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64 Emory L.J. 477 (2014-2015)
Is the Class Action Really Dead - Is That Good or Bad for Class Members

handle is hein.journals/emlj64 and id is 490 raw text is: 

                    BAD FOR CLASS MEMBERS?

                              Georgene Vairo*


   Recent Supreme Court decisions have tightened up the standards for
obtaining class certification and virtually eliminate class arbitration as well.
However, while the Court has made it more difficult for plaintiffs attorneys to
use class resolution of claims as a prosecutorial tool, the lower federal courts
appear to relax certification standards when the parties seek to certify a
settlement class. Because of the preclusive power of a class action, which
binds all class members who do not opt out, the class action remains a potent
settlement tool. The 2014 Randolph W. Thrower Symposium panel that served
as the foundation for this paper, Binding the Future: Global Settlements and
the Death of Representative Litigation,  asked, however, whether class
settlements are bad for class members.

    This Article begins by analyzing the Supreme Court's certification
decisions and agrees with most commentators that although class actions are
not dead, the device's utility as a prosecution tool has been compromised.
However, the Article then shows that certification of class actions for
settlement purposes is alive and well. Finally, the Article identifies possible
alternatives to the use of class actions. Although much attention has been (and
should be) directed at the fairness ofproposed settlements, the Article suggests
that it is fortunate that the lower federal courts are not applying class
certification standards as stringently in the class settlement context. This is
because, despite all the problems inherent in class action practice, class
actions remain the best of a range of options for protecting the rights of class
members, particularly in low-value claim cases.

    . David P. Leonard Professor of Law, Loyola Law School, Los Angeles. I wish to thank the Emory Law
Journal for inviting me to participate in the 2014 Randolph W. Thrower Symposium, and for the help of its
editors in the preparation of this Article. I also want to thank Professor Rich Freer for being such a supportive
friend and colleague over the decades we have shared in academia. He has always pushed me to be the best
that I can be.

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