Still confronting the consolidation conundrum.

• Author: Marcus, Richard

"I think it unlikely that the class action will ever be taught to behave in accordance with the precepts of the traditional model of adjudication."

--Professor Abram Chayes (1976) (1)

"Class actions had their day in the sun and kind of petered out."

--Dean Paul Carrington, Reporter, Advisory Committee on Civil Rules (1988) (2)

"[The use of class actions is] transforming the litigation landscape....

Class actions are being certified at unprecedented rates, and they are involving a substantial [number], if not a majority, of all American citizens."

--Judge Paul Niemeyer, Chair, Advisory Committee on Civil Rules (1997) (3)

"Anyone listening to our opening statements [about class-action litigation] would think that we are talking about two different things. The wide differences of the views are astounding, but they happen regularly in the Judiciary Committee."

--Rep. John Conyers (2012) (4)

INTRODUCTION

In 1995, I reacted to then-current debates about handling the phenomenon of mass litigation, and in particular the work of the American Law Institute's Complex Litigation project, by suggesting that we were finally confronting the consolidation conundrum. (5) I applauded the effort to bring consolidation of separate cases into some conformity with class-action treatment, particularly in terms of when consolidation was appropriate and policing of the handling of the aggregate litigation that would result. But I also predicted that the statutory recommendations emerging from the ALI Project were unlikely to be adopted by Congress. (6)

Much has happened since then. In 1996, the Advisory Committee published a set of possible amendments to Rule 23 that included some revisions to class certification standards under Rule 23(b)(3) and the introduction of a new Rule 23(b)(4) to authorize certification solely for settlement. (7) Those proposals produced a lot of controversy and a lot of comment; eventually Judge Niemeyer had the commentary published in four volumes that he brought with him when he testified before Congress as quoted above. (8) In 1997 and again in 1999, the Supreme Court made important decisions on mass tort class actions. (9)

In 2003, Rule 23 was amended to deal with procedures attending class certification rather than the criteria for certification. (10) In 2005, the Class Action Fairness Act (CAFA) (11) expanded federal-court jurisdiction for class actions asserting claims based on state law and made them subject to federal class-action rules and decisions. (12)

In 2009, the ALI published its Principles of the Law of Aggregate Litigation, (13) which addresses both class actions and other forms of aggregation.

In 2010 and 2011, the Supreme Court decided an exceptional number of class-action cases, (14) and it seems that more are on the way. (15) Certainly these decisions do not reflect wholehearted enthusiasm for class action, (16) and some see them contributing to "the decline of class actions." (17) At least one piece of legislation has already been introduced in Congress to undo the effects of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes (18) and facilitate combined litigation in employment discrimination cases. (19)

On June 1, 2012, as suggested by the quotation above from Rep. Conyers, the Subcommittee on the Constitution of the House Judiciary Committee held a hearing focusing on the impact of CAFA and addressing more generally a variety of issues about class-action practice. (20)

Finally, in early 2012 the Advisory Committee on Civil Rules created a Rule 23 Subcommittee to consider whether some further amendments to the class-action rule might warrant serious consideration. (21)

Though much has changed, then, much remains the same--aggregation of litigation is still a hot topic. Beyond a doubt, the field is rife with issues that could be addressed. The Advisory Committee's initial review identified well over a dozen that might call for further consideration of possible rule changes. (22) The articles in this federal courts issue of the Notre Dame Law Review focus on several of the most challenging contemporary questions about aggregate litigation, not limited to class actions. I write here to offer some ruminations about how aggregation controversies have evolved since 1995, and why we are still confronting the consolidation conundrum. I hope that these thoughts will provide a context for the other contributions to this issue. In particular, I will focus on three topics: (1) the basic challenge that underlies all litigation aggregation, not just class actions or multidistrict litigation (MDL) proceedings; (2) the distinctive role litigation has in the U.S. (often called American Exceptionalism) and how that affects our attitudes toward collective litigation here; and (3) the abiding perils that attend the decision whether to authorize combined litigation.

