Transcript Recent Developments in Group Actions in the United States

Recent Developments In Group
Actions in the United States
Elizabeth Cabraser
Sara Gourley
Luanne Sacks
John Sherk
March 2, 2006
Agenda
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Recurring Issues In U.S. Class Action Cases
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Efforts To Address These Issues
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Litigation vs. Settlement
Statewide vs. Nationwide
Opt-in vs. Opt-out Classes
Attorneys’ Fees
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
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In re Phillips Petroleum Co. v. Shutts, 472 U.S.
797
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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”
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issue-specific choice of law
Why Does Choice of Law
Matter ?
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No federal consumer fraud or tort damages
statutes
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Each state legislates independently
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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
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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”
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Class Action Fairness Act - 28
U.S.C. § 1332
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“Federalizes” Interstate Class Actions
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2 main provisions:
Expands federal jurisdiction/removal
 Requires notification to state and federal
authorities of all proposed settlements
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Multiparty, Multiforum Trial Jurisdiction Act
(“MMTJA”) – 28 U.S.C. § 1369
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Federal jurisdiction requires:
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Minimal (not complete) diversity between adverse parties
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Single accident, discrete location, 75 deaths
The federal court must abstain from hearing such a
civil action if:
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The “substantial majority” of plaintiffs and the “primary
defendants” are citizens of same state, AND
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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
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Industry Specific Issues
Consumer Electronics
 Automobiles
 Tobacco
 Pharmaceutical/Medical Device
 Environmental
 Aviation
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Attorneys’ Fees
 Settlement
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Recent Developments In Group
Actions in the United States
Elizabeth Cabraser
Sara Gourley
Luanne Sacks
John Sherk
March 2, 2006