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

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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This month's piece of classic scholarship comes from the sociology of law. Thirty years ago, William L.F. Felstiner, Richard L. Abel, and Austin Sarat published a piece in the Law & Society Review titled "The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …" 

The authors wanted to trace how experiences transform into legal disputes. And they identified three key steps along the way:

• Naming -- the party recognizes that she's been injured, or, as the authors put it, recognizes an experience as injurious;
• blaming -- she figures out that someone else is responsible for her injury; and
• claiming -- she communicates that conclusion to the faulty party. If the faulty party does nothing about her claim, then it evolves into a dispute.

As the authors point out, one of the interesting things about this process is that not all grievances evolve into lawsuits. They refer to this phenomenon as "grievance apathy."

We know that only a small fraction of injurious experiences ever mature into disputes. Furthermore, we know that most of the attrition occurs at the early stages: experiences are not perceived as injurious; perceptions do not ripen into grievances; grievances are voiced to intimates but not to the person deemed responsible.

In other words, grievance apathy makes the world go 'round. Not every "injurious experience" needs to wind up in a court of law.  And we would not want them all to.  In fact, the authors identified, even at the time, the problem that that lawyers often "'create' at least some of the needs they satisfy."

But they did not predict the extent to which, today, entrepreneurial class action attorneys have turned that social process on its head. In the course of looking for claims on which they can make money, they will identify entities with deep pockets (blaming), and then come up with a reason why they've done some injury (naming). They'll then look for someone who has suffered the pre-identified "injury." And, if that person's resolve wavers (that is, they begin to succumb to "grievance apathy"), they'll do their utmost to keep the plaintiff angry.

The problem is that manufactured conflicts rarely lead to good lawsuits. Those lawsuits tend to be a waste of time and money, for all concerned. They may very well focus on harms that are not really harms.  And they can lead to inordinately complicated "solutions," or duplication of previous solutions (with the added cost of judicial administration and attorneys fees), or cases that--if won--would harm innocent third parties.

Now, despite what some might argue, this does not mean that there is no such thing as a good class action. There are some instances where there will be clear-cut harms that are too small to bring as individual lawsuits, and where the defendant chooses not to offer a remedy. Those instances are why we have Rule 23. But, and this is a large but, Felstiner, et al.'s analysis does suggest that courts have good reason to be suspicious of manufactured lawsuits--in which a lawyer comes up with his case first and his plaintiff as an afterthought. Because, in those cases, there very well might be a reason that "grievance apathy" took hold.

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Today's piece of "classic" scholarship is by Linda Mullenix, Professor of Law at the University of Texas. Published in 2004, Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation & Settlement Classes, 57 Vand. L. Rev. 1687 (2004), took an in-depth look at the routine under-enforcement of Rule 23(a)(4)'s adequacy requirement.

To put the case simply, courts pay lip service to the concept of adequate representation but fail to robustly engage in any meaningful inquiry to establish the existence of such adequate representation. For judges, the adequacy inquiry usually is the least-rigorously examined requirement for certification, either for litigation or for settlement classes. Instead, courts routinely wave their blessings over class counsel and proposed class representatives and presumptively make findings of adequacy on nonexistent or scant factual showings.

(Emphases added.)  Mullenix attributes much of this under-enforcement to the fact that many courts focus on whether counsel is adequate rather than the class representative herself.

Because most courts historically and reflexively believe that the most important thing is the presence of competent counsel (the Newberg view), there is a general feeling of apathy toward class representative issues. In short, courts seem perfectly willing to ignore even the most clueless class representatives.

And, as Mullenix points out, that reliance on the adequacy of counsel can be a problem, because the same courts often do not probe into the adequacy of counsel, except in a superficial, check-the-resume way.

In reality, most courts routinely, reflexively, and presumptively certify proposed class counsel as adequate without a sufficiently probing inquiry. In the modern literature, one has to look long and hard to find cases in which class counsel have been deemed inadequate to represent the class.

