Class Action Reform, Qui Tam, and the Role of the Plaintiff

This article uses the model of qui tam litigation as a tool to understand class action litigation. Starting with an examination of current class action practice, the article demonstrates how class actions have moved away from the format of traditional individual litigation. Departures from traditional procedural rules have been justified as deterring corporate misconduct, yet these departures are frequently criticized as reducing victim compensation and creating agency problems. The article goes on to consider proposals for class action reform. Existing reform proposals tend to take one of two forms: either they propose remodeling class litigation so that it more closely resembles traditional litigation, or they propose more dramatic departures from traditional procedural rules in order to enhance the deterrence effect of the class suit. The latter reforms, based on the private attorney general model, move class litigation closer to government enforcement litigation. A significant reason for the conflict between these approaches stems from disagreement about whether class actions should focus on victim compensation or deterrence of misconduct. The article argues that, before either approach to class action reform is adopted, class litigation should be understood as offering a third possibility: a hybrid litigation form that combines the attributes of the public and private models. Using the model of qui tam suits, the article attempts to break down the conceptual barrier between public and private litigation. Finally the article examines the implications of this approach. The article suggests that reconceptualizing class litigation as a hybrid offers the potential for coordinating the litigation efforts of the government and the private bar. In addition to creating potential litigation efficiencies, this model allows class litigation effectively to pursue both compensation and deterrence.