Some realism about mass torts

University of Chicago Law Review

Volumn 75, Issue 4, 2008, Pages 1949-1998

  Marcus, David ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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EID: 59549083449     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (327)

1. Peter Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 Cornell L Rev 941, 945-46 (1995). By the mid-1980s, DES had become the subject of many class actions.
2. See Collins v Eli Lilly Co, 342 NW2d 37, 45 (Wis 1984) (observing that approximately one thousand class action suits were pending at the time DES was banned). Agent Orange led to a class settlement of then-record-breaking proportions.
3. See In re "Agent Orange" Product Liability Litigation MDL No 381, 818 F2d 145, 171-74 (2d Cir 1987) (approving a $180 million settlement agreement that addressed an estimated 20,000 claims). The first major break in favor of asbestos plaintiffs came in 1973.
4. See Borel v Fibreboard Paper Products Corp, 493 F2d 1076, 1103 (5th Cir 1973) (affirming a jury verdict holding defendants liable for failing to warn of dangers from asbestos exposure).
5. Schuck, 80 Cornell L Rev at 944 (cited in note 1).
6. See id at 980 (explaining that the mass tort system is favorable to the available alternatives because it takes the valuable elements from a common law approach, is consistent with a contractual approach, and is likely to be more administrable than a bureaucratic approach).
7. One example in this respect is the various attempts to bring class actions against tobacco companies for injuries caused by purchasing and smoking cigarettes.
8. See Schwab v Philip Morris USA, Inc, 449 F Supp 2d 992, 1026-27 (EDNY 2006) (summarizing tobacco litigation cases).
9. See also In re Simon II Litigation, 407 F3d 125, 127-28 (2d Cir 2005) (decertifying nationwide punitive damages class action against tobacco companies);
10. Castano v American Tobacco Co, 84 F3d 734, 746 (5th Cir 1996) (decertifying nationwide class action against tobacco companies);
11. Robert L. Rabin, Tobacco Control Strategies: Past Efficacy and Future Promise, 41 Loyola LA L Rev (forthcoming 2008) (discussing a series of class action suits alleging nicotine addiction, fraud, and second-hand smoke injuries). Another example is the failed efforts to resolve asbestos liability in large settlements on behalf of nationwide classes.
12. See generally Ortiz v Fibreboard Corp, 527 US 815 (1999) (reversing the approval of class certification);
13. Amchem Products, Inc v Windsor, 521 US 591 (1997) (affirming the denial of class certification).
14. See, for example, Ortiz, 527 US at 846. Compare Samuel Issacharoff, "Shocked": Mass Torts and Aggregate Asbestos Litigation after Amchem and Ortiz, 80 Tex L Rev 1925, 1930 (2002) (criticizing this premise as "nostalgic" and a "halcyon" ideal out of sync with the reality of mass tort dispute resolution).
15. See David L. Shapiro, Class Actions: The Class as Party and Client, 73 Notre Dame L Rev 913, 931 (1998).
16. See also Part II.B.
17. For the standard account, see Francis E. McGovern, An Analysis of Mass Torts for Judges, 73 Tex L Rev 1821, 1842-43 (1995);
18. Francis E. McGovern, Resolving Mass Tort Litigation, 69 BU L Rev 659, 659 (1989).
19. See also Thomas E. Willging, Beyond Maturity: Mass Tort Case Management in the Manual for Complex Litigation, 148 U Pa L Rev 2225, 2251 (2000).
20. See, for example, John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum L Rev 1343, 1373-75 (1995).
21. 509 US 579 (1993).
22. See id at 587, 597 (adopting a standard requiring federal judges to ensure that expert scientific testimony admitted at trial is relevant and reliable as required under Federal Rule of Evidence 702).
23. 51 F3d 1293 (7th Cir 1995).
24. See id at 1296.
25. As Nagareda acknowledges (pp 44, 48), whether class certification causes or should take account of settlement pressure is a point in substantial dispute.
26. See, for example, Klay v Humana, Inc, 382 F3d 1241, 1275-76 (11th Cir 2004) (stating that settlement pressure is not a sufficient reason to overturn class certification);
27. Charles Silver, "We're Scared to Death": Class Certification and Blackmail, 78 NYU L Rev 1357, 1379-80 (2003) (questioning Posner's class decertification in In the Matter of Rhone-Poulenc after considering the settlements already entered into by the defendant).
28. See generally J.B. Heaton, Settlement Pressure, 25 Intl Rev L & Econ 264 (2005) (questioning the effectiveness of settlement pressure in litigation against corporate defendants). Nagareda addresses one response to the settlement pressure problem: pre-trial case management can protect a defendant, even in a certified class, from entering into unmerited settlements. He doubts that summary judgment can effectively sort out cases that deserve to settle from those that do not. Cases with a moderately low probability of success might meet the low threshold summary judgment sets but do not deserve to settle (p 51).
29. See also Richard A. Nagareda, Aggregation and its Discontents: Class Settlement Pressure, Class-wide Arbitration, and CAFA, 106 Colum L Rev 1872, 1891 (2006). But summary judgment is not the only shield the court can wield. In Wadleigh v Rhone-Poulenc Rorer, Inc, the district court certified for class treatment only issues pertaining to the defendant's negligence. 157 FRD 410, 423 (ND Ill 1994). The trial plan would have required individual plaintiffs to take the class verdict to their home jurisdictions; file suit; and litigate proximate cause, damages, and affirmative defenses one by one. In other words, plaintiffs had quite a long way to go before the specter of firm-shattering liability haunted the defendants.
30. See In the Matter of Rhone-Poulenc, 51 F3d at 1307 (Rovner dissenting). Arguably, the trial plan could have protected against cognitive biases created by proof of defendant's bad behavior and only allowed recovery if a plaintiff actually could prove causation.
31. See, for example, Hal R. Arkes and Cindy A. Schipani, Medical Malpractice v. the Business Judgment Rule: Differences in Hindsight Bias, 73 Or L Rev 587, 633-35 (1994) (showing how bifurcated trial plans can protect defendants against hindsight bias).
32. Whether the bifurcated trial plan would have spared the In the Matter of Rhone-Poulenc defendant from undue settlement pressure depends on whether the heart of the case lay with the core liability issues certified for class treatment or with the issues left for individual trials. The plaintiffs pursued a novel theory of liability, which if accepted by the class jury in the certified part of the case, would have greatly tipped the scales in the plaintiffs' favor. In the Matter of Rhone-Poulenc, 51 F3d at 1300-01 (describing the plaintiffs "serendipity" theory, which argued that defendants' failure to protect hemophiliacs from Hepatitis B made defendants liable for any consequences that such protection would have avoided). But, given the rejection by most jurisdictions of market share liability theories for blood factor defendants, and given the difficulty many blood factor plaintiffs had in showing which among the various blood factor companies manufactured the product that infected them, there is some reason to think that plaintiffs in individual trials would have had quite difficult times establishing individual causation.
33. See, for example, Doe v Baxter Healthcare Corp, 380 F3d 399, 408 (8th Cir 2004) (discussing the Iowa Supreme Court's rejection of the market share liability theory).
34. See also Andrew R. Klein, A Legislative Alternative to "No Cause" Liability in Blood Products Litigation, 12 Yale J Reg 107, 109 (1995) (observing that only one state supreme court and one federal district court applied market share theories to excuse plaintiffs from identifying which blood factor defendant infected them). If this was so, then perhaps the bifurcated trial plan could have at least lessened the intensity of any settlement pressure that class certification would have put on the defendants.
