Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard

Abstract

This paper is an inquiry into the proper standard for dealing with conflicts of interest in class actions. It proposes a simple approach to guide analysis: a conflict of interest should be deemed impermissible if a reasonable plaintiff, operating under a veil of ignorance as to his or her role in the class, would refuse consent to the arrangement. The standard proposed here can be termed a "hypothetical consent" principle. It substitutes a thought experiment in which consent is given or withheld under stylized conditions for the actual consent that is required in ordinary litigation. By placing the reasonable plaintiff behind a veil of ignorance as to his or her position in the class, the hypothetical consent idea allows representation to go forward even when some class members will be relatively better off and some worse off as the case develops. This approach can provide useful guidance both for the interpretation of counsel's duties under applicable rules of professional responsibility and also for courts deciding whether to certify class actions or approve class action settlements.