Private claims aggregate rights

Supreme Court Review

Volumn 2008, Issue , 2008, Pages 183-221

  Issacharoff, Samuel ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 67650306621     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/597023     Document Type: Review

References (118)

1. Sprint Communications Co.. L.P. v APCC Services. Inc.. 128 S Ct 2531. 2550 (2008) (Roberts. CJ. dissenting) (quoting "Like a Rolling Stone." on Highway 61 Revisited (Columbia Records 1965)). Aficionados would claim that. notwithstanding the songbook. the song is classically sung as. "when you ain't got nothing. you got nothing to lose."
2. Sprint. 128 S Ct 2531.
3. Virginia Elec. & Power Co. v Westinghouse Elec. Corp.. 485 F2d 78. 83 (4th Cir 1973) ("'Rule 17(a) is a barnacle on the federal practice ship. It ought to be scraped away.'") (quoting John E. Kennedy. Federal Rule 17(a): Will the Real Party in Interest Please Stand? 51 Minn L Rev 675. 724 (1967)).
4. 4 Republic of the Philippines v Pimentel. 128 S Ct 2180 (2008).
5. Provident Tradesmen; Bank & Trust Co. v Patterson. 390 US 102. 117 n 12 (1968).
6. Taylor v Sturgell. 128 S Ct 2161 (2008).
7. 128 S Ct at 2545.
8. The best contemporary treatment is Stephen Yeazell. Frovi Medieval Group Litigation to the Modern Class Action (1987). See also Robert G. Bone. Personal and Impersonal Litigative Forms: Reconceiving the History of Adjudicative Representation. 70 BU L Rev 213 (1990) (reviewing Yeazell. From Medieval Group Litigation to the Modern Class Action).
9. 386 US 523 (1967).
10. The Court revisits the foundations of interpleader in Ortiz v Fibreboard Corp.. 527 US 815 (1999). in the context of a 23(b)(1) limited fund class action. what is in effect the plaintiffs' version of interpleader.
11. Tashire. 386 US at 535-36.
12. See 47 USC 226 (2000).
13. Telecommunications Act of 1996. Pub L No 104-104. 110 Stat 56 (1996). Congress directed the FCC to create a per call compensation plan for pay phone operators. From 1999 through 2004. the FCC set the rate at $.24 per call. Effective September 27. 2004. the FCC increased the rate to $.494. which is still in effect today. 47 CFR 64.1300(d) (1999). For the 2004 increase in rates. see 71 Fed Reg 3014 (Jan 19. 2006).
14. Global Crossing Telecommunications. Inc. v Metropbones Telecommunications. Inc.. 127 S Ct 1513 (2007) (reaffirming the private right of action under the Communications Act of 1934).
15. 128 S Ct at 2534.
16. Among the original plaintiffs in the case. APCC Services is the largest aggregation service for collecting dial-around compensation for what are known in the trade as independent pay phone service providers (PSPs). Companies like APCC Services seek payment for PSPs from exchange carriers that connect calls made from pay phones. Complaint at 2-7. Sprint. 128 S Ct 2531 (2008) (No l:99-CV-00696-ESH). The aggregators send claims to between 500 and 800 exchange carriers every quarter on behalf of the PSPs. Due to the large number of potential exchange carriers. the PSPs would be effectively prevented from collecting from any but the largest carriers due to the costs of sending and monitoring such a large number of invoices. For their service. the aggregators are paid a fee based on the number of pay phones and telephone lines operated by a given PSP. This general payment framework extends to situations in which the aggregator is forced to litigate repayment from the carriers. As part of the contractual services. all PSPs are required to make regular payments to a litigation fund should any one of them be forced to take their claims to court-in effect. a form of common pool litigation insurance. Telephone interview by Laura Miller with Ruth Jaeger. President and General Manager. APCC Services (Aug 27. 2008). As part of the assignment agreement between the aggregators and PSPs. all recovered damages (both litigated and nonlitigated) from the exchange carriers are turned directly over to the PSPs. 128 S Ct at 2535.
17. 17 MeConnett v FEC. 540 US 93. 227 (2003).
