Life After Amchem: The Class Struggle Continues, page 9

Life After Amchem (continued)

Page 9

The majority's dissatisfaction with the settlement is palpable throughout the opinion; the Third Circuit was equally merciless on the merits. Both decisions attempt to focus their discussions on the settlement's purported straying beyond the boundaries of Rule 23. The Amchem settlement was criticized incessantly by academics and lawyers from the date of its preliminary approval through the date of its ultimate demise. While unquestionably unique, the settlement became the centerpiece of discussion in a hundred seminars on mass tort class actions. It was the high-profile exception that would test -- and in the hopes of some, revoke -- the Rule.

With the possible exception of Amchem's sister, Ahearn, no other deal has been negotiated or approved under the same circumstances. Because the Amchem settlement was a bold departure from conventional settlement practice, the appellate decisions disapproving it should pose no threat to mass tort class action jurisprudence. Indeed, despite the pall which some perceived the Supreme Court's Amchem decision has cast upon the role of the class action in organizing, managing, structuring for trial, and resolving nationwide claims arising from defective products and consumer frauds, the language of Amchem itself reasserts the vital role of class actions in our modern consumer society.

While stopping short of embroidering "a mass tort is a class tort" on my underwear, I believe that more often than not, class membership offers better prospects for fair treatment and reasonable compensation than "traditional" aggregation regardless of the severity of the injury or the magnitude of the claim. As the Amchem decision's discussion of the asbestos litigation demonstrates, the alternatives for most mass tort claimants are not class membership or individual representation. The choice, if any, is between being part of a lawyer's "inventory" or part of a class. All things considered, I would rather be in a class. Attorneys' fees are lower and are directly regulated by the court. On this point alone, class membership can mean the difference between a forty percent contingent fee and a fifteen to twenty percent court-awarded fee.

In class actions, courts enforce the economies of scale: transaction costs are lower and more of every dollar paid by defendants translates directly into plaintiffs' recovery. In the main, entrepreneurial attorneys who gather large inventories of plaintiffs do not pass the savings to their clients. If clients do not receive truly individualized treatment by their attorney, they should not be required to pay for it. In class actions, courts not only regulate costs and attorneys' fees, but also regulate the conduct of attorneys and, again as demonstrated by Amchem, scrupulously guard the interests of class members. Sometimes, as Justice Breyer pointed out, this philosophy taken to the extreme defeats its practical purpose, and the best triumphs over the good. Nonetheless, in most instances, a mass tort victim will be better served by the combination of economy, efficiency, court scrutiny, and enforced standards that class actions alone possess.

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