Thursday, December 31, 2009

The Future of Class Actions After Shady Grove

As Adam Steinman writes on the Civil Procedure & Federal Courts Blog, people interested in civil procedure, federalism, consumer law and class actions are eagerly awaiting the Court's decision in the Shady Grove case.  The question in that case is whether a New York Civil Procedure Law (NYCPLR) prohibiting class actions in a certain class of cases will bar a class action on that type of case from being certified in Federal Court under Rule 23.  

Steinman argues that a ruling that the NYrule prohibiting class actions will be applied by the federal court may not be so bad for plaintiffs.  Although in this particular case it will bar plaintiffs' class action, in jurisdictions where the state class action rule is more lenient than the federal rule the Court may end up permitting classes to be certified under state procedural law that couldn't have been certified under Rule 23. So the case may end up badly for these plaintiffs, but not for plaintiffs generally because now plaintiff-friendly state class action law will be imported into the federal courts thanks to the Class Action Fairness Act of 2005 (CAFA).

I disagree.  I predict that this case will end up being a one way ratchet.  I think the Court will rule that because the NY rule bars class actions entirely for this type of case, Rule 23 does not even kick in.  But when plaintiffs seek to have a class certified in the absence of an outright ban, Rule 23 does apply and whatever restrictive reading of Rule 23 the federal courts have given will trump more lenient state rules.  In other words, the Court is likely to distinguish between cases where the rule bars class actions entirely (the state rule trumps) and cases where the state rule permits class action (the Federal rule trumps).  I am not saying this is right or analytically sound, just that this is what I think the outcome will be.

Can this distinction be sustained?  I think it will produce a pretty unstable doctrine. But then again, Erie is already pretty unstable and we seem to be living with the instability for some time now. 

The more sensible ruling would probaby be to say that CAFA brought these cases into federal court, the manifested intent of Congress in changing the jurisdictional balance of power between the states and the federal courts was that federal rules occupy the field in class actions, and therefore rule 23 should apply to this case.  As Steinman points out, this outcome may seem plaintiff friendly today, but given the federal courts' treatment of choice of law issues in national class actions, this is not necessarily a bad outcome for defendants.


December 31, 2009 in Class Actions, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 30, 2009

Trial Lawyers and Washington Subway Ads

Yesterday's New York Times featured a story on trial lawyers' advertising attempts to avoid massive tort reform in the midst of the debate over health care.  The debate has a familiar tone to it.  Here's an excerpt:

The trial lawyers argue in the ads that patients need legal recourse because preventable medical errors are the sixth-leading cause of death in America, killing at least 98,000 people a year. (The ads’ tag line is: “Tell Congress to Put Patients First. There Are 98,000 Reasons Why You Should.”) The campaign Web site,, calls that number equivalent to two 737s crashing every day for a year — and the ads include two small images of planes.
The figure comes from a 1999 report called “To Err Is Human,” from the federal Institute of Medicine, part of the National Academy of Sciences. This is the most recent nationwide figure, said Mr. Tarricone, who added that the number of deaths and injuries could be higher because the “problem has only gotten worse.”
Business groups, including the Chamber of Commerce, say litigation creates cost beyond settlements and awards and the malpractice insurance to cover them. They say it also encourages doctors to practice “defensive medicine” — practices like ordering more tests than needed in order to avoid being called negligent. But the lawsuits are the flashpoint.
“The threat of these ‘jackpot justice’ suits against doctors is one of the reasons health insurance premiums are rising faster than the rate of inflation,” said Senator Jon Kyl, Republican of Arizona.


December 30, 2009 | Permalink | Comments (1) | TrackBack (0)

Monday, December 28, 2009

2009 Scholarship Roundup

Below is a list of the law review articles and online companion articles (with a few practice journals thrown in) about mass torts and/or class actions published in 2009.  I did not include articles about the new pleading regime, leaving that to the folks over at the Civil Procedure and Federal Courts Blog.  If I missed your article, please send me an email with the citation and I'll add it to the list.

Coming Up:  the Best Mass Tort Articles of 2009.  ADL

Andrew Jurs, Judicial Analysis of Complex & Cutting Edge Science in the Daubert Era: Epidemiologic Risk Assessment as a Test Case for Reform Strategies, 42 Conn. L. Rev. 49 (2009)

Brian T. Fitzpatrick, The End of Objector Blackmail? 62 Vand. L. Rev. 1623 (2009)

Richard Arsenault & J.R. Whaley, Multidistrict Litigation and Bellwether Trials: Leading Litigants to Resolution in Complex Litigation, 39-FALL Brief 60 (2009)

Kenneth R. Meyer et al., The Uncertainty Surrounding "Design" in Design Defect Cases, 76 Def. Couns. J. 428 (2009)

Jeremy T. Adler, Comment, Losing the Procedural Battle but Winning the Substantive War: How Philip Morris v. Williams Reshaped Reprehensibility Analysis in Favor of Mass-Tort Plaintiffs, 11 U. Pa. J. Const. L. 729 (2009).

