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Abstract

I. Introduction

II. Conflicts of Interest ... A. Factors Outside the Class Structure Which May Interfere with Representation ... 1. The Representative's Relationship with the Class Opponent ... 2. Competing Interests between the Representative and the Class ... B. Factors within the Class Structure Which Create Conflicts of Interest ... 1. The Representative Has a Separate, Personal Interest in the Subject Matter of the Action ... 2. Preferences Granted to Class Representatives ... 3. Open and Obvious Dissent Within the Class ... 4. Intra-Class Conflicts Which "Go to the Very Subject Matter of the Litigation" ... C. Conflicts between Class Counsel and the Class

III. The Diminished Role of the Class Representative

IV. The Enhanced Role of Class Counsel ... A. Initiating the Lawsuit ... B. Financing the Lawsuit ... C. Financial Conflicts between Class Counsel and the Class ... 1. Attorneys' Fees ... 2. The Settlement Conflict ... 3. Fee Sharing ... D. Inadequacy of Judicial Review of Attorneys' Fees ... 1. The Lodestar Method ... 2. The Percentage-of-Recovery Standard ... 3. The Reasonable or Blended Approach ... V. Class Action Categories and the Weakening of Notice Rights under Amended Rule 23 ... A. The (b)(1)(A) Category ... B. The (b)(1)(B) Category ... C. The (b)(2) Category ... D. The (b)(3) Category ... E. The Impact of Categorization

VI. Settlement ... A. The Alignment of Interests against Absent Class Members in the Settlement Process ... 1. The Named Representative ... 2. Class Counsel ... 3. Opponents of the Class ... 4. The Court ... 5. The Absent Class Members ... B. Special Problems in Pre-certification Settlements ... C. Deficiencies in the Settlement Process ... 1. No Record on the Merits ... 2. The Failure to Require a Showing and Make Findings on Adequacy of Representation ... 3. Lack of Named Representative Participation ... 4. Intra-Class Conflicts Buried in the Settlement Process ... a. Dissent among the Class ... b. Undisclosed Preferences ... 5. Defects in the Content of Notice for Settlement Hearing ... a. Adequacy of Representation Is Not Described ... b. Objections by Representatives Are Not Disclosed ... c. Plan of Distribution Is Not Revealed ... 6. Lack of Judicial Supervision ... a. Settlement Negotiations ... b. Attorneys' Fees ... 7. The Settlement Hearing ... 8. Permitting Opt Out Does Not Cure All Defects

VII. Appellate Review ... A. Interlocutory Review of Class Action Orders ... B. The Standard of Review

VIII. Res Judicata and Collateral Attack ... A. Finality of Judgments and Settlements ... B. Permissible Attack on Class Judgments and Settlements for Lack of Due Process ... C. Collateral Attack for Lack of Due Process Denied

IX. Conclusion

X. Appendix

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