What happens when class counsel wants to settle and the class representatives do not? Rule 23(a)(4) and the Constitution require adequate class representation before individual class members can be bound. If class counsel can hijack a class and force a settlement when no class representative approves, it would seem to unconstitutionally abrogate the Rule 23(a)(4) inquiry. If class representatives have limited power to bind a class (as the Supreme Court has held in Standard Fire Ins. Co. v. Knowles and Smith v. Bayer Corp.), how can a class without any representation do so? And if a zombie class can proceed and settle without any class representatives, why have the Rule 23(a) requirements at all, and not just allow attorneys to sue on behalf of a class without any individual standing?
This issue is about to arise in Allen v. Dairy Farmers of Am., Inc., No. 5:09-CV-00230 (D. Vt.), where class counsel moved for preliminary approval of a settlement without a single class representative agreeing to the settlement. Unfortunately for the class representatives, the Second Circuit permits this shenanigan; unless the district court steps in, they will need to persuade the Second Circuit to reverse itself and join circuits like the Seventh that hold that class representation requires class representatives, or eventually take the case to the Supreme Court. The district court has so far withheld preliminary approval, so the class representatives may be able to prevail on the merits without need for resort to the niceties of constitutional law and procedural protections for absent class members, but this will someday be an issue that the Supreme Court resolves, and almost certainly resolves against current Second Circuit law.