Aggregate litigation goes public: Representative suits by state attorneys general

Harvard Law Review

Volumn 126, Issue 2, 2012, Pages 487-549

  Lemos, Margaret H ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84864434749     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (466)

1. See, e.g.,Edward Brunet, Class Action Objectors: Extortionist Free Riders or Fairness Guarantors, 2003 U. Chi. Legal F. 403, 403-04 ("The class action concept is under assault. Critics seem to have won the day.... In this climate, it is difficult to find a positive spin on either Rule 23 or the class action mechanism itself. ")
2. Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. Pa. L. Rev. 103, 121-22 & nn.71-74 (2006) ("Law library shelves sag with... critiques of nearly every aspect of class action practice, including the rules for approving settlements, particularly couponbased settlements
3. compensating lead plaintiffs; and certifying classes, among many other matters. " Id. at 121-22 (footnotes omitted).)
4. Deborah R. Hensler, The New Social Policy Torts: Litigation as a Legislative Strategy: Some Preliminary Thoughts on a New Research Project, 51 DePaul L. Rev. 493, 496 (2001) ("Damage class actions... have been a lightening [sic] rod for controversy over the past decade. ").
5. See Geoffrey P. Miller, Overlapping Class Actions, 71 N.Y.U. L. Rev. 514, 514-15 (1996) ("[T]he class action... has been subjected to harsh criticism for alleged favoritism towards one or another of the interested parties: plaintiffs who extort excessive settlements by threatening defendants with ruinous liability, defendants who play off competing groups of plaintiffs in order to buy cheap protection against liability, or plaintiffs' attorneys who favor their own interests over everyone else's. " (footnotes omitted).
6. Samuel Issacharoff, Class Action Conflicts, 30 U.C. Davis L. Rev., pp. 499-510 (1997).
7. See Samuel Issacharoff, Class Action Conflicts, 30 U.C. Davis L. Rev. 805, 805 (1997) ("Class actions occupy an uncertain position in Anglo-American law. Nowhere else do we find such a clear departure from the premise that no one should be bound to a judgment in personam absent the personal security offered by notice and a full opportunity to participate in the underlying litigation. ").
8. Some federal agencies have similar authority to seek monetary recoveries for citizens. See generally Verity Winship, Fair Funds and the SEC's Compensation of Injured Investors, 60 Fla. L. Rev. 1103 (2008) (discussing efforts by the Securities and Exchange Commission (SEC) to distribute financial recoveries to injured individuals)
9. Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. L. Rev. 500 (2011) (finding an equivalent power vested with the SEC, Federal Trade Commission (FTC), and Food and Drug Administration). This Article focuses on state suits for several reasons. First, public suits seeking to compensate injured citizens are far more common at the state level, as state attorneys general long have understood their role to include a compensatory function.
10. See, e.g.,Harry First, Delivering Remedies: The Role of States in Antitrust Enforcement, 69 Geo. Wash. L. Rev. 1004, 1039 (2000) ("If there is one consistent thread to state antitrust enforcement in the past sixty years, it is the effort to collect money damages for violations of the antitrust laws. "). By contrast, powers of compensation are lodged in only a handful of agencies at the federal level, and those powers lay dormant until quite recently.
11. Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. L. Rev., at 520 (2011) ("In the 1990s,... [federal] regulatory agencies aggressively began to use their enforcement power to compensate victims rather than solely to punish wrongdoers. "). Second, the questions of adjudicative representation explored here are important-and difficult-precisely because attorneys general are elected or appointed representatives of state citizens generally. Federal agencies are accountable to the people by virtue of their relationships with the President, but few if any citizens think of the SEC or the FTC as their "representatives. "
12. Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. L. Rev., pp. 499-510 (2011).
13. Forty-three states provide for popular election of the attorney general. In the remaining states, the attorney general is appointed by the legislature (Maine), by the state supreme court (Tennessee), or by the governor (Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming). William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 Yale L.J. 2446, 2448 n.3 (2006).
14. See, e.g.,John H. Beisner et al., Class Action "Cops": Public Servants or Private Entrepreneurs?, 57 Stan. L. Rev. 1441, 1452-57 (2005) (discussing overlap and difference between public and private aggregate litigation)
15. Edward Brunet, Improving Class Action Efficiency by Expanded Use of Parens Patriae Suits and Intervention, 74 Tul. L. Rev. 1919, 1922 (2000) ("[T]here now exists a blueprint for states to consider filing class-like lawsuits for injuries to their citizens' health and overall economic well-being. ")
16. William H. Pryor Jr., A Comparison of Abuses and Reforms of Class Actions and Multigovernment Lawsuits, 74 Tul. L. Rev. 1885, 1898 (2000) (describing how "multigovernment lawsuits" have expanded "[a]s federal courts have retreated from the use of sprawling class actions")
17. Jack Ratliff, Parens Patriae: An Overview, 74 Tul. L. Rev. 1847, 1847-49 (2000) (recommending an expanded role for parens patriae cases involving damages that would otherwise be the subject of a private class action).
18. Edward Brunet, Improving Class Action Efficiency by Expanded Use of Parens Patriae Suits and Intervention, 74 Tul. L. Rev., at 1938 (2000) (arguing that a parens patriae suit can "pack a significant deterrent wallop... particularly because of the ease or comparatively low transaction costs associated with initiating such a suit")
19. Myriam Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion, 79 U. Chi. L. Rev. 623, 660 (2012) (arguing that state attorneys general can and should "fill the void left by class actions" because "[p]arens patriae suits are not subject to Rule 23 or contractual waiver provisions, and so avoid the majority of impediments to contemporary class actions").
20. Jack Ratliff, Parens Patriae: An Overview, 74 Tul. L. Rev. 1847, 1847-49 (2000) (extolling the potential of parens patriae actions to take the place of private class actions).
21. See Richard A. Nagareda, Class Actions in the Administrative State: Kalven and Rosenfield Revisited, 75 U. Chi. L. Rev. 603, 641 (2008) ("[M]uch class action scholarship sees such lawsuits-especially class settlements-primarily as the byproducts of lawyers for both plaintiffs and defendants who are pursuing their own self-interested business ends. These actors and the financial parameters in which they operate comprise the starting point and class settlements the ending point. ").
22. Richard A. Nagareda, Class Actions in the Administrative State: Kalven and Rosenfield Revisited, 75 U. Chi. L. Rev. at 629 (2008) (arguing that the deals at issue in notable asbestos cases Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), "effectively sought to achieve by way of class settlements what the process of public legislation, to this day, has not yielded in the way of asbestos litigation reform")
23. Martin H. Redish, Class Actions and the Democratic Difficulty: Rethinking the Intersection of Private Litigation and Public Goals, 2003 U. Chi. Legal F. 71, 77 (arguing that many class actions feature "private attorneys acting as bounty hunters, protecting the public interest by enforcing the public policies embodied in controlling statutes").
24. See John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter is Not Working, 42 Md. L. Rev. 215, 215-19 (1983) (providing an overview of the "private attorney general" concept).
25. Cf. Alon Harel & Alex Stein, Auctioning for Loyalty: Selection and Monitoring of Class Counsel, 22 Yale L. & Pol'y Rev. 69, 106 (2004) (explaining that, if one believes that "the class action agency problem originates in the state's decision to confer upon private legal entrepreneurs the license to sue on behalf of others, " the problem could be solved if states used parens patriae actions to "de-privatize the power to initiate and prosecute class actions").
26. See, e.g.,John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J. 625, 628-34 (1987) (describing agency-cost problems).
27. Such relief may be accompanied by other remedies, such as an injunction or civil penalties, but it need not be.
28. See, e.g.,Ariz. Rev. Stat. Ann. §§ 44-1521 to-1534 (2003).
29. Some attorneys general have authority to exercise all the powers typically vested in the office under the common law, which includes the power to sue as parens patriae whenever necessary to promote the public interest-and without any subject matter-specific statutory authorization. See 7 Am. Jur. 2d Attorney General §§ 6-7 (2004). In such states, the parens patriae authority may or may not be limited along the lines suggested in text below, depending on how state courts have interpreted the scope of the power.
30. There are a number of state statutes authorizing the attorney general to sue as parens patriae to recover damages for citizens injured by violations of state antitrust law. See Alaska Stat. § 45.50.577(b) (2011)
31. See, e.g.,Illinois v. SDS W. Corp., 640 F. Supp. 2d 1047, 1050 (C.D. Ill. 2009) (describing suit for restitution as parens patriae action)
32. In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 386-87 (D.D.C. 2002) (citing statutes and case law authorizing state attorneys general to act as parens patriae or "to represent consumers in a capacity which is the functional equivalent of parens patriae, " and drawing no distinction between parens patriae actions and actions for restitution).
33. For detailed discussions of the origins and scope of the parens patriae concept, see Jay L. Himes, State PARENS PATRIAE Authority 1-14 (2004), available at http://apps.americanbar.org/antitrust/at-committees/at-state/pdf/publica tions/other-pubs/parens.pdf
34. and Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 Tul. L. Rev. 1859, 1863-71 (2000).
35. Some attorneys general have authority to exercise all the powers typically vested in the office under the common law, which includes the power to sue as parens patriae whenever necessary to promote the public interest-and without any subject matter-specific statutory authorization. See 7 Am. Jur. 2d Attorney General §§ 6-7 (2004). In such states, the parens patriae authority may or may not be limited along the lines suggested in text below, depending on how state courts have interpreted the scope of the power.
36. Illinois v. SDS W. Corp., 640 F. Supp. 2d 1047, 1050 (C.D. Ill. 2009) (describing suit for restitution as parens patriae action)
37. The concept of parens patriae authority derives from early English practice, in which the King exercised certain royal prerogatives as "father of the country. " See Michael Malina & Michael D. Blechman, Parens Patriae Suits for Treble Damages Under the Antitrust Laws, 65 Nw. U. L. Rev. 193, 197 (1970) (describing early conception). In that early form, the parens patriae power enabled the King to act on behalf of "infants, idiots, and lunatics"-that is, those who could not represent themselves. See id. at 197-202 (quoting 3 William Blackstone, Commentaries*46). American courts recognized a similar authority "inherent in the supreme power of every State, " Mormon Church v. United States, 136 U.S. 1, 57 (1890), but soon expanded it to its present form.
38. The discussion in the text outlines the basic requirements for parens patriae standing as developed by the federal courts. See generally Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. Land Resources & Envtl. L. 273, 294-321 (2007) (discussing state standing generally)
39. Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev. 387 (1995) (same). It bears emphasis, however, that the precise contours of parens patriae authority in any given state will be defined by state constitutional and statutory law.
40. Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 Tul. L. Rev., at 1882 (2000). ("Legal limits on parens patriae are foremost a question of state law. Within a state's own courts, and subject to federal and state constitutional limitations, state legislatures can authorize as broad a scope for the use of parens patriae as they wish. ").
41. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 592, 601 (1982).
42. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 592, 601 (1982) (acknowledging that the category of "'quasi-sovereign' interest... is a judicial construct that does not lend itself to a simple or exact definition").
43. Alfred L. Snapp & Son, Inc. v. Puerto Rico, at 607 (1982) (acknowledging that the category of "'quasi-sovereign' interest... is a judicial construct that does not lend itself to a simple or exact definition").
44. 592.
45. at 607.
46. Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 Tul. L. Rev., at 1882 (2000) ("[S]tates cannot be acting simply as enforcement agencies for small collections of private individuals. There must be a state interest beyond that of private parties to warrant a parens patriae action. ").
47. See, e.g.,New York v. 11 Cornwell Co., 695 F.2d 34, 40 (2d Cir. 1982) ("Parens patriae standing also requires a finding that individuals could not obtain complete relief through a private suit. "), vacated on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc). The Third Circuit has reversed itself on the question. Compare Pennsylvania v. Nat'l Ass'n of Flood Insurers, 520 F.2d 11, 23 (3d Cir. 1975) (suggesting that state cannot establish standing as parens patriae in circumstances where citizens can pursue private actions), with Pennsylvania v. Porter, 659 F.2d 306, 317-18 & nn.15-16 (3d Cir. 1981) (disapproving the relevant portions of National Ass'n of Flood Insurers).
48. Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. Land Resources & Envtl. L., at 300 (2007) (noting that Snapp "says nothing about limiting quasi-sovereign interest suits" to "those instances in which it would be unlikely for individuals to bring their own suits").
49. Snapp, at 607.
50. Snapp, at 607 n.14.
51. Snapp, at 607 n.14.
52. Snapp, at 607.
53. Snapp, at 607. (emphasizing that "the indirect effects of the injury must be considered as well").
54. Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. Land Resources & Envtl. L., at 300 (2007) (alteration in original) (quoting Snapp, at 609)
55. see also New York v. 11 Cornwell Co., 695 F.2d 34, 39-40 (2d Cir. 1982) (holding that injury to fewer than twelve individuals was sufficient to support parens patriae authority where similarly situated persons would be affected in the future), vacated on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc)
56. Illinois v. SDS W. Corp., 640 F. Supp. 2d 1047, 1050-51 (C.D. Ill. 2009) (permitting state to proceed as parens patriae although "only 250 Illinois consumers were directly injured, " id at 1050, because "the indirect benefits of barring unscrupulous companies from soliciting further business accrues to the population at large, " id. at 1051)
57. New York v. Mid Hudson Med. Grp., P.C., 877 F. Supp. 143, 147-48 (S.D.N.Y. 1995) (permitting state to sue as parens patriae after identifying one victim, where state's entire hearing-impaired population was affected)
58. Support Ministries v. Vill. of Waterford, 799 F. Supp. 272, 277-79 (N.D.N.Y. 1992) (permitting state to proceed as parens patriae where there were fifteen identified victims, but similarly situated persons would be affected in the future).
