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Abstract:
The Class Action Fairness Act of 2005 (CAFA) reflected a profound mistrust of class action lawyers. Three years after its enactment, examination of lawyers' adaptation strategies offers an emerging picture of the statute's impact on class actions and class action lawyers. CAFA, like the Private Securities Litigation Reform Act a decade earlier, shifted class action practice in ways that appear likely to strengthen the upper tier of the plaintiff class action bar. CAFA has affected not only the division of labor between state and federal court, but also horizontal forum selection among federal courts and class action claim selection. Analysis of these effects suggests that CAFA is achieving some of its stated objectives but is unlikely to squelch class actions or to disempower leading members of the class action bar.

Class Action Fairness Act, CAFA, class actions, forum selection, forum shopping, Private Securities Litigation Reform Act, PSLRA, subject matter jurisdiction

Abstract:
Large-scale multiparty litigation often settles in clusters rather than one claim at a time. With or without the judicial imprimatur of class certification - indeed, with or without formal judicial aggregation of any sort - lawyers negotiate settlements of sizable portfolios of claims. Such settlements, in which multiple plaintiffs' claims against a common defendant are resolved together, are what lawyers variously call aggregate settlements, group settlements, block settlements, or similar terms that emphasize the collectiveness of the deals. The literature on aggregate settlements, however, lacks any clear articulation of what makes such settlements collective. Group settlements in multiparty litigation vary significantly, and they vary in ways that make it difficult to determine whether certain deals ought to be understood as collective settlements or simply as groups of individual settlements bundled together. This article develops a typology of aggregate settlements. By defining settlements in terms of their essential attributes, it is possible to understand and describe multiplaintiff settlements with greater precision, and to develop a sounder approach to applying the special ethical duties that attend aggregate settlements.

Under the aggregate settlement rule, some version of which is in effect in every state, a lawyer may not make an aggregate settlement unless the lawyer obtains each client's informed consent after disclosing the full scope of the deal. The rule does not define aggregate settlement. Cases, ethics opinions, and other authorities do not define the term with any precision, but some of them contain statements to the effect that an aggregate settlement is one in which a defendant pays an amount to settle an entire group of claims. They describe, in other words, a lump sum package deal, which is the most obvious form of aggregate settlement, but they do not consider what makes such a deal aggregate. Closer inspection reveals that a lump sum package deal has two key attributes, each of which independently would suffice to make the deal collective.

The attributes that combine to form such a deal are collective allocation and collective conditionality. Allocation refers to how settlement amounts are determined and allocated, the method for determining who gets how much. Conditionality refers to what conditions must be met for the settlement to stick, particularly the extent to which settlements are voidable by defendants for failure to obtain releases from all the plaintiffs. When authorities depict a deal in which the defendant pays an amount of money in exchange for releases of an entire group of claims, the allocation can be described as lump sum, and the conditionality can be described as all-or-nothing. When the lump sum package deal is understood as a combination of allocation and conditionality attributes, and when that understanding is combined with an awareness of the settlement structures actually in use in multiparty litigation, it becomes evident that each of these attributes appears in forms that range from purely collective to purely independent. Allocation and conditionality can be spread along two axes to form a grid of settlement structures. The resulting typology, by disaggregating the attributes of collective settlements, helps define which settlement structures should trigger the disclosure and informed consent requirements of the ethics rule, and offers an approach to describing both non-class aggregate settlements and class action settlements with greater precision.

aggregate settlement, 1.8(g), class action, mass tort, settlement

Abstract:
Large-scale multiparty litigation often settles in clusters rather than one claim at a time. With or without the judicial imprimatur of class certification - indeed, with or without formal judicial aggregation of any sort - lawyers negotiate settlements of sizable portfolios of claims. Such settlements, in which multiple plaintiffs' claims against a common defendant are resolved together, are what lawyers variously call aggregate settlements, group settlements, block settlements, or similar terms that emphasize the collectiveness of the deals. The literature on aggregate settlements, however, is lacking any clear definition or articulation of what makes such settlements meaningfully collective. Group settlements in multiparty litigation vary significantly, and they vary in ways that make it difficult to determine whether certain deals ought to be understood as collective settlements or simply as groups of individual settlements bundled together. This article develops a typology of aggregate settlements. By defining settlements in terms of their essential attributes, it is possible to understand and describe multiplaintiff settlements with greater precision, and to develop a sounder approach to applying the special ethical duties that attend aggregate settlements.

