Recent Developments In Group Actions in the United States

Elizabeth CabraserSara GourleyLuanne SacksJohn Sherk March 2, 2006

Agenda Recurring Issues In U.S. Class Action Cases

Litigation vs. Settlement Statewide vs. Nationwide Opt-in vs. Opt-out Classes Attorneys’ Fees

Efforts To Address These Issues

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

In re Phillips Petroleum Co. v. Shutts, 472 U.S. 797 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” issue-specific choice of law

Why Does Choice of Law Matter ? No federal consumer fraud or tort damages

statutes

Each state legislates independently 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 Country State

MultiDistrict Litigation (“MDLs”)

MDL statute centralizes multiple federal cases in one forum

Coordinates pretrial litigationMechanism to aggregate claims even

absent class actionsNo statute requires state courts to

coordinateSome states have intra-state “MDLs”

Class Action Fairness Act - 28 U.S.C. § 1332

“Federalizes” Interstate Class Actions

2 main provisions:Expands federal jurisdiction/removalRequires notification to state and federal

authorities of all proposed settlements

Multiparty, Multiforum Trial Jurisdiction Act (“MMTJA”) – 28 U.S.C. § 1369

Federal jurisdiction requires:

Minimal (not complete) diversity between adverse parties

Single accident, discrete location, 75 deaths

The federal court must abstain from hearing such a civil action if:

The “substantial majority” of plaintiffs and the “primary defendants” are citizens of same state, AND

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

Industry Specific IssuesConsumer ElectronicsAutomobilesTobaccoPharmaceutical/Medical DeviceEnvironmentalAviation

Attorneys’ Fees Settlement

Recent Developments In Group Actions in the United States

Elizabeth CabraserSara GourleyLuanne SacksJohn Sherk March 2, 2006