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Recent Developments In Group Actions in the United States. Elizabeth Cabraser Sara Gourley Luanne Sacks John Sherk March 2, 2006. Agenda. Recurring Issues In U.S. Class Action Cases Litigation vs. Settlement Statewide vs. Nationwide Opt-in vs. Opt-out Classes Attorneys’ Fees

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Recent developments in group actions in the united states

Recent Developments In Group Actions in the United States

Elizabeth Cabraser

Sara Gourley

Luanne Sacks

John Sherk March 2, 2006


Agenda
Agenda

  • Recurring Issues In U.S. Class Action Cases

    • Litigation vs. Settlement

    • Statewide vs. Nationwide

    • Opt-in vs. Opt-out Classes

    • Attorneys’ Fees

  • Efforts To Address These Issues

    • Multi-District Litigation

    • Tort Actions Under CAFA

    • Mass Actions under MMTJA

    • Administrative Claims Processes

      • Vaccine

      • Black Lung

      • Asbestos?

  • Challenges


Which forum s law will apply
Which Forum’s Law Will Apply

  • In re Phillips Petroleum Co. v. Shutts, 472 U.S. 797

    • forum must have “significant contact or significant aggregation of contacts” to claims of each class member such that applying law would not be arbitrary or unfair

  • Phillips determines which jurisdictions’ law could apply, not necessarily which jurisdiction’s law must

  • Analysis complicated by “Depecage”

    • issue-specific choice of law


Why does choice of law matter
Why Does Choice of Law Matter ?

  • No federal consumer fraud or tort damages statutes

  • Each state legislates independently

    • Some allow consumer class actions

    • Some cap damages

    • Some do not allow punitive damages

    • Statutes of limitation differ

  • Choice of law can determine viability of claims

    • Country

    • State


Multidistrict litigation mdls
MultiDistrict Litigation (“MDLs”)

  • MDL statute centralizes multiple federal cases in one forum

  • Coordinates pretrial litigation

  • Mechanism to aggregate claims even absent class actions

  • No statute requires state courts to coordinate

  • Some states have intra-state “MDLs”


Class action fairness act 28 u s c 1332
Class Action Fairness Act - 28 U.S.C. § 1332

  • “Federalizes” Interstate Class Actions

  • 2 main provisions:

    • Expands federal jurisdiction/removal

    • Requires notification to state and federal authorities of all proposed settlements


Multiparty multiforum trial jurisdiction act mmtja 28 u s c 1369
Multiparty, Multiforum Trial Jurisdiction Act (“MMTJA”) – 28 U.S.C. § 1369

  • Federal jurisdiction requires:

    • Minimal (not complete) diversity between adverse parties

    • Single accident, discrete location, 75 deaths

  • The federal court must abstain from hearing such a civil action if:

    • The “substantial majority” of plaintiffs and the “primary defendants” are citizens of same state, AND

    • The laws of that same state will govern the claims asserted


Mmtja trials
MMTJA Trials – 28 U.S.C. § 1369

  • Liability and damages bifurcated: cases remanded to state courts for damages trials

  • Appeal of liability determination: prior to remand


Class action challenges
Class Action Challenges – 28 U.S.C. § 1369

  • Industry Specific Issues

    • Consumer Electronics

    • Automobiles

    • Tobacco

    • Pharmaceutical/Medical Device

    • Environmental

    • Aviation

  • Attorneys’ Fees

  • Settlement


Recent developments in group actions in the united states1

Recent Developments In Group Actions in the United States – 28 U.S.C. § 1369

Elizabeth Cabraser

Sara Gourley

Luanne Sacks

John Sherk March 2, 2006