Law Commons^™

Civil Procedure—Dukes Commonality Standard—Factors That Courts Should Weigh In Employment Discrimination Class Actions—Wal-Mart Stores, Inc. V. Dukes, 564 U.S. 338 (2011), Anuj Teotia

University of Arkansas at Little Rock Law Review

No abstract provided.

The Roberts Court And Class Litigation: Revolution, Evolution, And Work To Be Done, Richard D. Freer

Faculty Articles

Since 2005, when John Roberts was appointed Chief Justice, there have been startling changes to the world of class actions. Jurisdictionally, the Class Action Fairness Act of 2005 fundamentally reconfigured the allocation of class litigation between federal and state courts. Federal Rule of Civil Procedure 23, the federal class action provision, has been amended three times in the Roberts years, once in a meaningful way. Our focus, however, is on what the Roberts Court has done in the class action world through its caselaw. On that score, we have a remarkable corpus. From Shady Grove Orthopedic Associates, P.A. v. …

Brief Of Complex Litigation Law Professors As Amici Curiae In Support Of Respondent, Myriam E. Gilles

Amicus Briefs

The amici are law professors who teach and write in the field of federal civil procedure and complex litigation. Amici share an interest in presenting this Court with an impartial view on the function of the class action and its relationship to the law of Article III justiciability to inform the question presented in this case.

In A Class Of Its Own: Bristol-Myers Squibb'S Worrisome Application To Class Actions, Grant Mcleod

Akron Law Review

The Supreme Court’s holding in Bristol-Myers Squibb Co. v. Superior Court has far-reaching implications for federally filed class actions. While the case concerned a mass action in the California state courts, the opinion contained strong dicta to suggest its principles of specific jurisdiction could be applied to federal class—an entirely different procedural tool with its own host of complexities and problems. In the three years following the decision, federal district courts are split on how to apply the Bristol-Myers Squibb analysis to class actions. A distinct category of courts have applied the analysis to dismiss absent class members’ claims when …

The Myth Of Morrison: Securities Fraud Litigation Against Foreign Issuers, Robert Bartlett, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon

All Faculty Scholarship

Using a sample of 388 securities fraud lawsuits filed between 2002 and 2017 against foreign issuers, we examine the effect of the Supreme Court's decision in Morrison v. National Australia Bank Ltd. We find that the description of Morrison as a steamroller, substantially ending litigation against foreign issuers, is a myth. Instead, we find that Morrison did not significantly change the type of litigation brought against foreign issuers, which, both before and after this case, focused on foreign issuers with a U.S. listing and substantial U.S. trading volume. Although dismissal rates rose post-Morrison, we find no evidence …

Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document — now in its Second Edition — which is designed to help judges and …

Class Action Settlements, Cy Pres Awards, And The Erie Doctrine, Andrew Rodheim

Northwestern University Law Review

As class action settlement funds become more and more prevalent, cy pres awards have become a more common means of providing relief to absent class members. The primary purpose of cy pres awards is to provide a second-best form of relief when it is deemed impossible to directly compensate individual plaintiffs. Most often, these cy pres awards are given to some kind of charitable organization. Under federal law, class action settlements and cy pres awards are governed by Federal Rule of Civil Procedure 23(e). Rule 23(e)(2) requires all class action settlements to be “fair, reasonable, and adequate,” but provides no …

Taking A Second Look At Mdl Product Liability Settlements: Somebody Needs To Do It, Christopher B. Mueller

Publications

This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, and does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. …

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …

Rethinking Adequacy Of Representation, Jay Tidmarsh

Jay Tidmarsh

This article questions the usefulness of traditional tests for adequacy of representation in class action proceedings. When determining whether to certify a class, courts have sought to avoid endorsing those classes marred by conflicting interests or the possibility of collusion. Yet, such conflicts of interest are an intrinsic characteristic of class actions, stemming from the very policy rationales that have prompted the judiciary to allow litigation by classes. As a result, the current doctrine of adequate representation has left the courts without a bright-line rule; instead, the courts' inquiries into adequacy of representation must focus primarily on the degree of …

De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley

Faculty Scholarship

No abstract provided.

Diagnosis And Treatment Of The "Superiority Problem", Jay Tidmarsh

Journal Articles

Christine Bartholomew has provided a brilliant diagnosis of the "superiority problem" in class-action law, although I am not convinced that her plan to treat the will cure the patient. If superiority is to be eliminated, predominance must also be abandoned. Some new formula must replace Rule 23(b)(3) in its entirety. The problem of Rule 23(b)(3) is that the factors (especially superiority) give too much power to courts to get the results they want. Unless the ills that Professor Bartholomew documents are to be repeated in a new form, any replacement for Rule 23(b)(3) must be far more specific and concrete …

Saving The Public Interest Class Action By Unpacking Theory And Doctrinal Functionality, Suzette M. Malveaux

Publications

No abstract provided.

On Regulatory Discord And Procedure, Elizabeth Chamblee Burch

Scholarly Works

Businesses are increasingly global. But domestic courts’ jurisdiction remains largely provincial; both public and private regulators have overlapping, mismatched authority. Regulatory discord is readily apparent in consumer protection cases. When the Dodd-Frank Wall Street Reform and Consumer Protection Act empowered state regulators while simultaneously creating an encompassing federal regulator—the Consumer Financial Protection Bureau—it further contributed to overlap between federal agencies, states, and private litigation.

