Class Action Countermeasures : Class Action Lawyers & Attorneys : McGuireWoods Law Firm : Complex Litigation, Mass Torts

After Dukes, many commentators bemoaned that the class action was dead. At the very least, many argued (as did some last week at DePaul Law School's Symposium on Class Action Rollback) that the Title VII class action is likely on its last legs.

If so, no one told the plaintiffs' counsel prosecuting McReynolds v. Merrill Lynch, Pierce Fenner & Smith (7th Cir. 2012), where the Seventh Circuit just reversed denial of a class seeking injunctive relief and certification of a class for the purpose of determining whether disparate-impact discrimination had occurred against African-American brokers.

The case bears some superficial similarities to Dukes. The plaintiffs alleged racial discrimination, and sought injunctive relief. But, unlike the Dukes plaintiffs, they alleged only disparate-impact discrimination (which does not require proof of intent, and does not allow recovery of damages), and did not seek back-pay as relief, at least at this stage. (Earlier iterations of the class proposal did.)

The lower court denied plaintiffs' class certification proposal several times. However, in denying certification of plaintiffs' most recent class proposal, the district court had said that the question of whether it could, at the very least, certify a class solely to determine whether there was sufficient commonality to justify an injunction against disparate impact was "crying out" for appellate review.

The Seventh Circuit obliged. Much of the opinion is given over to procedural wrangling over whether a plaintiff may appeal the denial of an amended motion for class certification after the court had already denied the original motion. The more interesting result, however, comes after Judge Posner resolves that issue in favor of the plaintiff.

Obviously a single proceeding, while it might result in an injunction, could not resolve class members’ claims. Each class member would have to prove that his compensation had been adversely affected by the corporate policies, and by how much. So should the claim of disparate impact prevail in the class-wide proceeding, hundreds of separate trials may be necessary to determine which class members were actually adversely affected by one or both of the practices and if so what loss he sustained—and remember that the class has 700 members. But at least it wouldn’t be necessary in each of those trials to determine whether the challenged practices were unlawful. Rule 23(c)(4) provides that “when appropriate, an action may be brought or maintained as a class action with respect to particular issues.” The practices challenged in this case present a pair of issues that can most efficiently be determined on a class-wide basis, consistent with the rule just quoted.

(Emphasis added.) Judge Posner also noted that the usual concern about bet-the-company litigation was not present in this case.

Merrill Lynch is in no danger of being destroyed by a binding class-wide determination that it has committed disparate impact discrimination against 700 brokers, although an erroneous injunction against its teaming and account distribution policies could disadvantage it in competition with brokerage firms that employ similar policies—though we have no information on whether others do.

And he concluded that overall, the benefits of issue certification in this case likely exceeded the costs.

We have trouble seeing the downside of the limited class action treatment that we think would be appropriate in this case, and we conclude that the district judge erred in deciding to the contrary (with evident misgivings, however).

So does this herald an era of widespread issue certification? Probably not. As Judge Posner notes throughout his opinion, there are a number of special circumstances in this case. Among them are the fact that the class is willing to seek injunctive relief, and to postpone any ruling on damages or back pay. For this set of plaintiffs, who have been litigating for years, this makes sense. But a plaintiff's lawyer looking to file a new lawsuit might not be willing to put in a substantial upfront investment without a promise of monetary recovery if he wins. Moreover, the Merrill Lynch plaintiffs challenged two specific policies--teaming (allowing brokers to form teams, which apparently resulted in some de facto segregation) and account distribution (whose subjective criteria appeared to result in discriminatory distribution of accounts)--that were not counterbalanced by an explicit nondiscrimination policy like the one in Dukes.  Assuming that companies are taking the Supreme Court's hint that an explicit antidiscrimination policy can make it harder to make a common issue out of a "subjective" policy, this may have presented a rare opportunity.

Nonetheless, Judge Posner's opinion provides a rare example of how a plaintiff might actually structure a request for issue certification. And for that reason alone, it is well worth the defense attorney's attention.

