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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Restricting Objectors and Open-Minded Strategy

Posted in Settlement

Last year, class-action plaintiffs’ lawyer (and author of the New Jersey Appellate Law Blog) Bruce Greenberg published an article in the St. John’s Law Review on "Restricting Objectors." (The cite is 84 St. John’s L. Rev. 949; the Law Review appears to be a few issues behind in posting articles on its site.) Not surprisingly, Greenberg has a few objections to objectors. As he puts it:

In at least two ways, professional objectors harm the class members whose interests they claim to represent. First, professional objectors’ almost invariably groundless objections delay the provision of relief to class members who, in most instances, have already waited years for resolution. Second, by feeding off the fees earned by class counsel who took the risk of suing defendants on a purely contingent basis, as is the normal practice in class actions, professional objectors create a disincentive for class counsel to take on such risky matters. That disincentive clashes with the public interest, repeatedly recognized by courts, to incentivize class counsel to handle such cases.

Greenberg’s article is well-written and informative, but there’s one issue he has trouble overcoming. Greenberg’s criticisms of objectors sound remarkably like some defendants’ ‘ criticisms of plaintiffs’ counsel. Specifically:

  • He assumes that objectors’ arguments are always baseless.
  • He argues that objectors actually undermine the interests of their clients.
  • He assumes that the objectors’ adversaries (in this case, plaintiffs’ counsel) are largely blameless.
  • His rhetoric implies that objectors provide little benefit.

This kind of rhetoric can be very useful (and even accurate) in a brief, directed against a single opponent. It’s less so in a scholarly article describing an entire category of lawyers.

The article has the same problems as many practitioners’ articles about class actions–by plaintiffs or defendants. It assumes the worst about the authors’ opponents. (Something I’ve been accused of myself..) Strategically, it’s important for a lawyer to maintain a three-dimensional picture of his adversaries. And, from a scholarly standpoint, nuanced portraits are of far more use than two-dimensional ones.

In short, it’s best if we treat our opponents as just as human as we are: capable of both admirable and less-admirable actions.