I hope to be seeking new counsel soon (i.e. new lawyers to represent me AND the class on a contingency basis).
(I need new counsel because the law firm I originally hired to sue TD Ameritrade for its spectacular failure to protect its customers privacy struck a sweetheart TD Ameritrade deal and used coercion to try and force me, the lead class representative, to accept the kind of settlement that class action cases are infamous for – one that would have swindled the class but provided the lawyers with almost 2 million dollars.)

My lonely battle continues. I know I’m in the right, but it’s been tough as months have passed with no progress evident. The 6.3 million customers I represent seem skeptical of the class action system; it’s easy to see the class action cup as half empty rather than half full. I hope the thousand plus hours I’ve put into this don’t come to naught.  I  continue to research and study court and legal procedure, and communicate with the relevant parties.

Judge Walker asked me in court back on 10/7/08 if I was willing to seek new counsel interested in becoming lead plaintiff’s counsel, and I will be happy to do so, as soon as he asks me to.  He said that such counsel would deserve compensation if the resulting settlement or judgment is better than the one currently on offer – even if it was better only in ways that did not involve financial improvements (such as improved notification, and other issues raised in the brief (Docket item 72).

I hope that the court will confirm that I have a right to see the secret deposition transcript that is key to this case, as well as permission to share it with potential counsel in the case; without it, it will be extremely difficult for me to conduct interviews.  (The deposition is of former TD Ameritrade Chief Security Officer, Bill Edwards, and I suspect it discloses that TD Ameritrade has reason to believe that its customers’ Social Security numbers were stolen, and that it failed to address the problem for two years because of what will be determined to be negligent security practices.) I believe I already have a right to the transcript, under the protective order TD Ameritrade agreed to (Docket item 32). I meet the definition of ‘Expert’ as defined in 2.12 of the order, granted the right under 7.3(b) of the order. Likewise, I meet the definition of ‘fact witness’, granted the right to access under 7.3(d) of the order. I have signed the relevant form.  I’ll risk pointing out the obvious: I’d be much better off with a redacted transcript in my hands than no transcript at all.

I also hope that the court will press opposing parties to provide information the court has already requested but not received.

  • There is no record that the court has received a copy of the secret transcript, though I would be surprised if it hasn’t.  I want to know if it was provided and whether it was provided with an explanatory memo that KamberEdelson had prepared but the court did not request.
  • There is no record that the court has received an itemized time or cost accounting from KamberEdelson.  I have never received one either, even though I have requested one approximately one dozen times, half of them in writing.  I’ve never even received a total # of hours worked, until I received the totals provided to the court.
  • I have also received no information on the fee-splitting agreement between KamberEdelson and Parisi & Havens, which is to have been disclosed to me in writing as required by State Bar rules.

I ask that KamberEdelson (who monitors this blog) address these four points so that they can be addressed before more of the the court’s and my counsel’s time has to be spent formally pressing for compliance.

I have found counsel that is ably representing me as an objector – and I’m very happy to have them, and I’m confident they’ll do a great job, as they have done so so far.

However as merely an objector, I/my counsel may be unable to obtain discovery (e.g. file requests for admissions, interrogatories, depositions and records) necessary to clarify matters regarding reasonableness of the current or any other proposed settlement.  My current counsel (Public Citizen‘s Greg Beck and Brian Wolfman) is not prepared to take over as lead counsel, as confirmed during court questioning.

I welcome contact from interested parties at 267.543.2801.

Other things I’ve been working on:

  • I noted that there was spear phishing going on! This is significant because it’s a likely new cause of action.
  • I noted that this recently published document highlights two things: 1)Page three is probably what led to the OSF and PRC statements that have required updating; compare it to page four.  2)I haven’t seen TD Ameritrade get this specific – saying specifically that physical addresses were acquired (without the “may have been” or “such as” wiggle room seen elsewhere).
  • The Texas Attorney general reviewed the proposed settlement and found it severely lacking. Subsequent negotiations with KamberEdelson, have, not surprisingly, given KamberEdelson’s position, not led to substantial improvements, but there is some progress.

It’s been interesting comparing the TD Ameritrade and Bernie Madoff scandals.  In both cases, the SEC knew about the problems for years, because someone with strong evidence of a major problem presented it to the SEC on a silver platter, but the SEC still managed to drop the ball.

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