1. THE BASIC AGGREGATION CHALLENGE

   I begin--as I did in 1995--emphasizing that aggregation can present challenges in many settings. In each of them, the key question is whether the common features justify combined litigation. In each of them, combining claims presents risks as well as advantages. The larger the combination, the larger the challenges, but perhaps also the larger the benefits. That's the aggregation challenge.

   It's not just class actions that can cause aggregation heartburn. Class actions do, clearly, get the most press. Class actions are the one procedural tool that I know entering law students will recognize on the first day of civil procedure. I ask them whether they've ever heard of the work product doctrine, or interpleader, or removal, and (except for a few former paralegals) the answer is no. But when I ask them whether they have heard of class actions, all or almost all say yes. They've even heard about class actions in Hollywood movies.

   Lawyers and the legal academy have long since learned that class actions are not the only big game in town. More than twenty years ago Professor Silver was comparing class actions and consolidations. (23) Indeed, with the growing challenges facing those who bring class actions, in some instances MDL or other combined treatment is more inviting. (24) Even the general press has gotten the hint. For example, in 2010 a Wall Street Journal article noted that "[i]n recent years, thousands of suits filed across the U.S. in some of the biggest product liability and personal injury cases--from harmful diet drugs to smelly Chinese drywall--each have been consolidated into 'multidistrict litigation' cases." (25) A National Law Journal article reported:

   The number of cases winding their way through the multidistrict litigation (MDL) process across the country has more than doubled during the past decade, inundating both the MDL panel, which decides where those cases should be consolidated, and the federal judges who ultimately end up handling discovery in such complex cases. (26) The interaction of the MDL process and class actions can further complicate the already-complicated challenges of modern mass litigation. Thus, in testimony before Congress in June 2012, both plaintiff and defendant lawyers decried the results for this interaction. A leading plaintiff lawyer urged that the combination of CAFA's increase in federal-court jurisdiction and the near certitude that the MDL panel would transfer class actions that might overlap to a single judge for centralized pretrial handling has meant that state-wide class actions that might be certified if they were handled separately in state court are denied certification by the federal MDL court because the combination of many of them causes insuperable management difficulties (27) A leading defense lawyer complained at the same hearing about the refusal of some MDL transferee .judges to decide class-certification issues, (28) perhaps leaving those for resolution later after the cases are returned to their home districts, and seemed disappointed that some judges were not doing what the plaintiff lawyer who testified protested that too many were doing. In this setting, Professor Bradt's contribution, providing a careful analysis of the choice-of-law issues that result from "direct filing" in MDL proceedings, (29) underscores the complexities that aggregate litigation can produce.

   But MDL processes are not the only non-class action focus of concern.

   The Class Action Fairness Act itself included in its provisions a "mass action," which it defined as "any civil action ... in which monetary relief claims of 100 or more persons are proposed to be tried jointly...." (30) As CAFA's mass action concept suggests, the starting point for the consolidation debate is the simplest combination decision--permissive joinder of parties--what I have called the "aggregation tension." (31)

   The courts have been calibrating that tension for quite some time, and in general they seem to have become more exacting in their calibration. The calibration begins with the simplest of combinations--say, the joinder of two unrelated plaintiffs suing for injuries sustained in an auto crash. It is easy to find differences between them, and to elaborate on the basic situation to complicate the picture. It is easier, for example, to justify the combination if both were passengers in a vehicle hit by the defendant than if they were in separate vehicles that defendant hit a block apart. It would be easy to conclude that such a combination makes sense if both plaintiffs object to largely the same driving behavior of defendant--say, speeding, texting while driving, etc. (32) And that would seem to fit readily within the permissive joinder provisions of Rule 20(a), which authorizes joinder by plaintiffs who assert rights "arising out of the same transaction, occurrence, or series of transactions or occurrences." (33)

   The key problem even in the simple multiple collision example is to determine whether such a "series" has been alleged. In one sense, there was a...