(Hat tip to George S. Robot, who brought the--literally--fresh-from-the-press opinion to the DePaul Symposium, and graciously shared much of the backstory with the participants.)

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Negotiation consultants David Lax and James Sibelius, authors of the excellent book 3D Negotiation, have a new working paper out on what they call the "Negotiation Campaign." In it, they argue that the most successful negotiators do not consider their jobs to involve a single, big negotiation. Instead, they are engaged in a sequence of negotiations--some internal, some external--that ideally will bring about the desired big deal.

[C]onsider Boeing’s $11 billion sale of 787 Dreamliners and other planes to Air India in late 2005. A naïve understanding of this transaction might envision two monolithic entities, Boeing and Air India, hammering out the terms, overcoming a price gap and cross-cultural differences. Yet the messy reality leading to that ultimate target deal involved an extended negotiation campaign: literally dozens of individual but linked negotiations, orchestrated on several fronts, involving an array of parties over time and across borders. Negotiations on internal corporate fronts garnered support and approval from the engineering, operations, finance, and marketing divisions, as well as top executives and boards of directors. Negotiations on the external financial front involved banks, export promotion agencies, and leasing companies. And given the Indian state’s ownership stake in the airline, negotiations on the political/national front concluded with Boeing agreeing to partner with Indian manufacturers to supply a certain amount of domestic content and to create local maintenance and pilot training organizations. Successfully orchestrating these component negotiations on multiple fronts finally generated sufficient support for the record-breaking target contract.

(Emphases in original.)

This provides a useful way of looking at class-action practice. The applications for plaintiffs' counsel are obvious: they frequently sue more than one defendant, and often have to consider each defendant's general counsel's office, board of directors, and insurance companies in offering any kind of settlement package. But there are applications for defense counsel as well, because defense counsel often have to negotiate on multiple fronts.

• They must negotiate on an internal front with their clients, finding out what their strategy is, and in turn letting them know what is and is not possible. And, of course, clients are not always monolithic. There may be competing factions within a GC's office, or the GC may need to convince the CEO or other executives of the importance of various strategies.
• * Defense counsel often also has to negotiate on a regulatory front, where compromises made with attorneys general or other administrators can have consequences in later negotiations. (I've talked before about the ways in which regulatory compliance and class-action defense overlap.)
• * And, of course, defense counsel must negotiate on a litigation front with plaintiffs', often--when different counsel bring competing or overlapping lawsuits--more than one.

Or, as Lax & Sibelius put it:

While doing one deal well requires a certain set of skills, designing and executing a broader negotiation campaign calls for a more strategic approach: artfully putting a number of deals together, often on multiple fronts, to realize a larger result, typically an ultimate target agreement with sufficient support in the right quarters to make it stick. In other cases, negotiation campaigns aim to block undesirable outcomes or shore up negotiating weakness at the target table.

(Emphases in original.)

This consideration of negotiation as a campaign instead of individual engagements is not revolutionary. It's just grand strategy by another name, something the best class-action lawyers have long had to master. But Lax and Sibelius don't have to be revolutionary, they just have to be very good at explaining what they mean, and breaking it down into a series of usable steps. And that they do, quite well.

Go, read. I promise it's worth it.

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Todays' classic case asks the question: how close an attorney-client relationship is too close an attorney-client relationship?

In London v. Wal-Mart Stores, Inc. (11th Cir. 2003), the plaintiff, Roger London, sued Wal-Mart and a group of banks, alleging that they had sold insurance without providing the proper disclosures, violating the Truth in Lending Act (TILA) and Florida state law.  

During discovery, it came out that London's lawyer, Robert Ader, had been his close friend since high school. In fact, for a while, London had served as his counsel's stockbroker as well. So there had been both a business and a personal relationship. Once Ader had discovered that London was paying for this insurance (at which point, he was in the hole only 41 cents), he told him to keep doing so so that he could be a plaintiff in a class action.

The defendants opposed class certification, in part because London was not an adequate class representative. Nonetheless, the trial court certified a class action against them. The defendants appealed.