18. Warth v Seldin. 422 US 490. 499 (1975) (party "must assert his own legal rights and interests. and cannot rest his claim to relief on the legal rights or interests of third parties").
19. 19 Sprint. 128 S Ct at 2537. quoting William M. Blackstone. 2 Commentaries *442.
20. Compare 128 S Ct at 2540 (Justice Breyer for the majority reading the Comment to provide for the assignability of the right to sue) with id at 2556 (Chief Justice Roberts invoking Comment for uncertainty over same issue). The dispute is over whether a majority or minority of jurisdictions in the United States allowed such assignees to file suit in 1967. as discussed in Michael Ferguson. Comment. The Real Party in Interest Rule Revitalized: Recognizing Defendant's Interest in the Determination of Proper Parties Plaintiff. 55 Cal L Rev 1452. 1475 (1967).
21. 128 S Ct at 2545.
22. Id at 2551 (Roberts. CJ. dissenting).
23. APCC Services is headquartered and incorporated in Virginia. The Virginia Supreme Court has defined champerty as "a bargain with the plaintiff or defendant in a suit for a portion of the land or other matter sued for in case of a successful termination of the suit. which the champertor undertakes to carry on at his own expense." Ventro v Clincbfield Coal Corp.. 199 Va 943. 953 (1958). There are very few exceptions to this rule. the one notable one being the representation of indigent parties. NAACP v Harrison. 202 Va 142. 162 (1960) ("The law has always recognized the right of one to assist the poor in commencing or further prosecuting legal proceedings. To deny this right would be oppressive and enable the other party. if his means so permits. an advantage over one with little means. Aiding the indigent is one of the generally recognized exceptions to the law of maintenance.").
24. For a thoughtful discussion of the market-constricting effects of these rules. see Jonathan T. Molot. A Market in Litigation Claims: A Market Alternative to Judicial Settlement Efforts (draft on file with author).
25. Model Rules of Professional Conduct. Rule 5.4.
26. There is more than a touch of irony in Sprint expressing its profound attachment to the protections afforded (to others. no less) by formal class action rules. Sprint's standard- form consumer contract for its long-distance services provides that its customers must agree to the following: "To the extent allowed by law. we each waive any right to pursue disputes on a classwide basis; that is. to either join a claim with the claim of any other person or entity. or assert a claim in a representative capacity on behalf of anyone else in any lawsuit. arbitration or other proceeding." Reproduced at hrttp://www.negotiationlawblog.com/2007/ 07/articles/arbitxation/men-fine-print- sprints-arbitration-clause/. This is part of the standard-form arbitration agreements designed to make many types of claims unenforceable. For a discussion of the controversies over the enforceability of these contracts in the consumer context. see Samuel Issacharoff and Erin F. Delaney. Credit Card Accountability. 73 U Chi L Rev 157. 170-77 (2006). For discussion of similar issues in the employment context. see Cynthia L. Estlund. Between Rights and Contract: Arbitration Agreements and 'Non-Compete Covenants as a Hybrid Form of Employment Law. 155 U Pa L Rev 379. 426-30 (2006).
27. See generally Judith Resnik. Money Matters: Judicial Market Interventions CreatingSub- sidies and Awarding Fees and Costs in Individual and Aggregate Litigation. 148 U Pa L Rev 2119. 2144-59 (2000) (arguing that rulemakers liberalized the class action rule in order to enable disadvantaged litigants to pool resources).
28. For a defense of the presumption that contracts among repeat-play commercial actors should be entitled to great deference. see Alan Schwartz and Robert E. Scott. Contract Theory and the Limits of Contract Law. 113 Yale L J 541 (2003).
29. For a related discussion of the relation between formal and informal methods of aggregations. see Richard A. Nagareda. Class Actions in the Administrative State: Kalven and Rosenfield Revisited. 75 U Chi L Rev 603. 631 (2008).
