Mass Tort Litigation Blog

Choice of Law and Class Actions

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). 

ADL

Gilles on Consumer Class Actions

We all know judges are hostile to mass tort class actions, but Myriam Gilles (Cardozo) argues that consumer class actions are also suffering the brunt of judicial hostility in an article with the excellent title "Class Dismissed: Contemporary Judicial Hostility to Small Claims Consumer Class Actions" now available on SSRN.  Here is the abstract:

I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within it an implicit requirement of “ascertainability.” More specifically, courts have held that in order to certify a class, the identity of class members must be sufficiently ascertainable to ensure the efficacy of a subsequent distribution of damages. In practice, what this shadow standard of ascertainability has come to mean is that no matter how clear the evidence of wrongdoing, plaintiffs have no redress in the typical consumer case involving small retail transactions. This article examines the ascertainability doctrine as it is developing in the courts, and shows that the traditional goals of class actions - deterrence and compensation - cannot plausibly be said to animate this new certification requirement. Indeed, the ascertainability requirement readily sacrifices both deterrence and compensation in favor of an alternative value, namely, ensuring that compensation does not flow to uninjured parties. I end with a first-round effort to understand what really may be animating the ascertainability doctrine, suggesting that the explanation lies in a conception of class actions that is based on a private law model - i.e., a conception that demands unity among the injured parties, the prosecutors of civil actions, and the beneficiaries of remedies. Future work will seek to tease out the normative underpinnings of this private law model.

ADL

Recap of Shady Grove Oral Argument

Scotusblog has a very nice recap of the Shady Grove oral argument, better than the real thing in my opinion.  I was lucky to be teaching Erie last week in my civil procedure class and have been thinking a lot about this case.

Among other things, this case raises the question of whether a class action is a remedy, which would be "substantive" under Erie, or merely a method for dealing with large numbers of claims, which would be "procedural" under Erie.  I think the class action is both things.  It is a means to aggregate claims and permits large-scale remedial action that would otherwise be impossible because most people do not bring their small claims at all.  The Court will have to choose between these competing interpretations. 

The oral argument demonstrated to me that we do not have a good theory of what a class action is.  If we buy entity theory (that the class action is an entity like a corporation) then to me the class looks more remedial.  This would mean that in order to be consistent with Cohen v. Beneficial Loan, 337 U.S. 541 (1949) the Court would have to hold that the NY Rule trumps Rule 23.  Why? In that case the Court reasoned that the state legislature wanted to limit costly derivative litigation and therefore the state rule regarding that type of litigation ought to govern regardless of Rule 23.  (At that time Rule 23 governed derivative suits).  Justice Ginsburg kept bringing up Cohen in the oral argument, so dealing with it is important. (Set aside for the moment what this interpretation means for the legitimacy of class actions under the Rules Enabling Act). 

On the other hand, if the class action is simply a mechanism for aggregating similar individual cases, then the class looks more like a "housekeeping" rule. Under this theory, a class is nothing more than a collection of individual cases that plaintiffs are otherwise entitled to bring, and nothing about the class action changes that fact.  Advocates of this version of the class action might be against cy pres distributions, for example, because the money doesn't go to individual class members which is the only place it belongs.  If aggregation of individual claims is the theory of the class action, then the federal rule should govern because no change is wrought to the underlying substantive law by the aggregation - its just that all the small cases are adjudicated together.  Nor does the class action create an inequity in the law because in state citizens can still bring their claims just as well.  The availability of aggregation doesn't change that.   In this view, Shady Grove is more like Hanna v. Plumer, 380 U.S. 460 (1965), where the Court upheld the federal rule on service of process. 

In his recent book, Wholesale Justice, Martin Redish argues that the class action does distort the substantive causes of action brought by this mechanism and is therefore a violation of the Rules Enabling Act (which states that the federal rules cannot abridge enlarge or modify any substantive right).  Redish is making an argument about democratic accountability, but his theory fits nicely with Ginsberg's apparent view of class actions from oral argument - that they are a remedy that alters the substantive law.   

