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Complex Litigation

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The Value of a New Judgments Convention for U.S. Litigants

Sarah E. Coco

A new Judgments Convention creates common, binding rules for the recognition and enforcement of foreign judgments among countries that are party to the Convention. This Note considers what such a Convention would have to offer U.S. litigants. It starts by examining a common scholarly view—that U.S. judgments are unreasonably difficult to enforce abroad, in comparison to the relative ease of recognizing and enforcing foreign judgments in the United States. It argues that this view is out of date, due to improvements in three areas that have traditionally prevented the recognition of U.S. judgments—jurisdiction, public policy concerns about punitive damages, and reciprocity. It then considers the Convention in light of the knowledge that U.S. judgments have become easier to enforce abroad and argues that the Convention would still offer important benefits to U.S. litigants, both by making the rules for recognition and enforcement more predictable and transparent, and by “locking in” existing improvements in foreign law. It concludes by arguing that U.S. litigants would benefit if the United States joined the Convention. 

Rejecting the Class Action Tolling Forfeiture Rule

James J. Mayer

This Note analyzes a circuit split over the application of the Forfeiture Rule, which holds that plaintiffs forfeit American Pipe tolling when they file individual actions before class certification has been resolved in the underlying putative class action. This Note rejects the Forfeiture Rule and argues that it misunderstands the purpose and rationale of American Pipe and class action tolling. Given the increased uncertainty facing class action plaintiffs, the policy and equity interests that motivated courts to adopt the Forfeiture Rule now require courts to abandon it. This is the first article to analyze the Forfeiture Rule’s history and evolution, to explore the impact of changes in class action jurisprudence on statutes of limitations on the Forfeiture Rule, and to argue against the continued viability of the Forfeiture Rule across the federal judicial system.

Local Government Plaintiffs and the Opioid Multi-District Litigation

Morgan A. McCollum

In late 2017, the U.S. Judicial Panel on Multidistrict Litigation ordered the consolidation of a few hundred cases pending around the country against opioid manufacturers and distributors into a Multi-District Litigation (MDL) in the Northern District of Ohio. Today, the Opioid MDL consists of over 1900 opioid-related cases brought primarily by states, cities, counties, and other local entities, and that number is growing weekly. Strikingly, these lawsuits are not, in their main, seeking damages for injuries to individuals. Rather, they are seeking compensation for the cost of public services needed to address the consequences of addicted communities, ranging from emergency response capabilities to rehabilitation services. The Opioid MDL is the first mass litigation to involve this number of local government plaintiffs, and although this Note predicts that the Opioid MDL, like most MDLs, will resolve in an aggregate settlement, the presence of local governments poses a unique problem for achieving that outcome. Mass litigation can only result in settlement if the settlement provides some guarantees to the defendants of “global peace”—meaning that the settlement forecloses all, or close to all, current and future litigation against the defendants—and any settlement arising out of the Opioid MDL will have to contend with resolving the claims of around 33,000 city, township, and county governments. Even though only a fraction of these local governments are currently part of the Opioid MDL, their presence leaves open the threat that absent localities will sue later, undermining the likelihood or value of any settlement. This Note discusses the various ways that a settlement could be structured with local governments by looking to prior mass tort litigation and applying the settlement tactics used in those cases to the Opioid MDL. In doing so, this Note proposes that even though the players in this MDL are unique, the solutions are not.

Statutory Interpretation in a Choice of Law Context

Lindsay Traylor Braunig

A court’s method of decisionmaking regarding interstate choice of law affects forum shopping and class action strategy. Rather than read vaguely worded state statutes with the expectation of discovering a legislative intent with respect to extraterritorial application, as the Restatement (Second) of Conflict of Laws suggests, courts should employ a rebuttable presumption that the legislature has not considered the choice of law issue. When a court is faced with an interstate choice of law question in which one potentially applicable law is a statute of the forum state, in the absence of explicit statutory language regarding how a choice of law analysis should be conducted for the forum statute in question, the court should decide which law to apply not by attempting to divine some nonexistent legislative intent but by resorting to the general choice of law principles utilized in the forum state.

Finality in Class Action Litigation: Lessons from Habeas

William B. Rubenstein

A class action can only bind class members who are “adequately represented,” and thus a class action court necessarily determines representational adequacy. But should class members who were not an active part of that proceeding be able to relitigate adequacy in a collateral forum at a later date so as to evade the binding effect of the class judgment? Courts and scholars have generated a bipolar response to that question, with one side arguing that full relitigation is required by the constitutional nature of the question and the other insisting that no relitigation is permitted because of the issue-preclusive effect of the class court’s holding. Despite the richness of this debate, myriad specific questions about the availability, substance, and procedural details of the relitigation opportunity remain unexamined. In this Article, Professor Rubenstein expands the conversation outward by comparing class action law’s approach to relitigation of adequacy of representation with habeas corpus’s approach to relitigation of ineffective assistance of counsel claims in criminal cases. Using two recent, seemingly unconnected Supreme Court cases—one from each field—as case studies, Professor Rubenstein explains how these cases in fact raise remarkably similar questions. Specifically, the comparison reveals that habeas provides a relatively clear, rule-based system that specifies when—and according to what procedural rules—relitigation is available. Professor Rubenstein concludes by arguing that there are lessons for class action law in habeas’s approach: a method for considering when relitigation is appropriate that avoids the extremes of either “always” or “never”; a rule system that helps identify issues (such as substantive standards, degrees of deference, burdens of proof, and defaults) that have yet to be carefully examined in class action law; and a template for balancing the competing policy concerns at issue. Without defending current habeas doctrine, and without pretending that habeas and class actions are overtly similar, the Article nonetheless demonstrates that class action law’s relitigation problem can learn something through a close look at criminal law’s relitigation solutions.