Under the aggregate settlement rule, some version of which is in effect in every state, a lawyer may not make an aggregate settlement unless the lawyer obtains each client's informed consent after disclosing the full scope of the deal. The rule does not define "aggregate settlement." Cases, ethics opinions, and other authorities do not define the term with any precision, but some of them contain statements to the effect that an aggregate settlement is one in which a defendant pays an amount to settle an entire group of claims. They describe, in other words, a lump sum package deal, which is the most obvious form of aggregate settlement, but they do not consider what makes such a deal aggregate. Closer inspection reveals that a lump sum package deal has two key attributes, each of which independently would suffice to make the deal collective.

The attributes that combine to form such a deal are collective allocation and collective conditionality. Allocation refers to how settlement amounts are determined and allocated, the method for determining who gets how much. Conditionality refers to what conditions must be met for the settlement to stick, particularly the extent to which settlements are voidable by defendants for failure to obtain releases from all the plaintiffs. When authorities depict a deal in which the defendant pays an amount of money in exchange for releases of an entire group of claims, the allocation can be described as lump sum, and the conditionality can be described as all-or-nothing. When the lump sum package deal is understood as a combination of allocation and conditionality attributes, and when that understanding is combined with an awareness of the settlement structures actually in use in multiparty litigation, it becomes evident that each of these attributes appears in forms that range from purely collective to purely independent. Allocation and conditionality can be spread along two axes to form a grid of settlement structures. The resulting typology, by disaggregating the attributes of collective settlements, helps define which settlement structures should trigger the disclosure and informed consent requirements of the ethics rule, and offers an approach to describing both non-class aggregate settlements and class action settlements with greater precision.

aggregate settlement, 1.8(g), class action, mass tort

Abstract:
Class actions receive the lion's share of academic and policymaking attention, but in practice much mass litigation proceeds on a non-class basis. Non-class mass litigation often resembles class actions in the following sense: numerous plaintiffs depend upon the work of counsel with whom they have no meaningful individual lawyer-client relationship, over whom they have no meaningful control, and whose loyalty is directed primarily to the interests of the group as a whole. Class actions retain the distinction of binding nonparties, but in the relationship between counsel and the represented group, non-class litigation resembles class actions to a much greater extent than generally recognized. Given the attention that class actions have received, it makes sense to look to certain class action concepts and developments to inform our understanding of non-class collective representation.

The central feature of class actions mirrored in non-class collective representation is the lack of client autonomy. Group lawyers seek to advance collective interests, and clients exercise little control over the course of litigation or negotiation. For many plaintiffs, giving up autonomy is a rational choice. Collective representation - whether by class action, mass representation by a single firm, or mass representation by a cooperating group of lawyers - offers significant advantages over individual litigation. Nonetheless, some plaintiffs may prefer individual representation, either based on a position in which individual representation may maximize recovery, or based on personal preference for autonomy, non-monetary remedies, or other objectives. The question is how to strike the right balance between individual autonomy and the benefits of collective representation.

Class actions attempt to strike that balance by giving class members notice and the right to opt out, and recent developments have enhanced the meaningfulness of opt-out rights, including opportunities to exit class actions with knowledge of the settlement terms. These developments in class actions suggest that plaintiffs can receive the key benefits of collective representation while retaining autonomy at the two most critical moments: the outset of collective representation, and the acceptance of a settlement.

A similar approach in non-class collective representation can protect the core of client autonomy while maintaining the lawyer's commitment to group interests. Pursuant to the law of professional responsibility, sensibly applied in the mass litigation context, lawyers should represent clients collectively in mass litigation only if clients give their informed consent to the conflicts of interest that inhere in such collective representation. With informed consent to the inherent conflicts, non-class collective representation resembles an opt-out or opt-in class action on adequate notice. Similarly, an aggregate settlement reached by non-class collective representation should not bind any client without that client's informed consent. Non-class aggregate settlements, to this extent, should resemble opt-out settlement class actions or litigation class settlements with a second opt-out opportunity. With informed consent at the outset, and with the added protection of the aggregate settlement rule, the consent process in non-class collective representation should preserve the core of client autonomy, despite the relinquishment of most client control over the conduct of litigation and negotiation.

Abstract:
Positioned at the intersection of big-money practice and social change litigation, mass torts provide a useful study in multiple motivations. While financial incentives for plaintiffs' lawyers explain much of what happens in mass torts, policy objectives come into play as well, yielding a more complete picture of what drives the litigation. Despite the difficulty disentangling reasons from rhetoric and rationalization, it is worth exploring the significance of mixed motives for lawyers who are committed to social change objectives in litigation.

