The Case Against Changing the Aggregate Settlement Rule in Mass Tort Lawsuits
Nancy J. Moore
Boston University School of Law
South Texas Law Review
While mass torts were initially considered inappropriate for some forms of collective treatment, including class actions, a consensus has emerged calling for substantial modifications in traditional court processes in mass tort lawsuits, including the availability of the class action device. The early enthusiasm for the use of class actions in mass tort litigation has waned in the wake of numerous criticisms, including faulty incentive mechanisms for class action lawyers. Nevertheless, commentators continue to advocate the use of class actions and other collective mechanisms in mass tort lawsuits, urging the adoption of various reforms. Among the reform proposals are those focusing on lawyer ethics, rather than procedure. In particular, commentators urge flexibility in the application of ethical rules that appear to limit either the availability or efficacy of aggregate lawsuits, i.e., those in which individual lawyers or law firms represent numerous individuals whose claims arise out of the same incident or series of incidents. According to some of these commentators, the aggregation of individual claims, unlike class actions, involves the formation of consensual relationships between tort victims and their lawyers, thereby giving victims the ability to exercise more control than is possible in the class action context. While these commentators concede that group lawsuits are far from ideal, they claim they are better than either class actions or individual lawsuits, but only if various obstacles in the form of ethical rules are eliminated.
This paper challenges the view that any widespread reform of traditional law ethics is either necessary or desirable. The author concludes first, that commentators label as "mass torts" too many cases in which the stated rationale for proposed special exemptions is totally lacking. Second, these commentators fail to recognize that the traditional rules are already more flexible than is often suggested and that t his flexibility can do much to accommodate the legitimate needs of clients. Finally, where existing rules do pose insurmountable obstacles to aggregate representation (including aggregate settlements), the author argues that the case has not yet been made that these rules should be changed in order to further facilitate collective action in mass tort litigation.
Date posted: March 22, 2000