve done my work at all well this semester, it’s too obvious a fact pattern for the students to analyze.”

Worth Your Time

On Big Law Succession: Some big firms are planning for succession by reevaluating policies on compensation and credit origination and coming up with new leadership structures that reflect the increasing complexity of law firm management, MP McQueen reports.

On Law Firms and Israel: Some Muslim American lawyer groups have accused major law firms of voicing “one-sided support for Israel” and aiding a rise in “Islamophobia and anti-Arab sentiment,” Meghan Tribe reports.

On Litigation Funding: The head of a litigation funding industry group tells Emily Siegel that concerns over foreign entities exerting influence on US litigation via third-party financing are entirely overblown.

That’s it for this week! Thanks for reading and please send me your thoughts, critiques, and tips.