Paper (265)

-- Elizabeth Joan Cabraser / Samuel Issacharoff, The Participatory Class Action (01.2017)

Abstract: "Class actions have emerged as the settlement instrument of choice in mass harm cases such as the Volkswagen emissions scandal or the Deepwater Horizon aftermath. But the class action has also reemerged in the mass tort context, most notably in the NFL Concussion litigation. After seemingly collapsing following the Supreme Court decisions, the class action device is getting an important second life in courts today.

This article argues that the new class actions have a feature that should increase their doctrinal acceptability: forms of active class member participation. What we term the “participatory class action” emerges from two developments. The first is the technological transformation in the means of communication with class members, and among the class members themselves. The second is that the current class actions almost invariable arise from the initial consolidation of large numbers of individual suits and putative class action in the MDL process. As a result, classes are comprised not simply of lawyers and absent class members, but of hundreds or even thousands of individual claims, with individuals capable of monitoring the class and represented by independent counsel.

With over 40 percent of the actively litigated civil cases in federal courts now in the MDL dockets, the transformation in mass resolution is well underway. In these new consolidations, the assumptions of older law about absent class member passivity break down. In the popular typology in academic examination of class actions, class action law should insist on the loyalty of agents and the importance of individual ability to exit as guarantors of systemic legitimacy. In the participatory class action, voice emerges as a critical element with the capacity of the normally silent class members to assert their interests and their views. As with the need for class action law to move from first-class mail to Twitter, so too must the law embrace the implications of real participation in the assessment of representational propriety."