To the Rules Committee: Some Thoughts About Class Actions

In For Trial Lawyers by gravierhouseLeave a Comment

Last year, it became clear that the Civil Rules Committee was going to take yet another look at potential changes to the Federal Class Action Procedure, embodied in Rule 23.  For whatever it may or may not have been worth, I provided the Committee with a few thoughts about the current state of class actions, from kind of a Big Picture perspective.  To me, it is critical that lawyers, judges, and rulemakers (or legislators, or legal commentators, or others) working with class actions understand and appreciate the fundamental distinctions that I believe exist between what I call “True Class Actions” versus what are merely “Aggregations” of Individual Claims, as well as the fundamental distinction between classes that are sought to be certified over a defendant’s objection for litigation purposes versus those that are sought to be certified with a defendant’s concurrence for settlement purposes.  My Letter to the Rules Committee is available here.

One of the hot-button issues that has developed since – both in terms of potential Rules changes and in terms of proposed Legislation – is the notion of this so-called “no injury class”.  This tag-line has been used by the defense class action bar in recent years to conflate what are really two completely different issues.  The first is really a substantive issue about what claims are truly cognizable, whether brought by an individual or a putative class.  The second is really a procedural issue regarding the appropriate nature, scope and implied requirements for an ascertainable class definition.  I, along with Jacksy Bilsborrow, did a paper to attempt to address this topic: Much Ado About Nothing: The So-Called “No Injury” Class

Other writings on Class Actions which you may find interesting include A Practical Framework for Class Actions, which I did for the ABA National Institute on Class Action sin 2003, and Evaluating Class Actions, which I have given at a couple of CLEs over the years. Some of the Ethical and Professional considerations associated with class and MDL work are addressed in Ethical Questions Raised by the BP Oil Spill Litigation.

Finally, for whatever it’s worth, you are free to take a look at the Class Outline of reading assignments which I use for my Tulane and Loyola Law School Classes, which might give you a decent primer on class action, multi-district, and complex litigation generally.

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