"The Oxymoron of 'the Conservative Case for Class Actions'"

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January 08, 2020

The director of the Center for Class Action Fairness at the Hamilton Lincoln Law Institute called a recent book by a Vanderbilt law professor an “oxymoron.”

Ted Frank said the book, called The Conservative Case for Class Actions and written by Prof. Brian Fitzpatrick, is “built on false premises.” Frank says Prof. Fitzpatrick’s arguments are “based on the illusion of relief,” meaning that though class action lawyers work on a contingency fee system, they often use “gimmicks to benefit themselves at the expense of their clients” who often receive nothing. Prof. Fitzpatrick also says the contingency fee model incentivizes lawyers to bring only cases with merit, but Frank says the “cost of defense is so high” that “defendants find it cheaper to pay attorneys to go away.” This phenomenon is “the opposite of the deterrence that Fitzpatrick trumpets as class actions’ benefit.”

To solve some of the problems with the current class action system, Frank proposes ideas including allowing interlocutory appeals for defendants and splitting discovery costs between plaintiffs and defendants.