We will be closely monitoring the hearing tomorrow in Blessing v. Sirius XM Radio, Inc. As explained by Ted Frank over at Above the Law, the crux of the appeal has to do with a windfall for the class action attorneys — who provided little to no benefit to the class members. While PLF is certainly sympathetic to that charge, our interest — and the brief we filed in the case — deals with a very unusual aspect of the class certification. The trial court judge certified the class of plaintiffs, but required that the “lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” That is, the court ordered that the attorneys be racially balanced according to the demographics of the plaintiff class.
This unconstitutional requirement cannot be allowed to be a benchmark for future class actions. The rationale of the court’s mandate is extremely pernicious — only white attorneys can adequately represent white plaintiffs, only black attorneys can adequately represent black plaintiffs, only Hispanic attorneys can adequately represent Hispanic plaintiffs, only native Hawaiian attorneys … you get the idea. Whether the court upholds or strikes down the settlement, it is important that the court make clear to the district courts in its circuit, that racial balancing from the bench is patently unconstitutional.