Class Action Law Research Articles

Групповые иски в Канаде

The article is dedicated to class actions and class litigation in Canada. Initially evolved from legislative sources of England and the USA, class litigation in Canada has received independent and original development. The profound reform in Ontario that took place in July 2020 made significant amendments to Class Proceedings Act, 1992, which reflect the latest achievements in the field of class litigation. The latest changes in this Act are analysed in the article. Moreover, the following questions are raised: certification and authorisation as class proceedings, necessary to confirm the group for class action, its multiplicity, necessary to form the class action, questions of preferability of group procedure (predominance and superiority) and native language in class litigation. Special point of research is question of costs in class litigation, which has peculiar features in Canadian class action law. They consist in refusal to compensate the judicial costs or in compensation by third-party investor company or by the state (state funds). These approaches offer a fresh look at the problem of compensation of judicial costs in class litigation. The experience of Canada can be used in certain boundaries in Russia.

Litigation Financing - Untangling the Gordian Knot - The Future of Law Reform

Litigation funding is used to increase access to justice for those otherwise unable to prosecute a claim to uncover and remedy incompetence, reckless or egregious behaviour. Litigation can also be misused, perhaps as a strategic tool, and in the formulation of legal tactics in class action litigation. The financing of shareholder and other class actions has created substantial media interest. Media reporting can have a negative feedback loop acquiring influential global momentum of its own (for instance in director’s insurance) whereas legal scholarship, even when reported, does not. Legal scholarship is not replete with empirical analysis so in the present debate, published empirical analysis by this and other authors should be heeded. Reforms to date illustrate how the confluence of class action law, other litigation funding law, and managed investment scheme (MIS) law is problematic and unresolved ― a Gordian Knot which in the absence of exemptions can only be untied by significant reform of the legal architecture. There are three constituent elements of litigation financing ― (a) promotion of the MIS (or alternative litigation financing which may constitute a MIS) to general members, being mostly ‘retail’ financial consumers; (b) The class action, being a registered MIS with a ‘wholesale’ representative plaintiff; and (c) the litigation financing and associated stakeholders. Some proposed reforms are politically contested. Australian present and proposed practice deviates from preferred practices in other jurisdictions emulating divergences seen in comparative fiduciary and best interest law which generate additional director risk where there are cross-border investments. Law reform options to better provide for the interests of general member plaintiffs are proffered for debate.

The securities fraud class action after Goldman Sachs

This article analyzes a significant Supreme Court securities law decision from the 2020 term, Goldman Sachs v. Arkansas Teachers Retirement System (Goldman). Goldman was a blockbuster class action, brought by shareholders seeking $13 billion in damages from Goldman Sachs based on claims that date back to the 2008 financial crisis. This article proceeds by taking an in‐depth look at the case history of Goldman from start to finish. In the process, it shows that the Supreme Court's recent decision was more impactful than has been widely appreciated. Rather than being a recap of existing precedents, the Court's holding in Goldman made significant changes to some of the core doctrines in securities law that were first set forth in 1988 when the modern securities class action was created by Basic v. Levinson. This article also looks beyond doctrinal categories to assess how the Goldman decision can be understood as the latest chapter in the Supreme Court's longstanding role as a leading policy maker in the law of securities class actions. Lastly, the article explains how the precedent set in Goldman will affect securities litigation on the ground going forward. As a result of Goldman, it will be argued, the class certification stage in shareholder securities fraud suits has been moved closer to an open‐ended totality of the circumstances test, in which the federal courts have an increasing number of tools to act as gatekeepers on the merits of a litigation.

Does prior certification advance access to justice?

Class actions advance both access to justice and judicial economy. In South Africa, class action law is developing incrementally in the courts. One aspect of class action procedure that is settled is that prior certification is a requirement. Prior certification requires class representatives to satisfy a court that the use of the class action mechanism is an appropriate way of adjudicating the class members’ claims. As such, prior certification is a preliminary procedural hurdle to be cleared before the class action can be instituted. The primary rationale for prior certification is that it prevents the inappropriate use or abuse of the class action mechanism. However, by postponing the institution of the class action, prior certification delays the determination of the class action claims, thereby limiting access to justice. This article analyses the adoption of prior certification in class action litigation procedure. It interrogates whether the way in which prior certification limits access to justice is reasonable and justifiable. It argues that the temporary limit that prior certification places on access to justice is a reasonable and justifiable limitation because it balances the protection of access to justice with the need to prevent misuse of the class action mechanism.