(Mullenix points out that class counsel often do not face rigorous inquiry into adequacy because both courts and defense lawyers hesitate to call the adequacy of lawyers on the other side into question. And in general, this unwillingness to throw mud at opposing counsel is a feature, not a bug, in our civil litigation system.) There are a few exceptions, like Judge Baer's decision that "adequate counsel" in a securities case should come from diverse firms.  But even there, Judge Baer's order focused on a box to check, rather than the conduct of the firms themselves.

Mullenix offers one primary reform: require cross-examination of the class representative at the certification hearing, so that the court can make an adequate record of its own impressions of the adequacy of the named plaintiff.

While there are a few exceptions to this trend of under-enforcement now, for the most part, it appears to have continued. Many courts simply do not look at the adequacy of the class representative (or, failing that, class counsel) quite as closely as they could. And this is unfortunate, because a more rigorous inquiry into adequacy inquiry would have at least three salutary effects:

(1) It would cut down on lawyer-driven cases where there was no real harm. If class counsel can't find a named plaintiff who is sufficiently motivated to educate herself on what happened and actually communicate with her lawyers, that's a very good sign that the case is about a technical issue unattached to any harm rather than an actual injury that requires compensation. (Betty Dukes would likely pass this test, as would Dora Surowitz.)

(2) It would reinforce the finality of class settlements. Currently, it is possible to challenge a class settlement after the fact by challenging the adequacy of representation. This means that class settlements in jurisdictions that do not pay attention to adequacy are--in the long run--worth less than in jurisdictions that do pay attention to adequacy. But since there is systematic under-enforcement, mostly what it means is that class action defendants cannot trust the finality of the deals they do make.

(3) It would cut down on the kinds of settlements that draw objections. If there is an active named plaintiff involved, it is less likely counsel will be able to get away with coupons, illusory "injunctive relief," or exorbitant attorneys' fees. Of course, this may very well be one of the reasons that adequacy is not enforced that vigorously. When you get right down to it, most parties involved in class-action settlements--including courts--do not want to see a settlement derailed just because the lawyers have asked too much.

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Mass torts have long been a problem for the American judicial system. Today, it's Vioxx, the BP oil spill, and Chinese drywall. Fifteen years ago, it was asbestos, Agent Orange, and silicone gel breast implants. Back in the 1980s and 1990s, when mass torts first threatened to overwhelm crowded dockets in various jurisdictions, the courts carefully considered whether to use class actions as a means of resolving thousands of similar tort claims.

And, at that time, Columbia University law professor (and recent Daily Show guest) John Coffee wrote an in-depth examination of the various problems and conflicts of interest that arose when courts tried to use Rule 23 to solve the mass tort problem: Class Wars: The Dilemma of the Mass Tort Class Action.

Professor Coffee began by providing an excellent working definition of a mass tort:

Mass tort litigation is characterized by several unique features: (1) a predictable evolutionary cycle during which the value and volume of individual claims starts low and then spirals upward; (2) high case interdependency so that litigated outcomes in any mass tort area quickly impact on the settlement value of other pending cases in that same field; (3) a highly concentrated plaintiffs' bar, in which individual practitioners control exceptionally large inventories of cases, sometimes totaling in the tens of thousands; and (4) a capacity to place logistical pressure on individual courts that is simply unequalled by any other form of civil litigation.

Over time, courts have progressively held that mass torts are not well-suited for class-action treatment, particularly not in the form of "settlement classes" (that is, class actions filed specifically to enforce a pre-existing settlement agreement between plaintiffs and defendants). And Professor Coffee spends much of the article discussing the difficulties that arise from doing so. The portions of his discussion that remain most relevant have to do with the conflicts of interest that arise from aggregated settlements.

On an ethical level, probably the most disquieting phenomenon about recent mass tort settlements has been the acceptance of a single attorney acting as the representative of multiple subclasses of plaintiffs. Not only have the interests of these subclasses clearly conflicted, but the class counsel has explicitly traded off the interests of subclasses against each other, obtaining substantial compensation for one subclass in return for a waiver of cash compensation by anoth- er. In such multiparty negotiations between the defendants and different subclasses of plaintiffs, even the well-meaning plaintiffs' attorney shifts inevitably from the role of an advocate and adviser for clients to the role of a philosopher king, dispensing largess among his client subjects.

