As many of you know, our sport’s governing body—yours, mine, the one we own—is being sued by an attorney in Chicago over an alleged 1998 leptospirosis outbreak in a Wisconsin lake. Wisnefski v. USA Triathlon is one of two suits being litigated by Ed Wallace of Kenneth A. Wexler and Associates. The other is Greenberg v. USA Triathlon, which refers to the Ironhorse Triathlon in Springfield, Ill. The Ironhorse race was June 21, 1998, and the Madison event took place two weeks later.

It is now common knowledge that the Centers for Disease Control investigated and found no demonstrable leptospirosis in the lake in Madison—ergo, nobody could have been infected at the race. I say this based on representations made to me in 1998 by those involved with the Madison race, and from conversations I had back then with people from the Wisconsin Department of Health. The attorney charged with USAT’s defense repeated the same story to me very recently: The CDC declared that based on its investigation, the lake was not the source of anyone’s leptospirosis during that time frame. Yet the case is going forward anyway.

I remember all this fairly well, as I was head of Quintana Roo at the time, and our company owned and ran the United States Triathlon Series. Our series was an umbrella over eight locally owned races around the country, and USTS Madison was one of the events. While I remember the event, I am not a litigant, nor is the company I worked for. Neither I nor anyone in our company was asked to testify or give evidence by either side.

Oddly, the local event owner and director, the now defunct Multisport Wisconsin, is not a defendant either. The only defendants are USAT and the then-title sponsor of the U.S. Triathlon Series, Bally Total Fitness.

So here we sit four years later, both suits still going, one of which is destined to earn Wexler and Associates no money, because there are no damaged litigants. But Wexler presumably didn’t know when it petitioned the court for the right to sue as a "class" that the CDC would come back with the finding that the Madison lake was clean. Nobody knew early on that every sick Madison contestant had also raced at Ironhorse and that the incubation period meant that an infection contracted at Ironhorse would manifest symptoms only after the Madison event. Now Wexler has several hundred litigants who competed only at Madison, and it’s too late to go back. It must act as their advocate.

Class-action lawsuits work like spam mail. You’ve got to take the affirmative action of "unsubscribing" or you’re part of the "list." In recent weeks and months, those entered in the Madison race have received notice of the suit and have been given their opportunity to opt out of it. So far, fewer than 100 have. Why not more? Many of those taking part in USTS Madison undoubtedly thought that since they didn’t get sick, they aren’t part of the suit—but they are. Many may have been afraid to take any affirmative step because of the often confusing legal jargon. Many may have tossed the letter as junk.

Most of all, though, it’s just hard to get people to take an affirmative action. Any action. A class-action attorney I spoke with said, "Even when plaintiffs win a cash settlement, say, $300 or $400, and we send a letter out to them telling them to respond back in order to get their money, we’re lucky if a third of them respond. We tell them, ‘It’s free money. It’s yours. Just write us back.’ The return rate is still very low."

So why doesn’t Wexler just drop the Madison suit? Good question. Of all the attorneys I contacted he is the only one not to return my call. One class-action specialist not familiar with the case posited that Wexler might be between a rock and a hard place. If it drops the case it leaves itself open to a potential malpractice suit by one of its own clients if, all evidence to the contrary and by some quirk of fate, someone really did get sick at Madison.

In other words—the theory goes—while Wexler attorney Ed Wallace may know full well that the case in Madison is bogus, he can’t stop the suit for fear that there might really be a damaged litigant that he doesn’t know about.

But this is just speculation, and I’d be happy to print without comment Wallace’s explanation for why the suit remains in place if he’d like to share that with our readers.

What ought our response to be, as a community invested in an avocation we all covet and wish to protect? I would like to send a strong signal to Wexler and to other law firms that using triathlon as a vehicle to enrich themselves is not tolerable. Perhaps if this suit is dismissed with prejudice at a summary judgment hearing the judge will sanction Wexler for bringing a groundless claim. But that isn’t likely. It is extremely hard to get sanctions in Illinois, I’m told, even though it’s hard for me to imagine a more groundless suit than this.

There is another potential solution, available only because Wexler got what it asked for. Now that the class has been granted, there are several hundred litigants. The case belongs ultimately to them, not to Wexler. The litigants have legal standing and can petition the court regarding the quality of their legal defense. This tactic is called an "intervention." Any plaintiff can intervene through his or her attorney to have alternative legal representation. While such an intervention from several dozen to several hundred class members wouldn’t remove Wexler as the attorney for the remainder of the class, such a move can wield might. For example, if these plaintiffs offered compelling evidence that no one got sick, the judge might decertify the class, and that would essentially kill Wexler’s suit. A person could still feel free to bring a suit but only on an individual basis.

The several class-action attorneys I spoke with were split as to whether this is a viable tactic, and considerable doubt was expressed as to whether it would yield a procedural victory. They all admitted, however, that it would have a powerful message before the judge. One also suggested that Wexler might secretly welcome any tactic that would elegantly get it out of the Madison lawsuit.

If you were a participant in the Madison race, you have three good options as I see it:

1. Be honest with yourself and determine that yes, you really were damaged at that event and that our governing body ought to be held liable.

2. Take the affirmative action to opt out of this suit.

3. Take a more affirmative action and join with others in finding an attorney who’ll intervene on your behalf before the judge.

Is doing nothing a viable option? Unfortunately for you, doing nothing—if you raced the Madison race and haven’t yet opted out—means you are bringing suit in a case in which you were not harmed. I hope you’ll do something about that, for the sake of all of us who still want bodies of water to race in, and to pay entry fees that do not reflect markedly higher insurance premiums.