Overlapping class actions.

• Position: Federal Rules of Civil Procedure

The committee has been told repeatedly in a variety of forums, by both defense and plaintiff counsel, and without contradiction, that as Rule 23 is reformed to enhance judicial supervision of class counsel, the deliberateness of the certification decision, and the judicial review of settlements, an ever-growing number of cases will be filed in those state courts where this kind of supervision is perceived to be less demanding. This results often in multiple filings of multi-state diversity class actions in both federal and state courts. Yet this result is precisely the outcome that the class action device was designed to prevent.

The purpose of the class action device is to eliminate repetitive litigation, promote judicial efficiency, permit small claims to find a forum, and achieve uniform results in similar cases. But as our reporter has noted, "duplicative class litigation is destructive of just these goals.... Multiple filings can threaten appropriate judicial supervision, damage the interests of class members, hurt conscientious class counsel, impose undue burdens of multiple litigation on defendants, and needlessly increase judicial workloads."

The problems generated by overlapping, duplicative, and competing class actions have commanded the attention of many observers. According to the American Law Institute's 1994 Complex Litigation Project, the problems caused by multiple class actions are so pressing that "[w]e are in urgent need of procedural reform to meet the exigencies of the complex litigation problem." "Repeated relitigation of the common issues in a complex case unduly expends the resources of attorney and client, burdens already overcrowded dockets, delays recompense for those in need, results in disparate treatment for persons harmed by essentially identical or similar conduct, and contributes to the negative image many people have of the legal system." American Law Institute, Complex Litigation: Statutory Recommendations and Analysis (1984-1994) at 9.

Although the Federal Judicial Center's study focused on class action dispositions in only four federal districts over a period of two years, it found several illustrations of unresolved duplicating filings, pp. 14-16, 23-24, 78-79, 163-164 (Tables 5-7). The RAND study confirmed the seriousness of the problem. Part of this project involved intense study of ten class actions. In four of the ten, class counsel filed parallel actions in other courts. In five of the ten, other...