Redundant Public-Private Enforcement

REDUNDANT PUBLIC-PRIVATE ENFORCEMENTChief Justice Roberts: "[W]hat prevents attorneys general from around the country sitting back and waiting until . . . the plaintiffs' class prevails, taking the same complaint, maybe even hiring the same lawyers, to go and say, 'Well, now we are going to bring our parens patriae action, we know how the trial is going to work out, or we know what the settlement is going to look like, and we are going to get the same amount of money for the State? . . .'[T]he answer is that there is nothing to prevent fifty attorneys general-fifty-one, from saying, 'Every time there is a successful class action as to which somebody in my State purchased one of the items, we are going to file a parens patriae action, the complaint is going to look an awful lot like the class action complaint, and we want our money? . . .'[Y]ou can't provide any reason why they wouldn't do so and, presumably, would start doing so with greater frequency if you prevail in this case.~Oral Argument in Mississippi ex rel. Hood v. AU Optronics Corporation.1INTRODUCTIONIn Mississippi ex rel. Hood, the Attorney General of Mississippi filed a price-fixing suit on behalf of Mississippi residents against the manufacturers, marketers, and distributors of liquid crystal displays (LCD).2 The Supreme Court unanimously held that the state's lawsuit on behalf of residents could not be consolidated with private class actions adjudicating common claims.3 Though this decision addressed the meaning of "mass action" in the Class Action Fairness Act,4 lurking behind that definitional question was a concern about duplicative public-private litigation. Could the state bring claims on behalf of residents when overlapping claims were maintained in separate, private class actions? Permitting the state to sue separately could allow state governments to file lawsuits duplicating private class actions, extorting damages from defendants while free-riding on the efforts of private attorneys.The Chief Justice's concerns about follow-on government lawsuits recall the frequent criticism of private class actions trailing government investigations-so called coattail, tagalong, or piggyback class actions.5 Professor Coffee, for example, colorfully exhorted the "spectacle, one resembling the Oklahoma land rush, in which the filing of the public agency's action serves as the starting gun for a race between private attorneys, all seeking to claim the prize of lucrative class action settlements, which public law enforcement has gratuitously presented them."6 And Professor Rubenstein has remarked that coattail class counsel "provides no independent search skills, no special litigation savvy, and no nonpoliticized incentives. She simply piles on and runs up the tab."7Criticism of redundant enforcement is equal opportunity. Opponents of coattail class actions often prefer government enforcement to private suits. As Professor Ratliff quipped "[w]hy pay for a 'private attorney general' when there is a public attorney general who works for free?"8 Others worry about government enforcement. The Chamber of Commerce, no friend to the plaintiffs' bar, has championed environmental citizen suits over EPA intervention.9 Then-Attorney General, now-Judge, William Pryor described "multigovernment litigation" as "the land of public corruption, constitutional subversion, and legalized antitrust conspiracies."10 And Chief Justice Roberts worried aloud that government attorneys would run up the tab against class-action defendants following the Mississippi decision.11More broadly, the mere mention of duplication is met with resistance across a range of procedural contexts.12 Modern civil procedure evinces a "maximalist" preference against redundancy;13 the American Law Institute, in its measured way, has sought to increase opportunities for centralization in settlement and litigation;14 and Professor Redish, less measuredly, has called for "zero tolerance" of duplicative litigation. …