30. The underlying Pimentel class action remains the only extrapolated judgment upheld on appeal. See Hilao v Estate of Marcos. 103 F3d 767 (9th Cir 1996). Hilao was a suit filed under the Alien Tort Statute. which provides aliens with a federal cause of action for torts committed in violation of customary international law. Hilao. 103 F3d at 772; see also Sosa v Alvarez-Machain. 542 US 692. 724 (2004). The degree of judicial creativity available in ATS suits. see id at 738 (citing "residual common law discretion"). may have facilitated the use of innovative sampling techniques. avoiding the objection that such techniques alter the underlying substantive state tort law. See Cimino v Raymark Industries. Inc.. 151 F3d 297. 319 (5th Cir 1998).
31. 128 S Ct at 2185.
32. A recurring question in alien tort claims actions has been whether a remedy offered by the foreign nation at issue should preclude a federal suit in the United States from going forward. See Kbulumoni v Barclay Nat'l Bank Ltd.. 504 F3d 254. 259 (2d Cir 2007); id at 295-301 (opinion of Korman. J).
33. The judge in question. Judge Manuel Real of the Central District of California who was sitting by designation in Hawaii. is not a stranger to accusations of exceeding his authority. His trial manner has drawn a significant amount of critical commentary. See. for example. U.S. v Hall. 271 Fed Appx 559 (9th Cir 2008) ("the catalog of inappropriate behavior by the trial court is long. so we merely summarize it here"). Most noteworthy. the Ninth Circuit has ordered plenary review of dozens of his old cases for evidence of outcome-determinative judicial misconduct. Terry Carter. Real Trouble. ABA J (Sept 2008). available at http://www.abajournal.com/magazine/ real-trouble/.
34. In an important article to which I shall return. Professor Abram Chayes well captures the essence of the common law dispute-resolution model:
35. (a) The lawsuit is bipolar-it concerns two separate and easily identifiable parties;
36. (b) The lawsuit is retrospective-it addresses completed events;
37. (c) The right asserted and the remedy sought are interdependent-the latter flows from the former;
38. (d) The lawsuit concerns a self-contained episode-the impact of the judgment is confined to the parties to the litigation; and
39. (e) The process is party-initiated and party-controlled-the issues and facts in the case are developed by the parties and presented by them or their attorneys to the final arbiter. Abram Chayes. The Role of the Judge in Public Law Litigation. 89 Harv L Rev 1281.1282-83 (1976).
40. This is not a uniformly held assessment of the Rule. Wright and Miller. for example. are much more impressed with the post-1966 reforms that allowed a more "orderly procedure" by which courts can make a more limited initial inquiry under Rule 19(a). Charles Alan Wright. Arthur R. Miller. and Mary Kay Kane. 7 Federal Practice and Procedure § 1604 (2001). For the common law background of Rule 19. see Geoffrey C. Hazard. Jr.. Indispensable Party: The Historical Origin of a Procedural Phantom. 61 Colum L Rev 1254. 1271 (1961) (tracing rules in equity that parties with an interest be joined if possible).
41. Provident Bank. 390 US 102. 119 (1968).
42. Id at 118.
43. 38 Pimentel. 128 S Ct at 2189.
44. Jay Tidmarsh and Roger H. Transgrud. Complex Litigation: Problems in Advanced Civil Procedure 95 (2002).
45. Id.
46. "The Republic and the Commission have a unique interest in resolving the ownership of or claims to the Arelma assets and in determining if. and how. the assets should be used to compensate those persons who suffered grievous injury under Marcos." 128 S Ct at 2190.
47. Id at 2193. quoting Provident Bank. 390 US at 111.
48. 43. Herrick v Garvey. 298 F3d 1184 (10th Cir 2002).
49. Richards v Jefferson County. 517 US 793. 798 (1996). See also Martin v Wilks. 490 US 755. 761 (1989).
50. Taylor v Blakey. 490 F3d 965. 971-72 (DC Cir 2007).
51. Id.
52. Most notably. these were some of the same considerations that allowed the use of nonmutual issue preclusion. See Blonder-Tongue Laboratories. Inc. v University of Illinois Foundation. 402 US 313. 320-27 (1971); Parklane Hosiery Co. v Shore. 439 US 322. 335-37 (1979).
53. Although I find the case intriguing. I joined an amicus brief of civil procedure and complex litigation professors urging reversal.
