The National Law review discusses Center for Class Action Fairness's recent amicus brief filed by Ted Frank for the Volkswagen case.
Amicus briefs are very rare in proceedings before the U.S. Judicial Panel on Multidistrict Litigation, which is set to hear arguments about consolidating the Volkswagen litigation on Dec. 3 in New Orleans, but on Oct. 20, Ted Frank, founder of the Center for Class Action Fairness, made such a filing. In it, Frank argues that the Volkswagen cases—all consumer class actions—should be coordinated before a single judge who could ensure fairness to all class members when evaluating what is likely to be a substantial settlement down the line.
Frank’s filing follows more than 300 class actions brought against Volkswagen in the United States, most in federal court, according to an Oct. 20 brief that Volkswagen filed before the JPML. Consumers allege they were duped into paying premium prices for “clean diesel” cars that the EPA has said emit as much as 40 times the standard for nitrogen oxides.
In targeting the Volkswagen cases, Frank brought up many of the same issues that he’s best known for objecting to in individual class action settlements—namely that the deals leave out groups of class members at the expense of attorney fees.
“We’re looking at this like a class action,” Frank said. “There are potentially enormous windfalls if the courts don’t scrutinize the fee applications closely. And historically they don’t. And we’re wondering if there are some really good judges that do scrutinize these things, but they somehow don’t get assigned to MDLs.”
Frank said the Volkswagen case is the first in which his group, which became part of the Competitive Enterprise Institute on Oct. 1, has intervened in the MDL process. But the concern about collusive settlements in MDLs isn’t new.