13th Check lawsuit - payment to opt out

20 December 2011

To: All Retirees
Below is Attorney Wayne Thomas' response to Retiree John Parker on the issue of the Pension Board's decision on December 15, 2011 to pay from the Pension Fund the opt-outs in the 13th check class action lawsuit..


Dennis Ribaya

Date: Tuesday, 20 Dec 2011 12:28:38
Subject: 13th Check lawsuit - payment to opt outs

Dear John,

You have asked for my reaction to the Pension Board's decision on December 15, 2011 to pay from the Pension Fund the opt outs in the 13th Check class action. I have no objection to the opt outs being paid, but the failure of the Board to also pay the class members who were responsible for obtaining the award is just wrong. In my opinion, this is a punitive action by the Board to punish those who would bring any cause of action against them, regardless of how meritorious it may be, and reward those who sit on the sidelines. The Board's apparent goal is to see to it that the opt outs are paid 100% of the recovery negotiated for them by the class. At the same time the Board has taken an appeal from the Court's decision that the Board pay the class's attorneys' fees, arguing that it is the class members themselves who should pay the fees incurred in successfully correcting the Board's 7.5 million dollar mistake in interpreting the Pension Plan.

It is remarkable that the Board made their decision to pay the opt outs against the advice of their attorneys and at a time when they were advised that "there is no legal requirement at this time that you pay." Various Board members repeatedly said, contrary to their counsels' advice, that "we owe the money" so "we should go ahead and pay it." I do not disagree that the opt outs should be paid. Good for them. But the fact of the matter is that the Board should have paid not just a select group, but ALL of you. Every argument which the Board members gave for paying the opt outs now out of the Pension Fund applies to you class members just as well. However, none of the Board members said "Hey, we owe this money to the class members, too, and we should also pay them."

There is nothing in the settlement agreement which prohibits payment to the class members right now the settlement agreement only says that the monies shall be paid once the settlement is final. The reason the Board does not want to pay you the money today is simple. As stated above, it is because they have appealed the attorneys' fees decision and want you class members to pay the fees and costs incurred for making them correct their mistake.

Accordingly, the Board has chosen to discriminate against the class members in favor of the opt outs. The Chairman made a "foxhole" analogy to the effect that, if he was going to be in a foxhole defending his actions, he would rather defend having paid the people he owed than not having paid them. I agree with that sentiment, but it is too bad that the foxhole is only big enough for the opt outs. Perhaps the Board never heard the other military rule: "No soldier left behind." It is too bad the Board forgot that one in voting that some of Tampa's former police officers and firefighters should get paid what "they are owed" this holiday season, but others must wait.

In sum, however, no amount of self-congratulation by some on the Board can really hide what the Board and its insurance company are doing here, and that is trying to avoid paying for their mistake. Their appeal will run its course and hopefully by this time next year you all will have the rest of the money you, too, are owed.

Here's hoping for a Merry Christmas for you and your family.


Wayne Lee Thomas

Akerman Senterfitt

Suntrust Financial Centre, Suite 1700

401 East Jackson Street

Tampa, FL 33602-5250

813 209 5060 direct

813 223 2837 fax

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