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Settlement Class Actions, the Case-Or-Controversy Requirement, and the Nature of the Adjudicatory Process Martin H

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Settlement Class Actions, the Case-Or-Controversy Requirement, and the Nature of the Adjudicatory Process Martin H Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process Martin H. Redisht & Andrianna D. Kastanektt I. INTRODUCTION It would hardly be an overstatement to suggest that the nature of the litigation process has changed dramatically over the past forty years. Modem procedure has been altered to keep up with the significant changes over the same period in the governing substantive law, which has significantly expanded the scope of private responsibility and li- ability through the rapid expansion of both statutory and common law bases for suit. This is particularly true in the areas of civil rights, con- sumer protection, and products liability. Experts may reasonably de- bate whether the socioeconomic and political effects of these changes in substantive law are beneficial or harmful. But few would doubt the troubled state in which modem litigation procedure finds itself as a result, at least in large part, of the dramatic expansion of the scope of substantive liability. The procedural device routinely employed as the means of resolving the countless individual claims that may now be made against economically powerful defendants is the class action, authorized for use in the federal courts by Rule 23 of the Federal Rules of Civil Procedure. Though the device finds its origins in ancient practice' and received codification in the original Federal Rules of Civil Procedure in 1938,2 the practice assumed its modern form- dramatically different from its earlier structure-in the amendments of 1966.' Although that alteration was designed to make the class ac- tion device capable of resolving the disputes to which the dramatic expansion in substantive liability was to give rise, the difficulties in- herent in any attempt to resolve thousands of parallel, but not neces- t Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law. The authors would like to thank Dennis Murashko of the Class of 2007 at North- western Law School for his valuable research assistance. tt B.A. Northwestern University, 2001; J.D. Northwestern University, 2005; Law Clerk to the Honorable Kenneth Ripple, United States Court of Appeals, Seventh Circuit. 1 See Stephen C. Yeazell, From Medieval Group Litigation to the Modern Class Action 4-7 (Yale 1987) (giving an overview of the origins of class actions in medieval representative litiga- tion). See also Harry Kalven, Jr., and Maurice Rosenfield, The Contemporary Function of the Class Suit, 8 U Chi L Rev 684,721 (1941). 2 28 USC App (1934) (original version of Rule 23, effective Sept 1, 1938). 3 28 USC App (Supp V 1964) (1966 version of Rule 23, effective July 1,1966). The University of Chicago Law Review [73:545 sarily identical, claims in one proceeding could not have been fore- seen. The sometimes overwhelming complications that inevitably ac- company an attempt to litigate countless claims in one proceeding have proven to be more than the device is capable of handling. Because of these seemingly insurmountable problems in litigating complex claims through the class action device, attorneys and courts have developed a new method of disposing of these thousands of po- tential suits in one fell swoop. That method is known as the settlement class action. While the name explicitly references the class action de- vice and requires satisfaction of many of Rule 23's requirements, in important ways the practice alters the very essence of the litigation process. It does so by having as its defining characteristic -from the proceeding's inception-the absence of any dispute to be litigated. Instead, both parties come to court with a conditional request for cer- tification of a class: the "suit" is to be certified as a class only if the court approves the settlement that has been reached by the defendant and the attorneys for certain individual plaintiffs who seek to repre- sent all of those similarly injured. The court may approve or disap- prove that settlement, but either way there will never be any litigation of the class members' claims against the defendant. If the court ap- proves, then the entire matter will have been resolved through nonliti- gation means. If, on the other hand, the court disapproves, the parties are returned to the same position they were in prior to the institution of the proceeding. Thus, the so-called settlement class action is a good deal more settlement than action. When the dust settles, the device is nothing more than a nonlitigation means of resolving potential dis- putes. Yet the practice is approved and enforced through the federal courts. Many courts and commentators have applauded the development of the settlement class action as a welcome means of resolving gigantic disputes without incurring the burdens of extended litigation-if, in- deed, such mass litigation were even feasible.' Not