In a story that should disturb good class action attorneys and most lawyers, one of the named plaintiffs in a class action against the NCAA told reporters last week that he was never told about a proposed settlement agreement that he opposes. While class actions are complex, the rules of professional conduct are not tossed out the window, and two basic rules are that “a lawyer shall abide by a client’s decision whether to settle a matter,” Rule 1.2, and a lawyer shall “reasonably consult with the client about the means by which the client’s objectives are to be achieved,” Rule 1.4(a)(2).
In class actions, the named plaintiffs are supposed to represent the interests of the class. In theory, the named plaintiffs are stand-ins for the class, and are the client whom the lawyer can consult about strategy and tactics and who will give their thumbs up or down to settlement proposals. In practice, class actions are driven by the attorneys, who select the named plaintiffs, and in some cases disregard them entirely.
This attitude is not new. In 1995, one commentator noted the “growing tendency on the part of class counsel to assume complete and unfettered control over the litigation, and to utilize class representatives as mere “decorative figureheads” with no true involvement in decision-making.” Charles S. Johnson III, Holding Class Representatives Accountable, HOLLAND & KNIGHT NEWSLETTER, republished in THE PRACTICAL LITIGATOR, Mar. 1l, 1995.
Of course conflicts can arise between named plaintiffs, who often represent different subclasses, and Arrington’s opposition to the settlement does not necessarily mean that the proposed agreement is not good for the class.
The truly disturbing allegation is Arrington’s statement that he only learned about the settlement through the media, rather than from his attorneys. In response, co-lead plaintiff’s counsel Joseph Siprut reported his disappointment that “one of the class representative has decided to withdraw support” for the settlement, and accused Arrington of adopting “the misguided and inaccurate views of the settlement expressed in corners of the media and legal filings by other third parties.” See Ben Strauss, Former Player Opposes Settlement in N.C.A.A. Concussion Suit, N.Y. TIMES, June 9, 2015. It is hard to be sympathetic with Siprut’s disappointment – or his apparent willingness to debate his client in public.