1.4 Maintaining High Ethical and Practice Standards in Class Actions
As discussed above, the continued availability of the class action mechanism is essential to enforcing consumer rights, but there are constant efforts by industry to erode its availability. Every time a poorly conceived class action case results in bad publicity or a negative court opinion—and, even worse, every time a class settlement providing inadequate compensation to class members is negotiated and approved—it serves as ammunition for opponents of class action litigation. Decisions about which class action cases to pursue must not only be based on legal considerations but on practical ones. Cases involving picayune, technical claims have done tremendous damage to the public perception of class actions. Practitioners should think carefully about case theories that involve unappealing facts or run counter to standard equitable considerations.
After class action allegations are put forth in a complaint, the court, plaintiffs’ counsel, and the named plaintiffs all bear a responsibility to protect the interests of absent class members.29 It is essential that attorneys evaluate potential class actions carefully, adhere to strict ethical standards in protecting the interests of named plaintiffs and class members, invest sufficient resources, and litigate cases with skill and energy. It is also important to choose co-counsel with care. The NACA guidelines provide an excellent roadmap for preserving high standards in class representation and settlement.30
29 See, e.g., Fed. R. Civ. P. 23(d)–(g) (discussing orders to protect the class and the duty of class counsel); Manual for Complex Litigation §§ 21.26, 21.27 (4th ed. 2004) (same).
30 Nat’l Ass’n of Consumer Advocates, Standards and Guidelines for Litigating and Settling Consumer Class Actions (3d ed. 2014), reprinted at Appx. D, infra.