surprisingly, then, the growth of settlement class actions as a means of disposing of mod- ern complex claims has been meteoric.' The Supreme Court itself has 4 See, for example, Herbert B. Newberg and Alba Conte, 2 Newberg on Class Ac- tions § 11.09 at 11-13 (Shepard's/McGraw-Hill 3d ed 1992) (noting that the settlement class action offers substantial savings in litigation expenses to both plaintiffs and defendant). See also note 216 and accompanying text. 5 See, for example, In re The Prudential Insurance Co of America Sales Practices Litiga- tion, 148 F3d 283,289-90 (3d Cir 1998) (upholding a district court's certification of a settlement class of more than eight million policyholders in an insurance settlement); In re Cincinnati Ra- diation Litigation, 1997 US Dist LEXIS 12960, *7-9 (SD Ohio) (denying certification of a set- tlement class because of a failure to meet the commonality requirement, but allowing the parties to renew their motion for certification); Howard Erichson, Mass Tort Litigation and Inquisitorial 20061 Settlement Class Actions & the Case-or-ControversyRequirement 547 eased the way for use of the practice in the lower federal courts by holding that the class need not satisfy what is often the most difficult hurdle to class action certification: the requirement of Rule 23(b)(3) that litigation of the class be manageable. A number of respected courts and scholars, however, have sounded cautionary notes about the practice, suggesting that the set- tlement class action brings with it serious risks of collusion and un- fairness that ultimately disadvantage absent class members.7 Scholars have therefore proposed a number of reforms, designed to reduce the potential harms to which the settlement class action gives rise.8 In- deed, congressional concern over the use of the settlement class action has resulted in Congress's commission of a study by the Federal Judi- cial Conference to investigate the problems it poses.9 Neither those who approve nor those who disapprove of the settlement class action device, however, have fully recognized the most serious-and fatal-' problem with the settlement class action: because by its nature it does not involve any live dispute between the parties that a federal court is being asked to resolve through litigation, and because from the outset of the proceeding the parties are in full accord as to how the claims should be disposed of, there is missing the adverseness between the parties that is a central element of Article III's case-or-controversy requirement. The settlement class action, in short, is inherently uncon- stitutional. But because class action scholars have mistakenly viewed Justice, 87 Georgetown L J 1983, 1999-2000 (1999) (discussing cases in which the settlement class action was praised as a "viable approach to resolving mass tort litigation"); Thomas E. Willging, Laural L. Hooper, and Robert I. Niemic, EmpiricalStudy of ClassActions in Four Federal Dis- trict Courts: Final Report to the Advisory Committee on Civil Rules 9,35 (Federal Judicial Center 1996) ("Willging study") (finding that, of the class actions studied, 39 percent were certified for settlement purposes only). See also Minutes, Advisory Committee on Civil Rules (Nov 9-10, 1995), online at http://www.uscourts.gov/rules/Minutes/min-cvll.htm (visited Mar 26, 2006) (summarizing the Willging study). 6 See Amchem Products; Inc v Windsor, 521 US 591, 620 (1997) (holding that an absence of a trial excuses a district court from examining the manageability of a class, but necessitates "heightened" attention to the other specifications of Rule 23). 7 See, for example, In re General Motors Corp Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F3d 768, 788 (3d Cir 1995) (citing the dangers of a "premature, even a collusive, settlement" when settlement is reached precertification, and noting that "fe]ven some courts successfully using these devices to achieve settlements apparently recognize these dangers since they certify these actions more cautiously than ordinary classes"); In re Diet Drugs,2000 US Dist LEXIS 12275, *136-37 (ED Pa) (discussing the incentive to reach "any settlement agreement," instead of "the best possible settlement," resulting from inventory settlements specifically); In re Ford Motor Co Bronco II Products Liability Litigation, 1995 US Dist LEXIS 3507, *23 (ED La) (noting that the "non-existence of formal discovery" suggested a collusive settlement); Bowling v Pfizer, 143 FRD 141,152-55 (SD Ohio 1992). See also FRCP 23(a)(4) (requiring that the class representatives "fairly and adequately protect the interests of the class"). 8 See Part II.B.2. 9 See Class Action Fairness Act, S 1751, 108th Cong, 1st Sess (Oct 17, 2003), in 149 Cong Rec S 12737 (Oct 16,2003). The University of Chicago Law Review [73:545 the device-both positively and negatively-in a constitutional vac- uum, they have uniformly failed to recognize the problematic impact of the settlement class action when it is placed within the broader framework of the nation's constitutional structure.
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