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Complex Litigation

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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.

The Implementation of “Balanced Diversity” Through the Class Action Fairness Act

Jacob R. Karabell

In 2005, Congress passed the Class Action Fairness Act (CAFA), which gave federal courts jurisdiction over class actions with both minimal diversity and an amount in controversy exceeding $5 million. In the wake of CAFA, federal courts have struggled to formulate appropriate standards of proof when the defendant removes a class action to federal court and the plaintiff seeks to remand the case to state court. This Note argues that if a defendant looks to remove such a class action, it should have to demonstrate that the amount in controversy is met by a preponderance of the evidence—regardless of whether the plaintiff’s complaint requests a specific amount of damages. In addition, if a plaintiff wants to utilize either of CAFA’s “federalism exceptions” to federal jurisdiction, it should have the benefit of a rebuttable presumption that a class member’s state of residence is her state of citizenship. This two-part approach comes closest to effectuating the “balanced diversity” that Congress intended in CAFA.

Class Certification in the Age of Aggregate Proof

Richard A. Nagareda

Few pretrial motions in our civil justice system elicit as much controversy as those for the certification of class actions. This Article offers the first account of the challenges courts face today in light of an important series of federal appellate decisions that direct the district courts to resolve competing expert submissions on the class certification question during the pretrial stage, even when the dispute overlaps with the merits of the litigation.

Across broad swaths of class action litigation today, plaintiffs rely on aggregate proof—evidence, typically of an economic or statistical nature, that presupposes the cohesiveness of the aggregate unit for litigation and, from that perspective, seeks to reveal quantitatively a common wrong attributable to the defendant. Debates over the proper role of aggregate proof arise in what otherwise might seem disparate disputes over class certification across securities, antitrust, Racketeer Influenced and Corrupt Organizations Act (RICO), and employment discrimination litigation. Too often, however, courts have taken at face value the evidentiary form that aggregate proof assumes in motions for class certification.

This Article urges a new conceptualization of the challenges in class certification facing courts today. The real question about aggregate proof in class certification is not one that speaks to the relationship between the court and the factfinder in the (usually hypothetical) event of a class-wide trial. Rather, the institutional relationship that really matters is the one between the court and the legislature as expositors of governing law. Properly understood, aggregate proof frequently offers not so much a contested view of the facts but, more fundamentally, a contested account of governing law—one eminently suited for judicial resolution and appellate correction de novo, without concern about possible intrusion into the role of the factfinder.

This Article exposes how renewed attention to the judicial duty to “say what the law is” can lend coherence to the law of class certification, offering the first extended assessment of such controversial recent litigation as the civil RICO class action against the tobacco industry in connection with its marketing of light cigarettes and the employment discrimination class action—the largest certified class in history— against Wal-Mart concerning the pay and promotion of its hourly female employees. The Article concludes by relating the analysis of class certification tolarger changes in the civil justice system that seek in various ways to address the reality of settlement, rather than trial, as the endgame of litigation.

Aggregate Reliance and Overcharges: Removing Hurdles to Class Certification for Victims of Mass Fraud

Shawn S. Ledingham, Jr.

Victims of consumer fraud often struggle to bring their claims as nationwide class actions under traditional state fraud laws due to (1) the application of many states’ laws to potential class members’ claims and (2) the fact that fraud claims generally raise a significant individual factual issue—whether the claimant personally relied on the defendant’s misrepresentation. The civil remedy provisions in RICO offer an attractive alternative. RICO overcomes the first hurdle by providing plaintiffs with a single federal law under which to file suit. This Note demonstrates that RICO allows plaintiffs to overcome the second hurdle as well. Rather than showing that they incurred harm when they purchased products in reliance on a misrepresentation, plaintiffs can achieve class certification by framing their injury as a harm common to all purchasers of a product: specifically, an increase in the price of the product due to artificially increased demand. Recently, several classes have moved successfully for certification using this approach. This Note provides a theoretical framework to justify this method. Rather than committing the same error as most courts and commentators by viewing this approach as an extension of the fraud-on-the-market presumption of reliance from securities fraud cases, I argue that there is no need to presume reliance because the Supreme Court’s holding in Bridge v. Phoenix Bond & Indemnity Co. makes clear that individual, personal reliance is not necessary to prove causation in RICO claims. Instead, plaintiffs can satisfy RICO’s causation element through statistical analyses that prove aggregate reliance—reliance on the fraud by a large enough number of individuals to increase the price of the product above the price that it would have been absent the fraud. As all purchasers of the product experience the same price differential, the statistical analyses provide common proof of causation of identical harm, eliminating problematic individual inquiries and opening the door to certification of nationwide consumer fraud class actions.