Consumer Protection Settlements: Theory and Policy

36 Pages Posted: 24 Aug 2021

Date Written: July 30, 2021


Lawsuits have a deterrent effect, but this is mitigated if settlements are routine. Regulators and judges should consider that a firm contemplating predatory activity directed at financially unsophisticated individuals might have built an estimate of settlement costs into their analysis of the net present value of the “project.” This suggests that choosing not to settle to establish a precedent would be an appropriate regulatory policy, especially in cases involving egregious behavior. Hence, while private settlements may be Pareto optimal, this notion does not apply to public consumer protection class action settlements. Asymmetric information is a major factor in consumer protection litigation, but the consumer protection regulator has an information advantage; this can allow regulators to represent the class effectively. We develop these issues by considering theories of the settlement process in the context of a pivotal case. We provide suggestions for theoretical research on consumer protection class actions, an underdeveloped area of the literature.

Keywords: Asymmetric Information, Consumer Protection, Law and Economics, Legal Settlements, Mortgage Servicing

JEL Classification: G20, G21, G23, G28, K00, K10, K20, K23, K30, K42

Suggested Citation

McNulty, James E., Consumer Protection Settlements: Theory and Policy (July 30, 2021). Available at SSRN: or

James E. McNulty (Contact Author)

Florida Atlantic University ( email )

777 Glades Rd.
Boca Raton, FL 33341
United States
(561) 297-2708 (Phone)

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