35. See, for example, Willging, 148 U Pa L Rev at 2246-53 (cited in note 7) (criticizing the maturity concept and its role in deciding, for example, when to make class action settlements). Compare Schuck, 80 Cornell L Rev at 950 (cited in note 1) (supporting the maturity concept), with David Rosenberg, Comment, Of End Games and Openings in Mass Tort Cases: Lessons from a Special Master, 69 BU L Rev 695, 707-11 (1989) (criticizing the maturity concept).
36. For related criticism of Nagareda on this point, see Stephen R Burbank, Aggregation on the Couch: The Strategic Uses of Ambiguity and Hypocrisy, 106 Colum L Rev 1924, 1932-33 (2006).
37. Compare Shapiro, 73 Notre Dame L Rev at 931 (cited in note 6) (explaining why damages awarded to a class as a whole in such a case are justified from the perspective of deterrence and reasonable compensation).
38. This difficulty manifested itself in two ways. Most importantly, persons with hemophilia in the 1980s, when most of the infections occurred, ingested products manufactured by multiple defendants, most of whom failed to protect against transmission of HIV. Thus, someone who contracted HIV had a difficult time pinpointing the defendant that caused her illness.
39. See, for example, Ray v Cutter Laboratories, Division of Miles, Inc, 744 F Supp 1124, 1126 (MD FIa 1990). Also, although perhaps less frequently, persons with hemophilia may have ingested other blood products, in addition to clotting factors, that could have transmitted the virus and had difficulty pinning the blame on a defendant product.
40. See, for example, Spencer v Baxter International, Inc, 163 F Supp 2d 74, 79, 80 n 7 (D Mass 2001).
41. See M.M. Lederman, et al, Acquisition of Antibody to Lymphadenopathy-associated Virus in Patients with Classic Hemophilia, 102 Annals of Intern Med 753, 753-57 (1985);
42. WA. Andes, S.R. Rangan, and K.M. Wulff, Exposure of Heterosexuals to Human Immunodeficiency Virus and Viremia: Evidence for Continuing Risks in Spouses of Hemophiliacs, 16 Sexually Transmitted Diseases 68, 68-73 (1989).
43. See, for example, Elizabeth Amon, In the 1980s, Thousands of Hemophiliacs around the World Became Infected with HIV after Using Tainted Blood Products. Could Their Illnesses and Deaths Have Been Prevented?, The American Lawyer 77 (Dec 2004);
44. Gina Kolata, Hit Hard by the AIDS Virus, Hemophiliacs Angrily Speak Out, NY Times 7 (Dec 25, 1991).
45. See also George W. Conk, Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, 109 Yale L J 1087, 1107-11 (2000) (criticizing conduct of blood factor defendants);
46. Michael J. Miller, Note, Strict Liability, Negligence and the Standard of Care for Transfusion-transmitted Disease, 36 Ariz L Rev 473, 480 n 55 (1994) (showing much greater incidence of HIV among people who used defendants' products).
47. See Jay Tidmarsh, Mass Tort Settlement Class Actions: Five Case Studies 99 (Federal Judicial Center 1998) (noting that claimants in Japan recovered twice the amount the American class members won).
48. For a discussion of how class certification denial may exert downward pressure on settlement thresholds, see Geoffrey P. Miller, Review of the Merits in Class Action Certification, 33 Hofstra L Rev 51, 79-80 (2004).
49. Peacemaking lawyers turn over the administration of class settlements to so-called "claims resolution facilities," private firms that specialize in the disbursement of class action settlements.
50. See generally Deborah R. Hensler, Alternative Courts? Litigation-induced Claims Resolution Facilities, 57 Stan L Rev 1429 (2005).
51. For additional discussion of this point, see Issacharoff 80 Tex L Rev at 1928 (cited in note 5). Recent litigation over Vioxx illustrates how judicial management of a mass tort can recreate the maturity process by which individual trials create values for a compensation grid. Both Judge Eldon Fallon, who supervised the federal multidistrict litigation (MDL), and Judge Carol Higbee, who supervised coordinated proceedings in cases filed in New Jersey state courts (Merck's home state), used carefully selected bellwether trials to establish settlement values for various categories of claims against Merck, Vioxx's manufacturer.
52. See, for example, Susan Todd, Behind the Scenes of the Vioxx Settlement, Newark Star-Ledger 1 (Nov 18, 2007);
53. Kristen Hays, Judge Decries Effort to Have Vioxx Cases Tried in State Courts, Philadelphia Inquirer C7 (Oct 28, 2005) (describing Judge Fallon's goal to reach a global settlement of the Vioxx cases).
54. See also Howard M. Erichson, The Vioxx Settlement, Mass Tort Litigation Blog (Nov 10, 2007) online at http://www.lawprofessors.typepad.com/ mass-tort-litigation/2007/11/the-vioxx-settl.html (visited Aug 29, 2008) (discussing the strategic and procedural implications of the Vioxx settlement).
55. Nagareda illustrates his point with Cimino v Raymark Industries, Inc, 751 F Supp 649 (ED Tex 1990), reversed, 151 F3d 297 (5th Cir 1998) (involving class action asbestos litigation). There, Judge Robert Parker famously tried to use statistical sampling from data derived from representative trials to generate a grid that would pay compensation to the thousands of asbestos plaintiffs that had clogged his federal district in lieu of having them all go to trial. Judge Parker's gridmaking, Nagareda maintains, "laid bare, in a published judicial opinion, the inner workings of practices that usually operate below the judicial radar screen in mass tort litigation" (p 69). The defendants refused to go along (and eventually stopped Judge Parker's efforts on appeal) because the grid did not give them the necessary quid pro quo to secure their cooperation. It only bound existing claimants, leaving the defendants at the continued mercy of future claimants, and the representative trials generated values for certain types of claims inconsistent with what tort doctrine would have provided (p 69).
56. Phillips Petroleum Co v Shutts, 472 US 797, 807 (1985).
57. 521 US 591 (1997).
58. 527 US 815 (1999).
59. See Amchem, 521 US at 598.
60. Id at 601.
61. For the settlement terms, see id at 603-05.
62. Ortiz, 527 US at 824-25.
63. See id at 828. Rule 23(b)(1) allows courts to certify class actions with no opt-out rights for class members when "the prosecution of separate actions ... would create a risk" of "adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." FRCP 23(b)(1)(B). These include cases involving "limited funds" - cases, for example, where "the totals of the aggregated liquidated claims and the fund available for satisfying them, set definitely at their maximums, demonstrate the inadequacy of the fund to pay all the claims." Ortiz, 527 US at 838. The parties in Amchem sought certification under Rule 23(b)(3), which would have entitled class members to the right to opt out.
64. See Amchem, 521 US at 605.
65. Coffee, 95 Colum L Rev at 1401 (cited in note 8).
66. Ortiz, 527 US at 852.
67. See Amchem, 521 US at 625-27;
68. Ortiz, 527 US at 856.
69. See 527 US at 855.
70. Coffee, 95 Colum L Rev at 1397 (cited in note 8) (observing that inventory clients in one separate settlement received payouts 54 percent higher than what they would have received pursuant to the class settlement).
71. See Hansberry v Lee, 311 US 32, 42 (1940).
72. 521 US at 623.
