“Fairness” in Class Action Litigation Act of 2017

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By Elizabeth Chamblee Burch

With House Bill 985 (the “Fairness” in Class Action Litigation Act of 2017), the controversy over current class action practice has escalated.

Now that we have 50 years of class action practice under our belt, we know that practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes.  The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem—information barriers confront judges, objectors, and even reformers.

Rule 23’s answer is to empower objectors.  At best, objectors are a partial fix.  They step in as the adversarial process breaks down in an attempt to resurrect the information-generating function that culture creates.  And, as the proposed changes to Rule 23’s handling of objectors reflect, turmoil exists over how to encourage noble objectors that benefit class members while staving off those that namely seek rents from class counsel. 

Our class-action scheme is not the only one that relies on private actors to perform public functions: citizens privately fund political campaigns, and private lobbyists provide research and information to lawmakers about public bills and policies.  Across disciplines, the best responses to those challenges have often been to level up, not down.  As such, this Essay proposes a leveling up approach to address judges’ information deficit such that they can better perform their monitoring role.  By relying on public funds to subsidize data collection efforts and nonprofit objectors’ information-gathering function, we can disrupt private class counsel’s disproportionate influence.  

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