Copyright 1999 Federal News Service, Inc.
Federal News Service
MAY 4, 1999, TUESDAY
SECTION: IN THE NEWS
LENGTH:
5601 words
HEADLINE: PREPARED STATEMENT OF
STEPHEN
G. MORRISON
BEFORE THE SENATE JUDICIARY COMMITTEE
ADMINISTRATIVE OVERSIGHT AND THE COURTS SUBCOMMITTEE
SUBJECT - S. 353:
THE CLASS ACTION FAIRNESS ACT OF 1999
BODY:
Thank you for this opportunity to speak to you today about the merits of
S. 353, the Class Action Fairness Act of 1999. This important legislation at
least partially addresses one of the most serious problems raised by class
action litigation in our nation's legal system, and I therefore urge the members
of this Subcommittee to give their careful consideration and support to this
legislation.
Before spelling out the reasons for my support of this
legislation, let me tell you about the multiple perspectives that I bring to
this subject. Indeed, I have seen the subject matter of this legislation - class
actions - "up close and personal" from four very distinct vantage points. First,
I am a partner and practitioner trial attorney with the law firm of Nelson,
Mullins, Riley & Scarborough in Columbia, South Carolina. In that role, I
have had considerable involvement with the adjudication of class action
litigation. Second, I am the General Counsel of Policy Management Systems
Corporation, a publicly traded (NYSE) technology computer systems and technology
services company. Third, I currently serve as Board Chairman of the Lawyers for
Civil Justice (LCJ), a national coalition of the leading corporate counsel and
defense bar organizations. Finally, I recently served as President of the
Defense Research Institute, an organization of 21,000 lawyers defending civil
cases in America's civil courts every day. My firm which has over 200 lawyers in
North Carolina, South Carolina, and Georgia has been involved in defending
dozens of state and federal class actions. My own personal experience in
handling state and federal class actions involving both national and "local"
issues and classes in managing multidistrict litigation forms the primary basis
for my testimony.
I. The Number Of Class Actions Has Increased
Exponentially.
When it comes to class actions, there may be room for
legitimate debate on a lot of issues. But there is no room for dispute on a key
point -- over the past several years, the number of putative class action
lawsuits filed has skyrocketed. I have seen that phenomenon in my own legal
practice. I have seen that phenomenon as a general counsel, both in dealing with
the legal docket of my company and in corresponding with fellow general counsels
of other companies. And I have seen that phenomenon in my work with Lawyers for
Civil Justice, whose members have spent many hours discussing and analyzing the
burgeoning "class action problem." Personally, I have experienced the explosive
increase in class action suits through the over fifty class action cases
recently or currently handled by my firm; multiple state court class action
cases filed against Policy Management Systems Corporation over the cost of
photocopying hospital and other medical records; and the alarming increase in
state court class actions filed against corporate members of Lawyers for Civil
Justice.
There's a lot more than just anecdotal evidence of this trend. Both
this Subcommittee and its House counterpart held hearings last year in which
ample evidence of the class action tidal wave was supplied. For example, the
record of those hearings reflect statements from the Federal Judicial
Conference's Advisory Committee on Civil Rules observing that over the past few
years, U.S. companies have experienced 300% to 1,000% increases in the number of
purported class actions filed against them.1 And a study by the highly regarded
RAND Corporation confirms this trend.2
Let me also observe that it is not
only the number of these cases that has grown the size of those cases has also
grown. It is not unusual for the proposed classes in these cases now to
encompass of millions of Americans. And not surprisingly, with the number of
class members growing in the average case, the monetary demands are growing as
well. Thus, it is not unusual for a company to be served with a class action
lawsuit seeking damages of a billion dollars or more.
This dramatic increase
in the number of state court class actions and the size of the awards being
sought is puzzling to say the least. Obviously, it is not attributable to any
radical change in corporate behavior. I see no evidence that our nation's
business leaders suddenly lost their moral compass, such that it is rampant
corporate wrongdoing that is prompting these lawsuits. Instead, I think it is
clear that the explosion of class action filings can only be attributed to the
fact that certain members of the plaintiffs' bar have discovered that some of
our state courts can be a fertile playing field for class litigation.
B. The
Class Action Device Is Being Abused.
