“Dubious Doctrines: The Quasi-Class Action”

That's the name of a new piece by University of Texas law prof Linda Mullenix. Here's the abstract, with emphasis added to the last paragraph:

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

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.


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