A river of disease: Silicosis and the future of class actions in South Africa

Silicosis is an incurable lung disease caused by the inhalation of silica dust. Gold is usually found alongside silica, so goldminers are especially at risk of silicosis. Studies show that up to a quarter of career mineworkers in South Africa have contracted it. As one expert witness in the litigation put it, a ‘river of disease’ was flowing through the mines. The river metaphor also captures the meandering course of the silicosis litigation, which spanned more than a decade, its course unpredictable, joined by new tributaries and splitting into new streams of litigation along the way. It included test cases, arbitration, massed claims and eventually, a class action. The silicosis class action in South Africa not only provided the first real test for the new court-made rules governing class actions, but is one of the largest and most complex multi-class, multi-defendant, dispersed incident class actions the world has seen. The class action succeeded, culminating in a R5 billion settlement. It also provides a strong basis to consider how best class action law should develop in South Africa. This article engages with the test for certification, representation in class actions, settlements and legal fees and costs. It argues that the constitutional commitment to access to justice undergirds class actions and must inform the development of these rules. The profit incentive presented by class actions presents risks of abuse that must be addressed. The Constitution, and not the market, should determine which poor litigants get legal representation to bring class actions, and how class actions work.

Empirical Data On How Investors Are Harmed When Companies Do not Disclose Information About Violence and Lack of Indigenous Consent

The Justice and Corporate Accountability has filed a number of complaints to the Ontario Securities Commission, the British Columbia Securities Commission and the United States Securities and Exchange Commission relating to the failure of Canadian mining companies to disclose information on community conflict, violence and Indigenous consent. An analysis of the cases found four indicia that showed that the information disclosed in the complaints (but not disclosed by the companies) was important material information relating to the health of the company, including a drop in share price; divestment by institutional investors; and shareholder class action law suits against the company. The study recommends that extractive companies should have more explicit guidance related to disclosure of violence and human rights issues, including specific disclosure requirements relating to free, prior, and informed consent of Indigenous peoples (FPIC). This study is a follow-up to the JCAP report, “The Canada Brand: Violence and Canadian Mining Companies in Latin America” (2016), which found that publicly listed companies reported only 24.2% of the deaths and 12.3% of the injuries listed in that report.

O duplo grau obrigatório das decisões de improcedência em ações de improbidade

O presente artigo tem como propósito discutir, à luz do devido processo constitucional e da teoria do modelo constitucional do processo, a validade da submissão de sentenças de improcedência proferidas em ações de improbidade administrativa ao duplo grau de jurisdição obrigatório, especialmente levando-se em conta que, à falta de norma expressa determinante do reexame necessário em tais casos, a submissão tem sido feita à força de aplicação por analogia do disposto no art. 19 da Lei 4.717/65 (Lei da Ação Popular) ou da aplicação subsidiária do art. 496 do CPC. A presente pesquisa, do tipo exploratória, adotará como procedimentos a revisão bibliográfica e a análise documental (julgados), sendo o método de inferência o indutivo. Busca-se validar a hipótese negativa para o reexame necessário, seja porque inaplicável a analogia, seja porque o próprio reexame necessário carece de amparo constitucional.

The Negotiation Class: A Cooperative Approach to Class Actions Involving Large Stakeholders

