Volume 71, Number 1

April 1996


Samuel Estreicher

Federal Class Actions After 30 Years

Does the experience of thirty years suggest a need to reexamine the legal framework for class action litigation? Consider some of the developments during the intervening period that might have been beyond the prescience of the framers of the current version of Rule 23:

  • the use of the (b)(1) category to certify nationwide classes without notice or opt-out rights because of a concern that a defendant's assets would be insufficient to satisfy all projected claims;
  • the availability of individualized recoveries in civil rights litigation also seeking classwide injunctive relief under the (b)(2) category, again without notice or opt-out rights;
  • the enactment in 1968 of the Multidistrict Litigation Act, enabling federal courts to consolidate suits across the country into one proceediing for pretrial purposes, including motions for summary judgment and nationwide settlements;
  • the possible certification of (b)(3) class actions not only in single-event mass-disaster cases but also in "mass torts" like asbestos, silicone gel breast implants, and nicotine-dependency that often present a range of claims arising from exposure to toxic substances, including claims of present injury and claims of enhanced risk unaccompanied by present symptoms;
  • the emergence of settlement-only class actions, often involving in-kind relief rather than cash distributions to class members;
  • the growing perception on the part of federal judges that burgeoning dockets require a greater receptivity to techniques for aggregating claims and consolidating lawsuits even in the "mass tort" context; and
  • the development of alternatives to federal class actions such as separate suits utilizing the doctrine of offensive nonmutual issue preclusion, and state-court actions providing a nationwide forum for class claims.

The papers in this volume provide a valuable starting point for assessing whether these (and other) changes in the legal landscape make out a case for reform.