73. Id. For criticism of the supposed fairness of the Amchem settlement, see Coffee, 95 Colum L Rev at 1393-95 (cited in note 8);
74. Susan P. Koniak, Feasting While the Widow Weeps: Georgine v. Amchem Prods., Inc., 80 Cornell L Rev 1045, 1066-67 (1995) (suggesting that class counsel's clients had an advantage over other class members).
75. Amchem, 521 US at 623-28.
76. Rules Enabling Act, Pub L No 73-415, 48 Stat 1064 (1934), codified as amended at 28 USC § 2072 (2000).
77. 28 USC § 2072(b).
78. See Amchem, 521 US at 613;
79. Ortiz, 527 US at 845.
80. 521 US at 626.
81. 527 US at 852.
82. Hansberry, 311 US at 41, 44-45 (stating that a class judgment can preclude an absent class member who was not a party to the earlier suit if the class in the earlier suit shared a "sole and common interest").
83. See also Shutts, 472 US at 811-12 (stating that absent plaintiffs may be subject to the jurisdiction of a state court resolving their claims provided that minimal procedural due process protections are in place).
84. As Professor Samuel Issacharoff explains, adequate representation means that the absent class member has virtually participated in a fundamentally fair way.
85. See Samuel C. Issacharoff Governance and Legitimacy in the Law of Class Actions, 1999 S Ct Rev 337, 353.
86. See, for example, id at 385. Professor John Coffee argues that minimizing agency costs legitimates representative litigation. In a sense he adds his voice to this claim. But Coffee emphasizes enhanced rights of "exit," that is, opt-out rights, as a key to lowered agency costs.
87. For him, enhanced client autonomy becomes the linchpin for class action governance.
88. See John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum L Rev 370, 437-38 (2000).
89. For Nagareda's disagreement with Professors Issacharoff and Coffee on this issue, see Richard A. Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 Harv L Rev 747, 785-89 (2002) (arguing that Professors Issacharoff and Coffee do not account for the dynamics that produce settlement but involve conflicts of interest).
90. See Richard A. Nagareda, Administering Adequacy in Class Representation, 82 Tex L Rev 287, 295 (2003).
91. See In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, 2000 WL 1222042, *2-3 (ED Pa) (discussing the history of fen-phen's adverse health effects, its withdrawal from the market, and the ensuing litigation). As Nagareda notes, at the time of initial proceedings in the case, fen-phen's manufacturer was known as American Home Products (p 136).
92. See generally Alison Frankel, Still Ticking: Mistaken Assumptions, Greedy Lawyers, and Suggestions of Fraud Have Made Fen-phen a Disaster of a Mass Tort, The American Lawyer 92 (Mar 2005).
93. Although Rule 23(e) does not specify the length of an opt-out period for (b)(3) class, deadlines as short as one month have been approved.
94. See Carlough v Amchem Products, Inc, 158 FRD 314, 329 (ED Pa 1983).
95. In re Diet Drugs, 2000 WL 1222042 at *26.
96. This discussion of punitive damages reflects some slippage in the way Nagareda uses the concept of preexisting rights. "Plaintiffs are entitled to compensatory damages when a tort has been committed upon them," he argues, "but they have no entitlement to an award of punitive damages" (p 142). True, but absent a class action settlement, fen-phen claimants would have a preexisting right to seek punitive damages, regardless of whether they are entitled to them. The implication of Nagareda's argument is that class counsel can bargain away absent class members' rights to seek punitive damages without engaging in the sort of law reform that triggers a legitimacy problem. Atmospherically, this conflicts with the central goal of a lot of tort reformers-to limit or do away with plaintiffs' rights to seek punitive damages.
97. See, for example, the American Tort Reform Association's position on punitive damages, Punitive Damages Reform, online at http://www.atra.org/ show/7343 (visited Aug 29, 2008). As a theoretical matter, trades of punitive damages do affect preexisting rights, because the underlying substantive law, unaffected by the class action, would afford them the right to seek punitive damages, if not an entitlement to them.
98. See Nagareda, 115 Harv L Rev at 797 (cited in note 47).
99. Two problems helped contribute to the settlement's downfall. First, Wyeth, fearful of crushing jury awards, settled "pell-mell" an initial spate of opt-out claims without putting up much of a defense.
100. See Frankel, The American Lawyer at 96 (cited in note 50). This behavior signaled to plaintiffs (and plaintiffs' lawyers) that there was easy money to be had. Many more claimants than had been anticipated sought compensation from the settlement. Second, and relatedly, Wyeth allowed claimants to present diagnoses from their own doctors when they claimed against the settlement. Many claimants obtained spurious diagnoses that overstated or fabricated their injuries. Id at 96-97, 99.
101. For a general discussion of the debacle, see id.
102. See Amchem, 527 US at 628-29 (observing that the adoption of a nationwide administrative claims processing regime is a decision for Congress);
103. Ortiz, 521 US at 861 ("The nub of our position is that we are bound to follow Rule 23 as we understood it upon its adoption, and that we are not free to alter it except through the process prescribed by Congress in the Rules Enabling Act").
104. Nagareda's chapter on bankruptcy, too detailed to adequately summarize here, is particularly trenchant. This analysis fits § 524(g) of the Bankruptcy Code, a specific provision for asbestos companies into the framework established by Amchem and Ortiz- See 11 USC § 524(g) (2000). Nagareda shows how claims resolution in bankruptcy suffers from the same set of problems that beset mass tort litigation (p 228).
105. The originality of Nagareda's proposal is striking in light of the received wisdom that peacemaking attorneys should not represent both present and future claimants.
106. See, for example, Dennis E. Curtis and Judith Resnik, Contingency Fees in Mass Torts: Access, Risk, and the Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives of Clients, 47 DePaul L Rev 425, 443-44 (1998).
107. For a comprehensive review of fee arrangements in mass torts and other aggregate litigation, see generally Judith Resnik, et al, Individuals within the Aggregate: Relationships, Representation, and Fees, 71 NYU L Rev 296 (1996).
108. In a negotiated rulemaking proceeding, an agency determines that there exists a limited number of interests that will be affected by a proposed rule. It then creates a committee, which includes representatives from these interests as well as agency representatives, to craft a rule by consensus. The rule then goes through standard rulemaking procedures before it becomes final (pp 255-57).
109. For negotiated rulemaking in the mass tort setting, Nagareda proposes that the agency that usually attends to the subject matter of the mass tort at issue appoint the peacemaking lawyers to the rulemaking committee and promulgate the settlement they strike as the rule (pp 257-65).
110. See Richard A. Nagareda, Panel Discussion, The Vioxx Settlement (American Enterprise Institute Jan 7, 2008), online at http://www.aei.org/ events/filter.all,eventID.1626/event-detail.asp (visited Aug 29, 2008).
111. See also Adam Liptak, In Vioxx Settlement, Testing a Legal Ideal: A Lawyer's Loyalty, NY Times A12 (Jan 22, 2008) (quoting Nagareda).