While the specific cases may have changed, the fundamental dilemma remains the same, however, whether it is a class action or just a series of consolidated tort cases. Any resolution of mass torts has to accommodate (1) the plaintiffs' desire for redress of some kind, (2) the defendant's desire for global peace, and (3) the plaintiffs' attorneys' desire for fees.

And Professor Coffee discusses a number of issues that still resonate. While the explicit development of "settlement classes" has waned, defendants will still take advantage of filed class actions to try to achieve releases of larger issues through a classwide settlement. And Coffee's descriptions of inventory settlements and settling future claims are both still relevant today.

So what can modern defendants take from this article? The most useful portions have to do with objection-proofing possible settlements:

• Negotiate down attorneys' fees. It makes sense to negotiate on fees more closely than defendants have done in the past. While it doesn't matter as much to the defendant who gets paid (from a fiscal, not emotional, standpoint), courts care. And courts are beginning to eye "clear-sailing" and quick-pay provisions with greater suspicion.
• Try to give the class some cash benefit. Courts have long been suspicious of non-monetary benefits. And they're expressing their concerns more openly.
• Make sure subgroups are separately represented. In a discussion that seems especially prescient today, Professor Coffee notes that "On an ethical level, probably the most disquieting phenomenon about recent mass tort settlements has been the acceptance of a single attorney acting as the representative of multiple subclasses of plaintiffs." A defendant interested in a global settlement of certain complaints could do worse than to insist that subclasses receive separate counsel. (Among other advantages, counsel who are both zealous and ethical can help the defendant reduce payments for true nuisance claims.)

Be advised, the advice to be gleaned from Professor Coffee's article, particularly in light of current settlement case law, doesn't make for easy or cheap class settlements. But as I've said for some time now, for defendants, settling on the cheap can get really expensive.

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 This month, in our piece of classic scholarship looks at an old University of Chicago Law Review comment on how to use class action. The Class Action Device in Antisegregation Cases, 20 U. Chi. L. Rev. 577 (1953). (JSTOR link here.)

The Comment takes a plaintiffs' view of how to use class actions to combat segregation (which it defined to mean "any policy of discriminatory treatment of a minority group"). It begins with an observation that even it called "obvious," but that sets up much of its argument argument: that "segregation is a group phenomenon."

One reason that the class action appears to be an advantageous method of securing relief for the group is that a favorable decree will in its terms apply to all members. A decree rendered in an action brought by an individual on grounds that he is being discriminated against will require the defendant to desist from such practices only where the individual is concerned. The position of the group will improve only if compliance with the decree by the defendant incidentally inures to the benefitof all members.But a decree rendered in a class action will benefit directly the group as a unit.

(Internal citation omitted.) This group benefit also gave class-action plaintiffs a rhetorical advantage over individuals who challenged segregationist policies.

Another advantage of the class action device in this type of case is that it aids the plaintiffs in showing the seriousness of the discriminatory practice complained of. Use of the device itself carries an implicit declaration that the alleged wrong is general, widespread, and a matter of state policy. Moreover, if the action were brought by an individual only on his own behalf, evidence of the group nature of the wrong might not be relevant. But in a class suit, evidence of discrimination against any and all members of the class would be admissible, enabling the plaintiff to broaden the nature of his proof and increase the difficulties of rebuttal.

In particular, the class allegations would add weight to an individual challenge. While it might be easy to dismiss an individual plaintiff as a crank, a class plaintiff began with more (implicit) gravitas.