Valuing the Federal Right: Reevaluating the Outer Limits of Supplemental Jurisdiction

Neel K. Chopra

The federal circuit courts are divided on the question of whether the federal courts’ supplemental jurisdiction power encompasses permissive state law counterclaims that lack an independent basis of federal jurisdiction. By analyzing the arguments set forth in various circuit court decisions, this Note develops a new approach for assessing the availability of supplemental jurisdiction over permissive state law counterclaims. It argues that the federal courts may assert jurisdiction over state law counterclaims only when the federal interest supports hearing those state law claims.

How to Fix the Inconsistent Application of Forum Non Conveniens to Latin American Jurisdiction—and Why Consistency May Not Be Enough

Rajeev Muttreja

Though the jurisdiction of US courts is broad enough to give many foreign plaintiffs the ability to file suit here, the doctrine of forum non conveniens (FNC) enables a court to dismiss a case because another forum—typically the plaintiff’s home forum—would be more convenient for it. FNC dismissal is warranted only if the alternative forum is adequate, available, and more convenient for the case. Often, the alternative forum’s availability is a nonissue. However, many Latin American countries subscribe to a system of preemptive jurisdiction, which extinguishes their courts’ jurisdiction once a case is filed elsewhere. This system would seem to block the use of FNC by making the alternative forum unavailable, but U.S. courts have not treated this issue consistently. Some courts have reached divergent results using the same evidence, and some have avoided the inquiry altogether by making dismissals conditional. This Note analyzes and explains courts’ inconsistent treatment of Latin American rules of preemptive jurisdiction by illustrating certain subtle but crucial doctrinal missteps. The Note argues that FNC doctrine requires courts to analyze a foreign forum’s availability from that forum’s perspective while also paying heed to the movant’s burden of persuasion. Yet this doctrinally honest approach could preclude courts from using FNC to mediate between important policy concerns, as is usually possible. This Note identifies these competing concerns and proposes a possible solution.

Ethical Rules of Conduct in the Settlement of Mass Torts: A Proposal to Revise Rule 1.8(G)

Katherine Dirks

The American Bar Association’s widely adopted Model Rule 1.8(g) requires that attorneys handling aggregate settlements obtain the consent of each client before the settlement is finalized. This method is well suited to cases involving small-scale tort litigation with few parties, but Rule 1.8(g) does not meet the complex demands of mass torts, which can involve thousands of plaintiffs represented by a handful of law firms. Rule 1.8(g) creates a procedural obstacle to the efficient settlement of mass torts while obfuscating the ethical role of plaintiffs’ counsel in these settlements. This Note proposes a modified Rule 1.8(g), drawing upon a successful procedure used in asbestos bankruptcies. By incorporating these mechanisms from the Bankruptcy Code into the Model Rules of Professional Conduct, an alternative Rule 1.8(g) would reduce the costs of mass tort settlement, improve the clarity of the aggregate settlement rule, and protect clients from ethical misconduct by their attorneys.

National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation

Laura G. Dooley

Procedural evolution in complex litigation seems to have left the civil jury behind. Reliance on aggregating devices, such as multidistrict litigation and class actions, as well as settlement pressure created by “bellwether” cases, has resulted in cases of national scope being tried by local juries. Local juries thus have the potential to impose their values on the rest of the country. This trend motivates parties to forum-shop, and some commentators suggest eliminating jury trials in complex cases altogether. Yet the jury is at the heart of our uniquely American understanding of civil justice, and the Seventh Amendment mandates its use in federal cases. This Article makes a bold proposal to align the jury assembly mechanism with the scope of the litigation: In cases of national scope, juries would be assembled from a national pool. This proposal would eliminate incentives for parties to forum-shop, and it would make the decisionmaking body representative of the population that will feel the effects of its decision. The Article argues that we would see greater legitimacy for decisions rendered by a national jury in national cases. Moreover, it argues that geographic diversification of the jury would enhance the quality of decisionmaking. Finally, national juries would preserve the functional and constitutional values of citizen participation in the civil justice system.

The Choice-of-Law Problem(s) in the Class Action Context

Genevieve G. York-Erwin

Numerous scholars have noted that choice of law in the federal courts is a mess; this is particularly true in the damage class action context. Unfortunately, proposed solutions address only half of this “choice-of-law problem”: They focus either on removing the barriers choice of law creates for certification or on preserving choice of law’s traditional allocation of regulatory authority among the states, but no proposal has taken up both issues. The time has come to address this problem in full. Given the current climate of political and economic change, Congress should amend the Class Action Fairness Act of 2005 (CAFA) to revitalize the class action as a meaningful regulatory mechanism while still deterring the state court excesses that spurred CAFA’s enactment. My two-pronged proposal would do exactly that—facilitate certification of meritorious consumer cases while ensuring fair and effective allocation of regulatory authority between interested states.