Class action law is modeled on the assumption that a large group of individuals have similar legal claims of such small value that no one of them has the incentive or ability to litigate alone. Rule 23 resolves that collective action problem by enabling one class member to represent the group, with a common fund fee award sharing the costs across the class. The Constitution guarantees class members the options of opting out (exit) or objecting (voice), but given the small stakes, most do nothing (loyalty). While elegant, this model does not capture the reality of all class suits. In many cases, some class members have significant enough legal claims that they are capable of litigating alone. The group dynamics accordingly change, with everything turning on the question of whether the large claimants will opt out and litigate separately. The risk that they might discourages the defendant from settling the class’s small claims, lest they then have to litigate the large claimants’ valuable claims. But the dynamics simultaneously create an opportunity: if the class members could unite, they might increase their leverage and extract a premium from a defendant eager to settle the whole package of claims, with that global settlement simultaneously benefiting the defendant (as evidenced by its willingness to pay a premium for it). The tragedy of this commons is that, built on a different template, class action law provides no model for intra-class coordination. In this Article, we offer heterogeneous class members a mechanism for cooperation, a new form of class certification that we call “negotiation class certification.” Under this approach, class members generate a plan for allocating a lump sum settlement and for voting on the acceptability of any lump sum offer they might receive. They then ask the court to certify a “negotiation class” according to the normal Rule 23(a)–(b) factors and to direct notice to the class explaining that any negotiated settlement will be put to a vote, with a supermajority vote binding the whole class; the notice also explains the distributional metric. Any class member that does not want to bind itself to either the distributional metric or the supermajority voting process can opt out. By establishing the contours of the class prior to settlement discussions, negotiation class certification provides the defendant with a precise sense of the scope of finality a settlement will produce, hence encouraging a fulsome offer by ensuring meaningful peace. The negotiation class therefore redounds to the benefit of both the class and the defendant – and hence of the judicial system as well. The proposal is a novel use of Rule 23, but it is, in many ways, a less ambitious one than certification of a settlement class: there, lawyers negotiate a settlement on behalf of a class without ever asking a court to assess either the cohesiveness of the group or their own adequacy to speak for that group. Settlement class certification was accordingly quite controversial when developed out of whole cloth in the late 20th century, but even absent an explicit textual mooring, it soon became a “stock device” in class action practice. By seeking a judicial ruling that a class coheres and its agents are adequate prior to those agents negotiating with a defendant, negotiation class certification adheres more closely than settlement class certification to the requirements of both Rule 23 and the Constitution. Moreover, engaging large class members in the settlement negotiation process ex ante improves on a system that delegates that authority to un-authorized agents and involves the class only ex post.

Insights from outside BJOG

Insights from outside BJOG

The Modern Law of Class Actions and Due Process

Our goal in writing this article was to offer helpful insight for a reformed interpretation and application of Rule 23 that would make the Rule serve its intended democratic function. The idea of due process is a promise of the rule of law tempered by reasonableness, fairness, and efficiency. It embraces both the value of individual autonomy and the collective interests of the community. The idea of class actions, premised on due process, is to provide a pragmatic method of dispute resolution that is fair to the individual and responsive to the needs of the community and the challenges generated by widely spread and shared harms. In this respect, class actions operate as a tool of democracy. Rule 23 should be interpreted from this hopeful and effective perspective, one that balances individual autonomy against the legitimate needs of the community. But the Rule is not accomplishing its mission. As we show in the article, it appears to be infused with its framers’ self-doubts, and the Supreme Court treats it as an unwelcome guest in the home of traditional litigation forms—see, for example, our discussions of Ortiz v. Fibreboard Corporation (1999); Wal-Mart Stores, Inc. v. Dukes (2011); Jennings v. Rodriguez (2018); Nutraceuticals Corp. v. Lambert (2019).