Proponents of class actions make similar arguments.  Myriam Gilles has argued in an excellent article Exploding the Class Action Agency Costs Myth, that in a class action what matters is deterrence, not whether individuals actually get compensation.  This theory is particularly resonant in statutory damages cases where the amount collected is small and uniform, perfectly suited to the class action mechanism.  And the ability to bring statutory damages class actions are what is at stake in Shady Grove. 

This brings me to what Justice Story, the author of Swift v. Tyson, would say about this.  Story was the author of the first treatise of Equity in the U.S. and a big fan of distinguishing between law and equity.  (The class action is a procedural mechanism with its roots in equity).  He was also a staunch Federalist.  His opinion in Swift requiring that federal judges apply a "general common law" in commercial cases (later expanded to all cases) was a move to consolidate power over the national economy in the federal government.  We see echos of this in the Class Action Fairness Act (barely discussed at oral argument but I think quite relevant to the case), which brought class actions exceeding $5 million into federal court with some limited restrictions on local class actions.  Erie recognized that the Swift rule did not bring the uniformity of law that it promised and overturned it.  Its not clear to me that Erie is about uniformity at all. Ed Purcell in his wonderful book Brandeis and the Progressive Constitution, reads Erie as Brandeis' reaction against the centralization wrought by the Federal Rules, which were adopted the same year.  Will Shady Grove, if it comes out in favor of the NY rule, be read as a reaction against the attempt at centralization wrought by CAFA?  Or as a corporatist move by the Court? Or simply part of the larger struggle of this Court against litigation in general? (For an excellent discussion of this trend, see Andrew Siegel, The Court Against the Courts: Hostility to Litigation as a Theme in the Rehnquist Court's Jurisprudence, Siegel could write a great update to this piece based on Twombly, Iqbal and probably Shady Grove given how oral argument went).

Finally, would this case come out differently if the state law at stake favored class actions?  There seemed to be an argument floating around that a rule favoring class actions would not be applied under Erie because the methods of certifying class actions is governed by Rule 23 and this would be a direct conflict, whereas the case at hand presents an indirect conflict because the state has banned class actions altogether for certain categories of cases. I don't really buy this one way ratchet idea - it seems to me that if you say that the state's interest in not having class actions is paramount, so too should the state's interest in enabling litigation be paramount.

ADL

Argument in Shady Grove Orthopedic Today

The Supreme Court will be hearing oral arguments in Shady Grove Orthopedic v. Allstate today.  This case is about the intersection between two perennial favorite topics among civil procedure enthusiasts: class actions and Erie.

Will Hanna survive Shady Grove?  I'm betting on the FRCP.

See the coverage on scotusblog.  And the post with various links on the civil procedure & federal courts blog.

ADL

Class action filed involving Puerto Rico explosion

On Friday morning, a huge explosion occurred at a Caribbean Petroleum Corp. fuel storage facility near San Juan, Puerto Rico.  On Friday afternoon, the first class action was filed.  Here's the WSJ Law Blog report with a brief interview in which Louisiana plaintiffs' lawyer Daniel Becnel explains how he became involved so quickly and what immediate steps he took:

I got a call this morning from [Puerto Rico lawyer] John Nevares, who said he knew I’d handled these kinds of cases and that he had clients. What I immediately did was started to put together the complaint. I hired a mechanical engineer, a metallurgist, a psychiatrist, and an expert in air modeling. We also got up a Web site, so cases have been coming in on the Internet.

Responding to The Law Blog's question about the importance of filing first, Becnel focuses on getting the lawsuit started before the defendant has too much time to take control:

It’s not necessarily important to be the first, but it’s important to get in the door quickly. One of the main reasons is to get a preservation order in place to make sure that nobody destroys physical evidence. You need to get in there fast to find out what really happened.  When something like this happens — and I’ve worked on a handful of them — the first thing a company does is call its insurance claims agent. They’re on the scene within an hour. They’ll try to show that nobody’s hurt and that the damage is minimal. They’ll put out a press release. You’ve got to get in there so you can start working the other side as soon as possible.

