ALI-ABA Course of Study Asbestos Litigation: Where Is It Going? When Will It End? December 4-5, 2008 San Antonio, Texas

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1 0 ALI-ABA Course of Study Asbestos Litigation: Where Is It Going? When Will It End? December -, 00 San Antonio, Texas Non-Class Aggregate Settlements Submitted by Patrick M. Hanlon University of California School of Law Berkeley, California 00 The American Law Institute (ALI); this material is reproduced with permission and all rights are reserved. The material appears in Principles of the Law of Aggregate Litigation, Tentative Draft No. (April, 00); these sections have not been approved by the members of ALI and thus do not represent the position of ALI on any of the issues with which they deal. The 0-page Tentative Draft is available for purchase, in print or electronic form, from ALI (www.ali-org or 00--).

2 0

3 0 Aggregate Settlements. TOPIC NON-CLASS AGGREGATE SETTLEMENTS. Need for Special Treatment of Non-Class Aggregate Settlements Significant differences between class and non-class cases require that these two types of cases be treated differently for purposes of settlement. 0 Comment: a. Differences between class and non-class settlements. The most common resolution of both class actions and non-class aggregate cases is settlement. As with simpler one-on-one litigation, few such cases go to trial. Nonetheless, there is often judicial involvement with non-class cases in the trial of bellwether cases or preliminary rulings on jurisdiction or evidentiary questions, even if a full-blown trial of the aggregated cases is unlikely. Although much attention has been given to class-action settlements, little scholarly or judicial attention has been given to non-class aggregate settlements. Non-class settlements arise in a variety of contexts: through multidistrict litigation or consolidation, through informal coordination by multiple claimants counsel, or informally as multiple clients of a single lawyer or law firm. In the case of multiple clients of a single law firm, the lawyer s entire inventory of cases against a particular defendant may be settled as a unit before most cases are even filed and, in some cases, before a single lawsuit is even filed. Moreover, cases may be informally aggregated on the defense side as well, through such mechanisms as joint-defense agreements or as a consequence of substantive rules governing joint and several liability.

4 0 Aggregate Settlements. 0 The structure, mechanics, and effects of a settlement may vary greatly between class and non-class aggregate litigation on the claimants side of the equation. In the non-class aggregate setting, an attorney-client relationship exists between each claimant and at least one attorney in the case. Class actions, by contrast, involve representation by attorneys who typically have a relationship only with the class representatives and not with the unnamed class members, although the lawyer owes fiduciary duties to all class members. Class-action settlements are governed by special procedural rules and occur under court supervision. Non-class aggregate settlements, by contrast, are governed primarily by ethical rules and are rarely subject to court review or approval for fairness. As discussed in the following Sections, a fresh look needs to be taken at how non-class aggregate settlements should be regulated. b. How non-class aggregate settlements are currently handled. Settlement of nonclass aggregate litigation is governed in every state by some variant of Rule.(g) of the ABA Model Rules of Professional Conduct (or by Disciplinary Rule - of the Model Code of Professional Responsibility or a similar rule). The language of Rule.(g) is representative: A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients... unless each client gives informed consent, in a writing signed by the client. The lawyer s disclosure shall include the existence and nature of all the claims... involved and of the participation of each person in the settlement. Under this Rule, no person is bound by the settlement unless that person consents, in writing, to all settlement terms after the precise terms are known.

5 0 Aggregate Settlements. These requirements apply even if a claimant purports to waive them (e.g., by placing the settlement decision in the hands of claimants counsel or agreeing to be bound by the majority vote of the group). Courts have found such waivers to be contrary to the language of Rule.(g) and have expressed concerns about attorney conflicts of interest. 0 0 REPORTERS NOTES Comment a. For discussion of the various ways in which non-class aggregate litigation is settled, see Howard M. Erichson, A Typology of Aggregate Settlements, 0 Notre Dame L. Rev., (00). Comment b. Every state has adopted Model Rule.(g), a similarly worded Disciplinary Rule - of the Model Code of Professional Responsibility, or another similar rule. See Charles Silver & Lynn A. Baker, Mass Lawsuits and the Aggregate Settlement Rule, Wake Forest L. Rev., (). For examples of cases that have refused to accept waivers of Rule.(g), see, e.g., Hayes v. Eagle- Picher Indus., Inc., F.d, (th Cir. ) (holding that the rule s requirement that each plaintiff consent to the settlement after being informed of its terms could not be waived); The Tax Auth., Inc. v. Jackson Hewitt, Inc., A.d (N.J. 00) (holding that a retainer agreement containing a weighted-majority provision for settlement of the litigation is unenforceable under Rule.(g); court applied decision prospectively). Some scholars have offered a strong endorsement of the aggregate-settlement rule and oppose arguments to ease its requirements. See, e.g., Nancy J. Moore, The Case Against Changing the Aggregate Settlement Rule in Mass Tort Lawsuits, S. Tex. L. Rev. (). Other scholars, however, have taken a critical look at the aggregate-settlement rule, raising concerns, inter alia, about () the claimants inability to waive the requirements of the rule, and () the impediments that the rule places on settlements. In particular, these scholars argue that the aggregate-settlement rule imposes onerous restrictions that impede fair and legitimate settlements of large numbers of claims. See Silver & Baker, Mass Lawsuits and the Aggregate Settlement Rule, Wake Forest L. Rev. at -. For a case underscoring the need to permit claimants to mount fairness attacks up front, as opposed to postsettlement collateral attacks, see Burrow v. Arce, S.W.d (Tex. ). The court in Burrow allowed for a suit against attorneys for forfeiture of fees where, inter alia, the attorneys allegedly entered into an aggregate settlement without the claimants approval. The court ruled that such a suit was permissible and could result in forfeiture of all fees from the entirety of the representation even if the claimants could not prove actual damages. See also Restatement Third, The Law Governing Lawyers and Comment b (discussing deterrent effect of fee forfeiture for attorney violations that impair the attorneyclient relationship). For further application of Burrow, see Huber v. Taylor, II, F.d, - (d Cir. 00) (relying on Burrow to permit suit for disgorgement of fees against class counsel, and reversing denial of class certification of suit by asbestos claimants against class counsel). Effect on current law. This Section reflects a current recognition that class and non-class settlements are sufficiently distinct as to warrant different treatment. No change in substantive law or the rules of procedure is required here.

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