The Supreme Court’s Class Action Jurisprudence

Class action filings in the federal courts surged after the Class Action Fairness Act of 2005 (CAFA) took effect, and resolution of major controversies in a single multidistrict litigation became the norm. Correspondingly, since 2010, the Supreme Court has shown an increased interest in class action procedure. As with other cases, when the Court grants review in a class case it reverses more often than not—a pattern that makes the certiorari stage critical to litigants. Although the Justices in recent cases reached consensus on minor points of class action procedure, their opinions diverged on more significant issues. With Justices Gorsuch, Kavanaugh, and Barrett now on the Court, strict constructionism will no doubt influence how class action law develops. Even before these Justices were seated, the Court’s decisions reflected a divide in how the Justices view the class action device. The 5‒3 decision in American Express Co. v. Italian Colors Restaurant demonstrates these contrasting views. 570 U.S. 228 (2013). A restaurant alleging an antitrust tying violation filed a class action against American Express on behalf of similarly situated merchants. Justice Scalia’s opinion for the Court held that the restaurant could not nullify a provision in its contract with American Express mandating that all disputes between them be decided in individual arbitration. Rejecting the argument that enforcing this clause would serve to immunize American Express, the Court held that “courts must ‘rigorously enforce’ arbitration agreements according to their terms.” Id. at 233 (citation omitted). Only if an arbitration agreement waives a party’s right to pursue statutory remedies may the agreement be invalidated, the Court reasoned, and the class waiver “no more eliminates [the contracting] parties’ right to pursue their statutory remedy than did federal law before its adoption of the class action . . . in 1938.” Id. at 236. In addition, the Federal Arbitration Act’s (FAA) “command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims.” Id. at 238 n.5. Justice Kagan, joined by Justices Ginsburg and Breyer, dissented, opining that for the restaurant to pursue its claim individually in arbitration would be a “fool’s errand” as “[n]o rational actor would bring a claim worth tens of thousands of dollars if doing so meant incurring costs in the hundreds of thousands.” Id. at 240, 245 (Kagan, J., dissenting). The dissent further asserted that the majority, “bent on diminishing the usefulness of Rule 23,” had reasoned as if it were still “ye olde glory days.” Id. at 251‒52 (Kagan, J., dissenting). Despite disagreements over how competing class action policies should be balanced, the Court’s precedents make clear that Rule 23 must be interpreted as written. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (“[O]f overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce.”). The Court’s most recent class action decisions have been unanimous. The per curiam ruling in Frank v. Gaos, 139 S. Ct. 1041 (2019), avoided reaching the cy pres issue presented, remanding for an assessment of whether plaintiffs whose search terms Google allegedly shared with third parties had standing to maintain Stored Communications Act claims under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). In China Agritech, Inc. v. Resh, the Justices agreed that the tolling of statutes of limitations by a class action filing does not apply to class—as opposed to individual—claims filed after a denial of class certification. 138 S. Ct. 1800 (2018) (distinguishing American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974)). And in Microsoft Corporation v. Baker, the Court unanimously held (with three Justices concurring in the judgment) that class plaintiffs cannot manufacture a final judgment subject to immediate appellate review by voluntarily dismissing their claims upon a denial of certification. 137 S. Ct. 1702 (2017). The Court will continue to engage with this consequential area of civil procedure in 2021, having granted review in two cases raising class certification issues. Goldman Sachs Grp. v. Arkansas Teacher Ret. Sys., No. 20–222; TransUnion LLC v. Ramirez, No. 20–297. In keeping with how class action issues that reach the Supreme Court are often analyzed, this essay largely focuses on public policy. After a brief excursion into the origins and development of class actions in our legal system, I describe how the Court has approached dueling policies embedded in Rule 23. The discussion then shifts gears, delving more deeply into three of the Court’s most influential class action decisions. I proceed to consider the more immediate matter of how class action jurisprudence has evolved in the twenty-first century. The conclusion frames some open questions of class action law that the Court may address in years to come.

The Class Action Law of the Ninth Circuit

The Class Action Law of the Ninth Circuit

The Hollowed Out Common Law

The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain of all electronic and shrinkwrap contract cases and makes four critical findings. First, we document two shifts: One arises from a steady decline in the number of cases adjudicated in state court relative to federal courts, which by 2015 adjudicate the vast majority of cases. The other stems from a rise in class actions, which is intimately tied to the migration of cases to federal court. The result is that today the vast majority of cases are class actions brought in federal court. The increase in class actions is not surprising given the relatively small stakes of most transactions and the little incentive that creates for individual consumer litigation. The increased dominance of the federal forum is in part likely a reflection of the federalization of class action law under the Class Action Fairness Act (CAFA). Second, the consequence of the dominance of the federal forum is that the common law is being elaborated in federal court in suits arising under diversity jurisdiction. In turn, those federal courts are largely bereft of any state law moorings as they develop the common law of the electronic marketplace. Erie Railroad v. Tompkins notwithstanding, the common law is driven by federal court decisions, building incrementally on each other rather than state law. Third, the development of common law in federal court means that there is no apex court that can define conclusively the law of any jurisdiction. Diversity jurisdiction allows federal courts to predict how they believe state common law would develop, but binds no state courts in the affected jurisdiction, and does not even bind federal courts in the same Circuit putatively applying the law of another state. Rather than the law resolving hierarchically, we identify a “tournament effect” in which the law settles on one or a few influential decisions, regardless of the state law that the case may have arisen under. Finally, we conjecture that the use of contractual clauses compelling arbitration and forbidding claim aggregation may have affected the number of cases being adjudicated in court and, consequently, depressed the development of publicly-available law in this area.

