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

Rhetoric – Entities, Entrepreneurs, and Rogues

Posted in Lawyers

As I’ve discussed before, there are few areas of law as polarized as class actions. The plaintiff and defense bars in class-action law rarely agree on anything, from the proper scope of Rule 23 to what a class action is in the first place. And I’m not the only one to have noticed this divide. Connecticut law professor Alexandra Lahav recently published an essay in the Fordham Law Review on "Two Views of the Class Action."

Lahav’s essay could improve from more focus.  She winds up talking about two different pairs of competing views–one of class actions, and one of class-action lawyers lawyers–that don’t line up perfectly themselves.

The first set of competing views she discusses are often called the "entity" and the "joinder" views of class actions. The entity view (often espoused by plaintiffs in briefing) argues that a class is a single entity that exists independently of the class representative. This label is often helpful for courts trying to certify a class, or lawyers seeking greater control over their case. (If a class is an entity, then there is little need to listen to a rebellious class representative, or even objectors.) By contrast, defense lawyers often invoke the joinder analogy to remind the court that a mere joinder device cannot and should not change the substantive rights of the parties.

The second set of competing views involve how to look at class-action lawyers. One school of thought looks at these lawyers as entrepreneurs, businessmen who conjure cases and then find plaintiffs to staff them; the others as private attorneys general who serve the public good for a profit.

Lahav’s account of these two sets of competing views gets confused in a few places. For example, she describes both the entity and the entrepreneur tropes as defendants’ views of class actions, even though defendants traditionally do not argue (or believe) that litigation classes are cohesive entities. Instead, they often see–and point out to the court–a loose collection of people with different problems and different claims, not all of equal merit. Similarly, while plaintiffs may on occasion argue that a class action is just a joinder device, they are far more likely to describe a class as a coherent entity that exists independently of the class representative.

Moreover, rather than really explore how these conflicting views have informed class-action doctrine, Lahav then embarks on a completely different discussion. Relying heavily on references to poets Wallace Stevens and Percy Shelley, and novelist Nikolai Gogol, she asks whether plaintiffs’ lawyers are rogues harnessed for a useful purpose, or a redemptive force that deserves more respect. (Personally, If we’re going to make poetry out of something as prosaic as lawyering, I’d prefer Anna Barbauld’s approach myself.)

The point that Lahav is leading up to (after invoking Gogol’s novel Dead Souls) is that the law often treats class-action lawyers as greedy men whose greed is harnessed for the public good. In Lahav’s view, this is a problem, not because class-action lawyers may in fact step over the line, but because seeking to limit their wrongdoing apparently causes the problem in the first place.  As she puts it:

The lawyer is sometimes a rogue, but the more our system accepts this as true and seeks to harness the rogue, the more our system creates roguish behavior.

There are two problems with this final argument. First, literary references or no, Lahav doesn’t explain how treating class actions as susceptible to abuse winds up creating those abuses, and that failure to identify how the process works undermines her credibility. It also means her logic could apply to anyone, including defendant corporations. By Lahav’s logic, treating corporations like criminals by regulating them just encourages them to commit illegal acts–a conclusion I doubt she would agree with. And that’s the second problem with Lahav’s article: it provides a one-way ratchet that gives plaintiffs’ lawyers the benefit of the doubt, but no one else. Courts, she argues, should view the class-action lawyer as "capable of redemption," but not the defendant (who should be deterred from exploiting others).

As I’ve explained before, law (not to mention legal strategy) works best when it recognizes that everyone has a little rogue in them. Corporations are capable of good and bad things, and so are the self-appointed cops who police them. Assuming that one side can do no right and the other can do no wrong very rarely leads to accurate descriptions or good policy outcomes; while it may encourage the side that can do no right to clean up its act, it usually results in the side that can do no wrong testing exactly how far it can go.

I’m not saying Lahav’s essay is useless. The first half contains an interesting (if somewhat muddled) description of several rhetorical tropes used in class-action practice. I just wish that the second half had stuck with analyzing the rhetoric instead of indulging in it.