112. Nagareda, Panel Discussion, The Vioxx Settlement (cited in note 60).
113. See, for example, Issacharoff, 1999 S Q Rev at 341, 352 (cited in note 46);
114. John Bronsteen and Owen Fiss, The Class Action Rule, 78 Notre Dame L Rev 1419, 1420 (2003);
115. Marjorie A. Silver, Fairness and Finality: Third-party Challenges to Employment Discrimination Consent Decrees after the 1991 Civil Rights Act, 62 Fordham L Rev 321, 367 (1993);
116. Owen Fiss, The Allure of Individualism, 78 Iowa L Rev 965, 970-71 (1993).
117. See also Douglas Laycock, Due Process of Law in Trilateral Disputes, 78 Iowa L Rev 1011, 1020 (1993) (referring to interest representation as a "second best" due process alternative);
118. Robert G. Bone, Rethinking the "Day in Court" Ideal and Nonparty Preclusion, 67 NYU L Rev 193, 214 (1992) (referring to this as the "conventional wisdom"). Professor Coffee effectively posits good interest representation as the due process prerequisite for aggregate litigation. He does so, however, by emphasizing client autonomy. Strengthening client autonomy with rigorous opt out rights, he argues, will minimize the sort of agency costs that make interest representation problematic.
119. See Coffee, 100 Colum L Rev at 417-28 (cited in note 47).
120. See, for example, Bash v Firstmark Standard Life Insurance Co, 861 F2d 159, 161 (7th Cir 1988) (recognizing that strictly mandating rules of conduct on attorneys may make class actions unworkable);
121. FRCP 23(g)(1)(B), Advisory Committee Notes to the 2003 Amendments (recognizing a possible conflict between class representatives and the class and requiring class counsel to put "the best interests of the class as a whole" first);
122. ABA Model Rules of Professional Conduct Rule 1.7 comment 25 (2003) (noting that unnamed members in a class action are not considered clients of the lawyer with regard to whether "the representation of one client will be directly adverse to another client" under Rule 1.7). By implication, Nagareda might suggest that the standard conflict of interest rules do not apply in class litigation because "substantial conflicts are not allowed to emerge in the first place" under current class certification law (p 229). "Substantial conflicts" among class members, and between clients and their lawyers, do in fact emerge in class actions without requiring decertification of classes.
123. See generally, for example, Lazy Oil Co v Witco Corp, 166 F3d 581 (3d Cir 1999).
124. See, for example, Robert G. Bone, Personal and Impersonal Litigative Forms: Reconceiving the History of Adjudicative Representation, 70 BU L Rev 213, 225-26 (1990) (describing the Advisory Committee's shifting positions on whether absent class members must consent to representation);
125. Stephen C. Yeazell, From Medieval Group Litigation to the Modem Class Action 252 (Yale 1987) (arguing that Rule 23(b) vacillates between entrusting class representatives with the interests of those represented and requiring the consent of those represented).
126. Amchem, 521 US at 628.
127. See Ortiz, 527 US at 847.
128. Nagareda suggests that opt-out rights are best understood not as a testament to the continued importance of individual autonomy in representative litigation but as a means better to ensure good interest representation (p 136). Past writing expands on this idea. Nagareda has argued that "[t]he proposition that class counsel have no general mandate to alter preexisting rights . . . means that the holders of those rights generally must have the opportunity to exclude themselves from the transaction" by enjoying the right to opt out. Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum L Rev 149, 195 (2003). Respect for autonomy is not an end unto itself, however. Rather, the threat of opt-outs by high value claimants will ensure that class counsel and defendants, interested in a final peace, will craft a settlement that will maximize the interests of all class members and thereby make opting out an unattractive option.
129. See id at 196.
130. See also Nagareda, 115 Harv L Rev at 829 (cited in note 47) (praising opt-out rights as a means to "respect individual autonomy by preserving the tort system as an ongoing check on the settlement terms").
131. In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Products Liability Litigation, 2008 WL 942592, *2, *43-46 (ED Pa). The court made several preliminary fee awards during these eight years.
132. See id at *6.
133. See, for example, Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L Rev 1, 9 n 19 (1997) (noting a consensus that rulemaking is costly, rigid, and has spurred perverse incentives).
134. For empirical evidence suggesting that negotiated rulemaking has not proven markedly more efficient than standard rulemaking, see Cary Coglianese, Assessing the Advocacy of Negotiated Rulemaking: A Response to Philip Harter, 9 NYU Envir L J 386 (2001);
135. Charles C. Caldart and Nicholas A. Ashford, Negotiation as a Means of Developing and Implementing Environmental and Occupational Health and Safety Policy, 23 Harv Envir L Rev 141, 145 (1999);
136. Cary Coglianese, Assessing Consensus: The Promise and Performance of Negotiated Rulemaking, 46 Duke L J 1255, 1260-61, 1271-1309 (1997).
137. See William F. West, Formal Procedures, Informal Processes, Accountability, and Responsiveness in Bureaucratic Policy Making: An Institutional Policy Analysis, 64 Pub Admin Rev 66, 69 (2004).
138. 5 USC § 706(2)(A) (2000).
139. Theodore Eisenberg and Geoffrey Miller, The Role of Opt-outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues, 57 Vand L Rev 1529, 1555 (2004) (observing that the number of objectors rises as the value of the case rises).
140. See 28 USC § 2401(a);
141. Wind River Mining Corp v United States, 946 F2d 710, 712-13 (9th Cir 1991) (holding that 28 USC § 2401(a) applies to actions brought under the APA to challenge agency action).
142. See, for example, Ortiz, 527 US at 866 (Breyer dissenting) (observing that "in one 3,000-member asbestos class action . . . 448 of the original class members had died while the litigation was pending").
143. If an existing multidistrict litigation order is in place, any opt-out suit initiated in a federal court would be sent to the court that presides over the settlement, empowering the court designated for multidistrict litigation to make sure that these opt-out cases do not unravel the settlement itself See Rules of Procedure of the Judicial Panel on Multidistrict Litigation, 199 FRD 425, 435 (2001) (authorizing, pursuant to Rule 7.4, the Judicial Panel on Multidistrict Litigation to transfer "tag-along" actions to the MDL transferee court). But opt-outs could file suit in state courts, and it is doubtful that the MDL judge in the federal litigation could enjoin them from doing so.
144. See, for example, Drelles v Metropolitan Life Insurance Co, 357 F3d 344, 347 (3d Cir 2003) (refusing to use the Anti-Injunction Act to enjoin opt-outs from a class settlement from suing elsewhere, and distinguishing cases where courts granted such an injunction).
145. Nagareda suggests that plaintiffs' lawyers could securitize expected future fees and thereby earn shortly after settlement at least some of what they would otherwise have to wait three to five years to earn (p 239). Two features of mass tort litigation that Nagareda himself describes lead me to question this proposal's efficacy. First, how mass tort settlements play out, in terms of the numbers of future claimants who end up filing claims and whether the settlement amount is sufficient to pay these claims, is notoriously difficult to predict. Nagareda's description of the fenphen debacle is an example (pp 145-47).
146. See also generally Frankel, The American Lawyer 92 (cited in note 50). Second, the specter of bankruptcy haunts mass tort defendants. The market for these settlement securities might require a huge discount rate to compensate investors for uncertainty and the possibility of bankruptcy.
147. This definition fits Nagareda's discussion of judicial attempts to police the boundary between immature and mature torts, which are efforts to match settlement value with claimants' rights afforded by underlying substantive law. It also fits Nagareda's discussion of Amchem, Ortiz, and the Rules Enabling Act (pp 84, 87).
