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

The Agency Class Action

Posted in Strategy

For years, class-action scholars have tried to import lessons from administrative law into Rule 23, on the theory that mass torts, like administrative actions, deal with large, generalized issues. Sometimes these imports provide new insights, but often they stress why it is that Rule 23 is not equipped to handle issues in the same way that administrative agencies are. Now, Professors Adam Zimmerman and Michael Sant’ Ambrogio seek to "turn the tables" and ask what overworked  administrative agencies can learn from Rule 23. Their argument, in a nutshell:

[T]here is no reason why ALJs should have any less power to aggregate claims than a civil court. For some time, administrative law scholars have described the significant impact agency adjudications have on parties who never directly participate in a proceeding. Moreover, the modern administrative state, like the class action, originally developed in response to intractable disputes involving large groups of people. In part for that reason, the Supreme Court has long characterized class actions themselves as a “quasi-administrative” proceeding.
This article argues that agencies should adopt aggregation procedures, like a civil class action, to resolve common claims raised by large groups of people in administrative courts.

(Footnotes omitted, emphasis added.)

It’s an interesting proposal, which the authors argue would result in more consistent outcomes for agency litigants, speed up rulings, and increase access to justice. It also addresses a persistent problem with private class actions:

reforming agency procedures through the federal court class action deprives agencies of the opportunity to take the first crack at reasoned decisionmaking with the same focused attention and information available to a federal court in a class action. It is inconsistent with the values underlying the doctrines of exhaustion and ripeness, which seek to give agencies the first opportunity to address issues within their purview. Indeed, one of the criticisms of judicial reform of administrative programs is that it is anti-democratic and the political branches, not the courts, should correct agency errors. Providing agencies with the opportunity to address systemic problems through aggregation mechanisms is respectful of the responsibilities allocated to the agency by Congress.

And for two of the types of cases the authors address ("public rights" cases where many individuals are suing the government, and "distribution" cases, where the government is looking to compensate victims after it has fined a defendant) any kind of agency class action would operate much like a classwide settlement. Since the global peace would be bought by an institution that already has sovereign immunity, and is consenting to aggregation, it looks like a very attractive solution to what they describe as a widespread administrative problem.

For "private right" cases however (which the authors describe as cases brought by plaintiffs against private defendants in front of agencies), agency class actions would run into the same problems as Rule 23 class actions–the defendant is entitled to put on its full range of defenses. And that means that the authors have overstated the reach of their proposal. These are often the situations–alleged safety problems, alleged consumer fraud–where administrative rulemaking is superior to individual litigation.

In the meantime, however, I’d recommend class-action defense lawyers read their proposal, if only because their analysis of the overall problem shows why some class actions belong in front of administrative agencies instead of in the federal courts