Class Action Lawyers Research Articles

INDIGENOUS CLASS PROCEEDINGS IN CANADA. AN EXAMINATION OF THE CONVERGENCE OF INDIGENOUS RIGHTS AND CLASS ACTIONS IN THE CANADIAN COMMON LAW SYSTEM

The foundations of contemporary Indigenous relations in Canada have been laid by class action lawyers who foresaw the potential for correcting, acknowledging and addressing historical wrongs. Decades of persistence by Indigenous leaders and collateral work by lawyers compelled the Canadian government, the Canadian public and its major religious and charitable institutions to face their pasts. Class and mass action lawsuits are indispensable to lawyers seeking to advance claims that recognize the systemic oppression of Indigenous people beyond individual harms. Respected class action lawyer Steven L. Cooper, KC, outlines more than 250 years of this legal history that has defined the unique status of Indigenous Canadians, from recognizing royal proclamations as they relate to land claims to settlements that have seen hundreds of thousands of Indigenous people compensated for harms inflicted in residential schools and hospitals.

The Indian Securities Fraud Class Action: Is Class Arbitration the Answer?

In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other hand, the 2013 law enacted a public financing regime for securities fraud class actions and it is possible third-party financing will be permitted; these mechanisms may make up some of the loss in effectiveness caused by the lack of contingency fees. It is still too early to tell. Yet, commentators are very pessimistic that the Indian securities fraud class action will do much good because the Indian court system is glacially slow. For example, it takes over six years on average to resolve some civil appeals. The solution to this problem in the 2013 law was to channel the securities fraud class action to a special tribunal, the National Company Litigation Tribunal (“NCLT”). Yet, this type of solution has been tried before in India: special tribunals tend to quickly take on the negative characteristics of the general courts. This may be why very few securities fraud lawsuits have been filed since the 2013 law was enacted. We propose a different solution to the problem of the Indian court system: class arbitration. As we explain, although class arbitration is not perfect, it may better facilitate robust private enforcement than the Indian court system.

129 Million Class Members $0, Charities $6.5 Million, Attorneys $2 Million: Are Cy Pres-Only Settlements Fair, Adequate and Reasonable?

This article discusses the Supreme Court appeal in Frank v. Goas, to be argued before the Court on October 31, 2018. This appeal involves a class action settlement with Google, approved by the Ninth Circuit, where the 129 million class members received no compensation, the class action attorneys received $2.125 million in attorney fees, and Google and the class counsel agreed to contribute $6.5 million to be distributed to seven charitable and non-profit organizations as a cy pres resolution of the litigation. The Court will decide whether such cy pres-only awards in settlement classes comport with the Rule 23(e) requirement that such settlements be “fair, adequate, and reasonable.” Class action attorneys will be closely watching the Court’s attention to the issue of cy pres relief in class action settlements. Cy pres provisions have become increasingly prevalent in settlement agreements, raising heightened judicial concern and academic criticism. Notwithstanding the increasing concern, lower courts continue to approve settlement agreements with cy pres provisions, and class action lawyers continue to expand their use. The Frank appeal embodies both the ideal as well as the imperfect vehicle for the Court to address the issue of cy pres relief. The Frank appeal could hardly have embraced a more extreme exemplar of possible cy pres overreaching: a no-compensation class, cy pres-only settlement, with 25% attorney fee. The Court might adopt one of several approaches to addressing the use of cy pres relief in settlement agreements. Radically, the Court could declare cy pres provisions unconstitutional and not sustainable under Rule 23: issuing a categorical ban urged by objector Frank. This outcome would be possible if the Court’s conservative wing endorsed this result. But at least some conservative Justices will recognize that corporate defendants sometimes desire cy pres provisions – as did Google here – and therefore have little interest in a Court-mandated outright ban. A bright-line prohibition on cy pres awards, however, most certainly would not be joined by the Court’s liberal Justices. More likely, however, given the extreme nature of the Google agreement, the Court will probably choose not to throw the proverbial baby out with the bathwater. Thus, it is possible that the Court may disapprove the cy pres-only settlement in the Google litigation, but nonetheless preserve the possibility of cy pres in more limited circumstances. The Court may set forth parameters and rules governing the permissible scope of cy pres relief that acknowledge the concerns raised by the objector, but nonetheless recognize situations where cy pres relief makes sense, as urged by the Respondents and various amici. This compromise position could conceivably earn the endorsement of both liberal and conservative Justices. The complicated role that cy pres relief plays in the class settlement arena is reflected in the interesting array of amicus briefs. Normally, one would expect that the usual cohort of corporate, anti-class action groups to weigh in opposition to cy pres relief. However, corporate defendants sued in consumer class litigation do not always oppose cy pres remediation and frequently coordinate with class counsel to craft cy pres settlements that are to the defendants’ advantage. Google’s hybrid brief, urging that the Court uphold the cy pres settlement while urging the Court to address various class action abuses, captures the complex position of defendants regarding this appeal. On the contrary, the usual array of plaintiff-minded organizations have aligned to ask the Court to uphold the Ninth Circuit’s decision, and not outright ban or restrict cy pres relief, stressing the constructive benefits to society of various cy pres settlements, including support of legal aid entities otherwise publicly underfunded.