59. Indeed, there is reason to believe that the "nominal-party" language in Snapp has more to do with where a state can pursue a parens patriae action than whether such an action is available. That is, the nominal-party limitation may apply only where a state relies on the parens patriae concept either to qualify for the Supreme Court's original jurisdiction or to evade Eleventh Amendment limitations on the power of federal courts to hear suits against a state by the citizens of another state. See Pennsylvania v. New Jersey, 426 U.S. 660, 665-66 (1976) ("[I]f, by the simple expedient of bringing an action in the name of a State, this Court's original jurisdiction could be invoked to resolve what are, after all, suits to redress private grievances, our docket would be inundated. And, more important, the critical distinction, articulated in Art. III, § 2, of the Constitution, between suits brought by 'Citizens' and those brought by 'States' would evaporate. ")
60. cf. Snapp, at 603 n.12 ("Admittedly, the discussion here and in the other cases discussed below focused on the parens patriae question in the context of a suit brought in the original jurisdiction of this Court. There may indeed be special considerations that call for a limited exercise of our jurisdiction in such instances
61. these considerations may not apply to a similar suit brought in federal district court. ")
62. id. at 611 (Brennan, J., concurring) (emphasizing that the requirements of the Court's original jurisdiction and the Eleventh Amendment raise "concerns that might counsel for a restrictive approach to the question of parens patriae standing" that are not present when a state sues a private party in federal district court). In both cases, there are special reasons for courts to police the distinction between state litigation and private litigation, ensuring that the state is the real party in interest. Those reasons recede when a state sues a private party in state or federal court.
63. Jay L. Himes, State PARENS PATRIAE Authority, at 5-6 (2004), available at http://apps.americanbar.org/antitrust/at-committees/at-state/pdf/publica tions/other-pubs/parens.pdf ("[I]t is questionable whether this 'nominal party' consideration should apply at all when a state sues a private party in federal or state trial level court."). The question of whether the state is the real party in interest also may have relevance for purposes of diversity jurisdiction because a state is not a "citizen" within the meaning of Article III. See, e.g.,Ind. Port Comm'n v. Bethlehem Steel Corp., 702 F.2d 107, 109 (7th Cir. 1983) (citing Postal Tel. Cable Co. v. Alabama, 155 U.S. 482 (1891). A similar question has arisen, and has divided the lower courts, in situations where the defendant in a parens patriae action seeks to remove the case to federal court under the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. §§ 1332(d), 1453, 1711-1715 (2006 & Supp. V 2011). Compare, e.g.,Louisiana ex rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418, 430 (5th Cir. 2008) (holding that state was not real party in interest in antitrust parens patriae suit seeking treble damages on behalf of state citizens, so case was removable under CAFA), with SDS W., 640 F. Supp. 2d at 1052-53 (explaining that "the test is not whether the state alone will benefit, but whether the state has 'a substantial stake in the outcome of the case,'" and remanding parens patriae action for injunctive relief, restitution, and rescission (quoting Wisconsin v. Abbott Labs., Amgen, Inc., 341 F. Supp. 2d 1057, 1061 (W.D. Wis. 2004). Again, however, even the most restrictive view would affect only the location of the suit-state or federal court-and not the authority of the attorney general to sue at all under the relevant statute.
64. See, e.g.,§ 15c (2006) (authorizing suit for violations of federal antitrust law)
65. § 1679h(c)(1) (authorizing suit for violations of federal law governing credit repair organizations)
66. § 1681s(c) (2006 & Supp. V 2011) (credit reporting agencies)
67. § 5712 (2006) (pay-per-call services)
68. § 6103 (2006 & Supp. V 2011) (telemarketers)
69. § 6309(c) (2006) (professional boxing matches)
70. § 7804 (sports agents)
71. § 6504 (children's online privacy protection)
72. § 7706(f) (email spam). See generally Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev. 698 (2011).
73. There are a number of state statutes authorizing the attorney general to sue as parens patriae to recover damages for citizens injured by violations of state antitrust law. See Alaska Stat. § 45.50.577(b) (2011)
74. Ark. Code Ann. § 4-75-212 (2011)
75. Cal. Bus. & Prof. Code § 16760 (West 2008)
76. Colo. Rev. Stat. § 6-4-111 (2011)
77. Conn. Gen. Stat. § 35-32 (2011)
78. Del. Code Ann. tit. 6, § 2108 (1999)
79. Fla. Stat. Ann. § 542.22 (West 2007)
80. Haw. Rev. Stat. Ann. § 480-14 (LexisNexis 2011)
81. Idaho Code Ann. § 48-108 (2003)
82. 740 Ill. Comp. Stat. 10/7 (2010)
83. Md. Code Ann., Com. Law § 11-209 (LexisNexis 2005)
84. Neb. Rev. Stat. § 84-212 (2008)
85. Nev. Rev. Stat. § 598A.160 (2011)
86. N.H. Rev. Stat. Ann. § 356:4-a (2009)
87. Ohio Rev. Code Ann. § 109.81 (West 2012)
88. Okla. Stat. tit. 79, § 205 (2011)
89. Or. Rev. Stat. § 646.775 (2011)
90. R.I. Gen. Laws § 6-36-12 (2001)
91. S.D. Codified Laws § 37-1-23 (2004)
92. Utah Code Ann. § 76-10-916 (LexisNexis 2008)
93. W. Va. Code Ann. § 47-18-17 (LexisNexis 2006). Many states also have parens patriae statutes in non-antitrust contexts. See, e.g.,Conn. Gen. Stat. § 3-129c (2011) (authorizing Connecticut Attorney General to sue as parens patriae on behalf of state residents subjected to personal income tax by New York City)
94. D.C. Code § 28-3909 (LexisNexis 2001) (authorizing parens patriae suits for restitution and damages on behalf of consumers for violations of Washington, D.C., consumer protection laws)
95. Fla. Stat. Ann. § 626.909 (West 2012) (authorizing parens patriae actions for damages on behalf of Florida victims of unauthorized insurance transactions)
96. N.J. Stat. Ann. § 2A:53A-21(c) (West 2000) (authorizing parens patriae actions on behalf of New Jersey victims of bias crimes)
97. P.R. Laws Ann. tit. 32, § 3341 (2004) (authorizing parens patriae actions for damages on behalf of Puerto Rico consumers)
98. R.I. Gen. Laws § 40-8.2-6 (2001) (authorizing parens patriae actions for damages on behalf of Rhode Island victims of medical assistance fraud)
99. Wash. Rev. Code § 19.86.080 (2010) (authorizing parens patriae actions for restitution on behalf of Washington victims of consumer protection violations).
100. See Tennessee ex rel. Leech v. Highland Mem'l Cemetery, Inc., 489 F. Supp. 65, 68 (E.D. Tenn. 1980) (rejecting constitutional challenge to federal law authorizing parens patriae antitrust actions because "[t]his case presents a case or controversy under federal law")
101. In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., No. 150 WPG, 1978 WL 1294, at*1 (C.D. Cal. 1978) ("[A]n individual consumer financially injured by an antitrust violation would have a case or controversy against the defendants and would have a right to sue for damages. If Congress passes legislation giving a state attorney general the right to institute an action, as a 'stand-in' or a parens patriae,... the ensuing litigation presents the same case or controversy." (citation omitted).
102. E.g., Massachusetts v. EPA, 549 U.S. 497, 540 n.1 (2007) (Roberts, C.J., dissenting) (describing the requirements for parens patriae standing as "prudential")
103. Republic of Venezuela v. Philip Morris, Inc., 287 F.3d 192, 199 n.*(D.C. Cir. 2002) ("'[T]he doctrine of parens patriae is merely a species of prudential standing'
104. it is not a substantive element of the plaintiffs' state common law claims. " (alteration in original) (citation omitted) (quoting Serv. Emps. Int'l Union Health & Welfare Fund v. Philip Morris, Inc., 249 F.3d 1068, 1073 (D.C. Cir. 2001).
105. Md. People's Counsel v. Fed. Energy Regulatory Comm'n, 760 F.2d 318, 321 (D.C. Cir. 1985) (concluding that limitation on parens patriae standing is prudential, "i.e., an element that the courts must dispense with if Congress so provides").
106. Republic of Venezuela, 287 F.3d at 199 n.*("[O]ur doctrines of prudential standing are of no moment in a state court....").
107. Edward Brunet, Improving Class Action Efficiency by Expanded Use of Parens Patriae Suits and Intervention, 74 Tul. L. Rev., at 1921-22 (2000) ("[S]tates have brought parens patriae suits against entire industries, including guns, lead paint, and more recently, health maintenance organizations. When combined with older, more traditional uses of the parens patriae device in environmental cases, civil rights litigation, and antitrust claims, there now exists a blueprint for states to consider filing class-like lawsuits for injuries to their citizens' health and overall economic well-being. " (footnotes omitted)
108. Jack Ratliff, Parens Patriae: An Overview, 74 Tul. L. Rev., at 1855-57 (2000) (discussing parens patriae cases in areas of antitrust, civil rights, environmental law, and consumer protection).
109. See, e.g.,Ariz. Rev. Stat. Ann. §§ 44-1521 to-1534 (2003)
110. Cal. Bus. & Prof. Code § 17535 (West 2008)
111. Conn. Gen. Stat §§ 42.110a-.110q (2011)
112. 815 Ill. Comp. Stat. 505/7 (2010)
113. Iowa Code § 714.16 (2007)
114. N.Y. Exec. Law § 63(12) (McKinney 2012)
115. Ohio Rev. Code Ann. § 1345.07 (West 2012). There are also examples outside general consumer protection statutes.
116. See, e.g.,Ariz. Rev. Stat. Ann. § 44-1372 (2003) (unsolicited email spam)
117. Ariz. Rev. Stat. Ann. § 44-6551 (unauthorized charitable solicitations).
118. See, e.g.,Kentucky ex rel. Beshear v. ABAC Pest Control, Inc., 621 S.W.2d 705 (Ky. Ct. App. 1981)
119. cf. State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 415-16 (Alaska 1982) (holding that attorney general may obtain restitution in representative suit under the Uniform Land Sales Practices Act, Alaska Stat. § 34.55.020 (2011), which authorizes attorney general to "bring an action in the superior court... to enforce compliance with this chapter, " id. § 34.55.020(c).
120. See, e.g.,In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197 (D. Me. 2003) (multistate antitrust action resulting in settlement providing for $67.375 million in cash payments and $75.7 million worth of CDs to be distributed to the states based on population).
121. See, e.g.,John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml ("A local wedding photographer has reached a settlement with the state Attorney General's office spelling out how he will make good on his contracts with 33 clients to provide them with wedding pictures, albums and DVDs that they paid for but never received. It also orders Harold J. 'Bud' Thorpe III to pay $4,000 in penalties and costs and at least $500 in restitution.").
122. See generally Remarks at the Columbia Law School Symposium on the Newest Federalism: State Attorneys General in Cases of National Significance, Panel Two: The State Attorney General and Role of Parens Patriae (Dec. 5, 2003) [hereinafter Remarks on the State AG and the Role of Parens Patriae], available at http://www.law.columbia.edu/center_program/ag/Past_Conference/CorporateG ov/Program?exclusive =filemgr.download&file_id=91242&rtcontentdisposition=filename%3D panel%20Two.pdf (remarks of Mike Fisher, Pa. Att'y Gen.) ("As every attorney general knows, the doctrine of parens patriae is difficult to define in theory but essential to use in practice. It is really the key doctrine for an attorney general when he or she wants to take affirmative steps on behalf of his or her state's public interest. In other words, when all else fails you pull out the parens patriae!").
123. See, e.g.,Ohio Att'y Gen., Consumer Protection Annual Report (2010), available at http://www.ohioattorneygeneral.gov/OhioAttorneyGeneral/files/c2/c205fbde -7328-4fad-a129-6a12f4af0360.pdf (describing multiple settlements under Ohio's Consumer Sales Practices Act, ranging from a suit garnering $314,557.53 in consumer restitution from a local home builder accused of "shoddy and incomplete work, " id. at 8, to a multistate action brought in tandem with the Federal Trade Commission against an Arizona-based identity-theft protection provider, resulting in $11 million in restitution, id. at 13)
124. Press Release, Iowa Dep't of Justice, Office of the Att'y Gen., Florida Telemarketer Pays Full Restitution to 227 Iowans (Dec. 2, 2008), available at http://www.state.ia.us/government/ag/latest_news/releases/dec_2008/Galax y_Restitution.html (describing settlement with telemarketers under which $12,824 will be provided to Iowa citizens in restitution)
125. Press Release, N.Y. State Office of the Att'y Gen., Cuomo Secures an Additional $8.5 Million in Settlements with Companies that Tricked Consumers into Signing up for Discount Clubs with Hidden Fees (Sept. 21, 2010), available at http://www.ag.ny.gov/press-release/cuomo-secures-additional-85-million-s ettlements-companies-tricked-consumers-signing ("Attorney General Andrew M. Cuomo today announced that he has secured an additional $8.5 million in settlements with companies that tricked countless New York consumers into signing up for discount clubs that charged hidden fees. With today's settlements, Cuomo's wide-ranging investigation into the discount club industry has garnered over $18 million in consumer refunds, penalties, and fees.")
126. Press Release, Office of Att'y Gen. Terry Goddard, DirecTV to Provide Refunds to Consumers as Part of Deceptive Advertising Settlement (Dec. 28, 2010), available at http://www.azag.gov/press_releases/dec/2010/Press%20Release%20-%20DIRECT V.html (describing multistate consumer fraud settlement with DirecTV worth $13,250,000 total, with $185,000 going to Arizona's consumer fraud revolving fund and to restitution for Arizona consumers)
127. Press Release, State of Mich. Att'y Gen., Cox Announces Michigan Settlement with Mortgage Lender Countrywide (October 6, 2008), available at http://www.michigan.gov/ag/0,1607,7-164-34739_34811-201239--,00.html (discussing multistate settlement with Countrywide Financial for predatory lending, under which Countrywide agreed to refinance as many as 9700 mortgages in Michigan and pay more than $9.8 million to assist Michigan homeowners who lost their homes to foreclosure).