The initiation and operations phase of the litigation funder – class action law firm relationship

PurposeDrawing on “Strategic Alliance” literature and qualitative research methods, the purpose of this study is to examine the initiation and operations phases of the relationship between Australian litigation funders and class law firms. The initiation phase examines factors such as complementarity between needs and assets compatibility between the funder and the class law firm goals of the alliance trust and alliance structure. The operations phase considers factors such as governance, communication and risk management and accountability. Because of its focus on the fairness of settlement, case law provides limited understanding of the drivers of the class law firm and funder relationship. An “inside look” of how the funder-law firm is initiated and made operational provides a more accurate picture and has important implications for the management of the ethical issues that arise during the course of that relationship.Design/methodology/approachThis paper is a content analysis and contains qualitative interviews.FindingsThe strategic alliance between class law firms and litigation funders has evolved within an institutional climate that has acknowledged the benefits that the alliance can bring to the conduct of class actions. That same institutional environment has led to an alliance which is informal and transactionally oriented, where each of the parties maintains a demarcation in function. Although they share aspects of the strategic management of class actions, funders continue to be diligent monitors of class law firms, and class law firms continue to advance the legal rights of class members.Research limitations/implicationsIt is observed that the size of the sample is small driven by a number of market participants.Practical implicationsThe paper confirms that the litigation funder–law firm strategic alliance works well as a result of institutional constraints.Social implicationsEach of the alliance partners was keen to ensure that neither they nor their partner acted in a way which might attract judicial disapproval. Each also believed that they played a positive role in promoting class member interests, albeit that their primary motivation was to earn fees or a commission. The success of the alliance between class law firms and litigation funders has substantially improved access to justice in Australia for small claims holders.Originality/valueThe paper provides insight into a strategic alliance which is formed primarily for the benefit of third parties. This is one of the first papers to consider the litigation funder–law firm relationship through the lens of strategic alliance literature.

The Class Action Awakens

For the past nine terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This “exceptional” view of the class action has had a profound impact not only on class action law, but procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases which support an alternative, “functional” view of the class action, one that does not view the class action as exceptional, but as one of many equally permissible tools to serve the objectives of substantive law. This alternative view has the potential to have a similarly significant impact on the law, but it is not certain whether the Court will further develop this alternative, especially given its most recent class action decisions. This article discusses the development of the “exceptional” view of the class action, the awakening of a “functional” alternative view, and the uncertain path ahead.

When Pragmatism Leads to Unintended Consequences: A Critique of Australia’s Unique Closed Class Regime

Abstract In an effort to ensure access to justice, Australian courts have fashioned a unique hybrid opt in-opt out process known as “closed classes.” The rationale that underlies closed classes is to prevent free-riding that may undercut the position of funders and class action law firms reliant upon entering into agreements with a critical mass of class members. However, multiple closed classes also pose problems for respondents seeking the comfort of finality. To secure settlement and thus ultimately benefit participating class members, Australian courts have formulated a procedure whereby the closed class is opened and nonparticipating class members are invited to either register their claims or opt out so that thereafter those who do not register and those who opt out are effectively precluded by res judicata from making further related claims. We argue that Australian courts’ support of closed classes, while driven by pragmatism, has produced unintended consequences. Many relate to the ethical dilemmas faced by class action law firms and litigation funders seeking to advance the interests of participating class members over and above those of nonparticipating class members. The Full Federal Court has recently approved an alternative common fund approach. However, questions remain as to whether Australian courts are appropriately equipped to measure and compare the alternative transaction costs associated with the current and proposed approach, and whether they are appropriately equipped to determine the commercial rectitude and fairness of litigation funding agreements.

