Governance and Legitimacy in the Law of Class Actions

Abstract

The law of class actions has emerged prominently in the Supreme Court?s docket in the past few Terms through repeated confrontations with the relatively recent emergence of the settlement class action. In the three leading cases, Matsushita v. Epstein, Amchem v. Windsor Products, and Ortiz v. Fibreboard, the Court has traced an uncertain line between the efficiency mandates of aggregate dispute resolution and the fairness concerns of the absent class members. Because each arose in the settlement context there is a blurring of what should be two distinct questions in the class certification context: the necessity of class treatment to overcome collective action barriers to the prosecution of perceived group harms, and the question of who should control the class action and under what terms. Because these two questions are addressed jointly as part of the certification inquiry, courts have had great difficulty separating out their particular attributes.

This article argues that a specific focus on the governance of the class action brings into sharper relief the core difficulty in the functional analysis developed by the Court in Amchem and Ortiz. In attempting to control abusive class action practice from within the loose standards of Rule 23 of the Federal Rules of Civil Procedure, the Court identifies rather than fully explains the potential mischief in the class action settlements it condemns. By focusing more clearly on these cases as governance problems, the Court?s analysis may be reconceptualized as a classic principal-agent problem in which there are insufficient checks on opportunistic or self-serving behavior by the agents. This approach rejects the Court?s retreat in both Amchem and Ortiz to rule-based formalism focusing on the technical requirements and the amendment process for Rule 23. Instead, Amchem and particularly Ortiz are analyzed as extremely positive developments of a due process based analysis for the law of representative actions. This due process approach rests the propriety of class certification on the guarantees of loyalty of the agents for the absent class members (first and foremost class counsel) to those whose rights must ultimately be adjudicated in absentia. By contrast to the rule formalism evident in both Amchem, with regard to the technical requirement of manageability for certification under Rule 23(b)(3), and Ortiz, concerning the requirement of a truly limited fund for certification under Rule 23(b)(1), both opinions also apply a highly functional analysis to the adequacy of representation determination of whether the absent principals were loyally served by their agents. In turn, while adequacy of representation is part of the rule-based certification inquiry under 23(a)(4), this article suggests that once the governance issue is examined independently, it forms part of a robust due process tradition linking the current class action cases to more distant predecessors such as Hansberry v. Lee and Martin v. Wilks.

Note: An earlier version of this article was announced as Columbia Law School, Public Law and Legal Theory Working Paper No. 4