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The 10 Most Interesting Class-Action Articles of 2010

Posted in Strategy

Since it’s the end of the year, it’s worth taking a look back at what were the most interesting class-action articles this year. What do I mean by "this year"? Either the working-paper version of the article appeared in 2010, or the article was published then. (So Martin Redish’s excellent article on cy pres relief qualifies, even though I wrote about that last December.) And what do I mean by interesting? It’s a subjective judgment. While I took hits on this site as an indicator of audience interest (which elevated NERA’s analysis of Italian class actions), articles that captured my interest–whether or not I wrote about them–also qualified. "Intereresting" does not mean "I agree with it." (After all, how interesting would that be?) Instead, it means "provokes thought or discussion."

So, without further ado, and in no particular order, the Ten Most Interesting Class-Action Articles of 2010:

  1. Cy Pres Pathologies — Northwestern professor Martin Redish challenged the use of cy pres relief in class action settlements. He based his analysis on the Rules Enabling Act. At the time, I did not think his analysis would gain much ground. It appears I was wrong; his article has already spawned a number of other articles.
  2. Do Class Action Lawyers Make Too Little? – This is the first (and maybe only) full-throated defense of huge class-action fees I’ve encountered. I disagree pretty strongly with the conclusions here, but that’s often what happens when one writes a provocative article.
  3. Apportioning Due Process: Preserving the Right to Affordable Justice — Plaintiffs’ counsel Elizabeth Cabreser tries an intellectual justification for certifying class actions and providing lucrative fees for counsel. It’s an excellent example–and refinement–of some of the more effective rhetoric plaintiffs use when arguing for certification.
  4. Italian class actions — NERA’s analysis of Italian lawsuits filed in the wake of its passage of a class-action act last year involves some good empirical work, and some insights as to why class actions are so prevalent in the United States, but not Europe.
  5. Common Answers for Class Certification — The late Vanderbilt professor Richard Nagareda will be missed. This article on the Dukes decision involved a deep and detailed look at exactly what we mean by predominance, and represented some of his best and most interesting work.
  6. Lying and Getting Caught: An Empirical Study of the Effect of Securities Class Action Settlements on Targeted Firms — Authors Lynn Bai, et al., test the "circularity critique" of securities class actions (that, because these lawsuits take money from the corporation and give it to the shareholders while extracting a fee, they wind up worse for shareholders than no lawsuit at all). They find that securities class actions can cause liquidity problems for the corporation, which can harm the class long-term, a finding that suggests that the SEC may be better equipped to handle to securities fraud.
  7. Litigation Governance: Taking Accountability Seriously – This is not the first article to compare running a class action to corporate governance, but John Coffee’s discussion of "exit" reforms (allowing class members to opt out if they don’t like the leadership) is thought-provoking, and has already led to at least one response. My guess is it will provoke several more.
  8. Flawed but Noble: Desegregation and its Implications for the Modern Class Action — I made several attempts over the course of this year to write a post about this article, but I could never find a good angle in. Nonetheless, this examination of the early history of the class action makes for interesting reading. It doesn’t suggest any immediate strategic insight, but it will certainly help inform your understanding of what class actions are.
  9. Litigation Daily on the Florida SBA beauty contest — This article by the America Lawyer’s Litigation Daily was great class-action journalism, providing some first-hand data about how securities plaintiffs’ firms structure and sell themselves.
  10. The Price of Pay to Play in Securities Class Actions — The question of "pay to play" practices has become increasingly important in many areas where government hires private contractors. Professor Stephen Choi and his co-authors perform an important analysis of how these practices affect the fees that plaintiffs’ counsel are paid in securities actions.

Hope your holidays have been happy, and see you in 2011.