Friday, November 13, 2009
The Shady Grove case got me thinking about uniformity (or lack thereof) in class action law across the circuits and reminded me that in the MTBE Products Liability Litigation, Judge Scheindlin (SDNY) held that the interpretation of the requirements of Rule 23 of the Fourth Circuit (the transferor court) not the Second Circuit (the transferee court), would apply to that Multi-District Litigation. She wrote:
The requirements of class certification are inherently enmeshed with considerations of the trial, and under Lexecon the authority of the transferee court in multi-district proceedings ends once the pretrial proceedings are completed. “It would be neither just nor efficient to apply the law of this Circuit in considering class certification, and then force the transferor court to try a class action that it might never have certified.” FN42 Moreover, “[n]either party should be prejudiced in preparing for trial because the case was removed and transferred to another district in a different circuit.” FN43 “Thus, in considering a motion for class certification of state claims under Rule 23, the law of the transferor circuit controls because that is the law that will bind the trial court and class certification is an issue on which the Supreme Court has directed courts to ensure that the requirements of Rule 23 are satisfied for purposes of trial.”
In re MTBE Products Liability Litigation, 241 F.R.D. 185, 193 (2007).