נגישות למשפט בפשרות בתובענות ייצוגיות: תובנות אמפיריות על תפקיד היועץ המשפטי לממשלה

תקציר

English Abstract:The article examines the connection between the authority of Israel’s Attorney General (the “AG”) to object to proposed class action settlements brought before the court and the degree of access to justice enjoyed by class members. The AG’s role proves pivotal in this context since the approval of an unfair settlement can frustrate access to justice for a large group of potential claimants. The rationale for granting the AG authority to object to settlements was that being a credible, objective repeat player, it could overcome the class plaintiff’s and class defendant’s mutual interest to swiftly settle the claim. The article empirically examines all class action settlements between 2006 (when the Israeli class action law was enacted) and 2013. The data portrays a complex picture in terms of the impact of the AG’s objection authority on access to justice for class members. At first blush, the AG’s objections seem to carry limited weight as the courts tend to approve proposed settlements at an extremely high rate and reject the AG’s objections in approximately half of the cases. Upon deeper examination, however, we find that alongside the voicing of “formal objections” by the AG as authorized under law, the AG developed a parallel mechanism of “informal objections” that relates to what are in the AG’s view issues of lesser significance than those raised in the formal objections. Over the years, informal objections have become more prevalent and have been approved by courts at a higher rate than formal objections. This state of affairs might seem positive, but in fact creates a paradox: It is those comments that are perceived to be of lesser significance by the AG that are more likely to be accepted by the courts. Therefore, the drop in formal objections and their high rate of rejection by the courts could reflect a decline in the effectiveness of the AG objection mechanism. The article offers an explanation to the courts’ approach to the AG’s objections, as well as possible solutions that could strengthen group members’ access to justice.