Brooks Smith*
Chief Judge of the United States Court of Appeals for the Third Circuit
Abstract
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.
*This Article was originally delivered as a lecture at a Continuing Legal Education program led by Waynesburg University’s Stover Center for Constitutional Studies and Moral Leadership in Cambridge, England on July 29, 2019. It is reproduced here with minimal alteration. In agreeing to its publication, Judge Smith expresses his deep gratitude to Gillian Schroff, Esquire, for her extensive research into aggregate litigation devices currently available in Britain and Wales, and for her diligence and enduring patience in working with him on numerous drafts that preceded presentation of the lecture and its publication. Any errors that appear—be they plain, clear, or even reversible—are the sole responsibility of Judge Smith.