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

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The adequacy requirement tends to be much-analyzed, but--at least from a defense perspective--wildly under-enforced. As Dean Robert Klonoff recently wrote, one reason for this may be that it is so difficult for class counsel to actually identify plaintiffs that can serve as adequate class representatives. But, as a result, there are numerous cases that challenge class actions where the named plaintiffs serve as little more than stand-ins for their counsel, rather than exercising any independent judgment. Adequacy is a particularly important doctrine because it has due process implications, and because it comes up in class settlements and in later fights over the preclusive effects of previous class actions. So don't expect the debate to stop any time soon.

Ten Cases to Educate You

• Surowitz v. Hilton Hotels Corp., 383 US 363 (1966).
• Hansberry v. Lee 311 U.S. 32 (1940).
• Dewey v. Volkswagen Aktiengesellschaft (3d Cir. May 31, 2012).
• In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 752 (7th Cir. 2011). 
• CE Design v. King Architectural Metals, 637 F.3d 721 (7th Cir. 2011). 
• In re Literary Works in Electronic Databases Copyright Litigation, 654 F.3d 242 (2d Cir. 2011).
• Culver v. City of Milwaukee, 277 F.3d 908, 913 (7th Cir. 2002). 
• Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998).
• Kirkpatrick v. JC Bradford & Co., 827 F. 2d 718 (11th Cir. 1987). 
• * Buettgen v. Harless, 263 F.R.D. 378 (N.D. Tex. 2009).

Further Reading:

• Linda S. Mullinex, Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation and Settlement Classes, 57 Vand. L. Rev. 1687 (2004).
• Jay Tidmarsh, Rethinking Adequacy of Representation,87 Tex. L. Rev. 1137, 1151 (2009).
• John Coffee, Class Wars: The Dilemma of the Mass Tort Class Action.

Questions to Consider:

• What conflicts will courts hold are signs of inadequate representation?
• What degree of independence should a plaintiff be able to display? Is there any way to test that without invading the attorney-client privilege?
• If courts are unwilling to enforce the adequacy requirement stringently, what other methods exist for ensuring that class actions are adequately governed?