THE INADEQUATE SEARCH FOR ADEQUACY IN CLASS-ACTIONS - A BRIEF REPLY TO PROFESSORS KAHAN AND SILBERMAN

Although Matsushita II can be read in a way that might lead to some di fficulties, Professor Morrison insists that its result is plainly corr ect and its basic message-that federal courts should look with conside rable skepticism on state court class action settlements that release federal claims which state courts are forbidden to adjudicate-is a sou nd one, properly applied to the facts of that case. Matsushita II is a narrow case that would not, and should not, lead to the broad-scale c ollateral attack predicted by Professors Kahan and Silberman. Given th e practicalities of litigation (including the statute of limitations f or securities cases and the substantial risks of sideline sitting), th e opportunities for collateral attack are quite limited and the possib ility of abuses very small. At the same time, Kahan and Silberman unde rvalue adequacy of representation, which is an essential element of du e process that must exist to bind persons not parties to a lawsuit. Th eir proposed solution would prevent meaningful federal review and crea te practical problems without effectively addressing the problems of f orum shopping and plaintiff shopping. The holding of Matsushita II; in contrast, would encourage settlement of such actions in a single proc eeding in a federal court that finally resolves the dispute.