The unfairness of settlement class action lawsuits

Type :

Presentation

Pages :

6 pages

Format :

.doc

Published date :

01/09/2009

Category :

Law & contracts

Sub category :

Civil law

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Summary :

Introduction.
The source of the ethical challenges and difficulties surrounding settlement.
1. Rule 23 of the Federal Rules of Civil Procedure.
2. Rule 23 in settlement class actions.
3. The forfeiture of a hearing upon settlement which creates a problematic situation.
The case of General Motors.
The three major positions taken on settlement classes.
1. Settlement classes are beneficial and should be encouraged.
2. Settlement classes are bad policy.
3. Settlement classes are unconstitutional.
Countering the Third Circuit decision.
The flawed exception that is applied to settlement class certifications.
Going forward without litigants being involved.
Conclusion.

Abstract

When settlement class action lawsuits followed the rise of mass tort class actions and gained acceptance, they eliminated the ability of plaintiffs' counsel to represent cases fairly, threaten trial as a bargaining tool or protect future plaintiffs from attorney conflicts of interest. This created a tension between protecting the rights and claims of the clients and created such a disadvantage in bargaining that attorneys representing members of a settlement class action were sometimes tempted to collude with the defendants' counsel in order to compensate for the inherent disadvantage in the interaction. Two minor ethical issues that arise in class action lawsuits involve marketing in order to recruit members of a class and how best to work with the "no contact" rule, however, the primary areas of legal ethics that need to be discussed are settlements and conflicts of interest. Much of this stems from the fact that settlement class actions are constructed merely to be settled and not to be litigated (Pastor 774). The subject is of interest because the problems that become obvious are similar to the problems that class action lawsuits were designed to prevent.