The Global Convergence of Global Settlements

Abstract

This article was written for a symposium celebrating the fiftieth anniversary of the modern class action. It argues that a global trend in mass litigation is emerging. Spurred by “victim-centered” justice movements in criminal and administrative law, the United States increasingly relies on public actors — state attorneys general, federal prosecutors, agencies, and legislative compensation funds — to compensate large groups of people in ways that mirror class actions. And increasingly, the same is true outside the United States. Even as the United Kingdom, Sweden, Norway, Denmark, Germany and Argentina adopt more expansive class action and collective redress procedures, they also have expanded the authority of prosecutors, agencies, consumer associations and other non-governmental organizations to bring representative and other mass proceedings. This new “convergence” of public approaches to mass litigation presents new challenges for judges. Government settlements share many of the same problems as large private cases — struggling to coordinate actions across different jurisdictions, ensure adequate participation, overcome conflicts of interest with different stakeholders, and distribute funds fairly. And despite the variety of judicial approaches and systems around the world, judges are often charged with reviewing the fairness of settlements brokered by different state and individual actors, each with different state, institutional or personal interests in a final resolution. After highlighting judicial responses to the problems presented in large public and private disputes, this article recommends that countries that rely on government actors to commence class action-like litigation adopt reforms to assist judges charged with reviewing those settlements. Such reforms may include: (1) joint hearings across jurisdictions, (2) coordinated notice procedures between government and private actors, and (3) limited judicial review to force government and private actors to justify difficult trade-offs in a mass settlement.