Class Action Settlements, Opt-Out and Class Closure: Fiduciary Conflicts

(2017) 11 Journal of Equity 319

27 Pages Posted: 24 Jul 2018

See all articles by Simone Degeling

Simone Degeling

University of New South Wales, Australia - Faculty of Law

Michael Legg

University of New South Wales (UNSW) - Faculty of Law

Date Written: May, 2017

Abstract

The opt out and class closure procedures used in Australian Federal Class actions may involve a course of dealing likely to constitute the representative party's lawyer a fiduciary for group members. We observe that the conflicts between obligations owed to multiple parties and between self-interest and duty risks fiduciary breach for the lawyer. This risk arises irrespective whether class closure is combined with an opt out procedure or stands alone. Therefore, we tentatively suggest that achieving class closure by redefining the class, and potentially obtaining informed consent to any conflicted engagement, may be the preferred option.

Keywords: Fiduciary Duties, Class Actions

Suggested Citation

Degeling, Simone and Legg, Michael, Class Action Settlements, Opt-Out and Class Closure: Fiduciary Conflicts (May, 2017). (2017) 11 Journal of Equity 319, Available at SSRN: https://ssrn.com/abstract=3204002

Simone Degeling (Contact Author)

University of New South Wales, Australia - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

Michael Legg

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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