Mass Settlement Rivalries

35 Pages Posted: 23 Aug 2014

Date Written: August 22, 2014


This article was written as part of the Twenty Seventh Annual Corporate Law Symposium at the University of Cincinnati.

Private attorneys in class actions and civil bankruptcies increasingly compete with federal prosecutors, agencies, and state attorneys general, for the same funds, from the same defendant, for the same harm, and often, on behalf of the same groups of people. To some, government attorneys offer less expensive and more accountable representation for victims of widely disbursed harm. To others, politically insulated private attorneys in class actions and bankruptcies offer more effective representation for parties. But few have examined the dynamic way public and private settlements impact each other when they are implemented at the same time.

This Article argues that dueling public and private settlements offer several potential advantages — including more efficient representation, more oversight, and more complete forms of compensation to different subgroups of victims. In their current form, however, settlement rivalries can fall short of these goals. Among other things, rival settlements: (1) may duplicate cases proceeding on separate tracks without coordinated judicial oversight; (2) introduce new uncertainty into litigation financing by unpredictably affecting the number of victims who ultimately participate in a class settlement, and accordingly, the fees that private attorneys recover; and (3) confuse unrepresented victims with separate, rival settlement offers. In this way, these new settlement rivalries share some of the same advantages and disadvantages once presented by rival class action settlements, where attorneys for putative class members competed in different courts to certify class actions for overlapping groups of people.

Accordingly, this Article recommends three reforms that tap settlement rivalries’ potential benefits. First, courts should formally or informally coordinate review over dueling public and private settlements. Second, courts should streamline notice and opt-out provisions to reduce victim confusion and unintended waivers of rights. Third, government lawyers should adopt the distribution guidelines proposed by the American Law Institute to consistently balance victims’ competing interests and reduce strategic behavior among parties.

Suggested Citation

Zimmerman, Adam S., Mass Settlement Rivalries (August 22, 2014). 82 University of Cincinnati Law Review, 381 (2013), Loyola-LA Legal Studies Paper No. 2014-37, Available at SSRN:

Adam S. Zimmerman (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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