HME

Passing of David I. Shapiro

Litigator David I. Shapiro, founding partner of the firm Dickstein Shapiro, has died.  In a career that spanned many areas of litigation, Mr. Shapiro also was active in several prominent mass tort litigations, and came to focus on mediation as a case management method.  Here's an excerpt from the Wall Street Journal's obituary:

Mr. Shapiro branched out into class-action suits in the late 1960s. He handled the states' cases in a complex federal price-fixing lawsuit against manufacturers of the antibiotic tetracycline, winning a $100 million verdict for the states.

Later, Mr. Shapiro took on cases related to breast implants, asbestos and the Exxon Valdez oil spill. In 1984, he was assigned as a special master to handle a $180 million settlement resulting from the Agent Orange case, then among the largest class-actions suits to date.

But Mr. Shapiro came to feel that much of class-action litigation was driven by greed, and that cases could be better settled by other means. He developed an expertise in negotiations, and was chairman of the American Bar Association's National Institute on New Techniques for Resolving Complex Legislation.

"It's possible to get justice and recompense for consumers without the greed of the few that plagues the U.S. system," he told the Telegraph of London in 2007.

He taught mediation at the London School of Economics, and created a mediation practice at SJ Berwin. 

BGS

Toxic Tort Damages Class Action Certified Based on Aggregate Proof

In Shar v. Raytheon, ---- F.R.D. ---, 2009 WL 3193152, M.D.Fla. 2009 (Sept. 30, 2009), the Middle District of Florida District Court approved a toxic tort class action arising out of the contamination of groundwater near a Raytheon plant in St. Petersburg, Florida.

The biggest obstacle to class certification was the predominance requirement.  For a money damages class action to be certified, the plaitniff class representative must show that class issues predominate over individual issues.  Here the defendant argued that individual issues predominated - particularly with respect to properly devaluation due to the contamination. The District Cout heard expert testimony about the ability of the experts to create a model to do what they call a "mass appraisal."  From reading the opinion, it seems to me that the fact that the local county appraiser uses a similar model was critical to the court's decision.

The court refused to hold a Daubert hearing prior to certification, raising questions that are addressed in an excellent recent article by Richard Nagareda about the relationship between class certification, the merits and aggregate proof.  See Nagareda, Class Certification in the Age of Aggregate Proof, on SSRN.

(hat tip BNA Class Action Reporter)

ADL

How Transparent Are Class Action Outcomes?

In a paper that I somehow missed, Bill Rubenstein (Harvard) and Nicholas Pace (RAND) demonstrate that class action outcomes are not transparent.  The paper is called "How Transparent Are Class Action Outcomes" and is available on Rubenstein's website here and SSRN.  They write:

This paper examines the extent to which claiming data are available and recommends ways to increase transparency in this area. We reviewed the official court files in a sample of 31 class action settlements and we also made direct inquiries to the judges, lawyers, and settlement administrators in another set of 57 cases. Searching through the case files and communicating with the participants, we were able to gain access to data in fewer than one of five closed cases. Despite the significant time and effort we put into the task, the final outcomes of four of five class action cases were beyond our discovery. It is not that the data are non-existent – claims administrators or parties certainly have them - it is, rather, that they are secreted away. The outcomes of publicly approved settlements lie locked in private files.

Why should the reader care? Here is there analysis:

We argue that this is a problem for three reasons: because the case outcomes might not be all that they purport to be; because the lessons that they could teach – for example, about which approaches work best – are lost to secrecy; and because the public record is unnecessarily incomplete and public access unnecessarily thwarted. We end the paper by proposing a set of solutions, including requiring parties to report back to the court on the final claiming data, publicizing this data, and creating a central repository for it.

Lack of transparency is one of the most significant problems in our system.  Information can be obscure not only when it is secreted away, as in this RAND study, but also when it is presented in such a complicated way or in a way calculated to put off all but the most dogged researchers -- e.g. the "fine print" -- that it is impossible for anyone but an expert to understand.

ADL

Martin Redish et al. on Cy Pres Relief and the Pathologies of the Modern Class Action

Martin Redish, Peter Julian, and Samantha Zyontz (all of Northwestern) have a new paper, Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis.  Here's Redish's description:

BGS

Kansas Law Review - Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz

Kansas Law Review's symposium this year is titled "Aggregate Justice: Perspectives Ten Years After Amchem."  Here's the official blurb and the line-up of speakers:

Friday October 30, 2009
Green Hall, 1535 W. 15th Street, Lawrence, Kansas 66045

We are excited to announce this year’s Kansas Law Review Symposium, which will focus on the present and future of aggregate litigation, using Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), as a springboard for this exploration. The Symposium will feature a number of well-known speakers in the field of aggregate litigation. The event will be held on October 30, 2009, at the University of Kansas School of Law in Lawrence, KS.

