Class Actions and Mass Tort Litigation: Aggregative Justice in a Global Context Professor Linda S. Mullenix University of Trento, Italy Spring 2007 – Rule 23 Lecture

The American Class Action Rule Promulgated and enacted in 1938 Drafted by federal judiciary Enacted by Congress (legislature) Part of Federal Rules of Civil Procedure Fed. R. Civ. P. 23 (“Rule 23”) Almost seventy years experience with class action litigation

The American Class Action Rule American class action practice unique U.K. (England & Wales) Group action procedure (2001) Canadian class action experience: Quebec, Ontario, British Columbia (1990s) Currently all Canadian provinces, except 3 Australia (after 2000) Federal class action rule Some Australian states

The American Class Action Rule American Class Action Evolving Rule: Enacted in 1938 Amended three times Major revision in version modern version Provision (f) added in 1998 Provisions (g), (h) added in 2003

The American Class Action Rule The original 1938 Rule 23 Provided for three types of class actions: Pure, spurious, and hybrid class actions Categories difficult to apply Courts confused about categories Courts render inconsistent decisions Rule unworkable; not used frequently

The American Class Action Rule Amendment of Class Action Rule 23: By early 1960s, class action rule not much used for aggregative litigation Need for reform of rule Advisory Committee studies need for new rule New rule promulgated in 1966 Concurrent new major substantive civil rights legislation enacted by U.S. Congress – creation of new rights

The American Class Action Rule 1966 Amendment to Rule 23 (class action rule): Purpose: liberal amendment Make it easier to pursue class litigation Provide procedural means to enforce new substantive rights, especially civil rights Old categories of pure, spurious, and hybrid actions eliminated New class categories created

The American Class Action Rule 1966 Amendment to Rule 23 (class action rule): Central purpose: creation of injunctive class action Also, new category for damages class action No further amendment until : provision for immediate appeal of class certification decisions 2003: provisions for counsel appointment and attorney fees

The American Class Action Rule Jurisprudential Theory of American Class Action Procedure: Representational litigation, not actual litigation One person (or persons) represent large groups of other persons (claimants) These claimants are “class members” or “absent class members” Absent class members claims are virtually represented by the “class representative”

The American Class Action Rule Jurisprudential Theory of American Class Action Procedure: Class litigation involves due process concerns Due process means fundamental fairness in process (constitutional requirement) Due process must protect absent class members Must have “adequate representation” for a class action to proceed Must have a fair and adequate settlement to resolve class claims

The American Class Action Rule Due Process Protections in Class Litigation: Requirement of class certification for case to proceed as a class action Requirement of judicial approval & oversight Requirement of adequate class representative and adequate class counsel Requirement of notice to class members in damage class actions

The American Class Action Rule Due Process Protections in Class Litigation: Requirement of “opt-out” provision in damage class actions Requirement of fairness hearing to approve settlement (fair, adequate, & reasonable) Provision for immediate appeal of class certification decision Possibility for direct & collateral attack of class judgment – judgment not binding if due process is lacking

The American Class Action Rule Creating a Class Action: Implicit Requirements (not in the rule): Proper definition of the class (not vague, too general) Class representative(s) with standing Claims must be ripe (matured or timely) Claims may not be moot (resolved by events) Claims must be real and not hypothetical

The American Class Action Rule Creating a Class Action: Explicit requirements in Rule 23 Rule 23(a) threshold requirements: Numerosity (numbers of class members) Commonality Typicality Adequacy (of class representative and class counsel)

The American Class Action Rule Creating a Class Action: Explicit requirements in Rule 23(b) Three categories of types of class actions: Rule 23(b)(1) – prejudice classes Rule 23(b)(2) – injunctive or declaratory class actions/not for monetary damages Rule 23(b)(3) – damage class actions

The American Class Action Rule Class Categories Rule 23(b)(1) and (b)(2): Claimants are homogeneous and have same interests No notice provided to class members Class is mandatory: no opt-out rights Class judgment is binding on all class members Class judgment has res judicata effect

The American Class Action Rule Creating a Class Action: Rule 23(b)(3) damage class actions: Claims may be heterogeneous Must show predominance of common questions Must show that class action is “superior” means to resolve the dispute Court may consider four other factors, including manageability

The American Class Action Rule Creating a Class Action: Rule 23(b)(3) damage class actions: For damage class actions: Must provide notice to all class members of the pending action Must provide for opportunity to “opt-out” of the class Two opportunities to opt-out (after certification or after notice of proposed settlement) Class judgment not binding on persons who opt- out

The American Class Action Rule Other Provisions Governing Class Actions: Judicial management & control of the litigation (Rule 23(d) Class action settlements and fairness hearings (Rule 23(e)) Interlocutory appeal of class certification decisions (Rule 23(f)) Appointment of class counsel (Rule 23(g)) Payment of attorney fees (Rule 23(h))

The American Class Action Rule Other considerations: Judge must approve (certify) a proposed class action to proceed as a class action Class actions not certified may proceed as individual litigation Classes certified that proceed to trial litigate the claims of the class representative Most class actions settle before trial

The American Class Action Rule Historical Use of Class Action Litigation: 1960s-1970s: chiefly injunctive class actions: Public law litigation Institutional reform litigation (prisoners’ rights; mental health facilities) Civil rights litigation:  School desegregation  Employment discrimination  Housing dsicrimination

The American Class Action Rule Historical Use of Class Action Litigation: Late 1970s-1990s: era of mass tort litigation: Asbestos litigation Dalkon Shield litigation DES litigation Agent Orange litigation Breast implant litigation Medical device & pharmaceutical litigation

The American Class Action Rule Historical Use of Class Action Litigation: Late 1990s-current: damage class actions: Small claims consumer class actions Antitrust class actions Products liability class actions Securities violations class actions Employment discrimination class actions

The American Class Action Rule Other Class Action Reforms: Class Action Fairness Act of 2005: Enacted by Congress Jurisdictional statute Creates new federal jurisdiction for class actions Provides for removal of class actions from state courts into federal courts Does not affect Rule 23 requirements

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