Class Action Dilemmas: The Ethics of the Canadian Dram Settlement

Abstract

The recent DRAM settlement in Canada reveals that normative confusion remains about the role of the class action lawyer, the identity of her clients, and the duties owed to them. In this paper, I describe the settlement and in particular, the distribution protocol that gave rise to a legal challenge by five objecting class members. I critique the September 2015 judgment of the court that held human rights legislation is not applicable to class action settlements, and highlight the procedural idiosyncrasies of class actions made evident by the DRAM case, and that have important ramifications for legal ethics. The settlement illustrates the challenges in identifying the content of class counsel's role morality, and may well necessitate a shift in our thinking of what constitutes ethical conduct in the class action context.

Keywords: class action, settlement, legal ethics, human rights

JEL Classification: K10, K41