State Public Law Litigation in an Age of Polarization

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll back prior environmental policies. As a result, longstanding concerns about state litigation as a form of national policymaking that circumvents ordinary lawmaking processes have been joined by new concerns that state litigation reflects and aggravates partisan polarization. This Article explores the relationship between state litigation and the polarization of American politics. As we explain, our federal system can mitigate the effects of partisan polarization by taking some divisive issues off the national agenda, leaving them to be solved in state jurisdictions where consensus may be more attainable — both because polarization appears to be dampened at the state level, and because political preferences are unevenly distributed geographically. State litigation can both help and hinder this dynamic. The available evidence suggests that state attorneys general (who handle the lion’s share of state litigation) are themselves fairly polarized, as are certain categories of state litigation. We map out the different ways states can use litigation to shape national policy, linking each to concerns about polarization. We thus distinguish between “vertical” conflicts, in which states sue to preserve their autonomy to go their own way on divisive issues, and “horizontal” conflicts, in which different groups of states vie for control of national policy. The latter, we think, will tend to aggravate polarization. But we concede — and illustrate — that it will often be difficult to separate out the vertical and horizontal aspects of particular disputes, and that in some horizontal disputes the polarization costs of state litigation may be worth paying. We argue, moreover, that state litigation cannot be understood in a vacuum, but must be assessed as part of a broader phenomenon in American law: our reliance on entrepreneurial litigation to develop and enforce public norms. In this context, state attorneys general often play roles similar to “private attorneys general” such as class action lawyers or public interest organizations. And states, with their built-in systems of democratic accountability and internal checks and balances, compare well with other entrepreneurial enforcement vehicles in a number of respects. Nevertheless, state litigation efforts may not always account well for divergent preferences and interests within the broad publics that the states represent, and this deficiency becomes particularly important in politically polarized times. Although our account of state litigation is, on the whole, a positive one, we caution that state attorneys general face a significant risk of backlash by other political actors, and by courts, if state litigation is (or is perceived to be) a bitterly partisan affair.

Lawyers as lawmakers, privilege, and agency

Class action lawyers do not merely represent clients, they also make law, an observation explored by Kobayashi and Ribstein in “Class Action Lawyers as Lawmakers.” Kobayashi and Ribstein observe that a class action lawyer's inability to internalize all the benefits of her innovation may lead to underinvestment in lawmaking, which they describe as a public good. But privileged groups may produce public goods, and where production of the good also enhances the probability that a supplier of the good will be compensated for her production, as may be the case in the selection of counsel in class action suits, there can even be overproduction. Under some circumstances, such overproduction is possible even where production is facilitated by freeriding. Moreover, if there is underinvestment in class action lawmaking, a more general, and potentially greater, cause is inherent in the lawyer–client relationship, namely that the lawyer bears the full cost of litigation but must share the benefits, if any, with the client.