Speakers and their affiliations:

Elizabeth Chamblee Burch (J.D., Florida State University College of Law) is an Assistant Professor of Law at the Florida State University College of Law.

Howard M. Erichson (J.D., New York University School of Law) is a Professor of Law at the Fordham University School of Law.

Steven S. Gensler (J.D., University of Illinois, Urbana-Champaign) is the Welcome D. and W. DeVier Pierson Professor of Law at the University of Oklahoma College of Law.

Laura J. Hines (J.D., University of Michigan) is a Professor of Law at the University of Kansas School of Law.

Linda S. Mullenix (Ph.D., Columbia University, J.D., Georgetown University Law Center) holds the Rita and Morris Atlas Chair in Advocacy at the University of Texas School of Law.

Tom Willging (L.L.M., Harvard Law School, J.D., The Catholic University of America, Columbus School of Law) is a senior researcher at the Federal Judicial Center.

Patrick Woolley (J.D., Yale Law School) is the Beck, Redden & Secrest Professor at the University of Texas School of Law.

Attendance is free and no reservations are required.

For more information, please contact Symposium Editor Shane McCall: shane@ku.edu.

Although my paper is still in its formative stages, its title is "Aggregation, Community, and the Line Between."  It builds on my earlier work, "Litigating Groups," and my current work-in-progress, "Litigating Together: Social, Moral, and Legal Obligations," which I'll present at the University of Florida next week.  The Kansas article examines our current line drawing scheme, which essentially asks whether the procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue.  Here's a short overview/abstract:

This Article non-rhetorically asks whether this is the right dividing line.  Although I rely principally on analogies to the class action context, I am particularly concerned about mass tort litigation that proceeds as nonclass aggregation because it fails the predominance test in Rule 23(b)(3).  Cohesion, as currently measured by courts is static in that the proxies—requesting uniform relief and having common characteristics that pre-date the litigation—are measured at a particular point in time.  And plaintiffs with procedurally aggregated tort claims are unlikely to exhibit the fundamental attributes of a cohesive local community—social bonds, social activities, and community attachment.  But what if, by using new communication mediums, we could return to the core cohesion seen in small, rural medieval communities without the corresponding geographic restrictions?  Put differently, what if, in drawing the line for cohesive groups, we traced actual cohesion regardless of when it arose?  This Article explores that question. 

ECB

Objections in the Google Book Settlement

The New York Times has an article on the large numbers of objections filed in the Google book settlement as the date of the fairness hearing looms.  The article is at this link: 11th Hour Filings Oppose Google's Book Settlement (September 8, 2009).   For the uninitiated reader, a class action cannot be settled as a class without judicial approval.  The fairness hearing is mandated by the class action rule and requires the judge to evaluate the fairness of the settlement.  The standard for approval of a class action settlement is different in different circuits. 

Jay Tidmarsh of Notre Dame is quoted in the article saying: “The number and quality of opposition filings is very unusual, the court is going to have to look at the public interest in the settlement.”  Andrew Gavil of Howard University is also quoted. 

This is a big settlement concerning something that a lot of very articulate people care about (and with respect to which there is a lot of money to be made) and so we are getting a very robust, serious public discussion through the settlement process.  That is rarely the case, but perhaps Judge Chin can show us how a public dialogue can be incorporated into the fairness hearing process to make it more, well, fair. 

Unfairness is more likely to show up, and not be addressed, in settlements that fewer people care about, where there is insufficient opposition for a truly adversarial proceeding where all sides are represented.  That said, either the settlement is approved or it is not.  The judge cannot rewrite its terms.  So we shall see if Judge Chin gives counsel some clues as to what type of settlement he will approve if not this one.