On appeal, the Eleventh Circuit reversed. It began by noting that

adequacy of representation is primarily based on the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the class and whether plaintiffs have interests antagonistic to those of the rest of the class. In fact, we went on to note that meeting these requirements might still be insufficient if the named plaintiffs do not possess the personal characteristics and integrity necessary to fulfill the fiduciary role of class representative.

(Internal quotations omitted.) The court also noted that

The requirement for a stringent examination of the adequacy of the class representative is especially great when, as in this case, the attorney's fees will far exceed the class representative's recovery. In such circumstances, courts fear that a class representative who is closely associated with the class attorney will allow settlement on terms less favorable to the interests of absent class members.

(Internal quotations omitted, emphasis added.) In this case, a close personal friendship and a business relationship clearly counted as "closely associated."

After reviewing the record, we conclude that the district court abused its discretion by ignoring London and Ader's significant personal and financial ties. The long-standing personal friendship of London and Ader casts doubt on London's ability to place the interests of the class above that of class counsel. The close relationship between London and Ader creates a present conflict of interest — an incentive for London to place the interests of Ader above those of the class. Furthermore, even though London is no longer Ader's stockbroker, nothing prevents his returning to that role after this litigation is concluded. If London plans to do so, London would have an additional incentive to increase Ader's fees at the expense of the class. Thus, combined with their close friendship, the former financial relationship between London and Ader creates a potential conflict of interest.

(Emphasis added.)  London marked an important moment in the continuing development of the adequacy requirement, because it reaffirmed that one of the primary reasons adequacy is so important is that class actions need representatives who can independently direct their counsel. The Eleventh Circuit--like many class-action scholars--recognized that class counsel (who really control the case) do not necessarily have the best interests of absent class members in mind, particularly when attorneys' fees can run into the millions of dollars while relief for the class members may be only pennies. There are several ways of addressing that asymmetry. One is to reduce attorneys' fees, a reform courts have unfortunately been reluctant to implement. The other--which courts do occasionally enforce--is to make sure that the named plaintiff actually has the independence to stand up for the class when counsel opts for the money instead.

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Last month, I received a flurry of email from various people who wanted to point me towards Mark Herrrman's column on Above the Law, "Torpedoing Class Actions." In that column, Herrmann reviewed Martin Redish's 2009 book Wholesale Justice, which argues that class actions are an unconstitutional delegation of state power to private lawyers. He also called class-action defense lawyers "derelict" and asked "Where is the practicing bar?" when it comes to advocating Redish's arguments.

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There's an intuition among defense lawyers that property-based cases are difficult to certify; not impossible, but certainly difficult. This week's case, Burdette v. Vigindustries, Inc., 2012 U.S. Dist. LEXIS 15412 (D. Kan. Feb. 8, 2012), offers several reasons why that is the case.

Burdette is a case about sinkholes. It involves a neighborhood in Hutchinson, Kansas that had been located next to a series of salt solution mines. After a sinkhole developed in the Careyville neighborhood in 2005, the defendant, which owned the nearby salt mine property, created a buffer zone between the neighborhood and its own property. (This appears to have been pretty expensive, involving buying 37 nearby properties at a premium in order to create the zone.)

The plaintiffs--all residents of the Careyville neighborhood who had not been relocated--sued, alleging causes of action for nuisance and negligence under Kansas law. The trial court declined to certify the class. The reasons it gave involve issues that occur frequently in real property-based cases.

Each parcel of property was unique. The first reason the court cited was that individualized issues predominated over common ones. (The defendant, interestingly, apparently argued the Dukes commonality standard, but conceded that there was at least one common issue.) While the plaintiff argued that the court could just focus on the defendant's conduct, the court held that, to prove nuisance, each class member would have to prove the result of the defendant's conduct on their property; more specifically, under Kansas law they would have to show that the defendant had interfered with the owner's use and enjoyment of their property. As the court pointed out:

Determining what constitutes a nuisance is a case-specific inquiry and depends on factors such as: the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency or continuity, and the nature and extent of the injury, damage or annoyance resulting. Of these factors, only the type of neighborhood would lend itself to common evidence among these class members.