Further, individual plaintiffs asking relief from discriminatory practices might be viewed by the court and by the community as malcontents or eccen- trics. The receptiongiven to the commencement of such an action would probably be much better if it were brought in the name of and on behalf of the entire group affected by the segregation. Class representatives would appear not so much as a few plaintiffs with a grudge, but as part of a group with a justifiable claim

And using class allegations would also help prevent what had apparently become a common problem: getting rid of a challenge to a discriminatory policy by granting relief only to that person who raised the challenge, by, say, admitting a single black to a segregated swimming pool. (This would be a prototype for the mootness arguments made today in consumer class actions.)

There is some doubt whether the same result would obtain if an action is brought for the benefit of an entire class.The Court of Appeals for Eighth Circuit has held that before a class action can be dismissed, there must be some evidence of permanent abandonment of the discriminatory policy complained of. The court in Morris v. Williams  said that one reason the action would not be dismissed on the claim of defendants' counsel that the discriminatory salary schedule had been replaced by a non discriminatory schedule was that "there is no assurance. . . that such usage and custom may not be resumed at any time, even though presently abandoned."

What can modern class-action defendants take from this? First, this article is a good reminder that not all class actions are bad. Defense lawyers see far too many meritless class actions propped up by "justice"-oriented rhetoric. It can make them jaded. And it can be good to be reminded that sometimes a class action is an appropriate remedy for certain cases. Second, this article does a good job of showing why so many of today's class actions seem so venal. Antisegregation activists were fighting true group problems, that could be solved with true group remedies. (Remember, these class actions took place before the 1966 Amendments. These litigants were looking for injunctive relief, not money, and not money dressed up as an injunction.) This is the difference between a modern "civil rights" class action like the Dukes case, and the actual civil-rights class actions like Morris: one was seeking actual change, the other money clothed in noble rhetoric.

Second, the history can provide some context as to why courts make some of the decisions they do today about class actions. From a defendant's perspective, a Rule 68 offer of judgment to an individual who is hoping to leverage a truly unique bad customer experience into a class action makes eminent sense, and seems perfectly fair. Nonetheless, many courts will still reject any attempt at the tactic. At the time Morris was decided, that judgment made sense: it reflected the action of a community determined to discriminate. In the context of a modern 23(b)(3) class action for money damages, it's harder to tell whether either party has the equities on its side.

It's always worth looking back at the history of the class action. The cases may change, but many of the tactics stay the same, even when they're not perfect fits for the case in which they're employed.

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 This month's look at "classic" class action scholarship focuses on the article Nonpecuniary Class Action Settlements by Geoffrey Miller and Lori Singer. Like the name suggests, nonpecuniary settlements are settlements that don't require cash payments to the absent class members. According to Miller and Singer, they include:

• Coupon settlements.
• Monitoring settlements, "where the defendant endows a fund whichis used to identify and compensate for future harm allegedly arising from the defendant's product or conduct"
• Securities settlements, "where the defendant distributes stocks, puts, or warrants instead of cash to membersof a class as consideration for a release of claims for alleged wrongdoing"
• Reverter fund settlements, where the defendant may keep any unclaimed funds
• Fluid recovery settlements (also known as cy pres)

(It's interesting to note that Miller and Singer do not consider forms of injunctive relief like "corporate therapeutics," injunctions where the defendant agrees to change its offending behavior. This omission is likely due to the fact that these techniques were not yet in common use in 1997.) According to Miller and Singer, their

goal is to replace some of the recent hysteria about coupon and other nonpecuniary settlements with a more balanced account that identifies the benefits, as well as the costs, of such agreements.

Non-monetary settlements are attractive to defendants because they don't have to spend as much. (The benefit usually costs less--sometimes far less--than its cash equivalent.) They are attractive to plaintiffs because they allow them to place a dollar value on the settlement that is large enough to justify large attorneys' fees. (I don't have to point out that it is extremely rare for a class-action plaintiff to actually run a class action, do I?)

Miller and Singer identify the largest problem with nonpecuniary settlements as one of valuation. From their perspective, that means that both the defendant (who wants to pay less in total) and the plaintiffs' counsel (who wants the largest possible fee) have an incentive to manipulate the valuation of the nonpecuniary elements.