I wrote about this topic some time ago in an Article entitled Fundamental Principles for Class Action Governance that I think is still relevant today (I've only recently posted the piece on SSRN).  For an excellent treatment of the issue of fairness hearings, you might be interested in William Rubenstein, The Fairness Hearing: Adversarial and Regulatory Approaches, 53 UCLA L. Rev. (2006) (available on SSRN).

ADL

Class Actions and Sneetches

You generally won't find much humor over here at the Mass Tort Blog.  And, to be honest, this post is more about civil procedure generally than class actions in particular.  But, there is a section on Class Actions and Sneetches in here that might give you a laugh.  There's A Pennoyer in My Foyer:  Civil Procedure According to Dr. Seuss will be coming out in The Green Bag this fall.  There will be a Part 2 in the Spring, but I don't want to give away its contents just yet.  Nevertheless, if you have comments or suggestions I'd love to hear them and will address them in the second part.

ECB

A "Good Faith" Standard for Reviewing Class Certification?

Eran Taussig (SJD, UPenn) has posted an article comparing the Israeli and American class action rules, and arguing in favor of the Israeli "good faith" standard. The article is called "Broadening the Scope of Judicial Gatekeeping: Adopting the Good Faith Doctrine in Class Action Proceedings":

This paper suggests that using the concept of ‘good faith’, as is used in Israeli class action proceedings, could resolve some of the shortcomings in U.S. class action proceedings. There is a vast literature about the abuse of the class action procedure in the United States. Among other problems, scholars lament the extensive filing of meritless class actions in order to extort unwarranted settlements and the so-called “sweetheart settlements”, in which class counsel colludes with the defendant to settle meritorious claims for far less than they are worth, in exchange for fees in excess of those he would have expected had the parties proceeded to trial. Yet, there are no satisfactory solutions to the abuse of this procedure. This paper addresses this gap by describing and evaluating a solution that originates outside the United States. Unlike Rule 23, the recently enacted Israeli Class Actions Law includes a good faith requirement as one of the prerequisites to certification. This requirement is used to scrutinize the motives of the representative plaintiff and the class counsel. Israeli Courts will not certify class actions which have been instituted for collateral or illegitimate purposes such as extortion or harming a competitor. The paper suggests that the application of good faith in the U.S. could resolve some of the more significant flaws in the American class action mechanism. In making this argument, the paper also considers both the larger legal and socio-political contexts–specifically the role that litigation plays in the American and Israeli societies.

ADL

Does the Google Settlement Matter to this Blog?

I was just perusing the ACS Blog and saw a post on Prof. James Gimmelman's take on the Google Book Settlement - which you may recall is the class action settlement that is giving Google a license to scan all the books in the world into a giant searchable database.  Here is what Gimmelman says:

The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.

(Empahsis mine).  Sounds familiar, doesn't it?  Think about aggregate litigation -- all the safeguards of the class action device are absent because, well, its not a class action.  (Gimmelman doesn't think those protections are enough and he's right).  But when ostensibly individual lawsuits are resolved en mass, they are being treated as a class rather than individuals. There's no other way to resolve thousands of cases. People cry out for legislative solutions (asbestos anyone?) and nothing happens. Meanwhile, things happen in the world. People get sick. Defendants get sued.

How good is the legislature at dealing with these issues, if they were to turn their attention to it? Who would like the result?  Is the problem the judicial process or the outcome? (That is, can judges do a good job here or are we really worried about legitimacy?)  What is the public interest and who, if anyone, serves it?  I'm worried that these structural issues - courts vs. legislatures - avoid the real areas of substantive disagreement.

ADL

Jackpot Justice: Verdict Variability and the Mass Tort Class Action

I posted to SSRN my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temple Rev. 1013 (2007).  Notwithstanding the 2007 formal publication date, the article was published this year.  Here's the abstract:

Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.

BGS

Community, Network, Class Action

The most recent BNA Class Action Reporter describes a privacy lawsuit filed by Facebook users alleging that Facebook "a data mining company disguised as a social network, and has repeatedly violated users' privacy, engaged in illegal advertising, and misappropriated users' names and likenesses as a routine part of its business."  The suit, Melkonian v. Facebook Inc., was filed in California on August 17 (see Cal. Super. Ct., No. 30-2009 00293755, 8/17/09). 

