Commentary On Class Settlements Under Attack
Like the supporters of the Class Action Fairness Act (CAFA), Issacharoff and Nagareda ground their proposal in the concept of the “anomalous court.” For CAFA supporters, the concern was the “anomalous” state courts—also termed “judicial hellholes”—that were willing improperly to certify a nationwide class action. CAFA addresses this concern by “mak[ing] it much easier for defendants to remove to federal court proposed nationwide class actions involving high-stakes, state law claims originally filed in state court.” But, as Professor Tobias Wolff has pointed out, by failing to provide for removal by class members, CAFA leaves such members at the mercy of collusive class settlements in anomalous state courts. Collateral attacks provide one means of addressing the concern about collusive class settlements. Issacharoff and Nagareda, however, argue that reliance on collateral review as a means of policing collusive class settlements recreates the problem of the “anomalous court” in a different posture, because some courts may be willing to take anomalously hostile views of the validity of a challenged class settlement.
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Kevin M. Clermont & Theodore Eisenberg