54. 311 US 32 (1940).
55. 18A. Wright. Miller. and [Cooper]. Federal Practice and Procedure 512-13 (2d ed 2002).
56. 128 S Ct at 2176. quoting Tice v American Airlines. Inc.. 162 F3d 966. 972 (7th Cir 1998).
57. 526 US 160 (1999).
58. 517 US 793 (1996).
59. 490 US 755 (1989).
60. For an early defense of the outcome in Martin. see Samuel Issacharoff. When Substance Mandates Procedure: Martin v Wilks and the Rights of Vested Incumbents in Civil Rights Consent Decrees. 77 Cornell L Rev 189 (1992).
61. 128 S Ct at 2176. quoting Tice. 162 F3d at 973.
62. For the most recent discussion of the taxpayer standing cases. see Hein v Freedom from Religion Foundation. Inc.. 127 S Ct 2553. 2563 (2007).
63. Quoted at 128 S Ct at 2177.
64. The Court rejected the force of this point. in what appears to me a disingenuous distinction: "a successful FOIA action results in a grant of relief to the individual plaintiff. not a decree benefiting the public at large." 128 S Ct at 2177. As a formal matter. the Court is right. The government is not bound by issue preclusion and not even a determination in one Circuit binds the government in other courts outside that Circuit. U.S. v Mendoza. 464 U S 154 (1984). Nonetheless. once released through FOIA. neither the government nor Fairchild would any longer have exclusive control of the F-45 design specifications.
65. 128 S Ct at 2178. quoting David Shapiro. Civil Procedure: Preclusion in Civil Actions 97 (2001).
66. Chayes. 89 Harv L Rev 1281 (cited in note 34).
67. 397 US 254 (1970).
68. 424 US 319 (1976). As cogently expressed by Judge Posner. "[t]he less that is at stake... the less process is due." Van Harken v City of Chicago. 103 F3d 1346. 1353 (1997).
69. See Carl Tobias. Standing to Intervene. 1991 Wis L Rev 415.
70. Northeastern Fla. Chapter. Associated Gen. Contractors of America v Jacksonville. 508 US 656 (1993).
71. For the emergence of the jurisprudence of the administrative state. see Richard B. Stewart. The Reformation of American Administrative Law. 88 Harv L Rev 1669 (1975).
72. Judith Resnik. Managerial Judges. 96 Harv L Rev 374 (1982). The move to administration and settlement of disputes rather than the presumption of trials is confirmed in the 1983 amendments to the Federal Rules of Civil Procedure. Arthur R. Miller. The August 1983 Amendments to the Federal Rules of Civil Procedure 21 (Federal Judicial Center. 1984). and the subsequent marked decline in civil trials. Arthur R. Miller. The Pretrial Rush to Judgment: Are the "Litigation Explosion." "Liability Crisis." and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments? 78 NYU L Rev 982 (2003). For an overview of the increased managerial conception of the role of courts. see Samuel Issacharoff. Civil Procedure (2d ed 2008). chap 8.
73. See David Rosenberg. The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System. 97 Harv L Rev 851 (1984); Jack B. Weinstein. Individual Justice in Mass Tort Litigation: The Effect of Class Actions. Consolidations. and Other Multiparty Devices 41 (1995); Howard M. Erichson. Mass Tort Litigation and Inquisitorial Justice. 87 Georgetown L J 1983. 1985 (1999); Peter Schuck. Mass Torts: An Institutional Evolutionist Perspective. 80 Cornell L Rev 941 (1995). For a recasting of this debate to focus on the role of private counsel as private attorney general. see William B. Rubenstein. On What a "Private Attorney General" Is-and Why It Matters. 57 Vand L Rev 2129 (2004). For a synthetic overview of this field. see Richard Nagareda. Mass Torts in a World of Settlement (2007).
74. See Jonathan T. Molot. An Old Judicial Role for a New Litigation Era. 113 Yale L J 27. 35-36 (2003).
75. Although phrased more broadly. the only real use of Rule 23(b)(1) is through subsection (b) to create what is termed a limited fund class action. In effect. this is the procedural vehicle for plaintiffs to file an interpleader action protecting an equitable distribution of the proceeds and stopping a run on the bank. This is discussed in Samuel Issacharoff. Governance and the Law of Class Actions. 1999 Supreme Court Review 337.