The combination of monetary and policy goals arguably creates a lawyer-client conflict of interest. The argument is that the lawyers should not pursue their own policy agenda at the expense of maximizing clients' interests. In the mass collective representation that typifies modern mass tort litigation, however, the danger of lawyer-client conflicts is even greater if the lawyer is fully devoted either to particular policy objectives or to the pursuit of wealth than if the lawyer is motivated by multiple considerations. Mixed motives more accurately reflect the combination of interests represented by a large group of similarly situated individual clients. Thus, mixed motives tend to mitigate rather than exacerbate the conflicts of interest that inhere in mass collective representation.

The mix of financial incentives and policy objectives invites a rethinking of the prevailing conception of public interest lawyering. It is misleading to divide lawyers into those who pursue the good and those who pursue wealth. The line is not so neat, and it is important not to oversimplify the motivations of lawyers who seek simultaneously to make money and to accomplish socially valuable objectives. The terminology of law practice reinforces a binary view of money-making and public interest work. Lawyers and law students equate "public interest work" with low-paying law jobs, and use the phrase "for the public good" (pro bono publico) to refer to law services without fee. The prevailing definitions of these terms are based on market-undervaluation, which makes sense for purposes of determining subsidies such as loan forgiveness programs and the ethical duty to engage in pro bono representation. But defining public interest work in terms of undercompensation may have an unintended consequence in its effect on the attitudes of lawyers whose work does not fall within the narrow definition. If public interest lawyering is what lawyers do for little or no pay, does that imply that most lawyers should pursue wealth and raw client interest without regard to whether their work serves the public good? Whether a redefinition of public interest lawyering would contribute to lawyers' overall commitment to the public good, however, depends on several factors, including the strength of the self-serving bias that renders lawyers likely to overvalue the social good achieved by their own practice.

mass tort, plaintiffs' lawyers, public interest, pro bono

Abstract:
Mass disputes happen, and lawyers on both sides handle such matters collectively rather than individually. With or without the judicial imprimatur of class certification, multi-claimant disputes routinely are litigated and resolved on a collective basis. Mississippi declined to adopt a class action rule in order to avoid the burdens, controversies, and complexities of mass aggregate litigation, but mass aggregate litigation in Mississippi happened anyway. The real question is not whether there will be mass litigation, but whether it will be subject to formal safeguards and judicial supervision. This article explains why Mississippi needs a class action rule by comparing the class action to its realistic alternatives. The Mississippi experience confirms that a prohibition on class actions channels mass disputes into other modes of formal and informal aggregate dispute resolution, some of which are inferior mechanisms to class actions for resolving mass disputes.

class action, Mississippi, aggregation, mass tort, joinder, litigation

Abstract:
This Article offers support for the argument that protective orders for discovery confidentiality should be granted upon a relatively light showing of good cause. Part I offers reasons why, in the vast majority of cases, courts should readily grant motions for protective orders with respect to discovery confidentiality as long as the movant can articulate some legitimate need for the information to be kept confidential. Looking at modern United States discovery from a comparative and historical perspective, broad and powerful party-controlled discovery can only be justified as a means of finding information for the resolution of the dispute, not as a public information tool. Part II explains why some showing of good cause nonetheless should be required, even if the parties themselves agree to the confidentiality protections.

protective order, confidentiality, discovery, secrecy

Abstract:
In an accompanying article for this symposium, I argue that Mississippi should adopt a class action rule. This paper offers specific suggestions on the contents of that rule, and comments on the papers by David Rosenberg and John Scanlon and by Robert Klonoff. Mississippi should adopt a rule that, like the federal rule, permits opt-outs in most money damages class actions but provides for mandatory class actions in a narrow band of cases. Rosenberg and Scanlon overestimate the danger of opt-outs for optimal deterrence, while underestimating the usefulness of opt-outs. The paper comments on Klonoff's positions on various aspects of class action rule drafting. Finally, the paper offers suggestions on how to address what may be the greatest obstacle to adoption of a class action rule in Mississippi - mistrust of judicial authority and a reluctance to expand judicial power. By restricting venue options, facilitating appellate review, and setting forth clear obligations for processes and findings, Mississippi can gain the advantages of the class action procedure while reducing the possibility of abuse.

class action, Mississippi, opt-out, Rule 23, venue, judicial abuse

Abstract:
This article examines two developments in mass tort litigation: court-appointed experts and settlement class actions. First, it looks at the use of court-appointed technical advisors and scientific experts, such as the national science panel in the breast implant litigation. The article notes concerns over such experts, but generally applauds and encourages their use.

