After the Windfall: Representation of Class Members in Individual Issues Adjudication

• Author: Joshua Ginsberg
• Pages: 195-214

195

AFTER THE WINDFALL:

REPRESENTATION OF CLASS

MEMBERS IN INDIVIDUAL ISSUES

ADJUDIC ATION

Joshua Ginsberg

Abstract: Cla ss members must receive adequate in formation

and representation for the adjudication of indiv idual issues.

This paper examines the circumstances that give rise to a

need for information and represent ation, and suggests some

possible approaches for providing it. Settlement administra-

tors have developed strategies to ef fectively prepare class

members to prove their cases, but this does not completely

obviate the need for representation. Courts are beginning to

recognize these issues at the certif‌ication or settlement ap-

proval stage by insisting that class counsel continue to rep-

resent individual class members. Pursuant to some recent

decisions, counsel must bui ld the representation of individual

class members into their retainer, or risk the settlement fail-

ing to win approval.

Two other methods of ensuring that class members have

access to representation and support are considered. The f‌irst

method involves deferring a portion of class counsel’s fee

until the take-up rates are known. This procedure provides

an incentive for counsel to remai n involved in individual f‌iles,

and has been applied by some Canadian courts. The second

method is not in the hands of the courts. Rather, it envisions

class members helping themselves by organi zing support net-

works.