(Internal quotation omitted.) The plaintiffs didn't help their case by arguing for "stigma damages" (diminution in value that results from the perception that the properties were affected by sinkholes), an argument that created even more factual variations for the court to consider.

Based on all of these individualized issues, most of which were tied to the fact that each property in the area was unique, with unique owners, the court also declined to certify plaintiffs' negligence claims. (And, based on these same variations, it found that the plaintiffs were neither typical nor adequate representatives of the proposed class.)

Property-based class actions often lack geographic diversity. The court also found that the plaintiffs had not demonstrated numerosity for one of the subclasses, even though it had 57 members. Why? Because, since they were all geographically close, joinder was eminently practicable in this case.

[S]ubclass A is not necessarily so large as to make joinder impracticable, as it contains just 54 property owners within a confined area, making it easy to locate any remaining individuals for joinder if they wish to sue. Similar to Trevizo, where the Tenth Circuit affirmed a district court finding that 84 members was not sufficiently numerous, this case involves an amount of putative class members that is not "overwhelmingly large" so as to be prohibitive of joinder. There would be no problem identifying the remaining individuals in this subclass for joinder because they all own property in a defined area.

(Internal footnote omitted.)

Cases involving damages to real property often founder on these kinds of issues. Because each parcel is unique, there are often individualized issues involving use, enjoyment, and valuation. And, because many properties involved in "mass" incidents are close to each other, they're also amenable to joinder instead of class proceedings. Burdette provides a concrete reminder of just how these issues will play out in court.

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 I've spent a lot of time over the last two years poking (as best I can) into the head of the entrepreneurial plaintiff's lawyer. That is, the plaintiff's lawyer that treats her lawsuits like business opportunities, keeping a diversified portfolio and working to maximize the profit from each opportunity. But there is another kind of lawyer that brings class actions, one often referred to as the "cause lawyer." Rather than working for profit, this group is motivated by a desire for social change. Cause lawyers are rarer in class action practice, but they're not nonexistent. So, how does the class action defendant deal with a cause lawyer?

Colorado professor Deborah Cantrell has a new article Lawyers, Loyalty and Social Change (Oxford comma omitted in original), which tackles just that question.

According to Professor Cantrell, one can distinguish cause lawyers by their incentives. Cause lawyers are (clearly) not motivated by the money. Instead, they tend to be motivated by the advancement of a single social cause. As Professor Cantrell puts it, it is the

common feature of social change advocacy – that participants, including cause lawyers, identify strongly with their side of the issue and distrust with a similar intensity participants on the other side. In fact, this Article argues that such hyper-loyalty is considered a core condition and baseline requirement of the relationship between cause lawyer and cause client.

(Emphasis added). It is this "hyper-loyalty" that defines the cause lawyer:

In contrast to much for-profit lawyering, cause lawyering brings with it robust notions of solidarity between client and lawyer. The proposition is that there is more solidarity between the cause lawyer and client because both of them understand their work together to be situated within a larger interest in social change. … Independent of their legal relationship, the lawyer and client are loyal to each other because of their shared commitment to their cause (whatever it may be). Their “cause loyalty” is stronger than the typical professional loyalty between lawyer and client. It is hyper- loyalty.

(Emphasis added.) Cantrell traces that hyper-loyalty to a few causes. Since many cause lawyers appear to come from "elite" backgrounds (law school costs a lot of money, and cause lawyering may require some independent income since it pays much less than other legal work), hyper-loyalty may be a compensatory mechanism to assure poorer clients that the lawyer is truly on their side.

Moreover, this hyper-loyalty may also stem from cause lawyers' tendency to the see world as bipolar, divided into a clear "us" and "them."

