Abstract

http://ssrn.com/abstract=163835
 
 

Citations



 


 



I Cut, You Choose: The Role of Plaintiffs' Counsel in Allocating Settlement Proceeds


Charles Silver


University of Texas at Austin - School of Law

Lynn A. Baker


University of Texas School of Law


Virginia Law Review, Vol. 84, P. 1465, 1998

Abstract:     
This article examines the role that attorneys for plaintiffs can properly play in structuring settlements of cases that involve numerous clients or absent class members. The practical points of departure are (1) the U.S. Supreme Court's recent decision in Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231 (1997), which sets out due process standards for adequate representation in class actions, and (2) ethics rules such as the aggregate settlement rule that govern the conduct of attorneys with multiple clients. The analytical centerpiece is the insight that all multiple-client representations and class action involvements require plaintiffs' attorneys to incur and resolve conflicts of interests on many occasions. Conflict arise when attorneys are developing claims for litigation and when they are negotiating settlements. Because conflicts are inevitable, the authors contend that Amchem's "no conflicts" rule sets an impossible standard for adequacy of representation. An alternative "mimic the market" approach would allow class counsel to incur and resolve conflicts in class actions in the same circumstances where attorneys do so in mass actions where they represent clients subject to engagement agreements. This implies, among other things, that class counsel should have reasonable discretion to negotiate and propose plans for allocating settlements among absent plaintiffs.

Accepted Paper Series





Not Available For Download

Date posted: June 23, 1999  

Suggested Citation

Silver, Charles and Baker, Lynn A., I Cut, You Choose: The Role of Plaintiffs' Counsel in Allocating Settlement Proceeds. Virginia Law Review, Vol. 84, P. 1465, 1998. Available at SSRN: http://ssrn.com/abstract=163835

Contact Information

Charles M. Silver (Contact Author)
University of Texas at Austin - School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1337 (Phone)
512-232-1372 (Fax)
Lynn A. Baker
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
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