128. See, e.g.,Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev. 361, 362 (1999) (describing parens patriae actions as "an efficient alternative to consumer class actions")
129. William H. Pryor Jr., A Comparison of Abuses and Reforms of Class Actions and Multigovernment Lawsuits, 74 Tul. L. Rev., at 1899 (2000) ("When the attorney general files a parens patriae suit, the relief sought by the attorney general on behalf of his citizens may be similar to the 'aggregate remedies [of]... a class action....'" (first ellipsis in original)
130. (quoting Beth S. Schipper, Note, Civil RICO and Parens Patriae: Lowering Litigation Barriers Through State Intervention, 24 Wm. & Mary L. Rev. 429, 449 (1983)
131. Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. Land Resources & Envtl. L., at 300 (2007) ("[T]he emphasis on harm to a substantial segment of the population suggests that this type of [parens patriae] suit is similar to a class action. ")
132. Ann Woolhandler & Michael G. Collins, State Standing, 81 Va. L. Rev., at 512 (1995) ("The parens patriae label... often merely dresses up actions that private parties could easily bring. ").
133. Edward Brunet, Improving Class Action Efficiency by Expanded Use of Parens Patriae Suits and Intervention, 74 Tul. L. Rev., at 1922 (2000).
134. As noted above, some courts have suggested that a parens patriae action may proceed only if it appears that the interested citizens could not or would not pursue litigation on their own behalf.
135. See Robert L. Hubbard, The Antitrust Plaintiff's Perspective: Public and Private Enforcement in Complex Litigation-State Attorney General Perspective 9 (2002), available at http://apps.americanbar.org/antitrust/at-committees/at-state /pdf/publications/other-pubs/parensclass.pdf ("Not every state attorney general joins every litigation. Usually class counsel will assert claims on behalf of the residents in states not represented by an attorney general." (citing In re Compact Disc Minimum Advertised Price Antitrust Litig., 216 F.R.D. 197 (D. Me. 2003) (coordinated action by forty-two state attorneys general and class counsel representing residents from remaining eight states)
136. In re Minolta Camera Prods. Antitrust Litig., 668 F. Supp. 456, 460 (D. Md. 1987) (discussing settlement in case involving several states acting as parens patriae and coordinated private class action representing citizens from nonparticipating states).
137. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 384 (1999)
138. see also Satsky v. Paramount Commc'ns, Inc., 7 F.3d 1464, 1470 (10th Cir. 1993) ("When a state litigates common public rights, the citizens of that state are represented in such litigation by the state and are bound by the judgment. ")
139. Brown & Williamson Tobacco Corp. v. Gault, 627 S.E.2d 549 (Ga. 2006) (holding that punitive damages claim filed by decedent's estate against tobacco companies was barred by the master settlement between the tobacco companies and the states acting as parens patriae)
140. Bonovich v. Convenient Food Mart, Inc., 310 N.E.2d 710, 711 (Ill. App. Ct. 1974) (ruling that defeat of an antitrust action brought by the attorney general under state law barred a similar action by a private party since "the Attorney General's action... was brought on behalf of all the people in the state... who were adversely affected by the alleged antitrust violations")
141. Fabiano v. Philip Morris Inc., 862 N.Y.S.2d 487 (N.Y. App. Div. 2008) (same as Brown & Williamson, 627 S.E.2d 549)
142. cf. United States v. Olin Corp., 606 F. Supp. 1301, 1303, 1307-08 (N.D. Ala. 1985) (holding that a private suit was barred by the entry of judgment in a federal parens patriae action)
143. Menzel v. Cnty. Utils. Corp., 501 F. Supp. 354, 357 (E.D. Va. 1979) ("[U]nder the doctrine of parens patria [sic], a state is deemed to represent all of its citizens, when the state is a party in a suit involving a matter of sovereign interest. There is a presumption that the state as parens patria [sic] will represent adequately the position of its citizens. " (citations omitted). Although not phrased in terms of preclusion, the cases cited below denying class certification on the ground of a pending or completed parens patriae action
144. As noted above, some courts have suggested that a parens patriae action may proceed only if it appears that the interested citizens could not or would not pursue litigation on their own behalf, have the practical effect of barring collective private relief. Those decisions would not preclude subsequent individual actions, but such actions may be impossible as a practical matter if the relevant claims are low value.
145. Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 773 (9th Cir. 1994) ("State governments may act in their parens patriae capacity as representatives for all their citizens in a suit to recover damages for injury to a sovereign interest.... There is a presumption that the state will adequately represent the position of its citizens.... Thus, the sportfishers here, as members of the public, were 'parties' to the... suit within the meaning of res judicata. "). I discuss preclusion in more detail in section III. A, infra pp. 531-42.
146. See John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 Colum. L. Rev. 370, 376 & n.17 (2000) (citing Albert O. Hirschman, Exit, Voice and Loyalty: Response to Decline in Firms, Organizations and States (1970)
147. Samuel Issacharoff, Governance and Legitimacy in the Law of Class Actions, 1999 Sup. Ct. Rev. 337, 341-42, 366 & n.104 (citing same).
148. Some state statutes authorize the attorney general to sue as a class representative, thereby triggering state and federal procedural rules governing class actions. See, e.g.,Michigan Consumer Protection Act, Mich. Comp. Laws Ann. § 445.910 (West 2011)
149. Ohio Consumer Sales Practices Act, Ohio Rev. Code Ann. § 1345.07 (West Supp. 2012).
150. Hansberry v. Lee, 311 U.S. 32, 40 (1940)
151. accord Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 808 (1985) (acknowledging that class actions are an "exception to the rule that one could not be bound by judgment in personam unless one was made fully a party in the traditional sense")
152. see also Martin v. Wilks, 490 U.S. 755, 762 (1989) (discussing the "deep-rooted historic tradition that everyone should have his own day in court" (quoting 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4449 (1981) (internal quotation marks omitted).
153. Samuel Issacharoff, Class Action Conflicts, 30 U.C. Davis L. Rev., at 805 (1997) ("Nowhere else [but in class actions] do we find so clear a departure from the premise that the attorney-client relationship is achieved through contractual voluntarism, with the terms of the engagement constrained only by the rules of professional conduct. ")
154. Geoffrey P. Miller, Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard, 2003 U. Chi. Legal F. 581, 586 ("[T]he safety valve of client consent is missing, either to authorize the representation of multiple plaintiffs or to justify the settlement. ").
155. See Fed. R. Civ. P. 23(a).
156. See Jay Tidmarsh, The Story of Hansberry: The Rise of the Modern Class Action, in Civil Procedure Stories 233, 287-88 (Kevin M. Clermont ed., 2d ed. 2008) (describing functions of Rule 23(a) requirements).
157. Alfred L. Snapp & Son, Inc. v. Puerto Rico, 592, 607 (1982). The same is not necessarily true of suits for restitution under state consumer protection statutes, which may involve a relatively small set of injured citizens. See, e.g.,Press Release, N.Y. State Office of the Att'y Gen., Attorney General Cuomo Secures More Than $100k for Victims of Geneva Car Dealership that Engaged in Fraud (June 22, 2010), available at http://www.ag.ny.gov/press-release/attorney-general-cuomo-secures-more-1 00k-victims-geneva-car-dealership-engaged-fraud (describing judgment ordering car dealership to pay more than $100,000 in restitution for defrauding thirty-eight customers).
158. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 381 (1999) (noting that, while class actions "typically require[] the class representative and class members to share common claims and interests[,]... the state entity that prosecutes a parens patriae antitrust action typically has no interest in the claim because it has suffered no direct antitrust damage").
159. Fed. R. Civ. P. 23(a)(4).
160. See Fed. R. Civ. P. 23(g).
161. See Hansberry v. Lee, 311 U.S. 32, 42-43 (1940) ("It is familiar doctrine of the federal courts that members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately represented by parties who are present.... ")
162. David Marcus, Making Adequacy More Adequate, 88 Tex. L. Rev. See Also 137, 138 (2010) ("Adequate representation... is... the constitutional prerequisite for the empowered modern class action. ")
163. infra section III. A, pp. 531-42.
164. Moore's Federal Practice, Some courts have taken the concept further and precluded class action litigation where there is some reason to believe that the attorney general may pursue similar relief., § 23.46[2][c] ("[I]f a governmental unit has brought suit on the same issue, a court may decide that the proposed private class action is unnecessary and an inferior method of adjudication. "). Prior to the enactment of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No. 94-435, 90 Stat. 1383 (1976) (codified as amended in scattered sections of ), which authorizes states to enforce federal antitrust law as parens patriae, attorneys general sometimes brought antitrust class actions on behalf of their citizens. The courts in such suits held that the attorneys general easily satisfied the requirement of adequate representation. See, e.g.,In re Ampicillin Antitrust Litig., 55 F.R.D. 269, 274 (D.D.C. 1972) ("[T]he states and cities, acting through their attorneys general and chief law officers respectively, are the best representatives of the consumers residing within their jurisdictions. ")
165. In re Antibiotic Antitrust Actions, 333 F. Supp. 278, 280 (S.D.N.Y. 1971) ("[I]t is difficult to imagine a better representative of the retail consumers within a state than the state's attorney general. ").
166. Richards v. Jefferson Cnty., 793, 802 n.6 (1996) (emphasis added). Richards held that a previous suit by the acting director of finance for the city of Birmingham challenging a county tax on federal constitutional grounds did not preclude a later taxpayer action raising the same claim. See id. at 805. As relevant here, the Richards Court explained that, "[e]ven if we were to assume... that by suing in his official capacity, the finance director intended to represent the pecuniary interests of all city taxpayers, and not simply the corporate interests of the city itself, he did not purport to represent the pecuniary interests of county taxpayers like petitioners. " Id. at 801-02. The passage quoted in the text appears in a footnote directly following that statement.
167. Fed. R. Civ. P. 23(e)(2).
168. John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter is Not Working, 42 Md. L. Rev., at 237 (1983) ("[B]y most accounts, judicial scrutiny of the settlement's adequacy has proved to be a weak reed on which to rely. ")
169. Samuel Issacharoff, Class Action Conflicts, 30 U.C. Davis L. Rev., at 830 (1997) (describing judicial efforts to "polic[e] substantively defective settlements" as an "almost impossible job").
170. See, e.g.,15c(c) (2006) (providing that federal antitrust parens patriae actions "shall not be dismissed or compromised without the approval of the court"). Some state antitrust and unfair trade practices statutes follow the federal antitrust model and require court approval for parens patriae settlements.
171. See, e.g.,Alaska Stat. § 45.50.577(g) (2011)
172. Cal. Bus. & Prof. Code § 16760(c) (West 2008)
173. Colo. Rev. Stat. § 6-4-111(3)(b) (2011)
174. Fla. Stat. Ann. § 542.22(3)(c) (West 2007)
175. Or. Rev. Stat. § 646.775(3) (2011).
176. In re Minolta Camera Prods. Antitrust Litig., 668 F. Supp. 456, 460 (D. Md. 1987) (applying § 15c(c)
177. see also New York v. Reebok Int'l Ltd., 96 F.3d 44, 48 (2d Cir. 1996) (noting that attorneys general in parens patriae actions are motivated by concern for enforcement of the law)
178. In re Lorazepam & Clorazepate Antitrust Litig., 205 F.R.D. 369, 380 (D.D.C. 2002) ("Opinion of experienced and informed [counsel] should be afforded substantial consideration, and particularly here, the Court may place greater weight on such opinion in addressing a settlement negotiated by government attorneys committed to protecting the public interest. " (citation omitted)
179. In re Toys 'R' Us Antitrust Litig., 191 F.R.D. 347, 351 (E.D.N.Y. 2000) ("[T]he participation of the State Attorneys General furnishes extra assurance that consumers' interests are protected. ").
180. For examples of state antitrust and unfair trade practices statutes that do not require court approval of settlements, see Del. Code Ann. tit. 6, § 2108 (1999)
181. Haw. Rev. Stat. Ann. § 480-14 (LexisNexis 2011)
182. 740 Ill. Comp. Stat. 10/7 (2011)
183. Mass. Gen. Laws ch. 93, § 9 (2010)
184. Neb. Rev. Stat. § 84-212 (2008)
185. and N.H. Rev. Stat. Ann. § 356:4-a (2009).
186. See David Marcus, Flawed but Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 Fla. L. Rev. 657, 662-70 (2011) (cataloging scholarly efforts to explain why damages class actions trigger additional protections).
187. Fed. R. Civ. P. 23(b)(3).
188. Jay Tidmarsh, The Story of Hansberry: The Rise of the Modern Class Action, in Civil Procedure Stories, at 288 (Kevin M. Clermont ed., 2d ed. 2008).
189. See Anthony J. Sebok, Pretext, Transparency and Motive in Mass Restitution Litigation, 57 Vand. L. Rev. 2177, 2190 (2004) (discussing states' procedural advantages in multistate tobacco litigation and noting that "[c]oncerns over common issues of fact, which doomed earlier class actions to fail the predominance and superiority tests of federal and state class action statutes, would be finessed").
190. As noted above, some courts have suggested that a parens patriae action may proceed only if it appears that the interested citizens could not or would not pursue litigation on their own behalf.
191. See, e.g.,New York v. 11 Cornwell Co., 695 F.2d 34, 40 (2d Cir. 1982) ("Parens patriae standing also requires a finding that individuals could not obtain complete relief through a private suit. "), vacated on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc). The Third Circuit has reversed itself on the question. Compare Pennsylvania v. Nat'l Ass'n of Flood Insurers, 520 F.2d 11, 23 (3d Cir. 1975) (suggesting that state cannot establish standing as parens patriae in circumstances where citizens can pursue private actions), with Pennsylvania v. Porter, 659 F.2d 306, 317-18 & nn.15-16 (3d Cir. 1981) (disapproving the relevant portions of National Ass'n of Flood Insurers). If widely adopted, such an approach might come to resemble the "superiority" inquiry demanded by Rule 23(b)(3). But most courts do not condition parens patriae standing on a showing that private litigation (whether aggregate or individual) is unavailable, and there is limited support for that proposition in the relevant precedents.