Second, the article looks at "settlement class actions," i.e., class actions certified for the purpose of approving a settlement already reached by the parties. Despite recent setbacks, especially the Supreme Court's decision in Amchem Products v. Windsor, settlement class actions remain a promising method for resolving mass torts. Because they present serious risks of collusion and inadequate representation, however, the article urges vigorous independent judicial scrutiny of the merits of the settlement terms.

Using a comparative perspective, the article suggests that these two developments represent an evolutionary shift in the direction of inquisitorial justice systems such as those of certain civil law countries. Court-appointed experts and judicial inquiry into settlement class actions resemble inquisitorial tools. Noting differences between the U.S. system and inquisitorial systems, the article explores the barriers that U.S. judges must overcome if they are to wield these tools effectively.

Abstract:
In this short presentation at a symposium on asbestos litigation, I suggest that the drive for global peace - fully comprehensive resolutions in mass tort litigation - leads some participants and commentators to undervalue claimant control over settlement decisions. In the wake of the rejection of asbestos settlement class actions in Amchem and Ortiz, mass tort litigators have pushed the ethical envelope in their efforts to achieve peace without class certification. In particular, I suggest that the mandatory recommendation and attorney withdrawal provisions of the Vioxx settlement were overreactions to the problems of the fen-phen settlement class action.

asbestos, mass tort, litigation, settlement, Amchem, Vioxx, fen-phen

Abstract:
When defendants settle litigation involving multiple plaintiffs, they often insist that they will settle only if they obtain releases from all or nearly all of the plaintiffs in the group. Judges, lawyers, and academics largely accept the drive for comprehensive settlements as a given, and many embrace such settlements as a positive goal. All-or-nothing settlements, however, create uncommon pressures and opportunities for abuse. Exploring a number of recent mass settlements that have led to disciplinary proceedings, civil litigation, and criminal prosecutions, this article shows the pressures and opportunities that arise out of defendants' insistence on bringing all claimants into a deal.

The article describes seven types of ethical problems created by demands for fully inclusive settlements. First, all-or-nothing settlements create client-client and lawyer-client conflicts of interest. Second, such settlements exacerbate problems concerning the allocation of settlement funds, including incentives to misallocate. Third, they create a risk of strategic hold-outs as savvy clients may attempt to extrt additional money by withholding consent. Fourth, they create an incentive for lawyers to keep settlement money in reserve as a slush fund to ensure full participation, leading to problems of misallocation and client deception. Fifth, they generate loyalty problems by pressuring lawyers to withdraw from representing non-settling clients. Sixth, they create special problems concerning clients’ informed consent to aggregate settlements. And seventh, they introduce a risk of collusion as the interest of plaintiffs’ counsel aligns with the defendant’s interest in getting every plaintiff to sign on to the deal. Although all-or-nothing settlements provide peace for defendants and value for claimants, the troubles they engender suggest that the current love affair with comprehensive settlements - evident in academic writings, judicial pronouncements, and defendant demands - should be tempered by a realistic appreciation of the ethical downside.

aggregate settlement, mass settlement, global settlement, mass tort, fen-phen, Vioxx, Nextel, non-class aggregation, class action

Abstract:
Even when related claims are not formally aggregated through any procedural mechanism such as joinder, class action, consolidation, or multidistrict litigation transfer, the lawyers involved in the separate lawsuits often work closely together. They coordinate their efforts to such an extent, in many cases, as to amount to a treatment of the litigation as a single, integrated whole. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship.

The article examines this phenomenon of lawyer coordination in related lawsuits. As an ethical matter, the central question is whether a lawyer, by virtue of coordinated efforts with another lawyer, owes any ethical or fiduciary duties to that other lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, the article suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection to such clients, and the problem is inherent in the nature of informal aggregation. Written cooperation agreements, however, alleviate some of the risks. As a procedural matter, a critical question is whether counsel coordination provides a valid basis for nonparty preclusion. The article considers the "virtual representation" argument that nonparties may be bound by a judgment if the lawyers worked closely together, and concludes that informal aggregation generally cannot justify binding a nonparty with a judgment.