Energy Infrastructure Investment and the Rise of the Uncorporation1

While most large U.S. businesses have long been organized as corporations, a significant portion of our economy, including major parts of our energy infrastructure, are organized as other types of legal entities. These “uncorporations” include such business forms as Master Limited Partnerships (MLPs) and Limited Liability Companies (LLCs).Many practitioners have dismissed these alternative entities as merely tax devices and only peripherally important to mainstream business. But this view misses important features of the uncorporation that make it an important alternative in dealing with the “agency” costs that arise in public companies from separating managerial control from equity ownership. Corporate governance relies heavily on agents such as auditors, class action lawyers, judges, and independent directors to protect shareholders from managerial self‐interest. The obvious costs and defects of relying on these governance mechanisms have generally been seen as a reasonable price to pay for the benefits of the corporate form.But this conclusion depends on the availability and effectiveness of the alternative mechanisms for addressing agency costs. Uncorporations provide such an alternative by tying managers' economic well‐being so closely to that of their firms that corporate monitoring devices become less necessary. Uncorporate governance mechanisms include managerial compensation that is based largely (if not entirely) on the firm's profits or cash distributions, and restrictions on managers' control of corporate cash through liquidation rights and requirements for cash distributions. Business people and policy makers should evaluate the potential benefits of uncorporations before concluding that the costs of corporate governance are an inevitable price of separating ownership and control in modern firms.

An Empirical Study of Class Action Settlements and Their Fee Awards

This article is a comprehensive empirical study of class action settlements in federal court. Although there have been prior empirical studies of federal class action settlements, these studies have either been confined to securities cases or have been based on samples of cases that were not intended to be representative of the whole (such as those settlements approved in published opinions). By contrast, in this article, I attempt to study every federal class action settlement from the years 2006 and 2007. As far as I am aware, this study is the first attempt to collect a complete set of federal class action settlements for any given year. I find that district court judges approved 688 class action settlements over this two‐year period, involving nearly $33 billion. Of this $33 billion, roughly $5 billion was awarded to class action lawyers, or about 15 percent of the total. Most judges chose to award fees by using the highly discretionary percentage‐of‐the‐settlement method, and the fees awarded according to this method varied over a broad range, with a mean and median around 25 percent. Fee percentages were strongly and inversely associated with the size of the settlement. The age of the case at settlement was positively associated with fee percentages. There was some variation in fee percentages depending on the subject matter of the litigation and the geographic circuit in which the district court was located, with lower percentages in securities cases and in settlements from the Second and Ninth Circuits. There was no evidence that fee percentages were associated with whether the class action was certified as a settlement class or with the political affiliation of the judge who made the award.

An Empirical Study of Class Action Settlements and Their Fee Awards

This article is a comprehensive empirical study of class action settlements in federal court. Although there have been prior empirical studies of federal class action settlements, these studies have either been confined to securities cases or have been based on samples of cases that were not intended to be representative of the whole (such as those settlements approved in published opinions). By contrast, in this article, I attempt to study every federal class action settlement from the years 2006 and 2007. As far as I am aware, this study is the first attempt to collect a complete set of federal class action settlements for any given year. I find that district court judges approved 688 class action settlements over this two-year period, involving nearly $33 billion. Of this $33 billion, roughly $5 billion was awarded to class action lawyers, or about 15% of the total. Most judges chose to award fees by using the highly discretionary percentage-of-the-settlement method, and the fees awarded according to this method varied over a broad range, with a mean and median around 25%. Fee percentages were strongly and inversely associated with the size of the settlement. The age of the case at settlement was positively associated with fee percentages. There was some variation in fee percentages depending on the subject matter of the litigation and the geographic circuit in which the district court was located, with lower percentages in securities cases and in settlements from the Second and Ninth Circuits. There was no evidence that fee percentages were associated with whether the class action was certified as a settlement class or with the political affiliation of the judge who made the award.

Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (review)