192. See, e.g.,New York v. 11 Cornwell Co., 695 F.2d 34, 40 (2d Cir. 1982) ("Parens patriae standing also requires a finding that individuals could not obtain complete relief through a private suit. "), vacated on other grounds, 718 F.2d 22 (2d Cir. 1983) (en banc). The Third Circuit has reversed itself on the question. Compare Pennsylvania v. Nat'l Ass'n of Flood Insurers, 520 F.2d 11, 23 (3d Cir. 1975) (suggesting that state cannot establish standing as parens patriae in circumstances where citizens can pursue private actions), with Pennsylvania v. Porter, 659 F.2d 306, 317-18 & nn.15-16 (3d Cir. 1981) (disapproving the relevant portions of National Ass'n of Flood Insurers).
193. James Wm. Moore et al., Moore's Federal Practice § 23.46[2][c] (3d ed. 2007) [hereinafter Moore's Federal Practice].
194. Some courts have taken the concept further and precluded class action litigation where there is some reason to believe that the attorney general may pursue similar relief.
195. See Freeman Indus. LLC v. Eastman Chem. Co., No. E2003-00527-COA-R9-CV, 2004 WL 1102435, at*8 (Tenn. Ct. App. May 18, 2004) (affirming trial court's ruling that state attorneys general "are the proper people to represent the people in their individual states and under their individual law, " although most of the relevant attorneys general had not actually filed a lawsuit (quoting trial court), aff'd in part and rev'd in part, 172 S.W.3d 512 (Tenn. 2005)
196. Levine v. 9 Net Ave., Inc., No. A1107-00T1, 2001 WL 34013297, at*3 (N.J. Super. Ct. App. Div. June 7, 2001) (noting that a court cannot "ignore the existence of an Attorney General investigation into [the defendant's conduct]" and affirming the trial court's denial of class certification based, in part, on the pending attorney general investigation). But see McLaughlin v. Liberty Mut. Ins. Co., 224 F.R.D. 304, 312 (D. Mass. 2004) (explaining that, while some federal courts had "denied class certification where the state Attorney General had, in fact, brought a claim on behalf of the consumers in the state, "
197. Moore's Federal Practice, Some courts have taken the concept further and precluded class action litigation where there is some reason to believe that the attorney general may pursue similar relief., § 23.46[2][c] ("[I]f a governmental unit has brought suit on the same issue, a court may decide that the proposed private class action is unnecessary and an inferior method of adjudication. ")
198. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 387-88 (1999) ("When confronted with the choice, courts generally have respected Congress's intentions [in federal antitrust law], concluding that statutory parens patriae actions brought by the state Attorney General on behalf of the natural-person citizens of the state are superior to class actions brought under Rule 23. " (footnote omitted)
199. Robert L. Hubbard & James Yoon, How the Antitrust Modernization Commission Should View State Antitrust Enforcement, 17 Loy. Consumer L. Rev. 497, 514 (2005) ("Courts have repeatedly recognized the superiority of government actions in a variety of contexts. "). The leading case is Kamm v. California City Development Co., 509 F.2d 205, 207-08 (9th Cir. 1975), in which the California Attorney General and Real Estate Commissioner had filed an action in state court that resulted in a settlement and final judgment. The Ninth Circuit affirmed a holding that a separate class action was not "superior, " even though "not all members of the class appellants seek to represent will be protected by the California settlement
200. nor will the class recover an amount that is even close to that sought in the class action. " Id. at 211
201. see also New York v. Intercounty Mortgagee Corp., 448 N.Y.S.2d 675, 677 (N.Y. App. Div. 1982) (holding without explanation that the New York Attorney General's action for restitution and an injunction prohibiting defendants from collecting mortgage recording taxes was "a superior and more effective device for obtaining restitution than [the pending] class actions"). At least one state mandates such a superiority finding by statute. See Md. Code Ann., Com. Law § 11-209(c) (LexisNexis 2005) ("An action brought by the Attorney General as parens patriae... is presumed superior to any class action brought on behalf of the same person. ")
202. cf. Mass. Gen. Laws ch. 93, § 12 (2010) (providing that commencement of an antitrust action by the attorney general as parens patriae "shall serve to stay any civil action... on behalf of said natural persons against the same defendant which is based in whole or in part on any matter complained of in the action commenced by the attorney general").
203. See Pennsylvania v. Budget Fuel Co., 122 F.R.D. 184, 185 (E.D. Pa. 1988) ("The superiority of the parens patriae action over the class action is evidenced by the lack of any provision or requirement [in federal antitrust law] for court approval or certification of a parens patriae action. ")
204. In re Montgomery Cnty. Real Estate Antitrust Litig., No. B-77-513, 1988 WL 125789, at*2 (D. Md. July 17, 1988) (citing the lack of certification requirements as evidence that a "parens patriae action is plainly superior to the class action as a mode for adjudication of collective claims")
205. Barcelo v. Brown, 78 F.R.D. 531, 534 (D.P.R. 1978) ("The presence of the Commonwealth Plaintiffs in this action is a viable alternative to coping with the difficulties inherent in the class action device. In view of this circumstance, it cannot be said, at this juncture, that the purported class would be 'superior to other available methods for the fair and efficient adjudication of the controversy.'" (citations omitted) (quoting Fed. R. Civ. P. 23(b)(3).
206. See, e.g.,Thornton v. State Farm Mut. Auto Ins. Co., No. 1:06-cv-00018, 2006 WL 3359482, at*1,*3,*5 (N.D. Ohio Nov. 17, 2006) (denying class certification in view of defendant's settlement with multiple states' attorneys general, and reasoning that "[p]roceedings by the state... are presumably taken with the best interests of state residents in mind, " id. at*3)
207. Brown v. Blue Cross & Blue Shield of Mich., Inc., 167 F.R.D. 40, 42 n.2, 44 (E.D. Mich. 1996) (denying class certification in light of a settlement agreement between the attorney general and the defendant that was contingent on the denial of class certification, reasoning that "the interests of the class would be adequately served by the agreement between defendant and the State of Michigan rendering a class action unnecessary, " id. at 44)
208. Sage v. Appalachian Oil Co., Nos. 3:92-CV-176, 2:93-CV-229, 1994 WL 637443, at*1-2 (E.D. Tenn. Sept. 7, 1994) ("[T]he State, through the Attorney General, is clearly in a superior position to bring a parens patriae action... on behalf of all natural persons in this state.... [T]he State should be the preferred representative of a class of all persons, including non-natural persons such as business entities....")
209. Budget Fuel, 122 F.R.D. at 186 ("As a practical matter, there is no need to have a second class representative when the class is adequately represented by the Attorney General. ")
210. Lohse v. Dairy Comm'n of Nev., 25 Fed. R. Serv. 2d (Callaghan) 1018, 1023 (D. Nev. 1977) (denying motion for class certification because, among other reasons, the Nevada Attorney General took action against and reached settlements with some of the defendants for inflating the price of milk, and holding that "[t]his kind of state action [was] much preferred to a punitive treble damage antitrust private civil remedy the proceeds from which will only slightly benefit any individual plaintiff")
211. Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. L. Rev., at 1039 (2011) (arguing that "state attorneys general can be presumed to be acting in the interests of those they represent, the citizens of their state, " and noting that "there may be cases where, because of state parens patriae involvement, a class action will not be a 'superior vehicle' for resolving the litigation"
212. (citing Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 386-90 (1999).
213. See Thornton, 2006 WL 3359482, at*3 ("[P]otential class members will often recover more [from attorney general litigation] than they would in a private action when costs and attorneys' fees are factored in.")
214. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 388 (1999) ("Courts have found that the state official is the natural representative of the citizens of the state. In some of these decisions, courts have considered the state Attorney General's lack of pecuniary interest, contradistinguished from consumer class action suits brought by private counsel, to be a relevant factor in choosing the parens patriae action over class actions. " (footnote omitted)
215. Stephen B. Malech & Robert E. Koosa, Government Action and the Superiority Requirement: A Potential Bar to Private Class Action Lawsuits, 18 Geo. J. Legal Ethics 1419, 1422 (2005) ("[T]he vast majority of courts holding that private class actions are not superior to Government Action have apparently done so, in part, simply because of deference to the government and/or a belief that [government] lawsuits... provided private plaintiffs with a more economical and manageable method of obtaining relief than a class action lawsuit. ").
216. Fed. R. Civ. P. 23(c)(2)(B).
217. See Fed. R. Civ. P. 23(c)(2)(B)(iv) (requiring notice "that a class member may enter an appearance through an attorney if the member so desires").
218. See Fed. R. Civ. P. 23(c)(2)(B)(v) (requiring notice "that the court will exclude from the class any member who requests exclusion").
219. David Marcus, Flawed but Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 Fla. L. Rev., at 663 (2011).
220. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985) ("[M]inimal procedural due process protection [requires that a] plaintiff must receive notice plus an opportunity to be heard and participate in the litigation.... Additionally, we hold that due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an 'opt out' or 'request for exclusion' form to the court. ")
221. see also Samuel Issacharoff, Preclusion, Due Process, and the Right to Opt Out of Class Actions, 77 Notre Dame L. Rev. 1057, 1065 (2002) (explaining the opt-out right for Rule 23(b)(3) class members as "a recognition of at least a formal right to litigant autonomy in cases that could plausibly be cast as stand-alone claims for recompense"). The holding in Shutts regarding the right of opt-out applies by its terms only in cases where the court would otherwise lack personal jurisdiction over the absent members of the plaintiff class. See 472 U.S. at 811-12. The Supreme Court has since reserved the question whether the rights of notice and opt-out are constitutionally required in all damages class actions, though the strong suggestion is that the answer is "yes. " See Taylor v. Sturgell, 2161, 2176 n.11 (2008) ("Richards suggested that notice is required in some representative suits, e.g.,class actions seeking monetary relief. But we assumed without deciding that a lack of notice might be overcome in some circumstances. " (citations omitted) (citing Richards v. Jefferson Cnty., 793, 801 (1996)
222. Richards, at 801 ("Even assuming that our opinion in Hansberry may be read to leave open the possibility that in some class suits adequate representation might cure a lack of notice, it may not be read to permit the application of res judicata here. " (citations omitted). If limited to the realm of personal jurisdiction, Shutts would have little application to parens patriae cases, which are brought on behalf of residents of the forum state.
223. See, e.g.,Hart-Scott-Rodino Antitrust Improvements Act of 1976 § 301, § 15c(a)-(b) (2006) (authorizing states to sue as parens patriae to enforce federal antitrust law and providing that the state attorney general shall give notice to class members)
224. Alaska Stat. § 45.50.577(e) (2011) (Alaska antitrust statute)
225. Arkansas Unfair Practices Act, Ark. Code Ann. § 4-75-212(b)(2)(A) (2011)
226. Cal. Bus. & Prof. Code § 16760(b)(1) (West 2008) (California antitrust statute)
227. Colorado Antitrust Act of 1992, Colo. Rev. Stat. § 6-4-111(3)(b) (2011)
228. Del. Code Ann. tit. 6, § 2108(e) (1999) (Delaware antitrust statute)
229. Oklahoma Antitrust Reform Act, Okla. Stat. tit. 79, § 205(A)(2) (2011)
230. Or. Rev. Stat. § 646.775(2)(a) (2011) (Oregon antitrust statute)
231. R.I. Gen. Laws § 6-36-12(c)(1) (2001) (Rhode Island antitrust statute).
232. See, e.g.,§ 15c(b)
233. Ark. Code Ann. § 4-75-212(b)(2)(B)
234. Cal. Bus. & Prof. Code § 16760(b)(1)
235. Del. Code Ann. tit. 6, § 2108(e)
236. Or. Rev. Stat. § 646.775(2)(a).
237. See, e.g.,Illinois Antitrust Act § 7(2), 740 Ill. Comp. Stat. 10/7(2) (2010)
238. Neb. Rev. Stat. § 84-212 (2008) (Nebraska antitrust statute)
239. N.H. Rev. Stat. Ann. § 356:4-a (2009) (New Hampshire antitrust statute)
240. Ohio Rev. Code Ann. § 1345.07 (West Supp. 2012) (Ohio antitrust statute).
241. See Fed. R. Civ. P. 24(a) ("On timely motion, the court must permit anyone to intervene who... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. ").
242. Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972).
243. 6 Moore's Federal Practice, James Wm. Moore et al., Moore's Federal Practice § 23.46[2][c] (3d ed. 2007) [hereinafter Moore's Federal Practice]., § 24.03[4][a][iv][A].
244. United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 985 (2d Cir. 1984)
245. see also Prete v. Bradbury, 438 F.3d 949, 956-59 (9th Cir. 2006) (requiring a "very compelling showing" of inadequacy where intervenor and state shared the same ultimate objective, id. at 956 (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)
246. Envtl. Def. Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C. Cir. 1979) (per curiam) ("[A] state that is a party to a suit involving a matter of sovereign interest is presumed to represent the interests of all its citizens. Thus, to intervene in a suit in district court in which a state is already a party, a citizen or subdivision of that state must overcome this presumption of adequate representation. A minimal showing that the representation may be inadequate is not sufficient. The applicant for intervention must demonstrate that its interest is in fact different from that of the state and that that interest will not be represented by the state. " (footnote omitted).
247. Chiglo v. City of Preston, 104 F.3d 185, 188 (8th Cir. 1997).
248. Jack Ratliff, Parens Patriae: An Overview, 74 Tul. L. Rev., at 1849 (2000) n.8
249. see also State v. City of Dover, 891 A.2d 524, 531 (N.H. 2006) (holding that cities' separate product liability suits against polluter must yield to state's parens patriae action, notwithstanding fact that cities were pursuing different legal theories and seeking different types of compensation, because "[t]here is no reason for the Court to conclude... that the State will not seek to obtain full compensation for all communities, including the [c]ities. While the compensation sought may not be the same as that which the cities would desire, a difference of that nature does not demonstrate an interest that is not properly represented by the State. " (quoting trial court).
