Secret Class Action Settlements
55 Pages Posted: 20 Jan 2012 Last revised: 18 Dec 2012
Date Written: January 19, 2012
This Article analyzes the phenomenon of secret class action settlements. To illustrate the practice, Part I undertakes a case study of a class action lawsuit that recently settled under seal. Part II seeks to ascertain the scope of the practice. Part II.A examines newspaper accounts describing class action settlements from around the country. Part II.B focuses on a single federal judicial district – the Western District of Pennsylvania – and seeks to ascertain the percentage of suits filed as class actions that were settled under seal. Having gained some understanding of the scope of the practice, the Article then seeks to assess it normatively. Part III analyzes the policy debate surrounding secret settlements of civil suits in general, fleshing out the competing policy objectives served by public access to, and confidentiality of, settlement agreements. Finally, Part IV examines the statutory, logistical and policy-based constraints that call into serious question the legality, efficacy and wisdom of secret class action settlements.
Keywords: class action, secret, secrecy, settlement, confidential, confidentiality, protective order, seal, sealed, litigation, Fair Labor Standards Act, FLSA, Rule 23, collective action, empirical
JEL Classification: K19, K40, K41, K49
Suggested Citation: Suggested Citation