72 Fla. L. Rev. 1083 (2020)
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Civil ProcedureClass Actions

Abstract

For decades, courts and commentators have been aware that the
potential for conflicting interests among the class representatives, class
counsel, and absent class members is inherent in the class action device.
Notwithstanding this realization and a substantial amount of scholarly
and judicial commentary on class conflicts, one kind of conflict has not
received due attention: the conflict that inevitably arises when class
counsel also represents class members as individuals. This conflict—so
common to be almost invisible—arises from the beginning of a putative
class representation and may create a fraught situation for a lawyer
concurrently representing both the class (or putative class) and the class
representative individually. This Article examines three situations in
which these conflicts are most acute: holdouts (where the class
representative holds out against a settlement that would benefit the class
as a whole), sellouts (where the class representative could benefit
personally by settling individual claims only), and payouts (where the
class representative could use class action procedures to benefit
personally at the expense of the class). Additionally, this Article canvases
potential solutions and concludes that radical ones—for instance, banning
concurrent representation of a class and a class member individually—
would do more harm than good. Therefore, this Article recommends more
measured responses, primarily (1) greater disclosure of risks to individual
clients by their attorneys; (2) greater judicial oversight; and (3) an
amendment to Rule 23 of the Federal Rules of Civil Procedure, or its
advisory committee notes, calling on courts to police the types of conflict
this Article identifies.