250. New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 690 F.2d 1203, 1213 (5th Cir. 1982).
251. United States v. Union Elec. Co., 64 F.3d 1152, 1169 (8th Cir. 1995)
252. accord Curry v. Regents of the Univ. of Minn., 167 F.3d 420, 423 (8th Cir. 1999).
253. Chiglo, 104 F.3d at 188.
254. Fed. R. Civ. P. 23(c)(2)(B)(iv)
255. see also 5 Moore's Federal Practice, James Wm. Moore et al., Moore's Federal Practice § 23.46[2][c] (3d ed. 2007) [hereinafter Moore's Federal Practice]., § 23.104[2][a][iii] ("A class member may elect to enter an individual appearance when he or she feels, for any reason, that his or her interest is not being adequately represented by the class representatives or by class counsel.... ").
256. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985).
257. 5 Moore's Federal Practice, Some courts have taken the concept further and precluded class action litigation where there is some reason to believe that the attorney general may pursue similar relief., § 23.46[2][c] ("[I]f a governmental unit has brought suit on the same issue, a court may decide that the proposed private class action is unnecessary and an inferior method of adjudication. "). Prior to the enactment of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No. 94-435, 90 Stat. 1383 (1976) (codified as amended in scattered sections of ), which authorizes states to enforce federal antitrust law as parens patriae, attorneys general sometimes brought antitrust class actions on behalf of their citizens. The courts in such suits held that the attorneys general easily satisfied the requirement of adequate representation. See, e.g.,In re Ampicillin Antitrust Litig., 55 F.R.D. 269, 274 (D.D.C. 1972) ("[T]he states and cities, acting through their attorneys general and chief law officers respectively, are the best representatives of the consumers residing within their jurisdictions. ")
258. see also Remarks on the State AG and the Role of Parens Patriae
259. John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, at 18, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.html (remarks of Samuel Issacharoff, Professor, Columbia Law Sch.) ("There should be greater deference, for pecuniary reasons, to the attorney general claiming to speak for the public than for private firms saying they speak for the public. That's my general position and I think that's what the courts have done. They say a strong, some say an overwhelming, presumption of adequacy when the attorney general comes in claiming to be a representative.").
260. Edward Brunet, Class Action Objectors: Extortionist Free Riders or Fairness Guarantors, 2003 U. Chi. Legal F., at 403-04 ("The law and economics critiques of Professor John Coffee and others have had a huge influence on courts and commentators. " (footnote omitted)
261. Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. Pa. L. Rev., at 104 & nn.71-74 (2006) (asserting that Coffee's "insights have become canonical").
262. John C. Coffee, Jr., Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 Colum. L. Rev. 669, 677-84 (1986) (describing class counsel as "independent entrepreneur, " id. at 681).
263. John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J., at 629 (1987) ("Obviously, the members of the plaintiff class usually have very little capacity to monitor their agents. ").
264. John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J., at 633 (1987) ("The existence of high agency costs implies the likelihood of 'opportunistic behavior.'... At its simplest, the classic form of opportunism in class actions is the 'sweetheart' settlement, namely one in which the plaintiff's attorney trades a high fee award for a low recovery. ")
265. Jonathan R. Macey & 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, 7-8 (1991) (arguing that "the single most salient characteristic of class and derivative litigation is the existence of 'entrepreneurial' plaintiffs' attorneys [who, because they] are not subject to monitoring by their putative clients,... operate largely according to their own self-interest.... ").
266. For example, Professor Donald Gifford argues: [M]any attorneys general exercise their increased policy discretion by focusing the blame for creating costly social problems on those manufacturers who possess considerable resources, in order to avoid politically costly tax increases. Not coincidentally, some political observers claim that the abbreviation for the attorneys general, "AG, " stands for "aspiring governor. " Donald G. Gifford, Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation, 49 B.C. L. Rev. 913, 967-68 (2008). Gifford acknowledges that he worked on behalf of the National Paint and Coatings Association and E.I. du Pont de Nemours & Co. to "urge[] public officials to forego parens patriae litigation against manufacturers and instead adopt legislative proposals. " Id. at 913 n.*.
267. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev., at 722 (2011).
268. John C. Coffee, Jr., Understanding the Plaintiff's Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 Colum. L. Rev., at 686-90 (1986) (using economic analysis to demonstrate why class counsel's focus on fees may lead to premature settlements when counsel will receive a percentage of the total recovery)
269. John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J., at 630 (1987) (noting additional problems when counsel is compensated pursuant to the lodestar formula).
270. See William B. Rubenstein, On What a "Private Attorney General" Is-And Why It Matters, 57 Vand. L. Rev. 2129, 2139 (2004) ("Private attorneys work for individual clients and those clients pay them for their services.... By contrast, public attorneys work for the public and are paid a salary to do so. The amount of time they invest in an issue, the amount of sanction they recover, or the amount of harm they deter, has no bearing on their fee. ").
271. Edward Brunet, Class Action Objectors: Extortionist Free Riders or Fairness Guarantors, 2003 U. Chi. Legal F., at 454-55 ("Government attorneys have different incentives than class action counsel.... Rather than aspire to monetary rewards, the... prototypical agency attorney may be motivated by a culture that seeks adherence to a particular mission.... Motivation should come from the agency's public service mission itself. ")
272. see also supra section I. B, pp. 499-510.
273. Indeed, the very structure of parens patriae authority creates the potential for such conflict, as "the claim must be one in which both the state and the individual have an interest. "
274. Jack Ratliff, Parens Patriae: An Overview, 74 Tul. L. Rev., at 1857 (2000) ("But if the state is interested in recovering for itself as well as the class, conflicts of interest may emerge. "). Those interests may be aligned-as when the state's interest derives from the collective interests of its residents-but they need not be.
275. See Remarks on the State AG and the Role of Parens Patriae, John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 26 (remarks of Jay L. Himes, N.Y. Assistant Att'y Gen.) ("You can have conflicts between parens patriae and state proprietary claims.")
276. John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 22 (remarks of Mike Fisher, Pa. Att'y Gen.) ("Sometimes we have too many hats in these cases. If we're seeking damages where the state has a proprietary interest, we represent the state. In that same case we may represent consumers.").
277. John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 27 (remarks of Jay L. Himes, N.Y. Assistant Att'y Gen.) ("[O]ur parens patriae claim response is not 100%, or anything close to it. Given that, you can encounter situations where there is parens patriae money left over, and you have the question of whether that money ought to be distributed to parens patriae beneficiaries in a kind of cy pres distribution, or whether it ought to go to the proprietary claim, which is getting less than 100% recovery.").
278. John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 23 (remarks of Samuel Issacharoff, Professor, Columbia Law Sch.).
279. John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 17 (remarks of Samuel Issacharoff, Professor, Columbia Law Sch.) ("[T]he AG can never be unconflicted because he always represents the public interest. And the private interest is never fully aligned with the public interest.").
280. Commentators have raised a similar concern about private attorneys who work in the public interest. As Professor Geoffrey Miller explains: [The] public interest motivation may induce counsel to act out of political or ideological beliefs that can come into conflict with the interests of the class. The reasonable plaintiff will prefer that counsel not seek to further her own political or ideological objectives if the outcome is not optimal for the class.
281. Geoffrey P. Miller, Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard, 2003 U. Chi. Legal F., at 618
282. see also Howard M. Erichson, Doing Good, Doing Well, 57 Vand. L. Rev. 2087, 2091 (2004) ("In a mass tort case for money damages, if the plaintiffs' lawyers are driven partly by social change objectives and not solely by maximizing each client's recovery, and if different strategies would serve each of those goals, should that cause concern as a conflict of interest between the lawyers and their clients?").
283. William P. Marshall, Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive, 115 Yale L.J., at 2453 n.3 (2006) ("[T]he Office of the Attorney General has long been seen by many of its occupants as a stepping stone to the Governor's office.... ")
284. Colin Provost, State Attorneys General, Entrepreneurship, and Consumer Protection in the New Federalism, 33 Publius 37, 40 (2003) ("[O]f the 166 attorneys general who served at least two years between 1980 and 1999, more than 70 ran for a governorship or a U.S. Senate seat. Another 20 ran for or were appointed to a lower court seat, a federal agency post, or another position in state government. ").
285. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev., at 729 (2011) & n.143 (discussing risk that state enforcers will be "capture[d] by local business[es] or other interests, " id. at 729, in ways that affect their enforcement efforts).
286. Debates over the multistate mortgage foreclosure settlement illustrate this dynamic.
287. About the Settlement, Nat'l Mortgage Settlement, http://www.nationalmortgage settlement.com/about (last visited Oct. 27, 2012)..
288. Critics argue that "mere pursuit of newspaper headlines by politically-ambitious politicians... should not come at the expense of the rest of us and the economy at large. " Todd J. Zywicki, The "Robo-Signing" Settlement: Seeds of Recovery, or Chaos?, Forbes (Feb. 20, 2012, 9:37 PM), http://www.forbes.com/sites/realspin/2012/02/20/the-robo-signing-settlem ent-seeds-of-recovery-or-chaos/. It is unclear whether action by state attorneys general on behalf of homeowners will be rewarded by votes or other forms of political support, however. Instead, the strongest political response may well be from the defendant banks and other corporations that share their interests.
289. See Matt Sledge, Democratic Attorney General Candidates Talk Foreclosure, Republican Rivals Remain Silent, Huffington Post (May 18, 2012, 3:08 PM), http://www.huffingtonpost.com/2012/05/18/foreclosures-state-attorneys-ge neral-campaign-issue_n_1527395.html ("The corporations, they're the ones who remember.... I expect the financial community to be active in AG races." (quoting James Tierney, former Attorney General of Maine and director of the National State Attorneys General Program at Columbia Law School) (internal quotation marks omitted).
290. 130 S. Ct. 876 (2010) (holding that the First Amendment prevents the government from prohibiting independent campaign contributions by corporations and unions).
291. See, e.g.,Wendy Leonard, Race for Utah's Attorney General Heats up with Super PAC's Attack Ad, Deseret News (June 21, 2012, 10:16 PM), www.deseretnews.com/article/765585091/Race-for-Utahs-attorney-general-he ats-up-with-super-pacs-attack-ad.html?pg=all (reporting that a Nevada-based Super PAC spent $140,000 in one week on ads attacking a candidate in the Republican primary election for Utah attorney general)
292. Matt Sledge, Montana Attorney General Race Rocked by Out-of-State Corporate Donations in Wake of Citizens United, Huffington Post (May 22, 2012, 5:46 PM), http://www.huffingtonpost.com/2012/05/22/montana-attorney-general_n_1537 034.html (reporting that a Virginia-based Super PAC, funded by "some of the country's most well-connected firms, " including Altria (formerly known as Philip Morris) and the Pharmaceutical Research and Manufacturers of America (PhRMA), spent $108,217 in two weeks in the Montana Republican primary for attorney general).
293. Samuel Issacharoff, Class Action Conflicts, 30 U.C. Davis L. Rev., at 829 (1997) ("The attorneys' recovery should be tied to that of the class
294. to the extent the attorneys hope to prosper in the representation, that reward should be a direct product of what they return to the class. ")
295. Geoffrey P. Miller, Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard, 2003 U. Chi. Legal F., at 616 ("In money damages cases, the reasonable plaintiff would prefer that counsel be compensated under the percentage-ofrecovery method. Because this method aligns the attorney's interests with those of the class, the percentage approach creates an incentive for counsel to generate the best recovery for the class.... ").
296. See Christopher R. Leslie, A Market-Based Approach to Coupon Settlements in Antitrust and Consumer Class Action Litigation, 49 UCLA L. Rev. 991, 1042 (2002) ("The self-interested attorney seeks to maximize the return on her involvement in the litigation while minimizing the resources expended. Such an attorney prefers an early settlement when it 'bear[s] a higher ratio to the cost of the work than a much larger recovery obtained only after extensive discovery, a long trial and an appeal.'" (alteration in original) (quoting Saylor v. Lindsley, 456 F.2d 896, 900 (2d Cir. 1972).
297. John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J., at 630 (1987).
298. John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter is Not Working, 42 Md. L. Rev., at 231 (1983).
299. See, e.g.,Peter J. Brann, State Attorneys General Consumer Protection Under a New Administration 9 (2008), available at http://www.law.columbia.edu/null? &exclusive=filemgr.download&file_id=55833&rtcontentdispositi (discussing the "perception that States would not drop a case without some payment")
300. Stephen D. Houck, Transition Report: The State of State Antitrust Enforcement 15-16 (2009), available at http://www.naag.org/assets/files/pdf/nagtri/20091007_Antitrust_Columbia/ 20091007.antitrust_columbia.TRANSITION_REPORT.pdf (discussing the possibility that "state antitrust bureaus that must support themselves financially through recovery of costs become involved [in litigation], at least in part, to obtain attorneys' fees, " id., and noting complaints from the defense bar that state litigators requested attorneys' fees "even though the state may not have obtained divestitures or other relief" and did not indicate the number of hours worked, id. at 16).
301. Adam S. Zimmerman, Distributing Justice, 86 N.Y.U. L. Rev., at 1018 (2011) tbl.5 (reporting on recoveries and fee awards in multistate antitrust actions and suggesting that states' attorneys' fees and costs represented less than four percent of total recoveries).
302. See Dru Stevenson, Special Solicitude for State Standing: Massachusetts v. EPA, 112 Penn. St. L. Rev. 1, 13-14 (2007) ("The replacement of the private activist groups with the state AG's [in environmental litigation] could alter the nature of the litigation, as the AG's have a broader range of constituents to appease-including large numbers of moderates who prefer less radical policy changes, or demands for reform, than the stereotypical member of an activist group like the [Natural Resources Defense Council]. ").
303. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev., at 732 (2011).
304. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev. at 734-35 (2011).
305. William B. Rubenstein, On What a "Private Attorney General" Is-And Why It Matters, 57 Vand. L. Rev., at 2139 (2004) ("[P]ublic attorneys may actually directly benefit from their lawsuit if, for instance, their agency is permitted to retain the proceeds of their efforts. ").
306. John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J., at 633 (1987) ("[A]nother form of opportunistic behavior [by private class counsel] may involve linkages between unrelated cases-such as putting aside, or cheaply settling, one case in order to pursue more lucrative opportunities. ").
307. See Model Rules of Prof'l Conduct pmbl., para. 2 (2011). For an analysis of this conception of the attorney-client relationship, see generally Grace M. Giesel, Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-Client Relationship, 86 Neb. L. Rev. 346 (2007).
308. A rational plaintiff would not opt to sue unless she predicted a net gain from the litigation-that is, that the expected recovery would be higher than the expected costs, including attorneys' fees.
309. See Lester Brickman, Setting the Fee When the Client Discharges a Contingent Fee Attorney, 41 Emory L.J. 367, 393-97 (1992) (discussing the incentive effect of client discharge in light of existing schemes for compensating attorneys in the event of their termination).
310. But see Adam Shajnfeld, A Critical Survey of the Law, Ethics, and Economics of Attorney Contingent Fee Arrangements, 54 N.Y.L. Sch. L. Rev. 773, 795-97 (2009-2010) (cataloging several approaches to compensating discharged lawyers, some of which perversely incentivize attorneys to seek their own discharge).
311. See John C. Coffee, Jr., Litigation Governance: Taking Accountability Seriously, 110 Colum. L. Rev. 288, 292 (2010).
312. See Mars Steel Corp. v. Cont'l Ill. Nat'l Bank & Trust Co. of Chi., 834 F.2d 677, 678 (7th Cir. 1987) ("Class actions differ from ordinary lawsuits in that the lawyers for the class, rather than the clients, have all the initiative and are close to being the real parties in interest. ")
313. Elliott J. Weiss & John S. Beckerman, Let the Money Do the Monitoring: How Institutional Investors Can Reduce Agency Costs in Securities Class Actions, 104 Yale L.J. 2053, 2088 (1995) ("Most critiques of class actions assume that substantial agency costs are unavoidable because no class member has a stake in the litigation large enough to justify monitoring the attorneys who represent the class. ").
314. Christopher R. Leslie, A Market-Based Approach to Coupon Settlements in Antitrust and Consumer Class Action Litigation, 49 UCLA L. Rev., at 1046 (2002) ("In many cases, because of their attenuated relationship to the litigation, individual class members 'may not know whether a compromise favors greater attorneys' fees and lesser benefits for them.'"
315. (quoting Mary Kay Kane, Of Carrots and Sticks: Evaluating the Role of the Class Action Lawyer, 66 Tex. L. Rev. 385, 395 (1987)
316. Richard A. Nagareda, Class Actions in the Administrative State: Kalven and Rosenfield Revisited, 75 U. Chi. L. Rev., at 95 (2008) (arguing that class action procedures "virtually invite[] the creation of a class in which, as a practical matter, numerous class members have not only not assented to suit, but are completely unaware that they are even suing").
317. John C. Coffee, Jr., Litigation Governance: Taking Accountability Seriously, 110 Colum. L. Rev., at 297 (2010) n.22 ("The removal of class counsel is also at the discretion of the court, and even the lead plaintiff in securities litigation does not have the power to remove class counsel. ")
318. see also Kenneth W. Dam, Class Actions: Efficiency, Compensation, Deterrence, and Conflict of Interest, 4 J. Legal Stud. 47, 58 (1975) ("[T]he institutional arrangements in the class action are such that for many questions the lawyer has no greater responsibility to the representative plaintiff than to any other member of the class. ").
319. William B. Rubenstein, On What a "Private Attorney General" Is-And Why It Matters, 57 Vand. L. Rev., at 2162-63 (2004).
320. Moore's Federal Practice, James Wm. Moore et al., Moore's Federal Practice § 23.46[2][c] (3d ed. 2007) [hereinafter Moore's Federal Practice]., § 24.03[4][a][iv][A].
321. See, e.g.,Hart-Scott-Rodino Antitrust Improvements Act of 1976 § 301, § 15c(a)-(b) (2006) (authorizing states to sue as parens patriae to enforce federal antitrust law and providing that the state attorney general shall give notice to class members).
322. One commentator has suggested that the agency-cost problem, so prominent in the class action literature, dissolves in a parens patriae action because "those who administer the state attorneys general office would be capable of monitoring those counsel assigned to the action.... Such attorney-to-attorney monitoring is a far cry from the situation in which a lay class client with little at stake tries or fails to monitor his attorney. "
323. Edward Brunet, Improving Class Action Efficiency by Expanded Use of Parens Patriae Suits and Intervention, 74 Tul. L. Rev., at 1931-32 (2000). That analysis fundamentally misconceives the relevant problem. It is probably correct to assume that "the state" (or, more accurately, the individuals who work for the state) can monitor the conduct of the attorney general. And it is true that the state is the plaintiff in a parens patriae action. But just as the named plaintiffs in a class action represent a class of similarly situated claimants, the state in a parens patriae action acts on behalf of its residents, or some significant subset of them. Analyses of the agency-cost problem in private class actions focus on the relationship between class counsel and all of the individuals whose interests he purports to serve. That latter group includes the entire class, not just the representative parties. Thus, when commentators hold up parens patriae litigation as an attractive alternative to private class litigation-and when courts hold that parens patriae suits are "superior" to private class actions
324. 5 Moore's Federal Practice, Some courts have taken the concept further and precluded class action litigation where there is some reason to believe that the attorney general may pursue similar relief., § 23.46[2][c] ("[I]f a governmental unit has brought suit on the same issue, a court may decide that the proposed private class action is unnecessary and an inferior method of adjudication. ")-the inquiry necessarily must embrace the interests of the individuals whom the state represents. The operative question is whether those individuals can monitor the attorney general's office. And the answer to that question seems clearly to be "no. "
325. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev. 361, 362 (1999) (acknowledging that "statutory parens patriae actions... lack some of the Rule 23 checks of exercise of discretion by the class representative, " id. at 404, but arguing that any problems are "mitigated because State Attorneys General are elected in most states, thus they are subject to the control of the very consumer-voters whom they represent in parens patriae actions, " id. at 405)
326. Myriam Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion, 79 U. Chi. L. Rev., at 630 (2012) ("It is the lack of effective monitoring-the 'agency' problem-that underlies virtually all of the criticisms of class practice. The active presence of a responsible elected official [in parens patriae actions], as both cocounsel and client, vanquishes the agency critique in our view. ").
327. Cf. Geoffrey C. Hazard, Jr., The Settlement Black Box, 75 B.U. L. Rev. 1257, 1266-86 (1995) (detailing the difficulties of measuring the adequacy of settlements).
328. See, e.g.,Attorney General Election Updates, Nat'l Ass'n Att'ys Gen., http://www.naag.org/attorney-general-election-updates.php (last visited Oct. 27, 2012).
329. John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J., at 635-36 (1987).
330. John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J. at 636 (1987).
331. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 391-403 (1999) (discussing the application of the doctrine of cy pres in parens patriae actions).
332. Cf. Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 926 (2005) ("Democratic representatives... have no obvious personal incentive to engorge governmental coffers since, absent the most blatant forms of corruption, they derive no immediate benefit from money flowing through the treasury. ").
333. Stephen D. Houck, Transition Report: The State of State Antitrust Enforcement 15-16 (2009), available at http://www.naag.org/assets/files/pdf/nagtri/20091007_Antitrust_Columbia/ 20091007.antitrust_columbia.TRANSITION_REPORT.pdf, at 18 (noting "lack of adequate resources" as an "overriding problem" with state antitrust enforcement)
334. see also Remarks on the State AG and the Role of Parens Patriae, John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 8 (remarks of Tom Miller, Iowa Att'y Gen.) (discussing "instances where states were outgunned by large corporations [and] there was substantial pressure to settle on terms that were not desirable and not in the public interest").
335. See Thomas A. Schmeling, Stag Hunting with the State AG: Anti-Tobacco Litigation and the Emergence of Cooperation Among State Attorneys General, 25 Law & Pol'y 429, 430 (2003) ("Acting together, the [state attorneys general] have won legal settlements or concessions from tobacco companies, auto manufacturers, toy makers, paint producers, and others, agreements that would have been quite unlikely if sought by individual [state attorneys general] acting alone. ").
336. Remarks on the State AG and the Role of Parens Patriae, John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 8 (remarks of Tom Miller, Iowa Att'y Gen.) (explaining that "what started as essentially a defensive strategy born of necessity evolved into a method for the states to aggregate their resources to effectively enforce their laws, even against the most powerful companies in the world").
337. Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. Pa. L. Rev., at 148 & nn.71-74 (2006)
338. see also Richard A. Epstein, One Stop Law Shop, Legal Aff., Mar.-Apr. 2006, at 34, 37 ("Many large class-actions involving antitrust and consumer-fraud issues... are handled by ad hoc alliances among multiple firms that split their labor and share the rewards of the litigation. ").
339. Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. Pa. L. Rev., at 151 & nn.71-74 (2006).
340. See, e.g.,Adam Liptak, A Deal for the Public: If You Win, You Lose, N.Y. Times, July 9, 2007, at A10 (discussing the Oklahoma Attorney General's decision to outsource a lawsuit against poultry companies to three law firms)
341. Jim Malewitz, Mississippi Republicans Challenge Powers of Attorney General, Stateline (Feb. 3, 2012), http://stateline.org/live/details/story?contentid=629384 (discussing the Mississippi Attorney General's practice of outsourcing cases to private attorneys on a contingency-fee basis).
342. See, e.g.,Leah Godesky, Note, State Attorneys General and Contingency Fee Arrangements: An Affront to the Neutrality Doctrine?, 42 Colum. J.L. & Soc. Probs. 587, 596 (2009) (discussing the argument that, "[b]y entering into a contingency fee arrangement,... the attorney general appropriates state resources, a role reserved for the legislature").
343. Peter J. Brann, State Attorneys General Consumer Protection Under a New Administration 9 (2008), available at http://www.law.columbia.edu/null?&exclusive=filemgr.download&fil e_id=55833&rtcontentdispositi (discussing the "perception that States would not drop a case without some payment"), at 11.
344. Peter J. Brann, State Attorneys General Consumer Protection Under a New Administration 9 (2008), available at http://www.law.columbia.edu/null?&exclusive=filemgr.download&fil e_id=55833&rtcontentdispositi (discussing the "perception that States would not drop a case without some payment"), at 11.
345. Peter J. Brann, State Attorneys General Consumer Protection Under a New Administration 9 (2008), available at http://www.law.columbia.edu/null?&exclusive=filemgr.download&fil e_id=55833&rtcontentdispositi (discussing the "perception that States would not drop a case without some payment"), at 11.
346. Peter J. Brann, State Attorneys General Consumer Protection Under a New Administration 9 (2008), available at http://www.law.columbia.edu/null?&exclusive=filemgr.download&fil e_id=55833&rtcontentdispositi (discussing the "perception that States would not drop a case without some payment"), at 11.
347. Peter J. Brann, State Attorneys General Consumer Protection Under a New Administration 9 (2008), available at http://www.law.columbia.edu/null?&exclusive=filemgr.download&fil e_id=55833&rtcontentdispositi (discussing the "perception that States would not drop a case without some payment"), at 11-12.
348. John C. Coffee, Jr., Rethinking the Class Action: A Policy Primer on Reform, 62 Ind. L.J. 625, 628-34 (1987), at 633 ("The existence of high agency costs implies the likelihood of 'opportunistic behavior.'... At its simplest, the classic form of opportunism in class actions is the 'sweetheart' settlement, namely one in which the plaintiff's attorney trades a high fee award for a low recovery. ").
349. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 1040 (1999) (noting that state antitrust "settlements are sometimes criticized for being inadequate")
350. Editorial, Too Many Unanswered Questions, and Too Little Relief, N.Y. Times, Feb. 12, 2012, at SR10 (describing mortgage foreclosure settlement between big banks, state attorneys general, and federal officials as a "wrist slap")
351. David J. Morrow, Transporting Lawsuits Across State Lines, N.Y. Times, Nov. 9, 1997, at BU16 ("[C]ritics say the settlements often don't live up to their billing and hardly warrant all the political hay some of the state officials make of them in news conferences or at election time. In too many cases, the critics say, a company is allowed to settle by paying a small amount-with nothing at all going to consumers-instead of possibly being dealt a larger penalty, and risking a nasty precedent, at a trial. ")
352. see also Michael Totty, Insurance Commissioner Ruffles Consumer Activists, Wall St. J., Feb. 18, 1998, at T1 (discussing cases in which Texas's insurance commissioner intervened in class actions or preempted class actions by settling first, though consumer groups argued they could have done better). For similar claims in the context of federal enforcement of civil rights law
353. see Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing and Employment, 45 UCLA L. Rev. 1401, 1404 (1998), which notes that "on average, the government seeks and obtains less monetary relief for plaintiffs than does the private bar and fails to address cutting edge issues, choosing instead to concentrate its efforts
354. See generally Philip A. Lehman, Consumer Prot. Div., N.C. Dep't of Justice, National Mortgage Settlement: Executive Summary of Multistate/Federal Settlement of Foreclosure Misconduct Claims (2012), available at http://portal.hud.gov/hudportal/documents/huddoc?id=natlsetexecsum%282%2 9.pdf.
355. See generally Philip A. Lehman, Consumer Prot. Div., N.C. Dep't of Justice, National Mortgage Settlement: Executive Summary of Multistate/Federal Settlement of Foreclosure Misconduct Claims (2012), available at http://portal.hud.gov/hudportal/documents/huddoc?id=natlsetexecsum%282%2 9.pdf. at 1.