148. See also Richard A. Nagareda, Bootstrapping in Choice of Law after the Class Action Fairness Act, 74 UMKC L Rev 661, 662 (2006) (referring to "preexisting rights" as those "delineated by substantive law");
149. Nagareda, 103 Colum L Rev at 196 & n 205 (cited in note 67) (referring to a "preexisting bundle of rights settled upon by public policymakers" and referring to those "public policymakers" as legislators, administrators, and common law courts).
150. Nagareda, 103 Colum L Rev at 174 (cited in note 67) (emphasis added).
151. For other similar arguments, see Martin H. Redish and Andrianna D. Kastanek, Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U Chi L Rev 545, 551 (2006);
152. Allan Erbsen, From "Predominance" to " Resolvability": A New Approach to Regulating Class Actions, 58 Vand L Rev 995, 1034-46 (2005);
153. Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U Chi Legal F 475, 490 (2003).
154. 28 USC § 2072(b) (2000).
155. Id. Language in Amchem and Ortiz supports this reading of the statute.
156. See Amchem, 521 US at 613 (recognizing that the interpretation of Rule 23 requirements must accord with Article III and the Rules Enabling Act);
157. Ortiz, 527 US at 845 (same). Nagareda elaborates on the import of the Rules Enabling Act for preexisting rights elsewhere.
158. See Nagareda, 103 Colum L Rev at 189-91 (cited in note 67). This Review does not tackle the thorny issues posed by the intersection of Rule 23 with the Rules Enabling Act.
159. For additional discussion, see, for example, Note, The Rules Enabling Act and the Limits of Rule 23, 111 Harv L Rev 2294, 2307 (1998) (suggesting that the interpretation of Rule 23 in Amchem may have violated the Rules Enabling Act);
160. Paul D. Carrington, "Substance" and "Procedure" in the Rules Enabling Act, 1989 Duke L J 281, 317-19 (discussing Rule 23's impact on doctrine understood as substantive law);
161. Stephen B. Burbank, Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act, 1989 Duke L J 1012, 1027-28 (same).
162. There are two reasons for the term "formalist." First, the distinction between substance and procedure arose during an era of legal thought when formal distinctions among legal conceptions took firm root.
163. See Thomas C. Grey, Accidental Torts, 54 Vand L Rev 1225, 1231 (2001) (describing the late nineteenth century roots of the distinction between "substance" and "procedure");
164. Stephen M. Feldman, From Premodern to Modern American Jurisprudence: The Onset of Positivism, 50 Vand L Rev 1387, 1411 (1997) (describing the antebellum relationship between substance and procedure). Second, as discussed in this Review, legal realists reacted to the distinction between substance and procedure as a formalist idea. Id at 1433-38.
165. Karl N. Llewellyn, A Realistic Jurisprudence - The Next Step, 30 Colum L Rev 431, 448 (1930).
166. For other prominent legal realists making a similar point, see Walter Wheeler Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L J 333, 336 (1933);
167. Thurman W. Arnold, Institute Priests and Yale Observers - A Reply to Dean Goodrich, 84 U Pa L Rev 811, 819 (1936) ("The difference between substantive law and procedure is nothing but a difference in attitude."). Compare Robert M. Cover, For James Wm. Moore: Some Reflections on a Reading of the Rules, 84 Yale L J 718, 719-20 (1975) (reporting that Oliver Wendell Holmes, writing a generation before legal realism, shared a similar idea of the distinction between substance and procedure). For criticism of the Realists in this respect, see Perry Dane, Vested Rights, 'Vestedness,' and Choice of Law, 96 Yale L J 1191, 1236-42 (1987).
168. Karl N. Llewellyn, The Bramble Bush 18 (Oceana 1960).
169. Id (emphasis omitted).
170. This perspective could also explain why fee-shifting provisions, treble damages, and other mechanisms that enable realization should be thought of as part of the right to sue as well.
171. See Burbank, 106 Colum L Rev at 1937 (cited in note 15).
172. Compare Charles E. Clark, Book Review, 36 Cornell L Q 181, 183 (1950) ("There is not a sharp enough dichotomy between substance and procedure so that these terms can be rigorously self-applying in any event"), reviewing Charles T. McCormick and James H. Chadbourn, Cases and Materials on Federal Courts (2d ed, Foundation Press 1950).
173. See Carrington, 1989 Duke L J at 284 (cited in note 80).
174. See, for example, Sun Oil Co v Wortman, 486 US 717, 726-27 (1988) ("Except at the extremes, the terms 'substance' and 'procedure' precisely describe very little except a dichotomy, and what they mean in a particular context is largely determined by the purposes for which the dichotomy is drawn.").
175. Compare Lea Brilmayer, Rights, Fairness, and Choice of Law, 98 Yale L J 1277, 1285-91 (1989) (criticizing the realists' consequentialist concepts of rights).
176. See also Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum L Rev 857, 870-72 (1999) (describing theories that reject the notion that rights depend in an existential sense on remedies).
177. Mistretta v United States, 488 US 361, 392 (1989).
178. 28 USC § 1407(b) (2000).
179. See In re Hawaii Federal Asbestos Cases, 960 F2d 806, 810-12 (9th Cir 1992) (refusing to extend the government contractor defense to providers of nonmilitary products).
180. See Burgess v Colorado Serum Co, Inc, 772 F2d 844, 846 (11th Cir 1985) (extending the government contractor defense to providers of nonmilitary products). The Ninth and Eleventh Circuits apply the law of the circuit in which the MDL transferee judge sits to dispositive motions.
181. See Newton v Thomason, 22 F3d 1455, 1460 (9th Cir 1994);
182. Murphy v FDIC, 208 F3d 959, 966 (11th Cir 2000).
183. It should be noted that Nagareda has criticized class action waivers elsewhere as efforts by private contract essentially to engage in law reform.
184. See Nagareda, 106 Colum L Rev at 1902-04 (cited in note 13).
185. See Jean R. Sternlight and Elizabeth J. Jensen, Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, 67 L & Contemp Probs 75, 75 (2004).
186. See Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-total Demise of the Modern Class Action, 104 Mich L Rev 373, 393-96 (2005) (describing the Supreme Court's jurisprudence on arbitration as "incredibly expansive").
187. See, for example, Kristian v Comcast Corp, 446 F3d 25, 53-60 (1st Cir 2006) (refusing to compel plaintiffs to arbitrate their claims because the arbitration agreement barred class and consolidated actions).
188. Metro East Center for Conditioning and Health v Qwest Communications International, Inc, 294 F3d 924, 927 (7th Cir 2002) (recognizing that an arbitration agreement is enforced to the same extent as a contract).
189. By small value claims, I include both those claims that are small in economic terms as well as those claims that lack sufficient noneconomic value to justify an individual action. A claim for some type of injunctive relief that, although it has little economic value, nonetheless has sufficient significance for the plaintiff to motivate her to bring a lawsuit does not qualify.
190. Carnegie v Household International, Inc, 376 F3d 656, 661 (7th Cir 2004).
191. Id.
192. See also Blair v Equifax Check Services, Inc, 181 F3d 832, 834 (7th Cir 1999).
193. See Amchem, 521 US at 617 ("The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights."), quoting Mace v Van Ru Credit Corp, 109 F3d 338, 344 (7th Cir 1997).
194. See Nagareda, 115 Harv L Rev at 751-52 (cited in note 47).
195. See Samuel Issacharoff Preclusion, Due Process, and the Right to Opt Out of Class Actions, 77 Notre Dame L Rev 1057, 1059-60 (2002).
