Can John Coffee Rescue the Private Attorney General? Lessons from the Credit Card Wars

Partisans on one side of the class action debates argue that the class device is a critical enforcement tool that increases much-needed access to justice. Combatants on the other side scoff that class actions are tools for shaking down corporations for settlement payments and attorneys’ fees in unmeritorious cases. In his most recent book, Entrepreneurial Litigation: Its Rise, Fall and Future, John C. Coffee puts both sides in their place, providing an account that, he aptly tells us, “has long been missing in the literature, in large part because academics writing in this area either have been so ideologically committed to the private attorney general concept or so implacably opposed to it” that they’ve failed to fully examine its consequences.If it is a virtue of the class device that it can aggregate a large number of small interests – and that surely is a virtue for Coffee – then a corresponding detriment is that the named plaintiffs’ interests are too small to warrant any substantial investment in monitoring the lawyers. And for Coffee, the predictable result is what he terms “abusive litigation” – the attempt by lawyers to leverage the scale of class cases to coerce unwarranted settlements. Reform, according to Coffee, “requires that the merits need to matter more.” To ensure that plaintiffs’ counsel make investment decisions based on case merit, rather than exploitable cost asymmetries, Coffee would have lawyers assume a measure of financial responsibility for the fees and expenses incurred in unmeritorious actions. This book review assumes that Professor Coffee’s proposals would solve the “abusive litigation problem,” and then examines, in this hypothetical post-reform world, how we really regard the private attorney general model that is at the core of class actions. The inquiry focuses on consequential class cases that seek structural institutional reform through injunctive relief, because it is mandatory non-opt-out class claims under Rule 23(b)(2) that bring into starkest relief concerns about the assumption of power by private actors. And the ongoing Payment Card class actions brought by merchants against Visa, MasterCard and American Express (the author’s extraordinary personal connection to which is disclosed in the essay) form an almost perfect laboratory for examining these issues. This essay explores concerns with self-nominated class counsel assuming public functions including, for example, the negotiation of rules that bind entire industries and the prosecution of cases that public enforcers have affirmatively elected not to pursue.And centrally, this essay investigates the unease that the traditional bar and commentariat feel with the on-the-ground, actual practice of complex class litigation. We are afforded a rare backstage pass to observe these practices because of the extraordinary fact that a Willkie Farr partner was arrested for perpetrating an unrelated fraud upon her client, MasterCard, leading to the disclosure of thousands of emails, including many with plaintiffs’ lead counsel in the Amex case. And the reactions of all concerned to those unvarnished communications illustrate a high impact collision of realism and formalism. The realist, emblemized by John Coffee, asks what the entrepreneurial lawyer actually does and why – and, in this case, would find a lawyer intent on achieving industrial reform for his clients, practicing all the politics and diplomacy necessary to get there. The formalist, embodied here by the district judge in the Amex case, relies on ex ante rules and precepts regarding proper lawyer comportment, in order to obviate nettlesome ex post inquiry into whether the attorney has indeed rendered loyal and able service to his principal.Professor Coffee may yet solve the abusive litigation problem. But even so, deep skepticism of the private attorney general model – born of long experience with abusive litigation – will surely persist, vestigial, like a phantom limb