The Third Circuit Task Force on the Selection of Class Counsel (the "Task Force") has worked hard, considered everything, and exhaustively summarized the problems associated with class counsel auctions. Its views will undoubtedly resonate with most of the Bench and the vast majority of the Bar-neither of whom were enthusiastic about the prospect of auctions in the first place. Personally, I agree with the Task Force that auctions are not the most promising reform and that they may exacerbate, rather than correct, existing problems. Still, what is missing from the Task Force Report is the candid recognition that the agency problems associated with class litigation are serious and not adequately addressed by existing mechanisms. Instead, the Task Force has produced a relatively sanguine report that largely endorses the status quo and what it terms "traditional. methods" of "private ordering." Precisely to this extent, the Task Force Report misses the forest for the trees.
John C. Coffee Jr.,
Litigation Governance: A Gentle Critique of the Third Circuit Task Force Report,
Temp. L. Rev.
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