Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date





University of Virginia School of Law




In this Article, we discuss examples of class action settlements in which the conduct allegedly engaged in by class counsel-and in some instances by the defendants and their lawyers--could constitute a civil wrong or a criminal act under state or federal law, but a court nevertheless blessed the conduct by approving the settlement. We argue that the findings made by federal and state courts in blessing these settlements, namely, findings on the adequacy of class counsel, the lack of collusion between class counsel and the defendants, and the fairness of the settlement terms, should not immunize the conduct of the settling parties from the reach of state tort law, consumer protection law, criminal law or state and federal antitrust statutes. The process that results in these findings is simply not "full" or "fair" enough to allow those findings to trump the operation of other state or federal law designed to protect clients and the public from the misdeeds of lawyers. Moreover, we argue that the doctrines that work to exempt state action, the action of federal agencies and the conduct of parties in litigation from the purview of the antitrust laws do not, and should not, apply to the conduct of class counsel in negotiating a settlement or to the terms of the contract subsequently approved as a class settlement by a court.

In short, our answer to class action abuse is "sue the bastards." In more polite terms, through this Article we hope to dispel any notion that the procedural law used to facilitate the settlement of class actions should somehow operate to cancel the substantive law designed to protect us all from the wrongful conduct of our supposed champions.

Link to Publisher Site (BU Community Subscription)



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.