The adequacy requirement of Rule 23(a)(4) tends to be under-studied and under-enforced. That's why it is always a pleasure to read new work on adequacy. Now, Professor Elizabeth Burch has published her latest discussion of the adequacy requirement: Adequately Representing Groups.
Professor Burch focuses on the standard that should apply when attacking adequacy after the fact. Nonetheless, this inquiry should inform the Rule 23(a)(4) inquiry, since one of the purposes of finding a representative adequate is to prevent subsequent collateral attacks to an aggregated judgment.
- Courts should tolerate greater conflicts in "indivisible remedy" cases. (Rule 23(b)(2) certification.) In other words, when the plaintiff is seeking an injunction or declaratory relief, it is OK if some of the class members disagree with the relief she seeks, or whether there is a problem in the first place. This makes sense form a pragmatic policy perspective. Professor Burch's analysis primarily applies to intra-class conflict, not to conflicts of interest that might otherwise disqualify a representative (e.g., integrity problems, too cosy with counsel). She does try to extend that analysis to these other conflicts, presumably because there are fewer reasons for counsel's interest to diverge from class members' when the is less cash at stake.
- Courts should make it easier to find inadequate representation in opt-out cases. presumably because the collateral attack on adequacy is another way of opting out after the fact. One could argue that the ability to opt-out should make a subsequent attack more difficult, operating as sort of a statute of repose, but that is a policy debate for another time. During the course of this analysis, however, Professor Burch does look at the many conflicting loyalties that beset lead counsel in MDL litigation, conflicts that have parallels in class action litigation.
So what can defendants take from this analysis? Professor Burch attempts to offer a coherent justification for the adequacy requirement that, at least in part, lines up with previous law. In addition, while one might take issue with her "opt out" justification for subsequent attacks on adequacy, it is a powerful critique of lawyer-driven litigation as a whole.