HLLI attorney Adam Schulman and intern Charles Brandt wrote an op-ed for the Wall Street Journal, August 2, 2023:
Class-Action Lawyers Play Quota Games
The Supreme Court’s decision in Students for Fair Admissions v. Harvard has companies reconsidering their “diversity” policies. Plaintiffs’ lawyers and trial judges who handle class-action cases should be doing the same.
Class actions begin when plaintiffs—often in different federal courts across the country—sue defendants on behalf of similarly situated people. Once the various cases are consolidated into a single proceeding, the court solicits applications and appoints lawyers to represent class members. So-called class counsel are fiduciaries of the class, obligated to pursue its members’ legal interests to the fullest extent of the law.
In handing out plum leadership appointments and assigning work—and, as a consequence, allocating any settlement fee—class counsel often consider such irrelevant characteristics as race, sex and sexual orientation. Consider In re JUUL Labs, a pending class action against the beleaguered vape manufacturer. In assigning work, class counsel affirmed in a filing that they closely tracked the “salient metrics” of race, sex and “LGBTQIA” status, expressing regret that so many billable hours went to “predominantly white, male, and non-LGBTQ attorneys.”
Judges play this game too. In City of Providence v. AbbVie, the trial court deemed it “relevant” whether a firm had “a diversity of minority and women lawyers in the associate and partner ranks.” In Martin v. Blessing, the trial judge imposed a quota, demanding that class counsel consist of at least one female and one minority. In 2013 the Supreme Court declined to review the case, but Justice Samuel Alito filed a statement in which he called the practice “highly unusual” and remarked that he was “hard-pressed” to see how such discrimination could be defended.
If there was ever doubt about the unconstitutionality of race-based appointments, Fair Admissions removed it by rejecting the free-floating “diversity” rationale for racial preferences that the court had previously blessed only in college admissions. And equal protection isn’t the only legal right at stake. When class counsel bring a class action on behalf of thousands or millions of people, they accept the duty to provide the best representation they can. Courts have the reciprocal obligation to enforce that requirement as a component of due process.
If counsel assigns work, or courts appoint attorneys, on the basis of anything other than merit, it violates the duty to pursue class members’ interests. Counsel may feel that “diversity” benefits the legal profession or society at large, but that abandons their duty to put their clients first. As Justice Alito put it in Blessing, “it seems quite farfetched to argue that class counsel cannot fairly and adequately represent a class unless the race and gender of counsel mirror the demographics of the class.” Can Mexican migrant workers be represented only by Mexican migrant attorneys? The notion not only is absurd; it contradicts the foundations of our legal system. As Chief Justice John Roberts observed in Fair Admissions: “Eliminating racial discrimination means eliminating all of it.”
Mr. Schulman is an attorney at the Hamilton Lincoln Law Institute, a nonprofit public interest law firm that represents a class member on an unrelated issue in the JUUL litigation. Mr. Brandt is a student at the George Washington University Law School and a summer law clerk at the institute.