Inadequate Adequacy?: Empirical Studies on Class Member Preferences of Class Counsel

Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received or the results achieved after the culmination of the litigation.

Gaining greater insight into class members’ interests, needs, and preferences narrows agency problems that have plagued class actions and would steer such litigation towards being what at its roots it was meant to be—representational