Nora Freeman Engstrom, Run of the Mill Justice, 22 Geo. J. Legal Ethics 1485 (2009)

Joshua M. Silverstein, Overlooking Claimants' Best Interests: Non-Debtor Releases in Asbestos Bankruptcies, 78 UMKC L. Rev. 1 (2009) 

Klonoff et al., Making Class Actions Work: The Untapped Potential of the Internet, 13 No. 3 J. Internet L. 1 (2009)

Patrick Hayes, Exploring the Viability of Class Actions Arising from Environmental Toxic Torts: Overcoming Barriers to Certification, 19 J. Env. L. & Prac. 189 (2009)

Byron G. Stier, Another Jackpot (In)Justice Verdict Variability and Issue Preclusion in Mass Torts, 36 Pepp. L. Rev . 715 (2009)

Kerrie M. Brophy, Consent Waivers in Non-Class Aggregate Settlements: Respecting Risk Preference in a Transactional Adjudication Model, 22 Geo. J. Legal Ethics 677 (2009) 

James M. Beck , Federal Preemption in FDA Regulated Product Liability Litigation: Where We Are and Where We Might Be Headed, 32 Hamline L. Rev. 675 (2009)

Brent M. Rosenthal, Toxic Torts and Mass Torts, 62 SMU L Rev 1483 (2009) 

Jay Tidmarsh, Rethinking Adequacy of Representation, 87 Tex. L. Rev. 1137 (2009)

Robert Rabin, Territorial Claims in the Domain of Accidental Harm: Conflicting Conceptions of Tort Preemption, 74 Brook. L. Rev. 987 (2009) 

Richard Nagareda, Class Certification in the Age of Aggregate Proof, 84 NYU L Rev 97 (2009)

Mark A. Behrens, What's New in Asbestos Litigation? 28 Rev. Litig. 501 (2009)

Daniel A. Farber, Tort Law in the Era of Climate Change, Katrina and 9/11: Exploring Liability for Extraordinary Risks, 43 Val. U. L. Rev. 1075 (2009)

Elizabeth Chamblee Burch, Procedural Justice in Non-Class Aggregation, 44 Wake Forest L. Rev. 1 (2009)

James M. Underwood, Road To Nowhere or Jurisprudential U Turn? The Intersection of Punitive Damage Class Actions and the Due Process Clause, 66 Wash & Lee L. Rev. 763 (2009)

Alexandra B. Klass, Tort Experiments in the Laboratories of Democracy, 50 Wm. & Mary L. Rev. 1501 (2009)

Peter Tipps, Note, Controlling the Lead Paint Debate: Why Control is Not An Element of Public Nuisance, 50 B.C. L. Rev. 605 (2009)

Articles in DePaul Law Review Winter 2009 Symposium The Challenge of 2020: Preparing a Civil Justice Reform Agenda for the Coming Decade Fourteenth Annual Clifford Symposium on Tort Law and Social Policy, including

    Richard Abel, Forecasting Civil Litigation

    Kenneth Feinber, Transparency and Civil Justice: the Internal and External Value of Sunlight 

Jeb Barnes, In Defense of Asbestos Tort Litigation: Rethinkign Legal Process Analysis in a World of Uncertainty, Second Bests and Shared Policy-Making Responsibilty, 34 Law & Soc. Inq. 5 (2009)

Sheila B. Scheuerma, Due Process Forgotten: The Problem of Statutory Damages and Class Actions, 74 Mo. L. Rev. 103 (2009)

Symposium, Complexity and Aggregation in Choice of Law, 14 Roger Williams L Rev. 1 (2009), including:

    Louise Ellen Teitz, Introduction to the Landscape

    Edward H. Cooper, Aggregation and Choice of Law

    Elizabeth Cabraser, Just Choose: The Jurisprudential Necessity to Select a Single Governing Law for Mass Claims Arising Out of Nationally Marketed Goods and Services

    Linda Silberman, Choice of Law in National Class Actions: Should CAFA Make a Difference?

    Nancy J. Moore, Choice of Law for Professional Responsibility Issues in Aggregate Litigation

Jonathan Molot, A Market in Litigation Risk, 76 U. Chi. L. Rev. 367 (2009)

Richard Nagareda, Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism, 62 Vand. L. Rev. 1(2009)

Samuel Issacharoff, Will Aggregate Litigation Come to Europe? 62 Vand L. Rev. 179 (2009)

Chris H. Miller, The Adaptive American Judiciary: From Classical Adjudication to Class Action Litigation, 72 Alb. L. Rev. 117 (2009)

Eugene Morguli, Note, Juror Reactions to Scientific Testimony: Unique Challenges in Complex Mass Torts, 15 BU J Sci & Tech T. 252 (2009)

Joshua Logan Penne, Big Food's Trip Down Tobacco Road: What Tobacco's Past Can Indicate About Food's Future, 27 Buff Pub Int L. J. 101 (2009)

Jack B. Weinstein, Preliminary Reflections on the Adminsitration of Complex Litigations, 2009 Cardozo L Rev de novo 1

Elizabeth Chamblee Burch, A New Way Forward: A Response to Judge Weinstein, 2009 Cardozo L Rev de novo 168

Jack B. Weinstein, Letter to Professor Burch, 2009 Cardozo L Rev de novo 192

Angel Oquendo, Upping the Ante: Collective Litigation in Latin America, 47 Columb. J. Tranational L. 248 (2009)

Mark Herrmann & Pearson Bownas, Keeping the Label Out of the Case, Northwestern L. Rev. Colloquy (available at 

Elise Gelinas, Comment, Asbestos Fraud Should Lead to Fairness: Why Congress Should Enact the Fairness in Asbestos Injury Resolution Act, 69 Md. L. Rev. 162 (2009)

Douglas G. Smith, An Administrative Solution to Mass Torts? (reviewing Nagareda, Mass Torts in a World of Settlement (2007), 2009 U. Ill. L. Rev. 895

Mike Steenson, The Legacity of the 9/11 Fund and the Minnesota I-35W Bridge Collapse Fund: Creating a Template for Compensating Victims of Future Mass Tort Catastrophes, 35 William Mitchell L Rev 524 (2009)

December 28, 2009 | Permalink | Comments (0) | TrackBack (0)