196. See Elizabeth J. Cabraser, The Class Action Counterreformation, 57 Stan L Rev 1475, 1519 (2005).
197. See Robert L. Rabin, The Tobacco Litigation: A Tentative Assessment, 51 DePaul L Rev 331, 335 (2001). The numerous individual actions that have been filed since the termination of the nationwide tobacco class action owe their realizability, at least in part, to the failed class action. As Robert Rabin observes, these cases became attractive to lawyers in part because of the discovery produced in the class case.
198. See id at 345.
199. See Robert L. Rabin, A Sociolegal History of the Tobacco Tort Litigation, 44 Stan L Rev 853, 857-58 (1992).
200. See, for example, Hubert H. "Skip" Humphrey, III, The Decision to Reject the June, 1997 National Settlement and Proceed to Trial, 25 Wm Mitchell L Rev 397, 418 (1999), reprinting State of Minnesota, Office of the Attorney General, Hubert H. Humphrey III, Attorney General, Tobacco Proposal - Preliminary Analysis (July 18, 1997).
201. As discussed above, Nagareda describes this process, by which plaintiffs' lawyers compile inventories of claimants, as part of the mass tort maturity cycle (p 16). Plaintiffs' lawyers' ability to spread costs of generic litigation assets across individual cases means that the class action mechanism is hardly the sole device that enables lawyers to realize these rights to sue.
202. See generally Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination among Counsel in Related Lawsuits, 50 Duke L J 381 (2000) (discussing the implications of "informal aggregation" by lawyers who coordinate their efforts on cases that remain formally independent). Whatever implications this observation has for class actions, it shows that one plaintiffs right to sue may not be realizable without other plaintiffs pursuing their rights to sue as well.
203. See, for example, Ortiz, 527 US at 867-68 (Breyer dissenting): [T]he alternative to class-action settlement is not a fair opportunity for each potential plaintiff to have his or her own day in court Unusually high litigation costs, unusually long delays, and limitations upon the total amount of resources available for payment together mean that most potential plaintiffs may not have a realistic alternative.
204. See, for example, Samuel Issacharoff, Administering Damage Awards in Mass-tort Litigation, 10 Rev Litig 463, 464-65 (1991) (arguing that delay and an absence of a credible threat of litigation can render even meritorious claims valueless).
205. For example, repeated litigation against Johns-Manville drove the company into bankruptcy. Once this happened, future claimants lost their rights to sue the company.
206. See Kane v JohnsManville Corp, 843 F2d 636, 640 (2d Cir 1988) (detailing a bankruptcy reorganization plan that only allowed claimants to sue a trust rather than Johns-Manville, its operating entities, or its insurers).
207. See, for example, In re Telectronics Pacing Systems, Inc, 137 F Supp 2d 985, 1015 (SD Ohio 2001) (describing the class action as having reached a point of diminishing returns where, given the defendants' limited assets, going forward would decrease the likelihood of recovering damages).
208. Glen O. Robinson and Kenneth S. Abraham, Collective Justice in Tort Law, 78 Va L Rev 1481, 1503 (1992) (noting that in mass torts, some individual claims will be adjudicated but others will not given the limits of the judicial system).
209. Cimino, 751 F Supp at 651-52.
210. See, for example, Castano v American Tobacco Co, 84 F3d 734, 748 n 26 (5th Cir 1996).
211. See, for example, Schwarm v Craighead, 233 FRD 655, 664 (ED Cal 2006);
212. Clark v Bonded Adjustment Co, 204 FRD 662, 666 (ED Wash 2002). Thomas E. Willging suggests that the provision of notice in the breast implant class action, a mass tort with nominally valuable claims, attracted a significant number of claimants who might not otherwise have filed suit.
213. See Willging, 148 U Pa L Rev at 2256 (cited in note 7). Deborah R. Hensler reports that the significant increases in asbestos claims in the late 1990s may well have happened as a result of class action notice campaigns as part of the Amchem and Ortiz litigation.
214. See Deborah R. Hensler, As Time Goes By: Asbestos Litigation after Amchem and Ortiz, 80 Tex L Rev 1899, 1908 (2002).
215. See, for example, Scott v Aetna Services, Inc, 210 FRD 261, 268 (D Conn 2002) (concluding that class action was more appropriate because, among other things, "class members may fear reprisal and would not be inclined to pursue individual claims");
216. O'Brien v Encotech Construction Services, Inc, 203 FRD 346, 350-51 (ND Ill 2001) (same);
217. Ansoumana v Gristede's Operating Corp, 201 FRD 81, 85-86 (SDNY 2001) (same);
218. Slanina v William Penn Parking Corp, Inc, 106 FRD 419, 423-24 (WD Pa 1984) (same).
219. This phenomenon is true for tort.
220. See, for example, Thomas A. Eaton, et al, Another Brick in the Wall: An Empirical Look at Georgia Tort Litigation in the 1990s, 34 Ga L Rev 1049, 1096 (2000) (finding a trend of underclaiming rather than overclaiming by Americans who have been injured by negligence);
221. Deborah R. Hensler and Mark A. Peterson, Understanding Mass Personal Injury Litigation: A Socio-legal Analysis, 59 Brooklyn L Rev 961, 1019 (1993) (suggesting possible explanations for why such a low rate of injured Americans file liability lawsuits). A twenty-year-old study discovered that this is true for employment discrimination as well. Michele Hoyman and Lamont Stallworth, Suit Filing by Women: An Empirical Analysis, 62 Notre Dame L Rev 61, 61 (1986).
222. See McGovern, 73 Tex L Rev at 1823 (cited in note 7);
223. Francis E. McGovern, Looking to the Future of Mass Torts: A Comment on Schuck and Siciliano, 80 Cornell L Rev 1022, 1024 (1995).
224. See In re "Agent Orange" Product Liability Litigation MDL No 381, 818 F2d 145, 159 (2d Cir 1987) (observing that Judge Weinstein granted summary judgment on government contractor grounds and because individual opt-outs could not establish individual causation). Judge Weinstein stated with respect to the Agent Orange litigation that "[i]ndividual justice is not something that this court can provide the Viet Nam veteran . . . . The best we can do with the tools at our disposal . . . is to try and do some type of relative rough justice." CPR Legal Program Annual Meeting, 9 Alt to the High Cost of Litig 147, 150 (1991). Given many weaknesses in their cases, the enormous settlement Holocaust victims secured from Swiss banks might also illustrate how a district judge, bent on vindicating claims no matter how legally implausible, forces through some class action settlement.
225. See In re Holocaust Victim Assets Litigation, 2000 WL 34417291, *8-9 (EDNY).
226. See also Stuart E. Eizenstat, Imperfect Justice 165-75 (Public Affairs 2003) (describing how the district judge coordinated both formal and informal meetings with the parties to manage the litigation toward settlement).
227. See Phillips Petroleum Co v Shutts, 472 US 797, 821 (1985) (describing as "something of a 'bootstrap' argument" the notion that underlying substantive doctrine should change to enable class certification).
228. See, for example, Blackie v Barrack, 524 F2d 891, 907-08 (9th Cir 1975) (dispensing with the requirement of proof of reliance in a security fraud class action).
229. See Abermarle Paper Co v Moody, 422 US 405, 414 n 8 (1975) (noting that class action awards of back-pay under Title VII do not require the exhaustion of administrative remedies by unnamed class members).
