DUBIOUS DOCTRINES: THE QUASI-CLASS ACTION

In the past few years, the term “quasi-class action” has been appearing with increasing, uncritical frequency in a spate of federal court decisions. While it may be premature to characterize these sporadic references as a trend, it is perhaps soon enough to call attention to the misuse of loose labels that carry with them significant consequences. Before the quasi-class action gains any further traction, there are several valid reasons for definitively quashing this quasi. Three simple points about the quasi-class action. First, there is no such thing as a quasi-class action. A quasi-class action brings to mind the old joke about being slightly pregnant. Hence, either you are a class action, or not. There is no constitutional, statutory, doctrinal, or other basis for the quasi-class action. The label “quasi-class action” is a convenient, lazy fabrication to justify the lawless administration of aggregate claims. Second, whatever historical antecedents or analogues may exist for the concept of a quasi-class action, the 1966 amendments to Rule 23 the Supreme Court’s decisions in Amchem and Ortiz, and multiple class actions decisions lay to rest any notions of a quasi-class action. The entire point of the class action rule is not only to supply an aggregate mechanism for efficiently resolving multiple claims, but to balance efficiency values with the due process protection of absent class members in representative litigation. The so-called quasi-class action is the antithesis of due process. The quasi-class action is a jurisprudential oxymoron that its proponents deploy to justify the expeditious resolution of aggregate claims, while failing to adequately protect the interests of claimants. Third, the quasi-class action ought to be repudiated as an unfortunate drift into further lawlessness in administering aggregate claims. Over the past thirty years actors involved in resolving aggregate claims ― especially aggregate tort claims ― have embraced claims-resolution models that allow malefactors to control, manage, and settle their liabilities on highly preferential terms, permit plaintiffs’ attorneys to reap bountiful and often excessive fees, and enable heroic judges (and their heroic surrogates) to clear their dockets of large numbers of cases. The primary staging ground for deployment of the quasi class action has been in multi-district proceedings. Modern MDL proceedings that consolidate thousands of claims are unlike other private settlement auspices. Detached from class action status, claimants who are the subject of an MDL proceeding are largely unmoored from representation. While class certification at a minimum ensures adequate representation at the outset of proceedings ― both by adequate representatives and class counsel ― individuals involved in an MDL proceeding have no assurance that anyone is protecting their interests. Furthermore, there are few mechanisms that provide claimants with meaningful opportunities to consent to ongoing negotiations, or the results of negotiations. Thus, MDL settlement negotiations that are conducted outside the auspices of the class action mechanism encourage precisely the type of self-dealing and collusion among the attorneys which became the object of criticism in Amchem. With judicial embrace of the notion of a quasi-class action, we have returned to a pre-Amchem era of lawless aggregate claims resolution. Worse still, under the rubric of the quasi-class action, the federal judiciary now provides an equally “quasi judicial” imprimatur to such dealings.