subscribe: Posts | Comments

Avoiding Death by a Thousand Cuts: The Relitigation of Class Certification and the Realities of the Modern Class Action

Comments Off

One of the most serious pathologies of the modern class action is the danger of serial attempts to certify a class action. Because the bar of res judicata traditionally applies solely to the parties who had their day in court, it is easy for class action attorneys to seek certification for a never-ending parade of identical class actions, simply by changing the named plaintiffs, who, for purposes of certification, are completely fungible. As a result, the potential for redundancy, inefficiency and harassment of potential class defendants is all but unstoppable, effectively forcing defendants to settle class actions which may well fail on the merits.

In Smith v. Bayer, the Supreme Court did little or nothing to mitigate the problem. Instead, it simply assumed that the enactment of the Class Action Fairness Act (CAFA) will obviate the problem by authorizing removal to federal court of class actions brought in state court. But the Court grossly overstated the impact of CAFA on this serious problem.

This Article proposes a solution to the problem of serial certification attempts by reconsidering the underlying DNA of the modern class action. In so doing, this Article explains the important differences between the nature of the attorney-client relationship in traditional litigation on the one hand and in the modern class action, on the other. These factors leads to re-characterizing the modern class action as a form of “guardianship” litigation model. In effect, the class attorneys operate as the litigant, acting on behalf of the interests of the absent class members. The modern class action, then, represents a form of what can be labeled “capitalistic socialism” — class attorneys work to redistribute wealth to those whom they represent, out of what are often purely capitalistic motivations.

 

pdf

Download Full Article