The New Class Action Rule: Procedural Reforms in an Ethical Vacuum
24 Pages Posted: 5 Sep 2019
Date Written: 2005
The Washington Post has editorialized that “[n]o portion of the American civil justice system is more of a mess than the world of class actions” — a sentiment shared by many judges, academics, politicians, and ordinary Americans. With the need for reform evident, the Advisory Committee on Civil Rules, in May of 2002, recommended the approval of proposed amendments to Rule 23, the Federal Rule of Civil Procedure regulating class action lawsuits. The amendments, the first major changes to the class action rule since 1966, came into effect on December 1, 2003.
The class action is a procedural device that permits an individual to bring a civil lawsuit on behalf of a large number of similarly situated individuals. The resolution of the class action, by trial or settlement, binds all members of the class, present or absent. Like party joinder, the class action aims to promote judicial economy by resolving the claims of multiple plaintiffs together as a class, rather than separately through multiple lawsuits as individuals. The gains in judicial efficiency, however, come at a cost to class members: the loss of individualized representation and control. By their nature, class actions are controlled by class action lawyers. This control has allowed some lawyers to use class actions to enrich themselves at the expense of their clients, the individual class members. Absent any meaningful monitoring by class members, class attorneys are free to operate largely on self-interest, subject only to the restraints of judicial oversight and ethical responsibilities.
The new class action rule attempts to prevent these abuses by empowering the class members and the court. While the new rule enhances the ability of the court and class members to detect and prevent collusion and self-dealing on the part of class action lawyers, standing alone, the new rules will not prevent future abuses of the class action device. This Note instead reiterates the need for enforceable ethical rules specifically tailored for class action lawyers to tackle the many abuses associated with class actions.
Keywords: class actions, litigation, civil procedure
JEL Classification: k4, K41, K42, K13
Suggested Citation: Suggested Citation