Reviewed by: Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s Norman J.W. Goda (bio) Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s. By Michael R. Marrus. Foreword by William A. Schabas. Madison, WN: University of Wisconsin Press, 2009. xviii + 196 pp. The wave of Holocaust restitution cases from 1996 to 2001 brought settlements in the amount of some eight billion dollars to Holocaust survivors and their descendants. It involved litigation against banks, insurance companies, industrial concerns, and art museums whose predecessor organizations either stole or purchased assets belonging to Jewish victims or used Jews and others for forced and slave labor. All cases were filed in the United States and settled out of court, only a small fraction of Holocaust survivors received anything, and most individual awards were pitifully small, at least compared to the level of suffering. [End Page 311] Prosecuting attorneys and restitution advocates, some ethical and some not, claimed that their efforts provided justice a half century after the fact for a universe of suffering. The scholarly evaluation of this claim by Michael Marrus, who has written and directed standard works on postwar justice, is worth serious attention from lawyers and historians alike. All Holocaust trials–even the large number of postwar criminal proceedings–distort history somewhat for the sake of fitting the vast crimes within the law and for the sake of convicting individual defendants. Marrus argues, however, that the restitution campaign was a different animal still. It was not that Jews did not lose property and assets. It was not that millions were not used for forced and slave labor. It was not that restitution was not warranted. And the new "Holocaust consciousness" of the 1990s was, if anything, overdue. The problem lay with the sheer scope of the restitution issue combined with the procedural shortcomings of the United States civil litigation system. United States class action lawyers chose defendants owing to their conspicuousness and their business connections in the U.S., where a more facile civil code, opportunistic politicians, and noisy press could leverage out-of-court settlements. Indeed, the intent to settle out of court prevented any serious courtroom examination of the responsibility of manufacturing firms, banks, and insurance companies. Thus companies such as UBS, Ford, Daimler, IBM, and others paid negotiated sums for the sins of their predecessors and their subsidiaries to avoid nightmarish publicity; political figures such as Alfonse D'Amato (R-NY) grandstanded with "new findings" that historians had known for years; and plaintiff groups (mostly Jews and Slavic slave and forced laborers) argued bitterly among themselves as to how the smallish pie should be cut based on degrees of suffering. Restitution often became more about business than justice. "There were reasonable grounds," Marrus judiciously says, "to feel uncomfortable about the process" (27). The irony lay in the fact that the defendants, after a half-century of buyouts, mergers, and business degrees, bore little resemblance to their predecessor firms. It lay also in the fact that the everyday robbery during the Holocaust was lost in the public discourse. One could not sue the Germans of Hamburg, Lithuanians of Kovno, or Ukrainians of Lviv who helped themselves to mounds of Jewish property. Moreover, tales of great stolen treasures, such as that supposedly aboard the Hungarian "Gold Train," revealed little more than the bric-a-brac of victims' shattered lives. And the postwar West German government's effort at broader Wiedergutmachung in the 1950s was obscured by the newer [End Page 312] notion that firms rather than governments should pay. Historian Gerald Feldman lamented that "our worst history students have decided to take up law" (99). Writer Leon Wieseltier was more acidic. "I would rather grieve than sue," he said, "It seems more lucid" (4). Still, Marrus notes that much was accomplished. In a unique moment of United States ascendancy, intervention by the Clinton administration made a new global discourse on the Holocaust possible. The Volker Commission after 1996 established the existence of more than fifty thousand dormant accounts in Swiss banks. The 1997 United States government inquiry under Stuart Eizenstat made stolen Jewish assets a front-page issue. The Washington Conference of...

Uncorporating the Large Firm

This article examines private equity firms as an example of partnership-type, or uncorporate, structures in the governance of large firms. Other examples include publicly traded partnerships, real estate investment trusts, hedge funds and venture capital funds. These firms can be seen as an alternative to the corporate form in dealing with the central problem of aligning managers' and owners' interests. In the standard corporate form, shareholders monitor powerful managers by voting on directors and corporate transactions, suing for breach of fiduciary duty and selling control. These mechanisms deal with managerial agency costs by relying on other agents, including auditors, class action lawyers, judges, independent directors and shareholder intermediaries such as mutual and pension funds. Uncorporations substitute other devices for corporate-type monitoring, including more closely tying managers' economic well-being to the firm's fortunes and greater assurance of distributions to owners. Continued concerns with managerial agency costs, the inadequacy of regulatory responses such as the Sarbanes-Oxley Act, changing costs and benefits of public ownership, leverage and capital lock-in all contribute to the rise of uncorporate structures in large firms. Political considerations may, however, constrain these developments.

Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers

In this article, we challenge the traditional view that entrepreneurial plaintiffs' class action lawyers operating entirely according to their own economic self-interest serve no social utility, or worse yet, tremendous disutility. In seeking to counter this notion, we try to show that the agency costs problem long derided in class action practice is overblown: in the majority of small-claims class actions, there is no legitimate reason to care whether class members are being undercompensated (or compensated at all), nor any reason to worry that entrepreneurial lawyers are being overcompensated. Rather, we assert that the driving force behind class action practice ­and any effort to reform, reduce, redirect that practice ­should be deterrence. All that matters, we argue, is whether the defendant-wrongdoer is forced to internalize the social costs of its actions ­not to whom it pays those costs.

