Tuesday, August 24, 2010

Nagareda on Common Answers for Class Certification

Richard Nagareda (Vanderbilt) has posted his latest piece, Common Answers for Class Certification, on SSRN.  The essay is part of a roundtable on Dukes v. Wal-Mart that will be published in En Banc, Vanderbilt Law Review's new on-line counterpart.  Here's the abstract:

This Essay for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. focuses on new developments in the law of class action certification. Prior to Dukes, the federal appellate courts had been gravitating toward a consensus on the parameters for judicial rulings on class certification. Under this emerging consensus view, the court is obligated to determine – under a preponderance-of-the-evidence standard and with no preclusive effect on the merits – whether the pertinent requirements for class certification have been satisfied. But the court has no authority to conduct a free-floating inquiry into the plaintiffs’ likelihood of success on the merits, unrelated to a class certification requirement. Dukes unsettles this emerging consensus, positing that courts may not withhold class certification as long as plaintiffs put forward a triable case as to the existence of a common, class-wide course of misconduct by the defendant. Under this view, the court may not determine whether the alleged class-wide course of misconduct more likely than not exists – even for the limited purpose of ruling on class certification – for fear of intrusion into the role of the fact finder at trial.

This Essay first explains why Supreme Court review is warranted in Dukes, above and beyond the usual concern over splits among the federal appellate courts. The Essay then observes that Dukes is part of a larger category of cases in recent years that involve class certification disputes centered on aggregate proof – in Dukes, primarily an analysis of Wal-Mart’s hourly work force, said to reveal statistically significant differences in pay and promotions across male-female lines. 

The bulk of the Essay spotlights the crucial conceptual error in Dukes: the majority’s confusion between motions for class certification and the motion that really does regulate the relationship between the court and the fact finder (summary judgment). Drawing on illustrations from class certification decisions in securities fraud, antitrust, and RICO litigation, the Essay explains how confusion between class certification and summary judgment can lead to both judicial underreach (as in Dukes) and judicial overreach (as in some decisions from other circuits). Supreme Court reversal in Dukes would lend clarity and consistency to the law of class certification, but in a way that would not cut uniformly for or against either plaintiffs or defendants across the gamut of civil law.

ECB

August 24, 2010 in Class Actions, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 23, 2010

In Memoriam - Benjamin Kaplan

Benjamin Kaplan had a very distinguished career (you can read some highlights here at the HLS press release).  He was also the Reporter on the Rules Committee in 1966 when the class action rule was passed. I had the honor of interviewing him about Rule 23 back in 2005.  He was gracious, thoughtful and whip smart. 

Kaplan's view was that the class action device was not appropriate for torts cases, chronicled among other places in Judith Resnik's article "From Cases to Litigation." 

ADL

August 23, 2010 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Comparing the 9/11 Fund and the Oil Spill Fund

Michael Cooper has an article in the NYTimes about the two entitled "Spill Fund May Prove as Challenging as 9/11 Payments."

Richard Nagareda (Vanderbilt) is quoted as saying: "Although he had a very difficult time placing a dollar value on human life, in some way that was a more straightforward job than estimating the long-term harm to a shrimper’s business." 

In both cases, I think, you have a situation where Feinberg is asked to monetize things that are very hard to monetize and about which people have strong and conflicting opinions - but that is what our tort system asks juries to do all the time.  I've recently written on this issue in a piece called "Rough Justice" - an earlier draft is available on SSRN and I plan to post a revision soon.

The NYT article also raises the prospect of fraudulent claims.  The 9/11 Fund was manageable in this regard because, as the paper quotes Feinberg “You’ve got verification of death."

ADL

August 23, 2010 in 9/11, Aggregate Litigation Procedures, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)