Lawyers On Auction – Protecting Individual Class Members
58 Pages Posted: 28 Jan 2020 Last revised: 29 Jan 2020
Date Written: January 25, 2020
A plethora of case law and academic writings shows that class attorneys often walk away from class settlements with a hefty fee, while class members receive illusory benefits. Class counsel may intentionally sell out class members by agreeing to a suboptimal settlement in return for in-creased fees. Alternatively, class counsel may genuinely miscalculate the best attainable settlement. In both cases, the mechanisms currently in place to protect class members fail miserably.
This Article develops a simple solution: once a settlement is reached by original class counsel, appointment as class counsel is auctioned. The minimum bid is the fee defendant agreed to pay class counsel. The highest bidder pays original class counsel, and is appointed as new class counsel. She may then renegotiate a settlement with the defendant or adjudicate the case, as she deems appropriate, with a single limitation: the ratio between class counsel’s fees and the class’s recovery remains as it was in the original settlement. If the class’s recovery is not increased, new class counsel will have gained nothing. However, if the original settlement is inadequate, purchasing appointment as class counsel automatically becomes a lucrative investment opportunity. The more egregious the inadequacy, the more profitable it is to be appointed as new class counsel. Consequently, every class settlement will effectively be monitored by countless would-be class counsel rather than by a single ill-equipped court. The mechanism is immune to manipulation by the settling parties. A costless mechanism solves the most formidable problem of mass litigation.
Keywords: Class Action, Class Settlements, Civil Procedure, Mass Litigation
JEL Classification: K40, K41, K49
Suggested Citation: Suggested Citation