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
Brian Fitzpatrick
Are Class Action Lawyers Paid Too Little? Still No.
Last year, Vanderbilt professor Brian Fitzpatrick made the bold argument that class action plaintiffs’ attorneys aren’t paid enough. Now, the University of Pennsylvania Law Review’s online presence, PENNUmbra, has a response by University of Arizona professor David Marcus.
Marcus levels several criticisms against Fitzpatrick’s proposal. I’m going to ignore the easy ones and…
Misconceptions About Concepcion
Today, the United States Supreme Court hears oral argument in Concepcion v. AT&T, a case on appeal from the Ninth Circuit concerning whether the Federal Arbitration Act preempts states like California from requiring arbitration clauses to allow for classwide arbitration. (The venerable SCOTUSBlog has an excellent roundup of the issues and briefing.)
I’m not…
Restoring Objector Scrutiny: Rule 23(h) and Fee Awards
One of the larger points of contention in class-action settlements is the size of the attorneys’ fees. Indeed, with a few exceptions, no one defends the size of attorneys fees, and the most heated criticisms decry the size of the fees compared to the recovery the class actually receives. Which is what makes a…
Are Class Action Lawyers Paid Too Little? Probably Not.
Brian Fitzpatrick (of "Objector Blackmail" fame) has published another article in the University of Pennsylvania Law Review asking the provocative question: are class-action lawyers paid too little? His provocative answer: yes they are. According to Fitzpatrick, in small-stakes class actions, lawyers should collect a 100% contingency fee. What’s his justification? An…
Not the End of Objector Blackmail – The Limitations of the Quick-Pay Provision
Vanderbilt law professor Brian Fitzpatrick’s year-old paper “The End of Objector Blackmail” has received a fair amount of attention from various lawyer-bloggers and lawyer-tweeters in the last week. The chatter stems from the attention he draws to a practice known as quick-pay provisions – provisions to pay plaintiffs’ counsel immediately when settling a…