230. See, for example, Davis v Coca-Cola Bottling Co Consolidated, 516 F3d 955, 958 (11th Cir 2008) (holding that a Title VII plaintiff cannot pursue a pattern-or-practice claim unless he does so as part of a class action);
231. Bacon v Honda of America Manufacturing, Inc, 370 F3d 565, 575 (6th Cir 2004) (same).
232. This scenario could include instances when the individual simply does not care about her right to sue or is unaware that she has one. Either circumstance amounts to a psychological barrier to suit that in real terms precludes realization absent the class action.
233. See Eisenberg and Miller, 57 Vand L Rev at 1532, 1541-42 (cited in note 72).
234. See, for example, Issacharoff 77 Notre Dame L Rev at 1061 (cited in note 104) (describing high-value claims as more likely to promote vigilance by class members).
235. Shapiro, 73 Notre Dame L Rev at 918-19 (cited in note 6). As he notes, Professor Shapiro "borrowed" the term "entity" from Edward Cooper.
236. See id.
237. See also Edward H. Cooper, Rule 23: Challenges to the Rulemaking Process, 71 NYU L Rev 13, 28 (1996) (discussing the benefits of treating a class as an "entity").
238. For an earlier treatment of similar issues, see generally Diane Wood Hutchinson, Class Actions: Joinder or Representational Device?, 1983 S Ct Rev 459 (discussing the joinder model and the representational model in class action).
239. See also Charles Alan Wright, et al, 18A Federal Practice & Procedure § 4455 at 486 (2002) (contrasting the traditional, narrow view of class action with the newer view that highlights the efficiency, finality, and consistency advantages of a class claim).
240. Shapiro, 73 Notre Dame L Rev at 940-41 (cited in note 6). But see Coffee, 100 Colum L Rev at 379 (cited in note 47) (criticizing the entity theory).
241. Shapiro, 73 Notre Dame L Rev at 918 (cited in note 6).
242. Id.
243. Id at 919.
244. Id. For support among other prominent commentators on class actions, see Issacharoff 77 Notre Dame L Rev at 1060 (cited in note 104) (observing "increasing skepticism over the view that a class action is simply an unaltered aggregation of individual claims");
245. Nancy J. Moore, Who Should Regulate Class Action Lawyers?, 2003 U Ill L Rev 1477, 1483-86 (espousing the entity model as most appropriate for class actions and as a workable solution to ethics concerns).
246. Shapiro, 73 Notre Dame L Rev at 936-38 (cited in note 6).
247. Id at 940.
248. Id at 941.
249. See id at 923, 931, 933.
250. Shapiro, 73 Notre Dame L Rev at 923 (cited in note 6).
251. Id at 924.
252. Id at 928.
253. See id at 931.
254. See Shapiro, 73 Notre Dame L Rev at 931 (cited in note 6).
255. See id at 933.
256. See Coffee, 100 Colum L Rev at 380-85 (cited in note 47) (identifying factors not typically present in class actions such as consent, majoritarian control, prior association, and homogenous preferences that justify entity treatment for corporations and unions).
257. Id at 381.
258. Id at 382.
259. Id at 385.
260. Martin H. Redish and Nathan D. Larsen, Class Actions, Litigant Autonomy, and the Foundations of Procedural Due Process, 95 Cal L Rev 1573, 1592 (2007).
261. Id at 1597.
262. Id.
263. See Martin H. Redish, Class Actions and the Democratic Difficulty: Rethinking the Intersection of Private Litigation and Public Goals, 2003 U Chi Legal F 71, 97.
264. Redish and Larsen, 95 Cal L Rev at 1596 (cited in note 149).
265. Id at 1597.
266. Coffee, 100 Colum L Rev at 381 (cited in note 47) (emphasis added).
267. Redish and Larsen, 95 Cal L Rev at 1597 (cited in note 149).
268. It bears mention that Redish goes much further than Nagareda and suggests that the requirement that class actions respect "preexisting substantive legal rights" renders significant parts of class action practice, including settlement classes, unconstitutional.
269. See, for example, Redish and Kastanek, 73 U Chi L Rev at 551-52 (cited in note 78) (arguing that class action undermines the protections of Article III's adverseness requirement).
270. Redish, 2003 U Chi Legal F at 97 (cited in note 152) (explaining how class action procedure under an entity model transforms substantive rights).
271. See, for example, Jeremy Waldron, The Right to Private Property 53-55 (Clarenden 1988);
272. Richard A. Epstein, Why Restrain Alienation?, 85 Colum L Rev 970, 970 (1985).
273. See also Margaret Jane Radin, Time, Possession, and Alienation, 64 Wash U L Q 739, 750 (1986) (describing alienation as "one of the most important liberal indicia of property").
274. See Walter Wheeler Cook, The Alienability of Choses in Action, 29 Harv L Rev 816, 819-20 (1916) (analyzing the implications of owning a chose in action).
275. For a more recent discussion of rights to sue as property rights, see Timothy P. Terrell, Causes of Action as Property: Logan v. Zimmerman Brush Co. and the "Government-as-Monopolist" Theory of the Due Process Clause, 31 Emory L J 491, 491-92 (1982).
276. Thomas W. Merrill, The Landscape of Constitutional Property, 86 Va L Rev 885, 964 (2000).
277. See also Castle Rock v Gonzales, 545 US 748, 766 (2005) (endorsing Merrill's description). This description of the Court's definition of property for due process purposes fits the consensus among lower courts that a right to sue only "vests" as a property right and thus merits robust due process protection when it is reduced to a final, unreviewable judgment.
278. See, for example, Fields v Legacy Health System, 413 F3d 943, 956 (9th Cir 2005);
279. In re TMI, 89 F3d 1106, 1113 (3d Cir 1996);
280. Salmon v Schwarz, 948 F2d 1131, 1143 (10th Cir 1991);
281. Arbour v Jenkins, 903 F2d 416, 420 (6th Cir 1990);
282. Sowell v American Cynamid Co, 888 F2d 802, 805 (11th Cir 1989);
283. Hammond v United States, 786 F2d 8, 12 (1st Cir 1986).
284. See, for example, Keystone Bituminous Coal Association v DeBenedictis, 480 US 470, 498-99 (1987) (refusing to declare a state statute that required landowners to leave a small percentage of coal in the ground a taking because as a practical matter landowners could only mine a certain percentage of coal regardless).
285. Redish and Larsen, 95 Cal L Rev at 1597 (cited in note 149) (arguing that the class treatment of negative value claimants creates a foundational flaw by erroneously extending rights that confer individual causes of action onto the class).
286. See, for example, Debra Lyn Bassett, Constructing Class Action Reality, 2006 BYU L Rev 1415, 1466-67 (2006) (noting the restraints of judicial economy and efficiency on rigorously representing absent class members);
287. Richard L. Marcus, They Can't Do That, Can They? Tort Reform via Rule 23, 80 Cornell L Rev 858, 889 (1995) (commenting on "the indifference the courts have exhibited toward providing notice and the right to opt out in" some small-value consumer class actions);
288. Roger C. Cramton, Individualized Justice, Mass Torts, and "Settlement Class Actions": An Introduction, 80 Cornell L Rev 811, 824 (1995) (arguing that notice to class members can be less in small-value class actions).
289. For example, in Mullane v Central Hanover Bank & Trust Co, 339 US 306, 319 (1950), the court disposed with personal service of process on parties whose addresses were unknown in part because they had "small interests" at stake.
