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 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 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 ? 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”) 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 “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 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 Liability and damages bifurcated: cases remanded to state courts for damages trials Appeal of liability determination: prior to remand

Class Action Challenges Industry Specific Issues Consumer Electronics Automobiles Tobacco Pharmaceutical/Medical Device Environmental Aviation Attorneys’ Fees Settlement

Recent Developments In Group Actions in the United States Elizabeth Cabraser Sara Gourley Luanne Sacks John Sherk March 2, 2006