Class Action Objectors: The Good, the Bad, and the Ugly

Abstract

When litigants reach a class action settlement, they usually present a unified front in seeking judicial approval of the settlement. Plaintiffs’ counsel, the class representatives, and the defendant are typically on the same page regarding the fairness of the settlement and the maximum amount of attorneys’ fees to be paid. Before a settlement is approved, class members (or putative class members when the case has not yet been certified) have the opportunity to object. In many class actions, especially highly publicized ones, myriad objections are filed, some by counsel representing one or more individual class members and others by individual class members pro se. But not all objectors and objections are of equal value. The Good, the Bad, and the Ugly is not just a classic Clint Eastwood/Sergio Leone movie from 1966; it is also an accurate categorization of the kinds of objectors that frequently appear during the class settlement approval process.

Good objectors offer thoughtful and potentially meritorious objections that engage the court and require substantive responses from the parties, possibly improving the settlement for the class. Bad objectors raise objections that are insubstantial, making arguments that have no chance of persuading either the district court or an appellate court to reject the settlement based on the applicable law and facts. Often filed pro se by class members who have no legal training or background, bad objections are a necessary byproduct of a system that actively encourages objections—including objections by non-lawyer class members. Finally, ugly objectors raise objections not to improve the settlement but to extort payments from class counsel in exchange for dismissing their objections. Such objectors do not even arguably serve a legitimate purpose.

In this article, I examine all three kinds of objectors and offer two principal approaches for addressing them. First, parties may use summary affirmance to seek a prompt resolution, without full briefing or oral argument, when the objector’s appeal is plainly meritless. Second, through expedited review a court can accelerate the briefing schedule (and possibly dispense with oral argument) to consider potentially meritorious objections when there is a critical need to distribute recovery to class members quickly.