Whether this regulatory magnetism is optimal in terms of fundamental goals like compensation and deterrence is a hotly debated normative and empirical question. Yet, one need not wade too far into the substantive debate to appreciate …

Constructing Issue Classes, Elizabeth Chamblee Burch

Scholarly Works

As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys. But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action. The result? Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct. At the other end of the regulatory spectrum lies the opposite problem. Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — …

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Sylvia Tsakos

Akron Law Review

This Article explores the ramifications of Wal-Mart approximately five years after the case was decided. While five years hardly provides definitive data on how the case will be interpreted, it is possible to identify trends in the cases that have been decided to date—trends that are likely to provide insight into the future of class action claims. That future suggests that there will be fewer, and perhaps no, nationwide class actions in cases that do not involve a clear challenged practice (any such cases are likely to be disparate impact cases) and that the prospect for class certification will turn …

Will Employment Discrimination Class Actions Survive?, Melissa Hart

Akron Law Review

This paper will argue that the changes wrought by the Civil Rights Act of 1991 do not in fact pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right in the Civil Rights Act of 1991 may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class action either impermissible under Rule 23 or violative of due process or Seventh Amendment jury trial rights. Courts and commentators who insist that …

Reflections Of A Recovering Aggregationist, Linda S. Mullenix

Nevada Law Journal

No abstract provided.

Finding The Civil Trial's Democratic Future After Its Demise, David Marcus

Nevada Law Journal

No abstract provided.

Defining The Word: "Maintain"; Context Counts, Jack Friedenthal

Akron Law Review

To understand what a word means, especially one such as “maintain” that has multiple formal definitions, one must consider the background and purpose for which it is utilized.

Saving Charitable Settlements, Christine P. Bartholomew

Fordham Law Review

This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly …

The Breaking Of A Wave: Jacobsen V. Allstate Ins. Co. And Class Certification, Lucas Hamilton

Montana Law Review

No abstract provided.

International Mass Tort Litigation: Forum Non Conveniens And The Adequate Alternative Forum In Light Of The Bhopal Disaster, Stephen L. Cummings

Georgia Journal of International & Comparative Law

No abstract provided.

Jury Certification Of Federal Securities Fraud Class Actions, Thomas Kayes

Northwestern University Law Review

The rough equivalence of certification and ultimate outcome is class action dogma. If certification is granted, then the plaintiff “wins” by settlement because the risk of incurring class-wide liability by going to trial is too great. If certification is denied, the defendant “wins” because the case may not be worth litigating without the possibility of a class-wide recovery. This Note is about where the dogma is wrong. There are now cases where a denial of certification, just like a grant, presents to the defendant the risk of incurring class-wide liability at trial. This is because those cases are capable of …

Reforming The Consumer Class Action, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch was part of a panel on Reforming the Consumer Class Action. This was part of a conference entitled: The Future of Class Action Litigation: A View From the Consumer Class that took place at the New York University School of Law on November 7, 2014

Summary Of Oxbow Constr. V. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 86, Erik Foley

Nevada Supreme Court Summaries

The Court determined that (1) previously leased units become a “residence” under NRS 40.630 when their titles are later transferred to a home purchaser; (2) units previously leased prior to transfer of title to a purchaser are not considered “new” under NRS 40.615; and (3) where there is at least one “new residence” in a multiple unit building, relief is available for construction defects in the limited common areas assigned to that building.

Class(Ic) Settlement Problems, Curtis E.A. Karnow

Curtis E.A. Karnow

A collection of classic problems in papers filed for preliminary court approval of class action settlements

Updating Ohio's Class Action Rules After More Than Forty Years, Geoffrey J. Ritts

Cleveland State Law Review

In 1970, the Ohio Rules of Civil Procedure made their debut. The new set of rules included Civil Rule 23, governing procedure in class actions. Like most of the new Ohio civil rules, Rule 23 closely tracked its federal counterpart, Federal Rule of Civil Procedure 23, which itself was then relatively new, having been adopted in 1966. Since 1970, Ohio’s Rule 23 has sat untouched. In the meantime, the Ohio Supreme Court has amended other civil rules more than thirty times. During the more than forty years since Ohio Rule 23 was adopted, there have been significant changes in class-action …

Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge

Scholarly Works

Faced with the emerging phenomenon of complex litigation—from school desegregation to mass torts—the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand …

Cross-Border Collective Redress And Individual Participatory Rights: Quo Vadis?, S. I. Strong

Faculty Publications

This article fills a critical gap in the commentary by undertaking a rights-based analysis of the various issues that arise in cases involving large-scale international litigation, focusing in particular on the Brussels I Regulation and what may be called ‘individual participatory rights’. In so doing, the discussion considers the nature and scope of individual participatory rights in collective litigation as well the ways in which these rights should be weighed and considered. Although the analysis is set in the context of European procedural law, this discussion is of equal relevance to parties outside the European Union, either because they will …