Class Action and Aggregate Litigation: A Comparative International Analysis01 Apr 2020
This Article examines the American class action through a comparative lens, highlighting its advantages and disadvantages relative to three collective action devices from England and Wales: the representative action, the Group Litigation Order, and the Competition Appeal Tribunal action. Five insights emerge. First, the Article tracks the rise of “professional objectors” in the U.S. and proposes ways England can curb similar abuses. Second, the Article excavates the potential for collusion between American class representatives, counsel, and defendants, and identifies ways England can avoid the same perverse incentives. Third, the Article details problematic examples of cy pres settlements in America as a cautionary tale for England, which recently expanded reliance on cy pres relief in consumer regulatory suits. Fourth, the Article grapples with the uniquely American issue of “strike suits”—meritless putative class actions filed for their settlement value—and applauds steps England has taken to avoid similar misuse. Fifth, the Article discusses the evolving U.S. jurisprudence on class action waivers with an eye to reform in both systems. In the end, the Article hopes to help jurists and litigants on both sides of the Atlantic attain a more efficient and effective system of aggregate litigation.