Incentive Structures for Class Action Lawyers

Incentive Structures for Class Action Lawyers

Class Action Lawyers as Lawmakers

Private lawyers are significant participants in legislative and judicial lawmaking. However, since law is a public good, lawyers face a significant free-rider problem in investing time and other resources in law-creation other than to the extent necessary to win the case for their client. This Article focuses on the lawmaking incentive problem inherent in class actions, and specifically on class action complaints. Because a class action lawyer prepares a complaint without knowing whether a court ultimately will select her as counsel for the class, the lawyer may have less incentive to put effort into the complaint than if she had been hired prior to drafting the complaint. This Article discusses ways such lawyers can be given adequate incentives to maximize the law-creation value of their complaints. It shows that direct protection, as through intellectual property rights, is not legally available, primarily because of due process concerns for public access to the law. We suggest that protection is best provided by the institutions for choosing the lead plaintiffs and lead counsel in class actions.

Who Should Regulate Class Action Lawyers?

Ethical issues arise frequently in class action litigation. These issues include conflicts of interest, solicitation, application of the no-contact rule, the reasonableness of attorneys' fees, and the attorney-witness rule. There has been considerable difficulty applying existing rules of conduct to these situations, partly because of confusion regarding the relationship among class counsel, the named class representatives and absent members of the class. Thus as to conflicts of interest - perhaps the most pressing problem facing class action lawyers - it has been said that a strict of the conflict of interest rules in class actions should be tempered, because the very nature of a class action is to combine many divergent interests. Despite the frequency with which the propriety of lawyers' conduct is litigated in class action lawsuits, the Ethics 2000 Commission - which recently proposed comprehensive amendments to the ABA Model Rules of Professional Conduct - declined either to adopt a separate class action rule or to add extensive commentary addressing the application of the rules to class action lawsuits. The purpose of this article is to explain and defend the Commission's decision, focusing on the issue that dominates many discussions of ethics and class actions - the difficulty of applying current conflict-of-interest rules to the myriad of conflicting interests that commonly arise in these lawsuits, including conflicts among class members, as well as between the lawyer and the class and between the class and third persons. Parts I and II of the article demonstrate that the scope of the problem is not nearly as large as it is commonly thought to be. Part I argues that the class should be viewed as an entity client, in which case it becomes clear that conflict of interest rules simply do not apply to conflicts within a class. Part II eliminates from consideration those conflicts - like conflicts arising from the size of the lawyer's fee - that are not addressed by conflict-of-interest doctrine because they are not unique to particular lawyers but are rather a type of agency problem that is endemic to legal practice. Parts III and IV of the article then turn to the types of conflicts that would be addressed by a strict reading of the conflict-of-interest rules. These conflicts include those arising from the lawyer's duties to other current clients, both inside and outside the class, as well as former clients. Part III argues that from the point of view of the non-class client, there is no reason to relax the current conflict rules. These clients are entitled to full disclosure of the conflict and an opportunity to find independent counsel. Part IV addresses these conflicts from the point of view of the class itself. Here it is argued that relaxation (or special application) of the conflict rules may be warranted in some cases, but that it makes sense to leave these issues to be resolved under class action law - under the rubric of a further elaboration of the adequacy of representation requirement of Rule 23 of the Federal Rules of Civil Procedure - rather than by amendments to the rules of professional conduct.

Who Should Guard the Guardians? A New Approach for Monitoring Class Action Lawyers

Class actions have come to play a significant role in American legal system. Law enforcement is no longer left to the state alone, as private pursuit of self interest is harnessed to promote the common good. But private law enforcement has also had its down sides. Lawyers' gain has often come at the price of class members' loss, and misalignment of interests has many times resulted in less compensation and deterrence and more private attorney profits than desired. The question therefore has been how to guarantee that lawyers pursue their self interest yet leave society at large and class members in particular as well off as possible. This paper analyzes the different monitoring schemes that have been unsuccessfully applied in class actions, namely, monitoring by courts and by class members. Building on this analysis it then proposes a workable alternative: private monitoring by self interested individuals and organizations, not necessarily class members, who would compete and pay to obtain the monitoring position, and would receive a share of the class recovery in return.

Holocaust Compensation Payments and the Global Search for Justice for Victims of Nazi Persecution

Dormant bank accounts, insurance policies, communal property, and most recently the question of compensation for slave and forced labour: more than fifty years after the Second World War, the crimes committed by the National Socialist régime have returned to the agenda. Negotiations between governments, class‐action lawyers, and Jewish and non‐Jewish organisations have led to a series of agreements to compensate Holocaust victims. These agreements also have consequences for the study of the Holocaust: a global commitment to archival openness; the globalisation of historical research; a “reorientation” in the study of the economic aspect of the Holocaust, and the globalisation of the memory of the Holocaust. This article elaborates on these aspects and demonstrates how the parties involved (governments, NGOs) have made “competitive use of history” in order to advance and further their cause.