290. For criticism of individualized notice in small-value class actions, see Jonathan R. Macey and Geoffrey P. Miller, The Plaintiffs'Attorney's Role in Class Action and Derivative Litigation: Economic Analysis and Recommendations for Reform, 58 U Chi L Rev 1, 27-33 (1991).
291. See Shapiro, 73 Notre Dame L Rev at 954-55 (cited in note 6) (suggesting that opt-out rights hurt the substantive interests and integrity of the class as a whole).
292. For an approach to opt-out rights that treats them as a sort of due process safety valve, see Robinson v Metro-North Commuter Railroad Co, 267 F3d 147, 165-66 (2d Cir 2001) (deeming notice and opt-out rights to absent class members as adequately eliminating any due process risk in Rule 23(b)(2) class certification).
293. See note 55.
294. See Daniel Fisher, Will the Vioxx Settlement Work?, Forbes (Nov 13, 2007), online at http://www.forbes.corn/2007/11/12/merck-vioxx-lawsuits-biz- health-cz-df-1112vioxx.html (visited Aug 29, 2008) (describing how Merck in the Vioxx settlement put in measures to easure that physicians-for-hire could not diagnose nonexistent injuries, a problem that helped sink the fenphen settlement).
295. See Nagareda, 103 Colum L Rev at 173 (cited in note 67).
296. After certification, the attorney has an attorney-client relationship with the class as a whole and arguably owes primary fiduciary duties to the class and not particular class members.
297. See Van Gemert v Boeing Co, 590 F2d 433, 440 n 15 (2d Cir 1978) (describing how class counsel must advocate vigorously on behalf of absentee class members who are bound by judgment).
298. See Lindy Brothers Builders, Inc v American Radiator & Standard Sanitary Corp, 540 F2d 102, 120 (3d Cir 1976).
299. See also Alan Hirsch and Diane Sheehey, Awarding Attorneys' Fees and Managing Fee Litigation 71 (Federal Judicial Center 1994) (citing Lindy Brothers approvingly). The Manual for Complex Litigation (Fourth) provides that "the court may not rewrite the parties' agreement," but this statement is not inconsistent with the claim that the court can set aside a private agreement. Manual for Complex Litigation (Fourth) § 21.7, 335 (Federal Judicial Center 2004). It is hard to evaluate what the Manual means by this statement, as it cites no authority in support.
300. See id. The American Bar Association reported in 2006 that the power of a court to set aside fee contracts is uncertain.
301. See Task Force on Contingent Fees of the American Bar Association's Tort Trial and Insurance Practice Section, Contingent Fees in Mass Tort Litigation, 42 Tort Trial & Ins Prac L J 105, 124-25 (2006) (stating that in principle authority exists for judges to regulate contingent fee contracts).
302. See In re Joint Eastern and Southern Districts Asbestos Litigation, 878 F Supp 473, 558 (EDNY 1995).
303. See FRCP 23(h), Advisory Committee's Notes to the 2003 Amendments ("In some cases [involving future payments from a settlement regime], it may be appropriate to defer some portion of the fee award until actual payouts to class members are known.");
304. Manual for Complex Litigation (Fourth) § 21.71 at 336-37 (cited in note 171) (describing appropriate circumstances that may require attorneys to take as fees some portion of in-kind benefits or defer all or some of their collection of fees pending distribution of benefits);
305. id § 22.927 at 461 (observing that deferred payment of attorney fees may be appropriate for settlements with nonmonetary or deferred payments to claimants).
306. See, for example, Staton v Boeing Co, 327 F3d 938, 975-78 (9th Cir 2003) (holding that the district court abused its discretion in approving a settlement that had a large damage award differential between named and unnamed plaintiffs).
307. See R. Eric Kennedy, Class Action Attorney Fees: The Key Role of the Federal District Judge in Fashioning & Monitoring Mass-tort Common Fund Distributions to Assure a Settlement Deemed Equitable by Both Represented & Unrepresented Class Members, & Both Private & Class Counsel, 6 Sedona Conf J 173, 175 (2005).
308. Shapiro, 73 Notre Dame L Rev at 941 (cited in note 6).
309. Consider ABA Model Code of Professional Responsibility EC 5-18 ("A lawyer employed or retained by a corporation or similar entity owes his allegiance to the entity and not to a stock-holder, director, officer, employee, representative, or other person connected with the entity.").
310. See Moore, 2003 U Ill L Rev at 1484-85 (cited in note 134).
311. Lazy Oil Co v Witco Corp, 166 F3d 581, 590 (3d Cir 1999).
312. See In re General Motors Corp Pick-up Truck Fuel Tank Products Liability Litigation, 55 F3d 768, 801 (3d Cir 1995) (observing in the context of deciding a fee award that class counsel "owe the entire class a fiduciary duty once the class complaint is filed").
313. See also generally Gates v Rohm and Haas Co, 2006 WL 3420591, *2 (ED Pa) (acknowledging uncertainty over whether class members are clients protected under attorney-client privilege);
314. Schick v Berg, 2004 WL 856298, *4-6 (SDNY) (discussing the nuances of the scope of the fiduciary duty owed to class members).
315. But see Abraham v Volkswagen of America, Inc, 1991 WL 89917 (WDNY).
316. See McDowall v Cogan, 216 FRD 46, 50 (EDNY 2003).
317. See also Weiss v Regal Collections, 385 F3d 337, 347 (3d Cir 2004).
318. See Coston v Mr. T's Apparel, Inc, 157 FRD 31, 33 (SD Miss 1994).
319. See also Shelton v Pargo, lne, 582 F2d 1298, 1315 (4th Cir 1978) (stating that a court should make sure that "under the guise of compromising the plaintiff's individual claim, the parties have not compromised the class claim to the pecuniary advantage of the plaintiff and/or his attorney").
320. Caston, 157 FRD at 33.
321. For example, the mere filing of a class action empowers a court to regulate the defendant's communications with putative class members.
322. See Gulf Oil Co v Bernard, 452 US 89, 101-02 (1981);
323. Bublitz v E.I. DuPont de Nemours & Co, 196 FRD 545, 549 (SD Iowa 2000).
324. See also generally Debra Lynn Bassett, Pre-certification Communication Ethics in Class Actions, 36 Ga L Rev 353 (2002) (discussing the need to address communications between attorney and potential class members before class certification).
325. See Rolo v City Investing Co Liquidating Trust, 155 F3d 644, 659 (3d Cir 1998) ("The class must, however, be certified before it may become a class action. Until the putative class is certified, the action is one between [the named class representatives] and the defendants.").
326. The Vioxx settlement agreement, for example, includes provisions that require any plaintiffs' lawyer who represents clients collecting from the settlement to recommend to 100 percent of that lawyer's clients to collect from the settlement. If any one client refuses and wants to pursue an individual settlement or judgment, the attorney either has to withdraw from representing the client or withdraw from representing all other clients.
327. See Settlement Agreement between Merck & Co, Inc, and the Counsel Listed on the Signature Pages Hereto § 1.2.8, online at http://www.merck.com/newsroom/vioxx/pdf/Settlement-Agreement.pdf (visited Aug 29, 2008). In other words, the lawyer has a choice between losing all fees she might reap from collection through the settlement or losing fees she might reap if her individual client succeeds as an opt-out.