The presiding judge in the Equifax data breach multidistrict litigation this week issued a harsh critique of frequent class action critic Theodore Frank, branding him a "serial objector" who "disseminated false and misleading information."

In a 122-page order finalizing the Atlanta-based credit reporting agency's $1.4 billion settlement with 147 million consumers over its 2017 data breach, Chief Judge Thomas Thrash of the U.S. District Court for the Northern District of Georgia in Atlanta said Frank, director of the Center for Class Action Fairness at the Hamilton Lincoln Law Institute, a nonprofit in Washington D.C., "is in the business of objecting to class action settlements." The judge added Frank's objections in the Equifax case are similar to those he made—and that were rejected—in a data breach case involving the Target Corp.

Thrash said in the Jan. 13 order that, in encouraging others to object to the Equifax settlement, Frank also used a "chat-bot" created by Class Action Inc., "notwithstanding that it contained false and misleading information about the settlement."

Class Action Inc. is a claims aggregator that created a website encouraging people to object based on erroneous information about the proposed settlement, the judge said in his order.

Ted Frank, director, Hamilton Lincoln Law Institute and the Center for Class Action Fairness, at the Federalist Society 2019 Lawyers Convention in Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

Frank said he has "no idea what the judge thinks I said that was false and misleading."

He also said he has "no affiliation" with Class Action Inc. and that "They asked for my help, and I told them their checkbox objection process was unlikely to have any effect, that class counsel would try to strike the objections and that they should forgo working on objections until they could plan ahead far enough in advance to work effectively with an attorney."

In his order, Thrash rejected Frank's characterization of the settlement, finding that the lawyer improperly and dramatically understated its monetary value and disregarded the nonmonetary benefits. Thrash also rejected what he said was the "implication" of some objectors, including Frank, that the recovery from Equifax was inadequate in relations to a possible award at trial.

In a formal objection to the settlement that Frank filed in November, he labeled as "completely fictional" a $380.5 million cash fund to provide consumers with extended credit monitoring, identity protection and repair services, or reimburse them for expenses if their identities were stolen. Frank also contended that counsel representing the consumer class "didn't do any actual litigating in this case" and should be awarded no more than $16.2 million for a settlement he claimed was actually worth no more than $162 million.

"The settlement is at the high end of the range of likely recoveries," Thrash wrote. "Many of the specific benefits of the settlement likely would not be attainable at trial," including the eligibility of all 147 million class members for extended credit monitoring.

The judge also rejected Frank's claim that an additional $70.5 million included in the settlement fund at the request of federal and state regulators did not result from class counsel's efforts.

"This argument fails as a factual matter because it assigns no credit to class counsel's efforts and their agreement to integrate the additional money into the settlement they negotiated," Thrash held. "While regulators may have been the initial catalyst for the extra funds, the money would not have been added to the settlement fund but for class counsel's efforts."

Thrash also disagreed with Frank's attempts to minimize the work of class counsel and his claim that there was little risk in pursuing consumer claims against Equifax. "To the contrary, class counsel faced extraordinary risk, which the objectors unreasonably and erroneously discount," Thrash said.

Frank said he didn't know what Thrash meant in calling him a serial objector or whether it's even a bad thing.

"It's regrettable and highly irregular that the court makes insults that are both untrue and irrelevant" to the settlement," he said.

"My nonprofit and its attorneys have successfully represented class members objecting to abusive class action settlements and certifications for over 10 years," Frank continued. "The court made much of the fact that some of our objections were ultimately unsuccessful, but I'm unaware of any precedent requiring an objector to have a 100% successful track record."

Frank also said that he intends to appeal the settlement's approval.

"I'm happy to let the Eleventh Circuit decide whether we were right on the legal question, and I'm confident that the district court's intemperate language won't poison the well for that appeal," he added.

Frank's objection contended that residents of each state or other jurisdiction that could make separate claims against Equifax under their consumer protection statutes should have been represented by separate counsel.

But Thrash said in his order that Frank's objections, if acted on, "could disadvantage the entire class" and that adopting Frank's proposal would have required at least 34 separate teams of lawyers.

"The selection and appointment process alone would be incredibly time consuming and the duplication of effort involved in ensuring each legal team was adequately versed in the law and facts to assess the relative worth of their clients' claims would be staggering," the judge said.

"Ironically, the same objectors criticize the requested attorneys' fees in this case on the basis that class counsel's hours are inflated because too many lawyers worked on it," Thrash wrote.