Commentary on class settlements under attack.

• Author: Struve, Catherine T.
• Position: Response to article by Samuel Issacharoff and Richard Nagareda in this issue, p. 1649

In Class Settlements Under Attack, Professors Samuel Issacharoff and Richard Nagareda proffer "a cohesive framework for establishing the finality of class actions under the real-world conditions of settlement." (1) Their framework addresses three key questions concerning class settlement review: Where should judicial review of the settlement take place? What due process concerns can be raised in the course of such a review? And what form should the challenge take? (2) Their insightful article performs a great service by setting forth so comprehensively and thoughtfully the range of questions implicated by the question of finality in the context of class settlements, and I have learned a great deal from their treatment of these issues. The space constraints of this Commentary, though, counsel me to compress my praise for the article's many strengths and to focus my remarks on some remaining questions that occur to me.

Like the supporters of the Class Action Fairness Act (CAFA), Issacharoff and Nagareda ground their proposal in the concept of the "anomalous court." (3) For CAFA supporters, the concern was the "anomalous" state courts--also termed 'Judicial hellholes"--that were willing improperly to certify a nationwide class action. CAFA addresses this concern by "mak[ing] it much easier for defendants to remove to federal court proposed nationwide class actions involving high-stakes, state law claims originally filed in state court." (4) But, as Professor Tobias Wolff has pointed out, by failing to provide for removal by class members, CAFA leaves such members at the mercy of collusive class settlements in anomalous state courts. (5) Collateral attacks provide one means of addressing the concern about collusive class settlements. Issacharoff and Nagareda, however, argue that reliance on collateral review as a means of policing collusive class settlements recreates the problem of the "anomalous court" in a different posture, because some courts may be willing to take anomalously hostile views of the validity of a challenged class settlement. (6)

Recalling the debate over the strength and implications of the evidence concerning anomalously certification-friendly state courts, (7) I am prompted to wonder how much evidence currently exists concerning the existence of anomalously settlement-hostile state courts. The article's focus on the need to disempower anomalous state courts would be curious unless there were evidence that state courts are more likely than federal courts to render anomalous decisions on collateral attacks of class action settlements. It is intriguing in this regard that, with respect to intraclass conflicts, the case the authors single out for criticism is Stephenson v. Dow Chemical Co.--a decision rendered not by a state court but by the U.S. Court of Appeals for the Second Circuit. (8)

It is possible, in any event, that not much rides on the authors' focus on the possibility of anomalous state court (as opposed to federal court) collateral-attack decisions, because at this juncture in the article the authors do not appear to argue for a significant change in existing law. As they note, when the rendering forum is a federal court, that court can enforce its judgment through the use of antisuit injunctions to bar collateral challenges. Thus, as they put it, "the existing law of judicial federalism disempowers the ability of an anomalous state court to authorize a collateral attack on a federal court class judgment." (9)

Thus, in my view, the authors' more momentous prescription concerns the content, rather than the venue, of collateral review. They would cabin the scope of collateral review, providing such review only for...