In their article “Robbing Peter to Pay Paul: The Conflict of Interest Problem in Sibling Class Action”, 21 Georgetown Journal of Legal Ethics 1195 (2008), Richard Stuhan and Sean Costello have come up with a novel argument against multi-front class actions. Recognizing that plaintiffs’ counsel will often file multiple, single-state class actions in different states, the authors argue that doing so presents a conflict of interest. They call this the “Sibling Class Action” problem. Like parents, they claim, plaintiffs’ counsel shouldn’t favor one sibling class over another. As a result, they argue, counsel representing more than one class in different courts must be inadequate counsel to at least one of those classes.
Most plaintiffs would argue that individual plaintiffs are entitled to choose their counsel. But, Stuhan and Costello argue, counsel are only human:
The rub, however, is that the class lawyer will always have a favorite, whether she admits it or not, and one class will be treated better than the others, whether it is obvious or not.
That rub, they argue, translates into a real class conflict:
[s]imply stated, a lawyer who pursues sibling class actions cannot maximize the benefit to one class without reducing the benefit to another of the sibling classes. The class action lawyer in such circumstances is “robbing Peter to pay Paul.”
Even worse, they argue, that conflict is insurmountable
By bringing multiple sibling class actions, the class action lawyer has created a structural conflict that cannot be surmounted or cured. The conflict arising from the sibling rivalry presumptively renders the lawyer inadequate by putting her in a situation where she must trade off the interests of one class against those of another class.
It’s a powerful argument, but it’s not likely to get much use. From a strategic standpoint, then, plaintiffs have a simple workaround, one many have used in coordinated state-only class actions. Basically, class counsel join a "consortium" of counsel. Each law office heads up the class action in their state. The others are on the complaint as "of counsel." At that point, each class has separate "lead counsel," which presumably is allowed its "favorite child," and there is no apparent conflict.
Does that mean that there’s no real conflict?
No — it may still very well be that only one firm is in charge of the consortium, and that firm may favor one lawsuit over another. But a defendant will have a hard time proving that in court.