Posner and Class Actions

15 Pages Posted: 3 Jan 2019 Last revised: 9 Jan 2019

See all articles by Daniel M. Klerman

Daniel M. Klerman

University of Southern California Gould School of Law

Date Written: January 2, 2019


The hallmark of Judge Posner’s class action decisions is rigorous review to ensure that aggregate litigation serves the best interests of class members and does not unduly pressure defendants to settle. Although he championed class actions, especially as a way to provide efficient justice in cases involving numerous small claims, Posner also recognized that, because of the agency problems that pervade class action litigation, ordinary adversary procedures were not sufficient to protect class members. As a result, the judge had to act as a fiduciary for the class, especially when approving settlements and fee awards. In addition, the colossal liabilities potentially imposed by a class action meant that a defendant might settle, even if the case had little merit, so judicial scrutiny, in particular interlocutory appellate review of certification decisions, was necessary to protect defendants. The influence of Posner’s opinions can be seen in the FRCP, especially the drafting of Rule 26(f), which, following Posner’s opinion in Rhone-Poulenc, allowed interlocutory review of certification decisions. Citation analysis also confirms Posner’s influence on the analysis of class actions, especially outside the Seventh Circuit and in academia.

Keywords: class action, Posner, agency costs, economic analysis, FRCP

JEL Classification: K40, K41, K42, K49

Suggested Citation

Klerman, Daniel M., Posner and Class Actions (January 2, 2019). University of Chicago Law Review, 2019 Forthcoming, USC CLASS Research Paper Series No. CLASS19-1, USC Law Legal Studies Paper No. 19-1, Available at SSRN: https://ssrn.com/abstract=3309338

Daniel M. Klerman (Contact Author)

University of Southern California Gould School of Law ( email )

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