Litigating and Settling Class Actions: The Prerequisites of Entry and Exit

Abstract

John Oakley has entitled the panel discussion, and now this symposium, "Summing Up Procedural Justice: Exploring the Tension Between Collective Processes and Individual Rights in the Context of Settlement and Litigating Classes." Under this rubric we could be discussing an array of topics, but given that this conversation takes place in the winter of 1997 among a group of proceduralists, our attention has been drawn by proposed revisions to the 1966 class action rule and by pending and vivid case law examples (including Georgine, Ahearn, and GM Trucks) of class action practice, doctrine, and aspirations. The issues come packaged under headings like "futures classes" and "settlement classes" and the controversy has become heated—with accusations of collusion, attorney self-interest, and judicial acquiescence in or support of unfair settlements. In this heat, issues become conflated that need to be disentangled; examples stemming from cases claimed to be typical may themselves be only a part of a diverse and variable lot. Neither rulemaking nor commentary on procedure should be driven by that which grabs attention unless we can be confident that the vivid example is paradigmatic of the set. Thus, while I share concerns about the equity and quality of certain class action (and other) settlements and about the processes that generate them, I am also concerned about a reaction to these instances that disables class action litigation rather than attempting to constrain particular distressing manifestations.