Additionally, a constitutive part of social change, or cause, work is that cause advocates are pushing against the status quo. In order to mobilize a collective for action, there must be some sense that there is a group pushing for change and a group content with the status quo – in other words, some sense of “us” and “them."

(Emphasis added.) Most lawyers wind up buying into their clients' mindsets to some degree. (It can be hard not to.) But many for-profit lawyers can distance themselves from their clients by noting that every client its day in court, regardless of its views. Cause lawyers, by contrast, may hold a sincere and deep belief that their clients are in the right--why else would the lawyer represent them? In fact, Cantrell notes, some cause lawyers (or cause clients) may have deep suspicion of outside sources of funding, since they may threaten to change a cause into an "industry."

Cantrell identifies two problems with the cause lawyer's hyper-loyalty. First, if the lawyer is hyper-loyal to the cause, she may wind up selling out her individual client:

the worry is that cause lawyers will understand their true loyalty to be to the cause, and thus view their clients as one of several pieces of an advocacy strategy to be deployed. Clients become pawns, not empowered individuals.

On the other hand, if the lawyer is hyper-loyal to the client, not the cause, then she risks a polarized view of the world, in which others are either "friends" or "enemies," with little middle ground, and little room to negotiate. In that case, a cause lawyer may take actions that benefit her individual client, but sacrifice the actual cause. (And, in class action, the cause is likely to include the absent class members.)

So, how does the class-action defense lawyer deal with cause lawyers? Professor Cantrell's analysis suggests a few tactics to keep in mind:

• Focus on non-monetary compensation when negotiating. Courts are often suspicious of non-monetary compensation in class actions. But if one is negotiating with a cause lawyer, actual changes in behavior may be the real relief her client (and the class) seeks. These changes will have to be genuine, of course. Given the tendency for cause lawyers to view "enemies" with heightened suspicion, they're unlikely to be satisfied with lip service, and they have little monetary incentive to accept minor changes so long as there are large fees.
• Focus on the adequacy of the class representative. Given the risk that the lawyer and the client may be too loyal to each other (resulting in, say, demands for outsized incentive payments), it is doubly important that someone--most often the court--is paying attention to the needs of the absent class members.
• Focus on the adequacy of class counsel. If the lawyer is hyper-loyal to the cause, then she may make some moves that show an insufficient regard for her fiduciary duty to either the named plaintiff or to the absent class members (to the extent that they are just another means to support the cause). In those cases, the defense will want to make sure that the Court is paying attention to the needs of the class, as opposed to the lawyer.

It remains a central irony of class action practice that, regardless of whether the plaintiff's lawyer is motivated by money or loyalty to a larger cause, her incentives are not going to line up with her client's much of the time. As a result, it remains the case that the strongest class-action defenses often focus on what is best for the absent class members.

UPDATE - Russell Jackson of Consumer Class Actions & Mass Torts has some additional, less cynical, and of course, well-taken advice on how to deal with cause lawyers (or, as he likes to call them, "true believers").  If you've popped over here from there, welcome!  If not, do check out his take as well. 

(He's also, finally, picked himself up a Twitter feed ...)

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Six months after the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, courts are still working out how best to apply the newly-clarified standard of commonality. This week, the Seventh Circuit offered some further guidance.

In Jamie S. v. Milwaukee Public Schools, the plaintiffs--seven disabled public-school students--challenged Milwaukee's implementation of the Individuals with Disabilities Education Act.  The trial court denied certification, but allowed the plaintiffs to amend their complaint. It then certified the amended class proposal, and proceeded to a bench trial, where it found various violations of the IDEA, and ordered a complex, court-monitored remedial scheme. Both sides appealed: MPS appealed the certification, while the plaintiffs appealed the denial of certification of their first proposed class.

The Seventh Circuit vacated the trial court's certification order. It began by discussing how school districts implement the IDEA:

As relevant here, local districts must identify children with disabilities, determine whether these children require special-education services, and develop individualized education programs ("IEPs") tailored to each student's specific needs. Each step in the process is highly individualized because every child is unique.

