Here is part two of my takeaways from the seminar.  I’ll focus here on appeals under Rule 23(f) and CAFA, the new ALI Principles of the Law of Aggregate Litigation, and federal constitutional issues in state court class actions. 

  • Rule 23(f) and CAFA Appeals:  Judge Southwick of the Fifth Circuit made some helpful suggestions here.  First, parties might want to ask the district court to explain why an appeal might be helpful, as the advisory committee notes to Rule 23(f) suggest, and analogous to what is done in § 1292(b) interlocutory appeals.  Second, he stressed (although it comes as no surprise) that the most important section of petitions seeking review is the section on why review should be granted.  The fact that an unresolved issue is likely to arise in other cases is often more important than the likelihood of an error below, although most cases where review is granted result in reversal.  Third, the 60-day deadline to issue a decision under CAFA puts pressure on the court of appeals.  One way they might deal with that would be to leave the question of whether review should be granted as an open question until after briefing and argument on the merits (since the 60-day time period does not start running until review is granted).
  • The New ALI Principles of the Law of Aggregate Litigation:  Judge Carolyn Kuhl of the California Supreme Court, who was on the ALI drafting committee, talked about the ALI’s new Principles of the Law of Aggregate Litigation.  Everyone who does class action and mass action work should study them.  The Supreme Court cited them with approval in Wal-Mart and Smith v. Bayer.  Several important areas are:  (1) the ALI opines that issues classes under 23(c)(4) are appropriate where they materially advance the resolution of cases and are superior to other alternatives, but the issue(s) must not be intertwined with other issues that would need to be litigated in individual cases; (2) the ALI recommends that Rule 23 be amended to require court approval when a putative class action is dismissed or settled before certification, and suggests that notice to the putative class might be appropriate (I think this is inappropriate and impractical; it would unnecessarily complicate resolution of frivolous class actions, and who would pay the cost of such notice?); (3) the ALI recommends that attorneys’ fees be calculated as a percentage of the actual value received by a class in a claims-made settlement, not the projected value if everyone in the class made a claim, which has been implemented in California state court (I think this is a very good idea).
  • Federal Due Process Issues in State Court Class Actions:  Paul Clement, who represented Philip Morris in its certiorari petition in Philip Morris v. Jackson (see my prior blog post on that), believes this is an issue on which certiorari will be granted in the relatively near future.  He suggested that certiorari might not have been granted in Jackson because the state appellate court did not sufficiently grapple with the due process issue and the issue may not have been postured in a way that appealed to at least four justices.  He stressed that the Court is much more interested in reviewing legal issues than correcting even outrageous errors below.  What does a defendant need to do to have a better chance of getting the Court to consider whether state court class action rules (and the application thereof) meet federal due process standards?  Clement suggested making the federal due process issue a lead or central argument to the state appellate and supreme courts.  He said the best chance will come where the state supreme court has squarely addressed the federal due process issue.