When Reform is Not Enough: Assuring More than Merely 'Adequate' Representation in Class Actions

Adequacy of representation is the benchmark of due process in class action litigation Representational inadequacy provides the basis for a successful collateral attack against a previous class judgment thus disrupting the finality of the judgment and reopening litigation Representational inadequacy can also result in unfair class settlements of the variety that have been highly publicized and widely condemned Despite its essential nature however adequacy of representation is not well defined and the case law is inconsistent Moreover proposed federal legislation and recent amendments to the class action Federal Rule address only superficial reforms rather than tackling the real underlying issue of adequacy In this Article Professor Bassett analyzes the tripartite nature of adequacy of representation and argues that more than mere adequacy is needed from the class representative from class counsel and from court oversight Professor Bassett argues that more attention is needed to the same interest same injury prerequisite for class representatives that the standard for court oversight is one of rigorous analysis and that the evaluation of class counsels adequacy of representation is ultimately an ethical determination in the sense of the kinds of considerations underlying the Model Rules of Professional Conduct In particular viewing the adequacy of class counsel as an ethical determination provides greater assurance that the adequacy prerequisite is satisfied and thereby decreases the opportunities for subsequent collateral attack and for settlements tainted by lawyer selfinterest