76. American Law Institute. Principles of the Law of Aggregate Litigation (Tentative Draft No 1. Apr 7. 2008). at 2.04. I serve as reporter on this project.
77. See Phillips Petroleum Co. v Shntts. 472 US 797. 821-22 (1985).
78. This is. for practical purposes. the holding of Ortiz v Fibreboard. 527 US 815 (1999).
79. There is an active division in the Courts of Appeals on whether incidental claims for damages can form part of a (b)(2) class. and on what exactly is an incidental claim for damages. The polar positions are found in Allison v Citgo Petroleum Corp.. 151 F3d 402. 425 (5th Cir 1998) (permitting inclusion of equitable back-pay claims in a (b)(2) class but not permitting additional claims for legal damages). and Robinson v Metro-North Commuter Railroad Co.. 267 F3d 147. 164 (2d Cir 2001) (using "ad hoc balancing" to define what are incidental claims for monetary relief in a (b)(2) class). For a contrast of the approaches. see Lesley Frieder Wolf. Note. Evading Friendly Fire: Achieving Class Certification After the Civil Rights Act of 1991. 100 Colum L Rev 1847 (2000). The third leading approach is the use of hybrids with elements of both (b)(2) and (b)(3) protections in place. See Allen v Int'l Truck and Engine Corp.. 358 F3d 469. 470-72 (7th Cir 2004).
80. The Supreme Court has demanded a "rigorous" examination of the requirements of Rule. Gen. Tel. Co. of the S.W.v Falcon. 457 US 147. 161 (1982). including a "demanding" examination of Rule 23(b)(3) in the settlement context. Amchem Products. Inc. v Windsor. 521 US 591. 624 (1997). As formulated by the ALI. the resulting doctrinal battles lead "advocates of class certification ⋯ to frame legal and factual issues at high levels of generality so as to argue for their commonality. whereas opponents of class certification have an incentive to catalogue in microscopic detail each legal or factual variation suggesting the existence of individual questions." § 2.02. Reporters' Notes. Comment a.
81. See Geoffrey P. Miller. Covipeting Bids in Class Action Settlements. 31 Hofstra L Rev 633. 633 (2003).
82. For a critique of the misguided nature of the Rule 23(b)(3) categories. see Allan Erbsen. From "Predominance" to "Resolvability": A New Approach to Regulating Class Anions. 58 Vand L Rev 995. 1005-6 (2005).
83. Amchevi. 521 US at 617.
84. See Howard M. Erichson. A Typology of Aggregate Settlements. 80 Notre Dame L Rev 1769.1776 (2005) (describing the settlement class action as "precisely the tool that Amchem and Ortiz render nearly unusable for global resolutions of personal injury mass torts").
85. This was the form taken in the sweeping settlement of personal injury claims for exposure to the diet drug fen-phen. For one of the many appellate treatments of this settlement. see In re Diet Drugs (Phenterniine/Fenflura? nine/Dexfenfluramine) Products Liability Litigation. 369 F3d 293 (3d Cir 2004). Under the fen-phen settlement. individuals whose claims matured after the settlement were allowed to receive payments on a fixed matrix formula or allowed to opt out at the time their injury presented itself and bring individual claims in the tort system. absent any claim for punitive damages. For an affirmative assessment of this settlement as properly balancing the individual interests of future claimants against the need for finality. see Richard A. Nagareda. Autonomy. Peace. and Put Options in the Mass Tort Class Action. 115 Harv L Rev 747 (2002); for a critical assessment arguing in favor of compelled aggregation. see David Rosenberg. Mandatory-Litigation Class Action: The Only Option for Mass Tort Cases." 115 Harv L Rev 831 (2002).
86. 527 US at 846.
