“The class action is a mechanism for bringing more equality to our adversarial system,” said Boies. “It allows people to confront a very well-resourced institution.”
Boies made the remarks at the Class Action and Complex Litigation Forum at the University of Miami campus.
In a 40-minute speech, Boies traced the history of class action lawsuits from their origins in medieval Europe to the 1966 amendment to Rule 23 that created the modern class action.
The prolific litigator has had experience on both sides of class action suits and defended their use in the face of what he considers “dangerous” acts of restriction. He pointed specifically to the 2011 Supreme Court AT&T Mobility v. Concepcion, a 5-to-4 decision which ruled that arbitration clauses in contracts can prevent consumers from bringing class action lawsuits.
Boies said he understands the chief complaints against class actions—namely that bad actors bringing frivolous cases and that such suits can wreak a great deal of financial damage on a company—but he said reform should focus on increasing efficiency, not restrictions. The class action serves an important purpose, he said, acting as a deterrent.
For example, cases can be shorter when attorneys are paid via percentage fees instead of through a lodestar method, which he said incentivizes attorneys to rack up billing and protract the suit. Both the plaintiff and the defendant want a shorter case, but the lodestar method could tempt an attorney to drag out the lawsuit.
“The lodestar trap gives everybody—the defendants counsel and plaintiffs counsel—an incentive that is contrary to the interest of the class and of the defendant,” he said.
The forum covered other topics in the mass tort and class action realm, including third-party financing, hot topics in mass torts and best practices in multidistrict litigation. The panels were populated by judges, including Southern District Judge Cecilia M. Altonaga and 11th Circuit Judge John W. Thornton Jr., as well as attorneys from across the United States.