Incentive Structures for Class Action Lawyers

This article examines the way in which an attorney fee structure that maximizes the expected recovery for class members in a class action may be implemented in practice. Using a mechanism design approach, we demonstrate that if the court can observe the lawyer’s effort, then the optimal payoff to the class may be realized using the lodestar method—a contingent hourly fee arrangement that is currently practiced in many class actions—but only if the hourly contingent fee is multiplied by a declining, as opposed to the practiced constant, multiplier. If the court cannot observe the lawyer’s effort, then in some circumstances the optimal payoff to the class may still be realized by offering the lawyer a menu of fee schedules from which she has to choose one. Each fee schedule consists of a fixed percentage and a threshold amount below which the lawyer earns no fee, with the threshold increasing with the chosen percentage. The lawyer is paid the fixed percentage chosen only for amounts won above the threshold.

Incentive Structures for Class Action Lawyers

Unlike ordinary litigation where courts rarely interfere with litigants' contractual relations with their lawyers or intervene in settlement decisions, in class actions courts are required to do both. We focus on one explanation for the court's presumed inability to secure just and fair treatment for class members, namely, the court's inferior information vis-a-vis the class attorney concerning the case's merit or probability of success. Using a mechanism design approach, we identify the maximum expected payoff that a class may obtain when the court cannot observe the case's merit. We demonstrate that when the court can observe the lawyer's effort (the number of hours she spent on the case), the optimal payoff can be realized using the lodestar method - a contingent hourly fee arrangement that is currently practiced in many class actions. When the court cannot observe the lawyer's effort, it can still guarantee the same (optimal) expected payment to the class with a menu of percentage fee contracts each consisting of a percentage and a threshold amount below which the lawyer earns no fee, with the threshold increasing with the chosen percentage.

Comment on Burbank and Silberman

The paper focuses on reform in the federal courts. That is not inappropriate since historically the federal courts have been the lead dog on the sled of reform. One should have in mind, however, that some 98% of all civil litigation in the United States takes place in the state courts. And state court systems tend to look less to the federal courts for leadership in reform now than they did in the past. The reason is that civil justice reform has become politicized and contentious. There was a time when the federal rules were drafted and revised by what could be called a group of wise men-lawyers and judges above the fray who looked dispassionately at the justice process and sought out what was best for it. But rule making is no longer an Olympian exercise and the rulemakers are no longer viewed as omniscient and detached. Much is at stake for particular litigation interests in the shaping of rules of procedure, and with the democratization of the rule making process, those interests have access and work to influence it. Special interests of various sortsmanufacturers, small business, insurance companies, civil rights lawyers, class action lawyers, personal injury lawyers, commercial lawyers and, not to be ignored, the judges themselves, and even Congress-confront each other. The product that emerges will not necessarily be a model for the highest and best form of administration of justice. Meanwhile states are pursuing their own initiatives: California, for example, has successfully implemented a fast track system, and

Under Cloak of Settlement

Lawyer abuse in class action settlements is a widely recognized problem. One approach to lawyer abuse in class actions has received insufficient attention: suing the lawyers. Lawyers involved in class actions may engage in conduct that constitutes a civil or criminal wrong under state or federal law. The difference between these lawyers and other lawyers is that judges approve class action settlements after making findings on the adequacy of class counsel, the lack of collusion between class counsel and defendants, and the fairness of the settlement terms, including lawyers' fees. We argue that this judicial approval does not, and should not, immunize lawyer misconduct from the reach of state tort law, consumer protection law, criminal law, or state or federal antitrust law. Class action lawyers seem to assume that judicial approval cloaks their settlements in protection from these actions. We argue that this assumption is erroneous. First, collateral estoppel does not apply to bar suits aimed at lawyer misconduct because there is no full and fair opportunity to litigate these issues in the fairness hearing. Second, the doctrines that exempt state action, federal regulatory activity, and petitioning the government from the antitrust laws do not apply to the conduct of class action lawyers in negotiating a settlement or to the terms of the settlement approved by the court. We provide case examples to demonstrate the types of actions that could be brought against class action lawyers.