87. The best empirical accounts are compiled in Symposium. The Vanishing Trial. 1 J Empir Legal Stud 459 (2004).
88. The historic emergence of private responses to the need for efficient aggregation of mass claims is discussed in Samuel Issacharoff and John Fabian Witt. The Inevitability of Aggregate Settlement: An Institutional Account of American Tort Law. 57 Vand L Rev 1571 (2004). Richard Nagareda provides the most comprehensive account of the development of new institutional and legal responses in Richard A. Nagareda. Mass Torts in a World of Settlement (2007).
89. This is discussed in Samuel Issacharoff. "Shocked": Mass Torts and Aggregate Asbestos Litigation after Amchem and Ortiz. 80 Tex L Rev 1925 (2002).
90. See Elizabeth J. Cabraser. The Class Action Counterreformation. 57 Stan L Rev 1475. 1476 (2005).
91. See Francis E. McGovern. Asbestos Litigation II: Section 524(g) Without Bankruptcy. 31 Pepperdine L Rev 233. 241 (2003); Issacharoff. 80 Tex L Rev at 1939 ("These prepackaged bankruptcies dramatically lower the transaction costs associated with conventional bankruptcies ⋯") (cited in note 84).
92. 11 USC 1126(c).
93. See 11 USC § 524(g)(2)(B)(ii)(IV)(bb).
94. llUSC 524(g)(4)(B)(I).
95. 391 F3d 190 (3d Cir 2004).
96. 521 US at 627.
97. As described by the Third Circuit. "Combustion Engineering contributed half of its assets to a pre-petition trust (the 'CE Settlement Trust') to pay asbestos claimants with pending lawsuits for part. but not the entire amount. of their claims. The remaining. unpaid portion of these claims. known as 'stub claims.' provided prepetition trust participants with creditor status under the Bankruptcy Code." 391 F 3d at 201. The result was twofold. First. the "stub claimants" would remain as creditors able to vote on the plan of reorganization. Second. the actual bankruptcy trust (what remained after the creation of the CE Settlement Trust) could treat present and future claimants equally. even though present claimants would get the benefits of the pre-petition trust that were unavailable to any future claimant.
98. 391 F3d at 242 n 56.
99. Id at 239. quoting Begier v IRS. 496 US 53. 58 (1990).
100. 391 F3d at 242 n 57.
101. Amchem Products. Inc. v Windsor. 521 US 591. 617 (1997). quoting Mace v Van Ru Credit Corp.. 109 F3d 338. 344 (7th Cir 1997).
102. David L. Shapiro. Class Actions: The Class as Party and Client. 73 Notre Dame L Rev 913. 917-18 (1998) ("[T]he notion of the class as entity should prevail over more individually oriented notions of aggregate litigation.").
103. This is the core of the legal process approach to the relation between law and private arrangements. See Henry M. Hart. Jr.. and Albert M. Sacks. The Legal Process: Basic Problems in the Making and Application of Law 159-61 (William N. Eskridge. Jr.. and Philip P. Frickey. eds. 1994) (describing private ordering as the "primary process of social adjustment").
104. This is the crux of the argument developed in Issacharoff and Witt. 57 Vand L Rev 1571 (cited in note 83).
105. This is an application of the basic economic model of litigation and settlement to the problem of efficient coordination of related cases. For the basic economic model. see Richard A. Posner. Economic Analysis of Law 597 (7th ed 2007); Steven Shavell. Suit. Settlement. and Trial: A Theoretical Analysis Under Alternative Methods for the Allocation of Legal Costs. 11 J Legal Stud 55. 56-57 (1982).
106. This is an argument developed in Samuel Issacharoff and Pamela S. Karlan. The Hydraulics of Campaign Finance Reform. 77 Tex L Rev 1705 (1999).
107. As initially formulated by Judge Weinstein. the salient features of the quasi-class were. "[t]he large number of plaintiffs subject to the same settlement matrix approved by the court; the utilization of special masters appointed by the court to control discovery and to assist in reaching and administering a settlement; the court's order for a huge escrow fund; and other interventions by the court." As a result. Judge Weinstein found that any settlement that ensued was subject to the court's "imposition of fiduciary standards to ensure fair treatment to all parties and counsel regarding fees and expenses." In re Zyprexa Prods. Liab. Litig.. 424 F Supp 2d 488. 491 (ED NY 2006). See also In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig.. MDL No 05-1708. 2008 WL 682174. at *18 (D Minn. March 7. 2008) (characterizing a mass tort proceeding as a quasi-class action and subjecting the global settlement to the court's equitable authority); In re Vioxx Products Liability Litigation. 574 F Supp 606 (ED La 2008).
