Prospective Injunctive Relief and Class Action Settlements

52 Pages Posted: 8 Jan 2016

See all articles by Erin L. Sheley

Erin L. Sheley

University of Oklahoma - College of Law

Theodore H. Frank

Competitive Enterprise Institute

Date Written: January 6, 2016

Abstract

Despite much controversy and criticism, the class action is alive and well. In particular, the injunctive remedy, requiring the defendant to change some aspect of its business practice, has become a common feature of class action settlements. This article explores a taxonomically distinct remedial category of injunction that has, as of yet, not generally been considered by courts and scholars as such: the prospective injunctive remedy. We demonstrate how the prospective injunctive remedy operates and argue that, in light of the special policy and legal problems it creates, courts should observe a presumption against approving settlements that contain provisions for prospective injunctive relief. In Part I we show how the parties to a class action have, in general, no incentive to benefit either absent class members or society at large and therefore require courts to police them to ensure justice. In Part II we describe the public law underpinnings of prospective injunctive relief and provide three case studies of consumer class actions that demonstrate how and why courts fail to accurately police this relief in the private law context. We compare the approved relief in these cases to the regulatory regimes they disrupt to argue that courts in this way allow class action litigation to produce bad public policy. In Part III we explore the ways in which these prospective remedies likewise produce bad law: namely, through the inappropriate creation of regulatory preemption and the potential violations of attorney-client fiduciary duty, the adequacy requirement of Rule 23(a)(4), and constitutional standing requirements. In Part IV we consider counterarguments and in Part V we conclude.

Keywords: class actions, remedies, civil procedure, litigation, mass tort

Suggested Citation

Sheley, Erin L. and Frank, Theodore H., Prospective Injunctive Relief and Class Action Settlements (January 6, 2016). Harvard Journal of Law and Public Policy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2711834

Erin L. Sheley (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States

Theodore H. Frank

Competitive Enterprise Institute ( email )

1310 L Street NW
7th Floor
Washington, DC 20005
United States

HOME PAGE: http://cei.org/content/ted-frank

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