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

Class members must receive adequate information and representation for the adjudication of individual issues. This paper examines the circumstances that give rise to a need for information and representation, and suggests some possible approaches for providing it. Settlement administrators have developed strategies to effectively 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 approval stage by insisting that class counsel continue to represent individual class members. Pursuant to some recent decisions, counsel must build the representation of individual class members into their retainer, or risk the settlement failing 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 remain 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 organizing support networks.