(Emphasis added.) As one might expect, the rest of the opinion follows inexorably from that account. The Seventh Circuit vacated the order on three grounds. First, it found that the class was not identifiable from the proposed definition. The trial court had certified a class of

Those students eligible for special education services from the Milwaukee Public School System who are, have been or will be either denied or delayed entry or participation in the processes which result in a properly constituted meeting between the IEP team and the parents or guardians of the student.

As the Seventh Circuit found,

A significant segment of the class (of unknown and unknowable size) comprises disabled students who may have been eligible for special education but were not identified and remain unidentified.

(Emphasis in original.)

The Seventh Circuit also found that the class lacked commonality.

The plaintiffs identify the following common issue: "[A]ll potential class members have suffered as a result of MPS' failure to ensure their Child Find rights under IDEA and Wisconsin law." This completely misunderstands Rule 23(a)(2). Whether MPS failed in its obligations under the IDEA and thereby deprived an eligible disabled child of a free appropriate public education is the bottom-line liability question in any individual plaintiff's IDEA claim. To bring individual IDEA claims together to litigate as a class, the plaintiffs must show that they share some question of law or fact that can be answered all at once and that the single answer to that question will resolve a central issue in all
class members' claims.

(Emphasis in original.) This is, of course, remarkably similar to the language in Dukes. But the Seventh Circuit too it slightly further, providing an example to illustrate why plaintiffs' proposed common issue was not common at all:

To illustrate the commonality problem in the certified class, consider two hypothetical students within the class: one has a disability and would be eligible for special education but has never been identified as being disabled nor gone through the IEP process; another was identified as disabled and received a timely IEP meeting, but the child's parents did not attend the IEP meeting and were not notified of their right to do so. Both scenarios involve violations of the IDEA, but what common question can be answered that would assist the court in determining MPS's liability for each? On the plaintiffs' theory, that question is something like this: Did MPS fulfill its IDEA obligations to each child? But while that generic question is surely a part of both children's claims, it must be answered separately for each child based on individualized questions of fact and law, and the answers are unique to each child's particular situation.

(Emphasis added.)

Finally, the court held that since the plaintiffs had not established any common issue, there could be no common injunctive relief that would apply to all class members. As it held:

"While the compensatory-education remedies will often or always be injunctive in nature, there can be no single injunction that provides final relief to the class as a whole. It is no answer to say that the June 9 remedial order affects the entire class; that order merely establishes a system for eventually providing individualized relief. It does not, on its own, provide "final" relief to any class member."

The application for defense counsel should be clear. In an effort to avoid the dictates of Dukes, plaintiffs continue to label both issues and and relief as "common," even if the proposed common issue is so abstract as to be meaningless in a trial or in granting relief. The Seventh Circuit's "single answer" formulation can help explain to courts just when a common issue is truly common, as opposed to when the only real commonality to the class is their counsel's desire for certification.

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For the last six or seven years, a growing academic literature has put forward the argument that the primary justification for class actions is not to compensate absent class members, but to deter corporate wrongdoing. That justification has formed the basis of a number of arguments, from Professor Fitzpatrick's proposal that class action attorneys earn a 100% commission on their cases to Professor Lahav's that the law should go a little easier on the class-action lawyer. It also underlies many of the fears that tightening the class-action rules may lead to rampant corporate misconduct.

Few practitioners or scholars have really confronted the deterrence justification for class actions in depth. However, today's piece of Classic Scholarship, Class Action “Cops”: Public Servants or Private Entrepreneurs?, by John Beisner, Jessica Miller, and Matt Shors (57 STAN. L. REV. 1441), was an early and muscular entry into the debate. Beisner and company argue that, because of the incentives they face, class-action lawyers neither can nor should act as "private attorney generals," and that, in doing so, they distort the careful choices about how best to enforce the law that government must make.

First, they point out, there is no justification in the law for a "pure deterrence" class action. In fact, allowing class actions to operate as purely "private attorney general" vehicles would likely violate the Rules Enabling Act.

