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The Problem of Settlement Class Actions

39 Pages Posted: 2 Apr 2013 Last revised: 12 Jul 2014

Howard M. Erichson

Fordham University School of Law

Date Written: June 14, 2013

Abstract

This article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread “settlement class action” practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions. Rather, this article contends that if a dispute is to be resolved on a classwide basis, then the resolution should occur after a court has found the matter suitable for classwide adjudication regardless of settlement.

Keywords: settlement class action, Amchem, AIG, DB Investments, reverse auction, monopsony, Rules Enabling Act, Rule 23, class settlement

Suggested Citation

Erichson, Howard M., The Problem of Settlement Class Actions (June 14, 2013). 82 George Washington Law Review 951 (2014); Fordham Law Legal Studies Research Paper No. 2243155. Available at SSRN: https://ssrn.com/abstract=2243155 or http://dx.doi.org/10.2139/ssrn.2243155

Howard M. Erichson (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
646-312-8233 (Phone)

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