In recent years, aggregate litigation has moved in the direction of multidistrict litigation followed by mass settlement without certification of a class action—a form sometimes referred to as the “quasi-class action.” Driven by increased restrictions on class certification, particularly in mass tort cases, the rise of the quasi-class action has been controversial. In particular, critics object that it overempowers lawyers and devalues the consent of individual claimants in the name of achieving “closure” in litigation. This Article presents two claims.
First, the debate about the proper scope and form of aggregate litigation too frequently relies on the class action as the touchstone for legitimacy. References to the class action, however, are more often misleading than helpful. The basic assumptions behind the class action are different in degree and in kind from the reality of the quasi-class action. Overreliance on the class action as the conceptual framework for aggregation carries the significant risk of unintentionally shackling courts in their attempts to coordinate litigation. The very reason the quasi-class action emerged—the ossification of the class action model of litigation—suggests that courts and commentators should look for another reference model when assessing what is proper or improper in quasi-class actions.
Second, bankruptcy serves as a better model for judging when to use, and how to order, nonclass aggregation of mass tort litigation. The entirety of bankruptcy practice need not be imported to realize that bankruptcy may provide a useful lens for viewing aggregation more generally. That lens helps to clarify some of the most troubling concerns about the quasi-class action, such as the proper role of lawyers and the place of claimant consent. Bankruptcy serves as a superior reference model because it starts with an assumption that collective resolution is necessary but tem- pers the collective with individual and subgroup consent and with institutional structures to counterbalance the risk of excessive empowerment of lawyers or particular claimants.