Based on the inadequacy of ethical safeguards and lack of nonparty preclusion, combined with the decline in litigant autonomy that accompanies counsel coordination, the article contends that the rise in informal aggregation suggests the need for more thorough formal mechanisms for aggregating related claims, or at least, greater attention to formalizing counsel coordination through written agreements that make explicit the relationships among lawyers, clients, and lawsuits.

informal aggregation, joinder, complex litigation, counsel coordination, virtual representation, nonparty preclusion, joint defense

Abstract:
In both the Microsoft antitrust litigation and the tobacco products liability litigation, government lawsuits broke down the barriers of seemingly invulnerable defendants, and private lawyers pursuing class actions against the same defendants benefited from the government successes. This phenomenon-class actions that ride the coattails of government litigation-extends well beyond Microsoft and tobacco, and raises questions about the proper spheres of government and class action litigation. The article explores coattail class actions and related developments in Microsoft, tobacco, and other recent litigation involving widespread harm. There is nothing inherently problematic about such class actions, but certain features of recent government lawsuits and class actions should be examined in light of the divergent duties and incentives of government and class action lawyers. The article suggests that government lawyers should consider the public value of discovered information and the impact of settlement agreements that compromise private litigants' remedies or procedural mechanisms. It also argues that contingent fees are generally inappropriate for government retention of private litigators. Finally, the article shows that prior government litigation substantially increases the likelihood of successful prosecution of a class action, but in some cases it should reduce the likelihood or amount of punitive damages, as well as the amount of fees awarded to class counsel.

tobacco, Microsoft, class actions, government lawyers

Abstract:
This Foreword introduces the papers of the 2009 Fordham Law Review symposium, Against Settlement: Twenty-Five Years Later. The symposium reconsiders the arguments in Owen Fiss's 1984 article, Against Settlement, The Foreword explores two themes. First, it asks whether the values urged by Fiss may be achieved only by adjudication, or whether those same values may be advanced through negotiated resolutions. Second, it examines the surprisingly hard-to-define border between adjudication and settlement in contexts that involve judicial supervision of settlements.

Abstract:
This chapter of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (T. Lytton, ed., U. Michigan Press 2005) examines the activists, politicians, and trial lawyers on the plaintiffs' side in the municipal gun suits, and how their converging and diverging interests drove the litigation. Like the state tobacco litigation, the gun litigation involved public entities that turned to mass tort plaintiffs' lawyers to supply the experience and resources to pursue difficult and expensive litigation. And like tobacco, it involved mass tort lawyers who, frustrated in their attempts to use class actions, turned to government lawsuits as an alternative means to aggregate claims. But the gun litigation presented a unique set of alliances and rifts, in which gun control advocates disagreed among themselves concerning trial strategy, mayors with different political ambitions pursued different litigation paths, and private lawyers found themselves embraced by some municipal plaintiffs and eschewed by others.

In New Orleans, for example, a coalition of mass tort plaintiffs' lawyers, rebounding from disappointment in the tobacco litigation, saw their interests converge with a gun-control mayor at a moment of political opportunity, and with a public interest advocacy group whose constituency shared an interest in pursuing the product defect strategy favored by the mass tort lawyers. In Chicago, by contrast, government lawyers brought a law enforcement mentality to the litigation and pursued a public nuisance theory, using government resources and pro bono counsel rather than private contingent fee lawyers. Among activists and law enforcers, despite sharing a common agenda on gun control, important differences emerged on how to approach the litigation, depending on whether they saw the core problem as inner city violence or accidental shootings and unauthorized users.

The story of private plaintiffs' lawyers in the public gun litigation suggests several themes concerning public policy mass torts: the convergence of activists, politicians, and trial lawyers, and the different mindsets they bring to litigation; the use of public entity lawsuits as an aggregation mechanism by mass tort lawyers; and the entrepreneurial mindset of mass tort lawyers. Closer examination of the gun litigation, however, reveals the difficulty applying generalizations across a spectrum of mass torts. Public policy mass torts bring together three major categories of players on the plaintiffs' side, but in the gun litigation, the noteworthy fault lines appeared within these groups as often as they appeared between them. The split between politicians at the city and state level, and the split between public nuisance advocates and product liability lawyers, proved as significant as the more obvious differences between activists, politicians, and trial lawyers.

gun litigation, mass tort, plaintiffs' lawyers

Abstract:
Whose law should govern the claim preclusive or issue preclusive effect of a judgment from one jurisdiction in subsequent litigation in another jurisdiction? The article examines the problem of choice of preclusion law, focusing on the impact of preclusion law variations on the course of litigation. First, the article considers the effect of preclusion law on the behavior of litigation participants, and concludes that preclusion law affects many significant strategic decisions, particularly at the forum of the prior action (F1). The article then shows that preclusion rules vary from one jurisdiction to another, much more than most lawyers would suspect. Finally, the author examines how courts in fact treat the interjurisdictional effect of judgments, focusing on the federal-state configuration, and finds that state courts most often reflexively apply their own preclusion law rather than the law of F1. Given the importance of preclusion law to litigation behavior at F1, and the need for a clear rule determinable at the time of the original action, the author argues that the preclusive effect of a judgment, with rare exceptions, should be governed by the preclusion law of the jurisdiction that rendered the judgment.