What Should Judges Do in Chapter 11
This piece contends that doctrinal corporate bankruptcy reforms, however wise, will be incomplete without deeper consideration of the role of various institutional actors, particularly judges and courts. The bankruptcy system sends mixed messages to judges. Drafters of the 1978 Bankruptcy Code exhorted judges to be no more or less than umpires of discrete disputes raised by the parties. Today's bankruptcy system, however, imposes greater, and conflicting, expectations: to promote quick resolution of disputes through encouraging party settlement, but also to exercise independent oversight even if no party in interest objects - sometimes without a clear sense of how the court should gather the information to make such a judgment. These tensions are not unique to bankruptcy; they also arise in civil actions, both simple and complex, in federal district courts. Managing them, however, is essential to changing the dynamics of modern corporate bankruptcy and, therefore, to the project of reform.
Reforming Securities Class Actions from the Bench: Judging Fiduciaries and Fiduciary Judging
The attorneys' fees awarded to plaintiffs’ counsel in securities fraud class actions have generated controversy for years. Critics have claimed that enormous fee awards come at the expense of defrauded investors and simply spur extortionate lawsuits against issuers and other potential deep pocket defendants. Commentators also have raised concerns that plaintiffs' class action lawyers manipulated class representatives, persons who had little incentive to monitor class counsel’s activities.To address these concerns, Congress enacted the Private Securities Litigation Reform Act ("PSLRA"). Among other things, the statute sought to protect absent class members by giving control of the litigation to lead plaintiffs with substantial holdings in the securities at issue. Pursuant to the PSLRA, these lead plaintiffs may select and retain counsel for the class, subject to court approval. The statute further required courts to limit lead counsel’s fees to a reasonable percentage of the damages awarded to the class.In practice, however, it has not been clear that the PSLRA has had its desired effect. Regulation of fees by courts has been erratic and unpredictable. Some courts have claimed the mantle of "fiduciary" of the absent class and created various extra-statutory mechanisms to scrutinize lead plaintiff’s choice of counsel and cut fee requests. This activist judicial role has raised important questions about the proper exercise of judicial authority under the PSLRA. Can and should judges assume for themselves fiduciary obligations to absent class members? This article argues judges cannot act as fiduciaries to the class without abandoning their role as neutral arbiter. The article examines the agency problems inherent in representative litigation. It discusses the potential sources of a court's authority to award attorney’s fees, and the limitations placed on that authority, both before and after the PSLRA. It further examines the origins and nature of the claim that judges should act as "fiduciary" of absent class members.
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