February 9, 2007
ALI Aggregate Litigation Principles in the Blogosphere
I've commented before on the American Law Institute's draft Principles of the Law of Aggregate Litigation, describing certain of its more provocative proposals and raising concerns about some of the ways in which it would facilitate aggregate resolutions. The draft, which is available for purchase from the ALI, clearly has more work ahead, but I think it's on the right track in trying to offer a coherent view of the benefits and risks of various forms of aggregate litigation. For anyone interested in mass torts and other complex multiparty litigation, it's well worth reading.
Yesterday, Beck and Herrmann at the Drug and Device Law Blog posted a long and detailed critique of the ALI draft, and their post got a rave review at Point of Law. The thrust of their attack is that the draft reflects a pro-aggregation, pro-plaintiff perspective that ignores the concerns of defendants:
Everyone who defends against aggregate litigation of any sort has good reason to be concerned about the current form of the ALI’s “Principles of the Law of Aggregate Litigation” – because it does not reflect legal principles that the defense community shares. Those who work the “D” side of the “versus” need to pay attention to this development and get (or stay) involved.
Some of their points are right on the money; there's no denying that the draft as a whole pushes toward more rather than less aggregation. The draft's position on issue classes, in particular, supports their point.
But to my mind, some of the most significant and controversial proposals in the ALI draft are those that reflect what many defendants have sought when looking for an exit strategy in mass litigation. I'm thinking of the proposals to facilitate settlement class actions and to enable binding aggregate settlements. Settlement-only class actions are driven by defendants seeking global resolutions. Such settlement class actions (not to be confused with class actions certified for litigation, which then settle) are the perfect example of class actions as a defense tool. Non-class aggregate settlements, similarly, often are driven by defendants seeking to resolve entire portfolios of claims efficiently and with finality. I've got concerns about these proposals, but not because they're unfriendly to defendants. On the contrary, my worry is that the proposals cater to the interests of mass litigation defendants (who want peace and finality) as well as the interests of mass plaintiffs' counsel (who want to resolve the cases for their clients, earn their fees, and move on), and, for that matter, judges (who want to control their dockets while gaining the satisfaction of producing a broad resolution). On these issues, the interests of defendants, plaintiffs' counsel, and the courts align; it's individual claimants themselves who are at risk of getting screwed.
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