108. The settlement is set out at http://www.merck.com/newsroom/vioxx/pdf/ Settlement-Agreement.pdf. I should disclose that I am counsel to the attorneys that negotiated this settlement agreement on behalf of plaintiffs.
109. As I will discuss. the most controversial feature of the settlement was the requirement that each plaintiffs' lawyer settle her entire portfolio of claims. thereby precluding any adverse selection of which cases to settle and which to prosecute. For commentary on the controversies regarding the relation between this novel provision and the rules of ethics. see. for example. Adam Liptak. In Vioxx Settlement. Testing a Legal Ideal: A Lawyer's Loyalty. NY Times (Jan 22. 2008). at A12; Alex Berenson. Some Lawyers Seek Changes in Vioxx Settlement. NY Times (Dec 21. 2007). at C4; Nathan Koppel. Vioxx Plaintiffs' Choice: Settle or Lose Their Lawyer. Wall St J (Nov 16. 2007). at Bl. Probably the most far-reaching condemnation came from University of Virginia law professor George Cohen who. in addition to claiming the settlement violated various ethical strictures. sent a complaint to the Federal Trade Commission. With the salutation "Dear FTC." Cohen charged that the settlement "is a per se illegal group boycott (concerted refusal to deal)" and should be prosecuted as such; no FTC action ensued. See Ted Frank. PointofLaw.com. George Cohen's Letter to the FTC Re the Vioxx Settlement. http://www.pointoflaw.com/archives/ 004680.php#4680.
110. Numerous class actions had been filed over Vioxx exposure. though none was being seriously prosecuted for personal injury claims. One unintended consequence of class action law was that were the case to be resolved as a class action. the statute of limitations would be tolled for all putative class members. in effect reopening the litigation to a new crop of potential claimants. This is the effect of class-wide tolling under American Pipe & Constr. Co. v Utah. 414 US 538 (1974).
111. Model Rules of Prof I Conduct R. 1.2(a) (2002) ("[a] lawyer shall abide by a client's decision whether to settle a matter").
112. Model Rules of Prof I Conduct R. 1.16(b)(1) (2002) (allowing withdrawal only if it "can be accomplished without material adverse effect on the interests of the client").
113. Model Rules of Prof l Conduct R. 2.1 (2002) (requiring lawyer to "exercise independent professional judgment and render candid advice").
114. Model Rules of Prof I Conduct R. 5.6(b) (2002) (prohibiting any agreement in which a restriction on the lawyer's right to practice is part of the setdement of a client controversy").
115. The inescapable citation here is to Owen Fiss. Against Settlement. 93 Yale L J 1073 (1984).
116. For a rather stark attack on David Shapiro and me for even contemplating that a certified class might be an "entity" distinct form the mere agglomeration of its members. see Martin H. Redish and Nathan D. Larsen. Class Actions. Litigant Autonomy. and the Foundations of Procedural Due Process. 95 Calif L Rev 1587-1600 (2007).
117. The extent of the extortion or blackmail effect is. not surprisingly. a subject of dispute. See In re Rhone-Poulenc Rarer. Inc.. 51 F3d 1293. 1298 (7th Cir 1995) ("[Faced with a class action. defendants] may not wish to roll these dice. That is putting it mildly. They will be under intense pressure to settle."); Charles Silver. We're Scared to Death: Class Certification and Blackmail. 78 NYU L Rev 1357 (2003) (challenging the coercive power of the class action); Bruce Hay and David Rosenberg. "Sweetheart" and "Blackmail" Settlements in Class Actions: Reality and Remedy. 75 Notre Dame L Rev 1377 (2000).
118. 113 In re Bridgestone/Firestone. Inc.. 288 F3d 1012. 1020 (7th Cir 2002).