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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 - PowerPoint PPT Presentation
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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 1966 1966 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 1998 1998: 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
Fini