Academic journal article The University of Memphis Law Review

Class Counsel, Self-Interest and Other People's Money

Academic journal article The University of Memphis Law Review

Class Counsel, Self-Interest and Other People's Money

Article excerpt


The uproar over class actions has been building for years. In the early 1990s, the Advisory Committee on Civil Rules of the Judicial Conference of the United States started an extensive study of class actions.1 As the years passed, with no significant revisions to general class action practice adopted, hostility toward the class action developed.2 Despite numerous efforts at reform, things are not getting any better. Hostility toward class actions appears to be driven by twin concerns: (1) the class action can be unfair to defendants,4 and (2) it can impinge on the interest of plaintiffs in pursuing strong individual claims.5

The thesis of this article is that Federal Rule of Civil Procedure 23, which governs class actions in federal court, as it functions today, fails, at least in part, because it is employed without regard to a proper view of human nature.6 A recognition of man's natural selfishness is part of the warp and woof of our legal system. James Madison famously demonstrated that the powers in the federal government must be separated by pointing out the need to guard against mankind's moral imperfection:

Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary.7

Madison went on to set up a complex structure of checks and balances that form our federal constitutional system. At every step, the framers were careful to check the power of men over other men.8 This article suggests that many of the widely recognized problems with class actions, as they are conducted today, stem from the law's failure to account for the fact that class counsel, while officers of the court, are men and women, not angels. Because class counsel are mere mortals, with all the attendant natural self-centeredness, the potential power of class counsel to benefit themselves at the expense of defendants and at the expense of their own clients must be checked, not merely redirected. Otherwise it will be wielded in the self-interest of counsel and to the oppression of both plaintiffs and defendants. To provide a background for this consideration, it is helpful first to outline the basic contours of the federal law governing class actions.


Class actions in federal court are governed by Rule 23 of the Federal Rules of Civil Procedure.9 To qualify for class certification under Rule 23, the party moving for certification first bears the burden of proving that the claimed class action satisfies each of four prerequisites of Rule 23(a)-numerosity, commonality, typicality and adequacy of representation.10 In addition to satisfying the prerequisites found in Rule 23(a), a plaintiff must be able to maintain a class action under one of the three "categories" found in rule 23(b).11 Rule 23(c) governs issues such as the class certification process, including notice to possible class members.12 Rule 23(d) outlines the power of the court to make "appropriate orders" in the conduct of class actions.13 Rule 23(e) covers settlement.14 Rule 23(f) addresses the discretion of a court of appeals to permit an interlocutory appeal concerning the "granting or denying of class action certification."15 Rule 23(g) concerns the appointment of class counsel,16 and Rule 23(h) covers the award of attorney's fees.17

A. Rule 23(a)

A class action must satisfy the four prerequisites found in Rule 23(a).18 The first two Rule 23(a) prerequisites-"numerosity" and "commonality"-have not been very formidable obstacles to class certification.19 Numerosity means simply that "the class is so numerous that joinder of all members is impracticable. …

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