Reinvigorating Commonality: Gender & Class Actions

The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961 — one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman — the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, “In almost every professional field, in business and in the arts and sciences, women are still treated as second-class citizens.” But change was imminent. The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the founding of the ACLU Women’s Rights Project, and a rising social and intellectual feminist movement brought women’s equality into the national conversation. Simultaneously — at least in part in response to the civil rights movement and the Civil Rights Act — an (all-male) Judicial Conference and Supreme Court in 1966 ushered in the modern era of collective litigation by promulgating Federal Rule of Civil Procedure 23, and more specifically, Rule 23(b)(2), which provided a formal structure for civil rights plaintiffs to seek aggregate relief for violations of federal and state anti-discrimination laws. Together, these phenomena gave impetus to communities of women to combat legal and cultural injustices through the courts. The result has been widespread improvement in the lives of working women — and men — across many industries. In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality — cohesion, unity — in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four “waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. This is not an empirical study, nor is it comprehensive. Rather, our aim is to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality. We acknowledge that class actions are not the sole standard bearers for impact litigation, and that individual suits — whether brought by individuals of any gender or by physicians — have been vital to the establishment of anti-discrimination legal norms in the area of gender equality. Even so, we argue that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms, overcoming classic barriers to judicial justice such as lack of resources, lack of access to lawyers, and retaliation by employers against individuals who file suit. As Anita Hill recently argued in a critique of the technology sector, “Class action lawsuits can force industry-wide change, even in the most entrenched, male-dominated industries.”

Self-Advocacy from the Ashes of the Institution

This paper explores the oral histories of two survivors of Canada’s institutions for persons labelled with intellectual disability. Both of these men survived the abuses of the institutions and went on to become committed to rights advocacy for others labelled with an intellectual disability. They were determined to tell their stories and act as change agents so that no one else experiences the abuse they did. In this paper, Peter and Martin tell parts of their stories, including their journey toward self-advocacy. This paper provides a space for these truths to be revealed in the time of class action law suits that are underway for these survivors. No opportunity was provided for the class action members to tell their stories in court, so this paper contains pieces of the narrative that survivors want people to know. Their stories are told in both narrative and art form. These artifacts highlight common themes of institutional abuse and isolation, but also of remarkable resiliency and strength. Their stories serve as an important record of the history of institutionalization in Canada and help to shape a better understanding of the roots of self- advocacy, including the importance of “nothing about us without us” (Charlton, 1998).

Assessing Assessments of Israel's 2006 Class Action Law

Assessing Assessments of Israel's 2006 Class Action Law

Multi-stakeholder process of co-designing small-scale fisheries policy in South Africa

In 2005, a group of researchers, community-based organizations and lawyers got together with small-scale fishers to launch a class action law suit against the government of South Africa in its allocation system of Individual Transferable Quotas, on the ground that the system was unfair to small-scale fishing communities and threatened their right to practise their livelihoods. This effort resulted in the cabinet adoption of a new small-scale fisheries policy in 2014, with amendments being made to fisheries law (the Marine Living Resource Act 18 of 1998) to accommodate the issues and concerns of small-scale fisheries. Draft regulations and an implementation plan have recently been released, paving the way for the implementation of small-scale fisheries allocations in 2016. These legal and policy shifts are of great significance for small-scale fisheries, both in South Africa and elsewhere, and deserve careful examination. This paper discusses the processes leading to the development of a new small-scale fisheries policy and what has followed since. Specifically, the analysis focuses on a variety of collaborations between scholars from different disciplines; researchers from multiple fields; community practitioners representing diverse professional and community perspectives; and community organizations across local, state, national and international levels. The paper uses a model of change that crosses research and practitioner boundaries based on three key strategies: getting noticed; organizing at scale; and getting a seat at the negotiation table. It also considers the “transdisciplinary” process of involving all relevant actors in strategic, collective, reflection–action–reflection–action “from below”, which was crucial in the co-designing of this small-scale policy formulation in South Africa.