356. See generally Philip A. Lehman, Consumer Prot. Div., N.C. Dep't of Justice, National Mortgage Settlement: Executive Summary of Multistate/Federal Settlement of Foreclosure Misconduct Claims (2012), available at http://portal.hud.gov/hudportal/documents/huddoc?id=natlsetexecsum%282%2 9.pdf. at 2-4.
357. See generally Philip A. Lehman, Consumer Prot. Div., N.C. Dep't of Justice, National Mortgage Settlement: Executive Summary of Multistate/Federal Settlement of Foreclosure Misconduct Claims (2012), available at http://portal.hud.gov/hudportal/documents/huddoc?id=natlsetexecsum%282%2 9.pdf. at 4.
358. Editorial, Too Many Unanswered Questions, and Too Little Relief, N.Y. Times, Feb. 12, 2012, at SR10 (describing mortgage foreclosure settlement between big banks, state attorneys general, and federal officials as a "wrist slap"), at SR10.
359. See Help for Homeowners, Nat'l Mortgage Settlement, http://www.nationalmortgagesettlement.com/help (last visited Oct. 27, 2012) ("$1.5 billion is expected to be distributed nationwide to some 750,000 borrowers.").
360. Philip A. Lehman, Consumer Prot. Div., N.C. Dep't of Justice, National Mortgage Settlement: Executive Summary of Multistate/Federal Settlement of Foreclosure Misconduct Claims (2012), available at http://portal.hud.gov/hudportal/documents/huddoc?id=natlsetexecsum%282%2 9.pdf., at 4 ("Borrowers who were not properly offered loss mitigation or who were otherwise improperly foreclosed on will be eligible for a uniform payment, which will be approximately $2000 per borrower depending on level of response.").
361. Philip A. Lehman, Consumer Prot. Div., N.C. Dep't of Justice, National Mortgage Settlement: Executive Summary of Multistate/Federal Settlement of Foreclosure Misconduct Claims (2012), available at http://portal.hud.gov/hudportal/documents/huddoc?id=natlsetexecsum%282%2 9.pdf. at 3 (describing new servicing standards).
362. See, e.g.,Press Release, Office of the Ariz. Att'y Gen., Attorney General Tom Horne Announces Settlement Agreement with Principal Reduction Group, LLC (Mar. 11, 2011), available at http://www.azag.gov/press_releases/march/2011/PRINCIPAL%20REDUCTION%20GR OUP%203-11-11.html (describing settlement under which defendant agreed to pay full restitution to consumers who filed complaints with the Arizona attorney general's office, and to "no longer engage in any activity, directly or on behalf of any third party, that involves originating, closing, or modifying any term of a consumer's mortgage loan, or obtaining a reduction on a consumer's debt, of any kind, while in the State of Arizona or on behalf of any Arizona consumer")
363. Press Release, Office of the Iowa Att'y Gen., Miller Settles with DIRECTV (Dec. 15, 2010), available at http://www.state.ia.us/government/ag/latest_news/releases/dec_2010/DIREC TV%20settlement.html (describing $13.25 million, forty-nine-state settlement under which DIRECTV agreed to pay restitution to customers and to change its business practices in accordance with detailed provisions of consent decree)
364. Press Release, Office of the Mich. Att'y Gen., Cox Announces Major Consumer Protection Win Settlement with Vonage (Nov. 16, 2009), available at http://www.michigan.gov/ag/0,1607,7-164-34739_34811-226267--,00.html (describing thirty-two-state settlement requiring Vonage to offer refunds to customers, change its marketing practices, honor consumer cancellation requests, and record and verify phone calls of consumers trying to terminate their service)
365. Press Release, Office of the Mich. Att'y Gen., Schuette Announces $2 Million Settlement with Drug Manufacturer AstraZeneca (Mar. 10, 2011), available at http://www.michigan.gov/ag/0,1607,7-164-34739_34811-252548--,00.html (describing multistate settlement imposing new marketing requirements for antipsychotic drug Seroquel).
366. Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. Pa. L. Rev., at 160-61 & nn.71-74 (2006) (arguing that injunctive relief will often be of central concern to defendants "since it will end [the defendants'] ability to continue the lucrative but unlawful practice, " id. at 161).
367. About the Settlement, Nat'l Mortgage Settlement, http://www.nationalmortgagesettlement.com/about (last visited Oct. 27, 2012).
368. Shaila Dewan, Needy States Use Housing Aid Cash to Plug Budgets, N.Y. Times, May 16, 2012, at A1.
369. Shaila Dewan, Needy States Use Housing Aid Cash to Plug Budgets, N.Y. Times, May 16, 2012, at A1.
370. Attorney General's Office May Not Receive State Funding for 2013, WAFF-TV (Apr. 9, 2012, 7:10 PM), http://www.waff.com/story/17368740/attorney-generals-office-may-not-rece ive-state-funding-for-2013 (reporting that Alabama legislative committee proposed budget plan under which the Attorney General's office would receive no budget from the legislature and would fund itself with $26 million settlement from national mortgage-fraud case).
371. Shaila Dewan, Needy States Use Housing Aid Cash to Plug Budgets, N.Y. Times, May 16, 2012, at A1.. Similar diversions followed the multistate tobacco settlement, in which tobacco companies promised to pay states more than $200 billion.
372. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev., at 734 (2011) ("Though the money was intended for health-and smoking-related initiatives, several states announced that they would use it to balance their general budgets. ").
373. See Remarks on the State AG and the Role of Parens Patriae, John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 27 (remarks of Jay L. Himes, N.Y. Assistant Att'y Gen.) ("[O]ur parens patriae claim response rate is not 100%, or anything close to it.")
374. Stephen Calkins, An Enforcement Official's Reflections on Antitrust Class Actions, 39 Ariz. L. Rev. 413, 436 (1997) (discussing multistate antitrust settlement in which approximately 70,000 out of a total of 340,000 eligible individuals received refund checks (citing In re Minolta Camera Prods. Antitrust Litig., 668 F. Supp. 456 (D. Md. 1987).
375. William B. Rubenstein, On What a "Private Attorney General" Is-And Why It Matters, 57 Vand. L. Rev., at 2166 n.131 (2004)
376. William H. Pryor Jr., A Comparison of Abuses and Reforms of Class Actions and Multigovernment Lawsuits, 74 Tul. L. Rev., at 1892 (2000) (describing cy pres settlements as a "form of collusion"
377. (citing John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1368 (1995).
378. Stephen Calkins, An Enforcement Official's Reflections on Antitrust Class Actions, 39 Ariz. L. Rev., at 436-37 (1997) (explaining that "[m]ost of the monetary damage awards recovered [in state antitrust parens patriae cases] usually help fund charitable causes")
379. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev. 361, 362 (1999).
380. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 400-01 (1999) (providing examples of cy pres distributions)
381. Susan M. Palmatier, Compact Disc Minimum-Advertised Price Antitrust Litigation, 40 Granite St. Libr. 10, 10 (Apr./May/June 2004), available at www.nh.gov/nhsl/services/librarians/gsl/documents/gsl402.pdf (explaining that New Hampshire would receive 24,259 CDs as result of multistate antitrust settlement and that "the lion's share will go to public schools and libraries").
382. See Ann Davis, To Some, Santa Has a New Name: Spitzer, Wall St. J., Dec. 24, 2003, at C1 (noting that "the groups receiving the windfall [from then-Attorney General Eliot Spitzer's civil settlements] also represent voter constituencies that could be key to Mr. Spitzer's widely expected Democratic run for governor in 2006")
383. Todd A. Heywood, Cox Shifts Countrywide Settlement Funds Away From Controversial Grand Rapids Parks Plan, Mich. Messenger (Mar. 23, 2009, 3:19 PM), http://michiganmessenger.com/15145/cox-shifts-countrywide-settlement-fun ds-away-from-controversial-grand-rapids-parks-plan (reporting that Michigan Attorney General Mike Cox was criticized for allocating $500,000 of the proceeds from a settlement with Countrywide Financial for predatory lending in the market for subprime mortgages to two local parks, one of which had been "championed by a top Republican donor")
384. Kevin O'Hanlon, Senator Wants to Tighten Control over Money in Fund Used by Bruning, Lincoln J. Star (Dec. 28, 2011, 3:45 PM), http://journalstar.com/news/state-and-regional/govt-and-politics/senator -wants-to-tighten-control-over-money-in-fund-used/article_16d3927b-b16d- 5b84-b295-115fc0ad0f0f.html (reporting criticism of Nebraska Attorney General Jon Bruning, who used $100,000 of settlement funds from environmental cases to support the We Support Agriculture coalition, a lobbying group seeking to defend livestock farmers against challenges by the Humane Society and other animal rights groups).
385. Some scholars maintain that there is "no legitimate utilitarian reason to care whether class members with small claims get compensated at all. "
386. Myriam Gilles & Gary B. Friedman, Exploding the Class Action Agency Costs Myth: The Social Utility of Entrepreneurial Lawyers, 155 U. Pa. L. Rev., at 105 (2006). For those scholars, the only sensible rationale for permitting the aggregation of small claims is to force the defendant to internalize the costs of its wrongdoing. Id. ("All that matters is whether the practice causes the defendant-wrongdoer to internalize the social costs of its actions.... [C]ompensation is not really an important goal in small-claims class actions."). If one understands the primary value of aggregate litigation in terms of deterrence rather than compensation, the fact that funds recovered in parens patriae suits may not find their way into the pockets of the represented individuals is largely irrelevant. From a deterrence perspective, what matters is how much the defendant has to pay, not who cashes the check.
387. Kenneth W. Dam, Class Actions: Efficiency, Compensation, Deterrence, and Conflict of Interest, 4 J. Legal Stud., at 60 (1975) ("The principle of deterrence requires that the wrongdoer pay, but says nothing about who shall receive the payment. "). But, while cy pres distributions are less troubling on the deterrence view, the problems described in the preceding sections cannot be brushed aside so easily. If, as I have argued, the attorney general has inadequate incentives and resources to maximize the recovery for the parens patriae group, the result is not only under-compensation but also under-deterrence.
388. See supra section I. B, pp. 499-510.
389. Susan Beth Farmer, More Lessons from the Laboratories: Cy Pres Distributions in Parens Patriae Antitrust Actions Brought by State Attorneys General, 68 Fordham L. Rev., at 384 (1999).
390. See, e.g.,Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) ("Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. ").
391. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
392. See Hansberry v. Lee, 311 U.S. 32, 40 (1940) ("It is a principle of general application in Anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process. ").
393. Martin v. Wilks, 490 U.S. 755, 762 (1989) (quoting 18 Wright, Miller, & Cooper, Hansberry v. Lee, 311 U.S. 32, 40 (1940), § 4449, at 417).
394. Taylor v. Sturgell, 2161, 2175 (2008) (describing "the general rule that a litigant is not bound by a judgment to which she was not a party").
395. Richards v. Jefferson Cnty., 793, 798 (1996) (quoting Wilks, 490 U.S. at 762 n.2).
396. See Postal Tel. Cable Co. v. City of Newport, 247 U.S. 464, 476 (1918) ("The doctrine of res judicata rests at bottom upon the ground that the party to be affected, or some other with whom he is in privity, has litigated or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction. ")
397. see also Taylor, at 2172 n.8 ("The substantive legal relationships justifying preclusion are sometimes collectively referred to as 'privity.' The term 'privity,' however, has also come to be used more broadly, as a way to express the conclusion that nonparty preclusion is appropriate on any ground. " (citations omitted).
398. Richards, at 797 n.4 ("[A]s a State may not, consistently with the Fourteenth Amendment, enforce a judgment against a party named in the proceedings without a hearing or an opportunity to be heard, so it cannot, without disregarding the requirement of due process, give a conclusive effect to a prior judgment against one who is neither a party nor in privity with a party therein. " (citations omitted) (quoting Postal Tel. Cable Co., 247 U.S. at 476).
399. 2161.
400. at 2176 (citation omitted).
401. at 2172.
402. at 2172-73 (citing Restatement (Second) of Judgments § 41 (1982). The Restatement explains that "[a] person is represented by a party who is, " among other things, "[a]n official or agency invested by law with authority to represent the person's interests. " Restatement (Second) of Judgments § 41.
403. See Richards, at 803 (reasoning that, in "cases in which the taxpayer is using that status to entitle him to complain about an alleged misuse of public funds, or about other public action that has only an indirect impact on his interests... we may assume that the States have wide latitude to establish procedures not only to limit the number of judicial proceedings that may be entertained but also to determine whether to accord a taxpayer any standing at all" (citations omitted).
404. See Restatement (Second) of Judgments § 41 cmt. d ("Where the interest to be protected is one held by members of the public at large, an action by a public official in behalf of that interest may be held preemptive of private remedies and preclusive effects accordingly given to a judgment in an action involving the official. " (citing cases).
405. 320 (1958).
406. at 328.
407. at 340-41.
408. at 340-41. (emphasis added).
409. See, e.g.,Satsky v. Paramount Commc'ns, Inc., 7 F.3d 1464, 1470 (10th Cir. 1993) (holding that state litigation did not bar later adjudication of "injuries to purely private interests" that the state could not have raised).
410. Taylor v. Sturgell, 2161, 2176 (2008).
411. See Richards v. Jefferson Cnty., 793, 802 (1996) (explaining that, where there was no reason to suppose that plaintiffs in the first suit understood their suit to be on behalf of absent county taxpayers, "to contend that the plaintiffs [in the first suit] somehow represented [the taxpayers], let alone represented them in a constitutionally adequate manner, would be 'to attribute to them a power that it cannot be said that they had assumed to exercise'" (quoting Hansberry v. Lee, 311 U.S. 32, 46 (1940).
412. Alaska Sport Fishing Ass'n v. Exxon Corp., 34 F.3d 769, 771 (9th Cir. 1994) (per curiam) (internal quotation marks omitted).