In the first place, the concept raises fundamental questions about the validity of the class action device under the Rules Enabling Act. After all, if the true purpose of the class concept were to facilitate private law enforcement, it would be a substantive right. The Rules Enabling Act, however, authorizes the federal judicial branch to create nothing more than purely procedural mechanisms.

Then, they show just why it is that we (rightly) don't trust the idea of private enforcement in other areas of the law.

In this regard, the private law enforcement characterization promoted by some class action attorneys is no different from permitting self-appointed “police officers” to roam the streets, set up speed traps, pull over drivers (whether or not they were speeding), and give them the option of either (1) spending a few nights in jail, or (2) resolving the problem by paying the police officer (for personal benefit) whatever he demands. No doubt, the self-appointed “cops” would argue that this would be an efficient system. After all, it would discourage speeding.
But justifiably, the public would have no trust in--or respect for--such a system of law enforcement, since prosecutorial decisions would be driven (or at least would have the appearance of being driven) by the overwhelming financial self-interest of the police officers themselves.

(In layman's terms, nobody rooted for Jackie Gleason in Smokey and the Bandit.)

Nonetheless, many continue to argue, if Smokey isn't doing his job properly, don't we need someone to backstop him? Isn't that a strong argument to bring in Dog the Bounty Hunter, to what the cops don't have the time or resources to do? [Warning: Link has autoplaying audio.]

As Beisner and company point out, the answer there is probably "no." First, Dog doesn't have the same incentives as real police. He's going to chase after the most telegenic fugitives, rather than the most dangerous. (Witness his current "Most Wanted," celebrity fugitive Randy Quaid.) And that will lead to over-deterrence in high-profile cases where the government is already working, and under-deterrence where the work is harder and the rewards less certain. The same thing happens in class actions, where many lawyers choose to just piggyback on government investigations or voluntary corporate action.

The reason class action lawyers prefer to follow--rather than to lead-- government investigations is simple: those lawyers prefer “no research” lawsuits that appear likely (from the investigation itself) to yield lucrative settlements with only a minimal investment of time and money. In contrast, government lawyers, who by definition are not driven by profits, tend to be willing to spend more time doing the factual and legal research needed to decide what kinds of cases should be brought, not simply to increase revenue, but to further the public good.

Moreover, there may be good reason the government might choose not to chase after Randy Quaid.

"The “gap-filler” argument also ignores that state officials often choose not to initiate legal action for reasons other than inadequate resources. For example, state attorneys general, as elected officials tasked with pursuing the public interest, have discretion to determine that, although a particular lawsuit might produce a recovery, the lawsuit should not be brought."

When might it choose not to bring a lawsuit? Say, when doing so might harm another vulnerable population within the state.  (And here, despite mightily trying to bring this analogy around to reality TV and celebrity fugitives, I admit defeat.)

Their solution: if you want private cops, then you have to treat them more like cops than private businessmen. Cops don't make 30% commissions on their drug busts, and with good reason. That kind of incentive would warp their instinct to protect the public rather than line their pockets. (Similarly, SEC lawyers don't get to keep 30% of their fines, and yet they can still draw heavy criticism for under- or over-enforcement.)  Everything about the class action rules as they stand and are enforced--the emphasis on procedure, the allowance of contingency fees, the use of common funds--rests on the assumption that the attorneys are securing compensation for civil wrongs, rather than supplementing actual law enforcement.

But the most interesting aspect of this debate to me, after having reread this article, is that it makes one thing very clear. The real issue here is not whether corporations should be allowed to effectively self-regulate. That argument is difficult at the best of times, and these are not the best of times. But if we don't trust corporations to effectively self-regulate, why would we trust plaintiff's lawyers--whose incentives match the corporations' rather than the government's--to do the exact same thing? The best answer I can come up with isn't very flattering to the plaintiffs' lawyers.

[Disclosure: At the time the article was written, John, Jessica, and Matt were all colleagues of mine. To my knowledge, none of them have ever made Burt Reynolds or Dog the Bounty Hunter references.]

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