Thursday, January 14, 2010
Gensler on CAFA's effect on state court class actions
Steve Gensler has posted on SSRN a new article examining the Oklahoma state court experience with class action filings post-CAFA. The paper will be published as part of the Kansas Law Review symposium on aggregate litigation since Amchem and Ortiz. Here is the link and abstract for The Other Side of the CAFA Effect: An Empirical Analysis of Class Action Activity in the Oklahoma State Courts:
When Congress passed the Class Action Fairness Act of 2005 (CAFA), its stated purpose was to shift nationwide state-law class actions from state court to federal court in order to combat allegedly abusive state-court practices. While the Federal Judicial Center has documented an increase in class action filings in federal court, it has been quick to point out that it cannot say that CAFA has caused a shift in class action filings from state court to federal court. That conclusion would require parallel data about state-court class action filings to see if there has been a corresponding decrease. This paper provides that data for Oklahoma, a state many saw as a target of CAFA due to its having a reputation as a class action friendly forum. This study documents a significant drop in class action filings in Oklahoma post-CAFA. At the same time, though, federal filings in Oklahoma have also dropped. This across-the-board decrease suggests that CAFA has shifted nationwide class actions from Oklahoma state court to federal courts in places other than Oklahoma as plaintiff's class action lawyers now learn to forum shop the circuits as they did the states pre-CAFA. This paper also provides interim data on various aspects of Oklahoma class action practice including how often motions to certify are made, how often they are granted, and the outcomes of certified cases.