When nonpecuniary settlements are being negotiated instead of cash awards, there is an added level of complexity because the defendant and class counsel have an opportunity to manipulate the valuation of the settlement in order to serve their individual purposes. The problem of sacrificing class recovery for the attorneys' fee becomes exacerbated. Because the fee is typically in cash, the ratio of the fee to the class recovery can be manipulated by exaggerating the value of the nonpecuniary class settlement. Thus the fee may seem a smaller percentage of the class recovery than it is in fact.

These are not necessarily bad things. Defendants would argue--and economic analysis would back up--that a nonpecuniary benefit that costs them little but is worth a great deal to a class member creates wealth. (But let's be clear: not every coupon is going to be worth more to a class member than it cost the defendant.) Plaintiffs' counsel would argue--and some academics would support--that larger fees will deter bad conduct more efficiently than cash to the class. And Miller and Singer argue that when the defendant shares its savings with absent class members (say by providing them with coupons for free-of-charge and free-of-strings products), a nonpecuniary settlement can actually achieve the rarest of goals, creating value for all parties.

Miller and Singer's article came out eight years before the Class Action Fairness Act institutionalized some of the critiques of coupon settlements, making it more difficult to provide that form of nonpecuniary relief. But, as almost any class-action lawyer will admit, nonpecuniary relief remains in high demand among both plaintiffs and defendants. Sometimes it will create value, but often it still results in settlements that draw valid objections.

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This week, we begin a new feature at Class Action Countermeasures. Much as I occasionally look at classic class-action cases, I'm also going to look at classic scholarship once per month. That scholarship will have to have some connection to class actions or other kinds of aggregated litigation. And I'll be mining these articles for what they can tell us about the modern class action.

First up, a Harvard Law Review Note from 1955, titled The Challenge of the Mass Trial. This Note is occasionally credited with influencing the 1966 Advisory Committee's revisions to Rule 23, which created what we consider to be the modern class action.

The increased frequency of mass litigation due to the large scale on which American social and economic activities are organized has had a pronounced impact on the judicial system. A train crash or an antitrust prosecution, for example, may involve hundreds of claims or litigants, and courts on both trial and appellate levels may be faced with a choice between separate trials with the possibility of considerable expense and delay or a single trial with the risk of prejudice to one or more of the parties. Terming this “an acute major problem in the current administration of justice,” a committee of federal judges has recently set forth suggestions to assist the court in its conduct of mass trials without a jury. This Note will focus upon the mass single trial or consolidated action in which a jury is being used, and it will outline methods of procedure which may be available to the trial judge in dealing with mass litigation.

(Internal footnotes omitted.)

According to the Note, there are three possible elements to a mass trial: "multiple parties, multiple issues, and complex fact situations." These elements create obvious case management difficulties. Leaving aside the time (and expense) it takes to try multiple, complicated factual issues involving multiple parties, trying them in front of a jury runs a very high risk of hopelessly confusing the jurors. As the Note author observed:

Finally, the sheer volume of the single mass trial multiplies the possibility of error beyond that found in the ordinary trial, particularly in criminal cases, where there is always the danger of guilt by association.

(Emphasis added.)  The Note also contains a discussion of what may be the first modern mass trial, Gwathmey v. United States, in which the

appellate court concluded that the trial court had abused its discretion and had denied the defendants due process of law since, under the circumstances, the jury could not possibly have had an informed opinion.

Gwathmey continues to be a useful precedent for those facing mass tort cases, where mass trials are still a possibility under certain circumstances, and so where defendants still must be wary for how trying complex cases may prejudice their rights.

The Note also makes a number of suggestions about how to improve mass trials; among them:

1. allowing jurors to take notes;
2. allowing for consolidation of issues;
3. using a "model trial" (bellwether trial) to work out issues for subsequent plaintiffs; and
4. using a commission rather than a jury to find facts.

What is particularly interesting is how many of these proposed improvements are still good ideas today, 55 years later. While the Note itself was written before the modern revisions to Rule 23, it's surprisingly applicable to modern mass torts. And that makes it one of the earliest examples of classic class-action scholarship.

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