Life After Amchem: The Class Struggle Continues, page 10

Life After Amchem (continued)

Page 10

Ironically, class membership may afford more individual treatment than does individual representation. Class members receive notice of reports concerning important events in the litigation. Class members have representative plaintiffs who are like themselves and who act as watchdogs of their interests. Class members' claims cannot be settled, released, or dismissed without court review and approval. Class members' lawyers cannot be paid more than a reasonable fee under all the circumstances. Class members can come to court without counsel to comment and object. "Individually represented" inventory plaintiffs should be so lucky.

There is something inherently appealing in the traditional model of an individual client whose unique interests are zealously protected by a dedicated advocate. But much to the favor of defendants, this tradition does little to empower plaintiffs in a mass tort setting. Moreover, in the typical "opt-out" class action, those who wish to have such representation have a right to it. In fact, they may choose among: (1) class memberships with representation by class counsel, (2) class membership with representation by counsel of their own choosing, or (3) exclusion from the class for pursuit of their individual claims.³⁹ If the courts view Amchem as a license to deny class treatment, mass tort victims will be deprived of this choice, and we might as well declare defendants the winners at the outset of each litigation, regardless of the merits.

Ultimately, the Amchem settlement failed because of judicial concern for the interests of the class members, perception of intra-class conflict, and inadequate representation.⁴⁰ But who checks for adequacy of representation or conflict among the units in a plaintiff lawyers' inventory? Traditional aggregation disenfranchises claimants who have no direct recourse to the court and whose representation occurs largely beyond judicial control. The subtext of Amchem is that the settlement was disapproved not because it was packaged as a class action, but because, in the view of the courts, the class members' rights were traded away for the inventory plaintiffs' benefit. It would be a shame if Amchem, decided upon the best principles of class representation, were applied to deprive mass tort victims of the opportunity for class membership.

III. STATE COURTS: THE HEIRS OF EQUITY

Unfortunately for those in the federal judiciary and those who practice in the federal courts, state courts will increasingly take the leading role in fulfilling Amchem's equitable precepts. Perhaps Amchem itself, properly understood and applied, will reverse this trend and restore to the federal courts the confidence and courage needed to exercise their inherent equitable jurisdiction to bring judicial access and fair compensation to those unselfconscious and amorphous legions whom the hyper-technical, rule-bound, and inequitable interpretation of the class action rule has consigned to litigation by lottery.

1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17

NOTES

³⁹ See FED. R. CIV. P. 23(b)(3), (c)(2).

⁴⁰ See Amchem, 117 S. Ct. at 2251-52.