Howard M Erichson and Ethan J Leib, ‘Class Action Settlements as Contracts?’, 102 North Carolina Law Review (forthcoming 2023), available on SSRN. For the traditional civil proceduralist and legal ethicist, much of class action law is fitting a square peg in a round hole. Few of the principles or rules developed in the context of bilateral relationships apply neatly in representative litigation. For example, rules of conduct are ill-suited to the sui generis relationship class attorneys enjoy with the lead plaintiff and with the class. Cy près remedies common in class settlements provide for relief – payment to a non-party – that the underlying substantive law does not authorize. The presence of absent class members complicates the doctrine of standing, while the opt-out system disrupts expectations of basic due process rights. Add to this list the class action settlement. Its unique nature has to date been undertheorized and underexplored, although the features that distinguish class actions from their two-party counterparts are more pronounced at settlement: a deal binds absent class members who had no power to instruct counsel and no say in the deal’s terms. In these circumstances, is a settlement agreement a ‘contract’ and should disputes arising from the settlement be resolved by resort to strict contract law principles? … (more)
[Jasminka Kalajdzic, JOTWELL, 3 November 2023]
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