The Pound Civil Justice Institute is dedicated to helping ordinary citizens obtain justice by working with judges, lawyers, legal educators, and the public. The Pound Institute’s latest report focuses on aggregate litigation, and includes academic papers by prestigious professors and commentary by the panelists at a judicial forum held in July 2019. One hundred and twenty-two judges from 30 states attended the forum.
Aggregate litigation report and discussion
The formal conference was titled, “Aggregate Litigation in State Courts: Preserving Vital Mechanisms.” Aggregate litigation is a mechanism for combining numerous lawsuits in one overall lawsuit and/or under the jurisdiction of one judge or one court. As one judge explained at the conference, “One of the primary motivations behind aggregate or class litigation is to promote fairness. If plaintiffs are bringing a claim against a giant behemoth corporation to right a $10 wrong, that just won’t happen unless we allow aggregate or class certification.”
The report and discussion encompassed a range of topics including the following issues prepared by Professor D. Theodore Rave of the University of Houston Law Center:
- The expanding role of federal courts in aggregate litigation. The enactment of the federal Class Action Fairness Act (CAFA) has helped to expand federal litigation over aggregate litigation. CAFA expands the definition of diversity jurisdiction facilitating the removal of state cases to federal court. In federal court the requirements for achieving class-action certification can be more difficult than in state court. As a result of the CAFA, lawyers for plaintiffs are tying to fit their claims into a CAFA exception – such as by:
- Limiting the amount in controversy
- Dividing classes into smaller groups
- Bringing class actions as counterclaims
- The contraction of the role of state courts. The role of state courts has been reduced due to various US Supreme Court rulings in a broad range of litigation areas including but not limited to aggregation. For example:
- In Daimler A.G. v. Bauman, the Supreme Court “rejected jurisdiction over a defendant with very substantial business ties to the forum state.”
- In Bristol-Myers Squibb v. Superior Court, the Supreme Court “rejected a California court’s assertion of specific jurisdiction over non-resident plaintiffs in a nationwide mass tort action of just under 600 plaintiffs, filed in state court.” The plaintiffs had asserted that they suffered injuries and death due to ingesting Plavix, a blood-thinning medication.
- Open aggregate litigation questions. Many issues in aggregate litigation are unresolved. Examples of open issues discussed in the report and the forum included:
- How closely the plaintiffs’ claims must be related to the forum state?
- Whether a class action may be maintained only where a state can exercise general jurisdiction over the defendant?
- The utility of “settlement classes (in which defendants consent to jurisdiction)
- Whether corporate registration statutes can confer general jurisdiction?
The forum also included conversations on the following topics:
- Serial objectors. These are basically people who file objections so they can force plaintiff’s counsel to pay them so that the litigation isn’t held up. Some serial objectors can tie up class action cases for years even though they don’t have a meritorious objection.
- Rethinking Multijurisdictional Coordination of Complex Mass Torts. As a result (of often having cases in both federal and state courts) a typical mass tort case “often has several courts with power over various plaintiffs, creating risks of duplication, non-uniformity, and strategic manipulation by the parties.”