This reminds me of the work of two of my fellow bloggers.  Byron Stier has written about mass tort litigation as network (see his paper on SSRN) and Elizabeth Burch has written on the concept of "community" in aggregate litigation (see her paper on SSRN as well).  I think Burch's work in particular speaks to a larger desire to create community in an increasingly atomized world and is in the same vein as the "third place" literature in sociology -- that is, the idea that people need a place beyond work and home to connect with one another: the bowling alley, the soccer field, the Starbucks.   We Americans are torn between a strong tradition of individualism and a desire to find our place in a community and we see the same themes and tensions repeated in the context of litigation.  Yes, there is the tradition of the day in court ideal.  But at the same time we have a very robust class action regime - probably the most robust in the world - and increasingly the use of aggregate litigation serves the same function in areas where the possibility of class treatment has been cut off.  What do we make of this desire? 

It seems to me that litigation is more about speech than connection, and that is what makes these latest class actions that are directly about speech, publicity and privacy (such as this Facebook suit or the Google settlement) so interesting.  The power of creating a collective lawsuit is really the power of voice, but its an anemic type of participation in the deep sense of the term.  That's why non-utilitarians have such a hard time with it.  (This struggle is set forth in a very good article by Lawrence Solum,  Procedural Justice, available on SSRN).  That is also what bothers ethicists about settlements like that in the Vioxx litigation, for similar reasons.  That is, the value of the individual in his own right rather than looking only to the collective good.  A closer look at our history demonstrates that participation has always been a bit more ideal than real.  For a discussion of this history in the academic literature see Robert Bone, Rethinking the Day in Court Ideal and Non Party Preclusion, 67 New York University Law Review 193 (1992) (unfortunately not available on SSRN) and Issacharoff & Witt, The Inevitability of Aggregate Settlement (available on SSRN).  

ADL

U.K. Government's Response to Collective Redress in Europe

I've mentioned in previous posts that the Civil Justice Council recommended using collective actions in Europe in its report, "Improving Access to Justice through Collective Actions."  The U.K.'s Ministry of Justice has recently published its response to the report in which it unequivocally stated that it "does not support the introduction of a generic right of collective action."  Here are a few of the key points that the Government makes in its summary:

• In particular, regulatory options should be considered before introducing court based options. For example, in some sectors it might be appropriate to give regulators power to order the payment of compensation. 

• The distinction between opt-in and opt-out models for collective actions is not necessarily clear cut. They are to some extent part of a continuum. There are several options depending on the stage of proceedings at which the class is closed. Some of these may combine the features and benefits of both models. 

• The issue of who may bring collective actions is best determined sector by sector. Different criteria and methods of authorisation may apply (including authorisation by the court on a case by case basis). 

• The existence of effective ADR mechanisms in any collective action procedure will be crucial. So too will strong case management by the court, including merits and cost-benefit criteria. 

• The ‘loser pays’ principle for costs should be maintained to help deter unmeritorious litigation. 

• The Government will develop a framework document setting out the issues to be addressed when introducing a right of collective action, with options and, where appropriate, a preferred approach. This will act as a ‘toolkit’ for policy makers and legislators. 

• The Ministry of Justice will work with the Civil Justice Council and Civil Procedure Rule Committee to develop flexible generic procedural rules within which any collective action scheme can operate. 

My take based on the U.S. experience is that the government is often a poor sole monitor.  One need not look too far into the FDA's very recent history to find fault.  For those who are interested in this general topic, NYU Law Review hosted a symposium on Tort Law in the Shadow of Agency Preemption and I've written about it a bit here and here.

ECB

Second Trial-Court Denial of NJ Vioxx Class

Analysis of Judge Higbee's opinion at Drug & Device Law.  Here's the opinion.

BGS

Third Circuit Rejects FDA Preemption for Snapple Consumer Fraud Suit

More from Allison Frankel's short article in Am Law Daily.  Here's the opinion.

UPDATE:  The Consumer Advertising Law Blog has analyzed the opinion (H/t Point of Law).

BGS

ABA's 13th Annual National Institute on Class Actions

The ABA will offer the 13th Annual National Institute on Class Actions on October 30 in San Francisco, and November 20 in New York.

BGS