413. Victa v. Merle Norman Cosmetics, Inc., 24 Cal. Rptr. 2d 117, 125 (Cal. Ct. App. 1993) (refusing to preclude private ADEA suit where, "by the time it agreed to the judgment the EEOC had dispensed with plaintiff's particular interest, and was content to dismiss the case in exchange for [defendant's] submission to a general injunction")
414. cf. In re Exxon Valdez, 270 F.3d 1215, 1231 (9th Cir. 2001) (refusing to preclude private damages action where earlier government suit under the Clean Water Act had adjudicated only common public interests).
415. See § 2000e-5 (2006 & Supp. V 2011).
416. Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 333 (1980)
417. see also Sam Fox Publ'g Co. v. United States, 366 U.S. 683, 689 (1961) ("We regard it as fully settled that a person whose private interests coincide with the public interest in government antitrust litigation is nonetheless not bound by the eventuality of such litigation, and hence may not, as of right, intervene in it. "). The Sam Fox case involved an antitrust suit by the United States that resulted in a consent decree prescribing certain injunctive relief. Id. at 686. The government was not suing in a representative capacity, and earlier cases had made clear that "[t]he scheme of the [antitrust] statute is sharply to distinguish between Government suits, either criminal or civil, and private suits for injunctive relief or for treble damages. Different policy considerations govern each of these. They may proceed simultaneously or in disregard of each other. " Id. at 689 (quoting United States v. Borden Co., 347 U.S. 514, 518-19 (1954) (internal quotation mark omitted). The lower courts are divided on the preclusive effect of EEOC action under Title VII on behalf of a particular employee (rather than a large class of employees, as was the case in General Telephone Co.). Compare Riddle v. Cerro Wire & Cable Grp., Inc., 902 F.2d 918, 922 (11th Cir. 1990) (holding that EEOC action did not preclude private suit because "Riddle and the EEOC did not have the same interests in pursuing litigation against Cerro"), with Jones v. Bell Helicopter Co., 614 F.2d 1389, 1390 (5th Cir. 1980) (holding that individual's Title VII action was barred by resolution of earlier EEOC action because individual was in privity with the EEOC). Cf. Adams v. Proctor & Gamble Mfg. Co., 697 F.2d 582, 583 (4th Cir. 1983) (en banc) (holding that consent decree in EEOC action precluded suit by individuals who were charging parties but did not intervene in the EEOC's action on their behalf).
418. Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982).
419. Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982). (quoting Vitek v. Jones, 445 U.S. 480, 490 n.6 (1980).
420. Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982). (quoting Vitek, 445 U.S. at 490 n.6).
421. See Hansberry v. Lee, 311 U.S. 32, 42-43 (1940).
422. See Erwin Chemerinsky, Constitutional Law 579-80 (3d ed. 2006). Compare Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) ("General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. "), with Londoner v. Denver, 210 U.S. 373, 385 (1908) ("[D]ue process of law requires that at some stage of the proceedings [assessing taxpayers for costs of local improvements] before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice.... ").
423. See United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 245 (1973) (discussing "a recognized distinction in administrative law between proceedings for the purpose of promulgating policy-type rules or standards, on the one hand, and proceedings designed to adjudicate disputed facts in particular cases on the other").
424. See Bi-Metallic, 239 U.S. at 445 ("Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. ").
425. See Bi-Metallic, 239 U.S. at 445 ("Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. ").
426. U.S. Const. art. I, § 10, cl. 1.
427. Erwin Chemerinsky, Constitutional Law 579-80 (3d ed. 2006). Compare Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S., at 580 (1915) ("[P]rocedural protections are required under the due process clause when there is a possible issue about how the law applies to a specific person. ").
428. See supra Part I. B, pp. 499-510.
429. Taylor v. Sturgell, 2161, 2176 (2008) ("A party's representation of a nonparty is 'adequate' for preclusion purposes only if, at a minimum[,]... the interests of the nonparty and her representative are aligned.... ").
430. Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 326 (1980) (citation omitted) (quoting 118 Cong. Rec. 4941 (1972).
431. Riddle v. Cerro Wire & Cable Grp., Inc., 902 F.2d 918, 922-23 (11th Cir. 1990).
432. Cf. Jay Tidmarsh, Rethinking Adequacy of Representation, 87 Tex. L. Rev. 1137, 1151 (2009) (explaining that adequate representation in class actions protects against "incompetence" and "indifference" of class counsel and class representatives).
433. Some state and federal statutes require courts to approve state settlements.
434. 15c(c) (2006) (providing that federal antitrust parens patriae actions "shall not be dismissed or compromised without the approval of the court"). Some state antitrust and unfair trade practices statutes follow the federal antitrust model and require court approval for parens patriae settlements.
435. Most courts discharge that duty by asking whether the settlement is "fair, reasonable, and adequate"-an inquiry that could embrace analysis of the attorney general's performance. E.g., New York v. Nintendo of Am., Inc., 775 F. Supp. 676, 680 (S.D.N.Y. 1991) ("While the [federal antitrust] statute does not state the standard to use in approving a parens patriae settlement, courts have adopted the standard used in class actions. ")
436. In re Mid-Atl. Toyota Antitrust Litig., 564 F. Supp. 1379, 1383 (D. Md. 1983) ("Similar standards should govern judicial review of proposed settlements in both parens patriae actions and private class actions. ").
437. Abandoning the assumption of adequate public representation also would have implications for current judicial practices with respect to superiority and intervention. Courts need not ignore the possibility of a public action when ruling on superiority under Rule 23, nor should they categorically limit the state's parens patriae authority to cases in which private class actions are unavailable or infeasible. If, as I have argued, private class actions and parens patriae suits raise similar concerns about adequate representation, courts should assess those concerns as they arise on a case-by-case basis rather than adopting an across-the-board preference for either model. Where state suits will preclude subsequent private litigation, courts should also abandon the heavy presumption of adequate representation they currently apply when private parties seek to intervene in parens patriae litigation. Instead, courts should apply the standard "minimal burden" requirement for intervention, demanding some showing that the existing parties may not adequately represent the movant's interests.
438. Fed. R. Civ. P. 24(a) ("On timely motion, the court must permit anyone to intervene who... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. ").
439. Concededly, intervention may complicate or delay the conclusion of some cases, and-as in the class action context-there are risks that greedy private attorneys will use the opportunity to fish for undeserved fees.
440. Edward Brunet, Class Action Objectors: Extortionist Free Riders or Fairness Guarantors, 2003 U. Chi. Legal F., at 409 (discussing "problems [that] plague the process of objecting into class actions"). But those concerns hardly justify denying intervention on the very different ground that the attorney general can be presumed to adequately represent the interests of the parens patriae group. If delay and interference are independently sufficient reasons to refuse intervention, they should be addressed on their own terms and not hidden behind assurances of adequate representation.
441. David Marcus, Making Adequacy More Adequate, 88 Tex. L. Rev. See Also, at 138 (2010) ("Given its importance, it is remarkable that the adequacy concept has little doctrinal or theoretical coherence. ")
442. Jay Tidmarsh, Rethinking Adequacy of Representation, 87 Tex. L. Rev., at 1137-38 (2009) ("Despite the allure of the principle, we have very little sense of what adequate representation means, how we can measure it, or how we can guarantee it. ").
443. See supra section III.A.2, pp. 535-42.
444. Jay Tidmarsh, Rethinking Adequacy of Representation, 87 Tex. L. Rev., at 1151 (2009).
445. See Patrick Woolley, Collateral Attack and the Role of Adequate Representation in Class Suits for Money Damages, 58 U. Kan. L. Rev. 917, 927-30 (2010) (arguing that constitutional adequacy includes considerations of attorney performance).
446. See Sam Fox Publ'g Co. v. United States, 366 U.S. 683, 689 (1961).
447. See Sam Fox Publ'g Co. v. United States, 366 U.S. 683, 689 (1961).
448. For example, the Seventh Circuit, having concluded that action by the state under the Clean Water Act could preclude a subsequent private suit only if the state had pursued the relevant claims with "due diligence, " put it this way: [D]iligence on the part of the State is presumed. We surmise that this presumption is due not only to the intended role of the State as the primary enforcer of the Clean Water Act, but also to the fact that courts are not in the business of designing, constructing or maintaining sewage treatment systems. Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 760 (7th Cir. 2004) (citations omitted)
449. Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d at 758-60 (7th Cir. 2004).
450. Samuel Issacharoff, Class Action Conflicts, 30 U.C. Davis L. Rev., at 805 (1997) ("Nowhere else [but in class actions] do we find so clear a departure from the premise that the attorney-client relationship is achieved through contractual voluntarism, with the terms of the engagement constrained only by the rules of professional conduct. ")
451. Geoffrey P. Miller, Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard, 2003 U. Chi. Legal F. 581, 586 ("[T]he safety valve of client consent is missing, either to authorize the representation of multiple plaintiffs or to justify the settlement. "). Some statutes create rights to opt out of parens patriae actions, but coverage is spotty. Compare, e.g.,Alaska Stat. § 45.50.577(b) (2011) (Alaska antitrust statute providing for notice by publication and right to opt out of parens patriae action by filing notice with court), Ark. Code Ann. § 4-75-212 (2011) (same, for Arkansas Unfair Practices Act), and Cal. Bus. & Prof. Code § 16760 (West 2008) (same, for California antitrust statute), with Conn. Gen. Stat. §§ 35-24 to 35-46 (2011) (Connecticut antitrust statute lacking provisions for notice and opt-out), 740 Ill. Comp. Stat. 10/7 (2010) (same, for Illinois antitrust statute), and Neb. Rev. Stat. § 84-212 (2008) (same, for Nebraska antitrust statute).
452. Jonathan R. Macey & 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., at 27-28 (1991) (arguing that the benefits of notice in large-scale, small-claims class actions "appear minimal at best" while the costs "can be substantial, " id. at 28, and concluding that "notice has little realistic value to class members" in such cases, id.), with Patrick Woolley, Rethinking the Adequacy of Adequate Representation, 75 Tex. L. Rev. 571, 573-76 (1997) (emphasizing notice as a prerequisite to the right to be heard).
453. Geoffrey P. Miller, Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard, 2003 U. Chi. Legal F., at 30 ("The Supreme Court has made quite clear that in the notice-of-litigation context, as in other due process clause analysis, the relevant analysis involves a balancing of costs and benefits. ").
454. Some statutes that authorize states to sue as parens patriae demand just such an inquiry with respect to notice. For example, the federal antitrust statute requires courts to give notice of a state action by publication, with the caveat that the court may order further individualized notice if due process requires it. See § 15c(b)(1) (2006). Some, but by no means all, state antitrust statutes currently resemble the federal model.
455. See, e.g.,Hart-Scott-Rodino Antitrust Improvements Act of 1976 § 301, § 15c(a)-(b) (2006) (authorizing states to sue as parens patriae to enforce federal antitrust law and providing that the state attorney general shall give notice to class members).
456. Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 333 (1980).
457. See id. ("[W]here the EEOC has prevailed in its action, the court may reasonably require any individual who claims under its judgment to relinquish his right to bring a separate private action. ").
458. See Steven Malech & Seth Huttner, What is Superiority? The Role of Completed, Pending, and Anticipated Government Activity in Certifying a Class Action, Antitrust Source, Apr. 2010, art. 6, at 2, available at http://www.americanbar.org/content/dam/aba/publishing/antitrust_source/A pr10_FullSource.authcheckdam.pdf (expressing concerns about duplicative recoveries in government cases and class actions).
459. See Remarks on the State AG and the Role of Parens Patriae, John Mariani, Wedding Photographer Must Complete Work for Old Customers Before Taking on New Ones, Post-Standard (Syracuse, N.Y.) (Apr. 29, 2010), http://www.syracuse.com/news/index.ssf/2010/04/wedding_photographer_must_comp.ht ml, at 27 (remarks of Jay L. Himes, N.Y. Assistant Att'y Gen.) ("[O]ur parens patriae claim response rate is not 100%, or anything close to it.").
460. That solution would create its own set of problems, as it would negate any incentives the defendant otherwise might have to identify claimants.
461. For example, the $25 billion mortgage foreclosure settlement described in Part II explicitly preserves private suits.
462. Philip A. Lehman, Consumer Prot. Div., N.C. Dep't of Justice, National Mortgage Settlement: Executive Summary of Multistate/Federal Settlement of Foreclosure Misconduct Claims (2012), available at http://portal.hud.gov/hudportal/documents/huddoc?id=natlsetexecsum%282%2 9.pdf., at 4
463. see also, e.g.,Joint Motion to Enter Consent Judgment, Arizona v. Quik Cash, No. C20099397 (Ariz. Super. Ct. Mar. 8, 2011), available at http://www.azag.gov/press_releases/march/2011/QuikCash_3-8-11.pdf (consent judgment providing that defendant will pay up to $170,000 in restitution to eligible consumers, id. at 3, and noting that "nothing in this consent judgment restricts any person or entity from pursuing a private action or asserting any available right or remedy against Quik Cash, " id. at 2)
464. Consent Judgment, Arizona v. DirecTV, Inc., No. CV2010-033208 (Ariz. Super. Ct. Dec. 28, 2010), available at http://www.azag.gov/press_releases/dec/2010/DirecTV%20consent%20judgment .pdf (consent judgment providing that defendant will pay restitution to eligible customers, and noting that "[n]othing in this judgment shall be construed to create, waive, or limit any private right of action, " id. para. 9.14).
465. For an example, see In re Remeron End-Payor Antitrust Litigation, Nos. Civ. 02-2007 FSH, Civ. 04-5126 FSH, 2005 WL 2230314 (D.N.J. Sept. 13, 2005), which scrutinized under Rule 23 a settlement-only class action involving states as well as private parties.
466. Richard A. Nagareda, Class Actions in the Administrative State: Kalven and Rosenfield Revisited, 75 U. Chi. L. Rev. at 629 (2008) (quoting In re Ampicillin Antitrust Litig., 55 F.R.D. 269, 274 (D.D.C. 1972) (internal quotation marks omitted).