Howard Erichson was quoted in a Reuters article about who should be included as class members in Logitech Inc.’s class action lawsuit.
How can federal judges best protect the interests of class members who may not even know their rights are at stake? And can they look out for absent class members without compromising defendants’ rights and federal policies encouraging settlements?
An important policy debate about those questions heated up this weekend, when U.S. District Judge William Alsup of San Francisco refused to stay a consumer class action accusing the computer peripherals company Logitech of falsely advertising the number of drivers in certain of its speakers. Logitech and the plaintiffs’ lawyers who filed the class action want to settle. But Judge Alsup, as you may recall, has a standing order barring prospective class counsel from entering settlement negotiations with defendants until he has certified a class. Absent extraordinary circumstance, the judge won’t appoint class counsel or entertain settlement proposals until he has determined the class is warranted.
…For a counterpoint to Logitech’s petition, I talked to Fordham law professor Howard Erichson, who got star billing in Judge Alsup’s opinion denying Logitech’s motion for reconsideration. Erichson said Logitech’s constitutional arguments are a diversion. The 9th Circuit, he said, should look at what Judge Alsup’s order accomplishes: It protects prospective class members from losing their claims before they’re even parties in a case. Logitech argues that “both sides” want to settle and have roughly agreed on terms but Erichson said that’s a misframing: Logitech and named plaintiffs may want to settle, but no one yet has the right to speak for everyone else in the prospective class.
“These settlements have become so commonplace,” Erichson said. “We’ve become blind to what is so outrageous.”
…
The law prof admitted that the Rules Committee that worked for years on the just-enacted amendments to Rule 23 did not share his qualms about precertification settlements. I asked whether the litigation over Judge Alsup’s rule might inspire other judges to adopt similar restrictions on precertification settlements. Is anyone out there pushing for such prohibitions?“Besides me?” Erichson said. “I don’t know.”