Friday, March 27, 2009
Bob Klonoff (Lewis & Clark), Mark Herrmann (Jones Day) and Brad Harrison have posted their article, Making the Class Action Work: The Untapped Potential of the Internet, on SSRN. Here's their abstract:
Over twenty years ago, the Supreme Court recognized that in class action litigation, absent class members "must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel." Although the absent class members' rights to receive notice and an opportunity to opt out are of vital importance, the ability to be heard and participate in the litigation are also important.
Despite the benefits of participation by absent class members, class action case law and commentary have focused more on maximizing efficiency than on protecting an individual class member's ability to participate in the litigation. Indeed, the Supreme Court itself has recognized that, within existing class action practice, absent class members normally do nothing. Instead of fostering true participation by absent class members, courts have accepted alternatives, finding that the rights of absent class members to receive notice and to opt out and the promise of adequate class counsel are sufficient surrogates for actual participation. In the past, these substitute mechanisms for true involvement, although inadequate, may have been understandable because of the logistical difficulties in permitting absent class members to participate in the same manner as litigants in traditional bilateral litigation.
Class action litigation inherently focuses on the claims of large numbers of people. That concept is captured explicitly in Federal Rule of Civil Procedure 23(a), which requires, as a prerequisite to class certification, that "the class is so numerous that joinder of all members is impracticable." And, although "impracticable" does not necessarily require large numbers, the requirement is usually fulfilled because of the large number of individuals involved.
Adjudicating the claims of large numbers of absent class members presents difficulties that do not exist in traditional bilateral litigation. In bilateral litigation, the parties have direct contact with their counsel and can obtain from them necessary information about the case and the litigation process in general. By contrast, class counsel have historically been unable to keep absent class members abreast of the progress of a specific class action case or to involve absent class members in litigation in any meaningful manner. Until recently, these difficulties have precluded meaningful involvement by most absent class members, to the detriment of the entire class action process.
The internet has become entrenched in the American way of life and provides a mechanism through which absent class members' right to participate meaningfully in class action litigation can be realized. Since September 2001, over half of the households in the United States have maintained internet access. Even this enormous number, however, represents only part of the picture, because it fails to account for individuals who have access to the internet at work or through other channels, such as public libraries. Taking into account all means of accessing the internet, as of March 31, 2007, the percentage of Americans over the age of twelve with internet access is between 70% and 78% of the population.
People not only have access to the internet; they use it. The average American internet user accesses the web ten times and visits approximately 24 to 26 different domains per week. Over the course of a week, the average American internet user spends more than ten hours on the internet, and this usage is on the rise. For instance, a 2007 study by the Newspaper Association of America indicates that 62.8 million people per month visited online newspaper websites in the fourth quarter of 2007. Comparing 2006 to 2005, the average unique audience for newspaper websites increased 22%. Increasingly, people are regularly visiting portal websites and websites with extensive search capabilities, such as MSN.com, Yahoo, and Google, to guide their internet browsing. The internet has clearly become a vital "communication, information, entertainment, and transaction tool."
This Article focuses on the capacity of the internet to foster true participation by absent class members. Part I of this Article examines how the internet is currently used in class action litigation. As the Article explains, although the internet has been used in some aspects of class action practice, that use has been limited and sporadic. Part II examines the full potential of the internet to increase absent class members' participation. It offers concrete proposals for integrating the internet into virtually every aspect of the class action process.
Wednesday, March 25, 2009
Granted, the Wal-Mart class action isn't a mass tort, but the Ninth Circuit's previous decision that upheld certification of the largest class action to date bears significantly on class action law in general. In its original opinion, the Ninth Circuit opted for a "lower" Daubert standard, permitting sociologists and statisticians to testify about gender stereotyping and to raise an inference of class-wide gender discrimination through statistical analysis. (I wrote an article on the Daubert issue a few years ago, which is available here.) The court further refused to adopt a bright line standard with regard to monetary damages in (b)(2) class actions, but suggested that where monetary relief is sought that the district court should consider the possibility of opt-out rights (a key question left open by the Supreme Court's opinion in Phillips Petroleum v. Shutts). So, the en banc rehearing on Tuesday has garnered a good bit of media attention. Dan Levine of The Recorder covered the hearing. Here's an excerpt: "But it was Judge Susan Graber, considered a moderate, who wondered whether the court was faced with an all-or-nothing proposition. "What are the range of options we have? It seems like there's lots of ways to slice and dice this," she said. Seligman agreed, saying the court could, for example, carve punitive damages out of the existing class certification -- but allow claims for back pay to remain." ECB
Tuesday, March 24, 2009
More as details unfold... Gelep is one of the post-Engle individual-plaintiff cases.
UPDATE #1- Here's the press release from Altria on today's verdict in Gelep. For context, here's Altria's press release on the prior Hess verdict in Florida that went against Altria. Here are also links to two recent articles by me that discuss Engle and prior Florida tobacco litigation: Jackpot Justice: Verdict Variability and The Mass Tort Class Action, Temple. L. Rev. (forthcoming 2009); Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts, Pepp. L. Rev. (forthcoming 2009).
UPDATE #2 -- I can't resist an online congratulations to Rachael Weinfeld, a former research assistant of mine at Southwestern Law School who joined Shook, Hardy & Bacon after graduation last year and served on the Gelep trial team for Altria. Putting aside for a moment the merits of the lawsuit here -- a professor is always happy to see exceptional students leave the nest and take flight, and Rachael has certainly done so.
Sunday, March 22, 2009
According to this article in today's L.A. Times, pharmaceutical companies are quietly pushing to break up the FDA into separate entitites, in hopes of speedier drug approvals. President Obama yesterday appointed a group to reassess the FDA, so there may be an opportunity for change.