Publications
Government Action and the Superiority Requirement: A Potential Bar to Private Class Action Lawsuits
Nearly Twenty-five years ago, a plaintiff’s attorney informed a United States District Court judge that he was “being humble enough to ask for about $5,000,000” in attorney’s fees for his representation of a proposed class comprised of former members of the United States Armed forces who could have essentially obtained the same reliefโa retroactive pay increaseโthrough administrative proceedings initiated by the various service branches. Aside from the remarkable candor demonstrated by his attorney, the plaintiff’s effort to pursue a class action at the same time the federal government was endeavoring to locate and compensate potential class members exemplifies an important issue facing courts considering whether to grant class certification: Does the existence of an agency investigation, administrative proceeding, or lawsuit (“Government Action”) preclude a plaintiff primarily seeking money damages from establishing that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy” as required by Federal Rule of civil procedure 23(b)(3) and its state law analogues?
