Anyone who's tried to get a California bail bond may have noticed that the nonrefundable premiums charged by various agencies hardly vary from one to the next. According to a statewide class action filed last week, that's no accident — it's a price-fixing conspiracy.
The antitrust complaint, believed to be the first of its kind by plaintiffs attorneys from Lieff Cabraser Heimann & Bernstein LLP
and a host of social justice groups, claims the sureties that underwrite bonds have teamed up with their associated bail agents "to keep bail bond premiums higher than they would be if the California bail bonds market functioned competitively."
The Jan 29. suit in Alameda County Superior Court seeks damages on behalf of "hundreds of thousands of people," including named plaintiffs Shonetta Crain and Kira Serna, who paid for bail while serving pretrial detention for charges that were later dropped.
"Because defendants' conspiracy made bail bonds costlier for Californians, more people spent time in jail awaiting trial ... simply because they could not afford to pay defendants' supracompetitive premium rates," the complaint states.
Dean Harvey, a partner at Lieff Cabraser, said in a statement that "everyone in our society deserves the benefits of competition."
"Especially when their personal freedom is on the line," he added.
Over 20 surety companies plus several bail agencies and associations are named as defendants in the litigation, including all three members of Allegheny Casualty International Fidelity Associated Bond, or AIA, the nation's largest bail surety administrator, and the Golden State Bail Agents Association.
GSBAA President Greg "Topo" Padilla told Law360 that he's not prepared to comment specifically on the lawsuit. But he generally defended the bail industry as having done its part in keeping the justice system fair.
"For years, the Golden State Bail Agents Association and others in the industry has done work at the Legislature, with judges and other entities in the criminal justice system to lower bail schedules," he said.
The complaint says the industry has "nearly uniformly" relied on a default premium rate set at 10 percent of a posted bond. That rate allows them to collect as much as $308 million a year in nonrefundable fees from criminal defendants and their families, scoring an alleged 80 percent gross profit rate. The apparent uniformity in premium pricing over the past 15 years, according to the suit, comes despite a state law that allows sureties to offer rebates.
Several bail agency websites actually claim that agents offering lower rates are "simply acting illegally or deceptively," such as Famous Bail Bonds and Scott Haynes Bail Bonds. The website for Bad Boys Bail Bonds states that "all bail bonds companies charge the same" 10 percent rate.
But according to Stephanie Carroll, a Public Counsel attorney on the case, "we know that legally they can charge less."
"This rigged system disproportionately hurts low-income folks and their families, who are often the ones scrambling to get their loved ones freed from jail and back home," she said in a statement.
The suit traces the alleged conspiracy back to 2004, when a state court ruling blocked the California Department of Insurance
from enforcing an anti-rebate statute. Ever since that decision, according to the CDI
website, bail agents have been free to pursue competitive advantages via rebates.
Following that ruling, industry leaders began loudly advocating against discounting bail premiums. American Surety Co. President and CEO William Carmichael penned a March 2005 article in which he predicted that "rampant premium discounting will result in the end of the bail bond business as we know it."
"2005 will not be a year when we, as an industry, can sit passively by while competitive forces continue to encroach upon our markets," Carmichael, who also serves as the American Bail Coalition chairman, wrote. "I urge all of us to recognize the serious nature of the threats to our industry and work collectively to repel them. Leaving profit on the table, in the form of discounts or uncollected accounts receivable, is a fool's game."
Carmichael did not immediately respond to a request for comment Thursday, nor did representatives for AIA, the California Bail Agents Association and the Surety & Fidelity Association of America, among other contacted defendants.
Only one California bail bondsman appears to have explained the availability of premium rebates online, according to the suit. Chad "The Bail Guy" Conley, who runs services in five Southern California counties, posted a 2014 outline of how state laws provide for discounts on bail premiums.
In a Google Plus
forum for the post, he commented that "the good ol boys club came after my license for trying to save clients money," and added that many agents "prefer price fixing" at 10 percent. Conley could not be reached for comment.
"The mavericks who have opted to openly compete on price, either through lower filed rates or by advertising their lawful rebating authority, have faced retaliation from participants in the price-fixing conspiracy," the suit alleges.
The litigation comes less than five months after former Gov. Jerry Brown signed a controversial law to abolish the state's entire money bail system. Originally set to go into effect this fall, the landmark law has been put on hold pending a November 2020 voter referendum that was backed by a coalition of bail industry associations, including some of the antitrust suit's defendants.
Towards Justice director David Seligman, who represents the plaintiffs in the case, said in a statement that he is confident California will "someday" eradicate cash bail entirely.
"In the meantime, Californians should have the power that comes from a competitive market and the ability to shop around and negotiate for cheaper bail bond premiums," he added. "The bail sureties have profited for too long off their collusive conduct on the backs of some of the most marginalized members of society."
Have a story idea for Access to Justice? Reach us at firstname.lastname@example.org.
--Editing by Katherine Rautenberg.