Law Commons^™

A Company’S Voluntary Refund Program For Consumers Can Be A Fair And Efficient Alternative To A Class Action, Eric P. Voigt

Eric P. Voigt

Consumer product companies are establishing internal programs where they are voluntarily compensating consumers for damages caused by their products. When a company implements a refund program in response to a threatened or pending class action, may federal courts rely solely on the voluntary refunds in denying class certification? The short answer is yes.

This Article analyzes Rule 23(b)(3) of the Federal Rules of Civil Procedure and the requirement that a class action be "superior to other available methods for fairly and efficiently adjudicating the controversy." The Article argues that courts must compare the superiority of a class action not only …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Of Dinosaurs And Birds: The Second Circuit’S “Forum Rule” As An Unwarranted Attack On Plaintiffs’ Employment Discrimination Class Action Attorneys’ Fee Petitions, Patrick F. Madden, Shanon J. Carson

Patrick F. Madden

No abstract provided.

Premature Burial? The Resuscitation Of Public Nuisance Litigation, Richard Faulk, John Gray

Richard Faulk

On Sept. 22, the U.S. Court of Appeals for the Second Circuit, in Connecticut v. American Electric Power Co., held that federal common-law nuisance suits can proceed against major greenhouse gas emitters. Nine days later, a federal trial court reached the opposite conclusion in another case. In this article, attorneys Richard Faulk and John Gray discuss these rulings, and the revival of public nuisance litigation.

Reunion In Salem: Updating The Mtbe Controversy, Richard O. Faulk

Richard Faulk

Concerned about groundwater contamination and the potential health effects of methyl tertiary butyl ether (MTBE), a gasoline additive used to curtail air pollution, several states have banned its use. Similarly, MTBE hus been the subject ofa great deal of litigation. And while the Energy Policy Act of 2005 did not ban MTBE outright, it eliminated the federal oxygenate requirement for gasoline, thereby making the additive unnecessary. But according to RichardFaulk and./ohrr Gray, the controversy surrounding MTBE is greatly exaggerated. Moreover, MTBE represents only about 11% of the dangerous chemicals in gasoline that leak from USE into groundwater. Banning MTBE and …

Armageddon Through Aggregation: The Use And Abuse Of Class Actions In International Dispute Resolution, Richard O. Faulk

Richard Faulk

A troubling and dangerous phenomenon has emerged onto the international litigation landscape. The system of justice understood and appreciated by citizens in most democratic states — one which guarantees individual plaintiffs and defendants their “day in court” — is increasingly being sidestepped by procedural rules that allow entrepreneurial lawyers to aggregate claims into massive controversies that are, for all practical purposes, untriable. Although these enormous cases arise in varying formats, they share a single intimidating characteristic: the designed imposition of enormous and intolerable risks which defendants cannot prudently accept by insisting on their “day in court” in a jury trial. …

Building A Better Mousetrap: A New Approach To Trying Mass Tort Cases, Richard O. Faulk

Richard Faulk

For many years, both state and federal courts have struggled with the extraordinarily difficult problems raised by mass tort litigation. In an effort to resolve these controversies, the courts have resorted to increasingly creative procedures -- with mixed results. Courts have tried class certification in various forms, consolidation on a "controversy by controversy" basis or on the basis of "common issues," and bellwether trials with smaller groups of plaintiffs selected by varying procedures. These creative techniques have been employed in the interest of achieving results and ending the controversies expeditiously. Unfortunately, in pursuing those goals, each technique has collided, in …

Determining Trial Type In Complex Toxic Tort And Environmental Cases, Richard Faulk

Richard Faulk

Generally, there are four trial options available for dealing with complex multi-party cases, although they can be blended or combined in a number of ways. They include: a conventional plenary trial for all plaintiffs and all defendants on all issues; one or more separate trials on issues, such as limitations or causation; "pilot" or "bellwether" trials for selected plaintiffs against all defendants on all issues; and class actions where the claims of class representatives are tried in a plenary fashion. This article examines these options and their relative benefits and disadvantages.