Given the immense stakes involved in
nearly all class actions, one might think that these class actions would
generally be filed and litigated in the federal district courts. After all, a
core function of the federal courts is to adjudicate claims between the citizens
of different states that involve substantial amounts of money. But there is
compelling evidence that the recent growth in the number of class actions is
primarily a state court phenomenon. The RAND Report notes that the "doubling or
tripling of the number of putative class actions" has been "concentrated in the
state courts.3
The reason for this explosion of state court class actions is
simple. State courts in a number of jurisdictions have exhibited a relatively
lax attitude toward class action lawsuits -that is, many local courts are
willing to certify for class treatment cases that do not meet the basic,
generally accepted class action requirements.4 Not surprisingly, some members of
the class action plaintiffs' bar have seized this obvious opportunity. They have
taken their lawsuits to state courts that are less likely to exercise the
rigorous case management necessary to ensure that all parties (including unnamed
class members) receive due process. Having discovered an open door in state
courts, plaintiffs' counsel are filing class action lawsuits that they would
never have seriously considered bringing a few years ago.
In interviews for
the RAND Report, many attorneys (including some plaintiffs' counsel), observed
that "too many non-meritorious (class action lawsuits) are (being) filed and
certified" for class treatment.5 As a result, U.S. corporations (both large and
small) are being forced to expend substantial resources defending an onslaught
of cases, most of which do not come close to satisfying the class action
prerequisites. By readily obtaining certification of huge classes in state
courts, plaintiffs' attorneys are able to create enormous financial exposure and
to thereby force settlements of cases that otherwise would not be taken
seriously.
But corporations are not the only victims here. Class actions are
supposed to be brought on behalf of class members - usually consumers. But in
the class actions we are seeing today, class members are the forgotten
participants. No one checks to see if the putative class members really want to
have their claims asserted in a class action. No one asks the class members how
or where they wish their claims to be asserted. No one confers with class
members to find out they wish to have their claims litigated. And most
importantly, no one obtains input from class members about how they wish to have
their claims settled (if at all). In short, consumers' claims are being used by
attorneys as business ventures. Consumers have little or no control over how
their claims are being used. Thus, not surprisingly, they exercise little or no
control over what happens to their claims.
1. Defendants' Due Process Rights
Are Being Ignored.
The record shows that many state courts do not
give a fair shake to either class action defendants or the members of the
putative classes - only class counsel are benefited. The state court abuses of
the class action device have become open and notorious. As defendants in state
court class actions, U.S. companies are being denied fundamental due process
rights. Let me describe a few types of problems defendants commonly incur in
these courts.
Some state courts ignore the due process rights of
out-of-state corporate defendants. In these jurisdictions, the defendant is not
afforded a fair opportunity to contest the claims brought against it. The most
outrageous example of this is the "drive-by class certification" in which a
state court judge grants plaintiffs' motion to certify his claims for class
treatment before the defendant even has a chance to respond to the motion (or,
indeed, in some instances has even been served with the complaint).
For
example, I noted in the record of the House hearings last year discussion of a
lawsuit filed against a major car manufacturer in a Tennessee state court.6
Plaintiffs filed several inches of documents with their complaint. Astoundingly,
by the time the court closed on the very day that the action was filed, the
judge had entered a nine- page order granting certification of a nationwide
class of 23 million vehicle owners -- one of the largest class actions ever
certified by any court.7 In the order, the court stated that it had conducted "a
probing, rigorous review" of the matter. I am not sure how you could possibly do
that in a few hours on the day a case is filed. And I am quite sure that you
could not do "a probing, rigorous review" when the defendant was never even
notified about the lawsuit before that order was entered and was provided no
opportunity to tell its side of the story. Only a few days earlier, the same
plaintiffs' attorney had filed another multistate class action -- one alleging
antitrust violations in the music/compact disc industry -- before the very same
Tennessee state court.8 Once again, in that major class action, the trial court
entered an order granting class certification on the same day the complaint had
been filed, long before the defendants were notified of the lawsuit and
certainly before they had been afforded any opportunity to respond to the
request for class certification.
Another common problem with state court
class actions is the "I never met a class action I didn't like" phenomenon.
Although most state courts will at least give the defendant a chance to respond
to a class certification motion, many of them employ standards that are so lax
that virtually every class certification motion filed is granted, even where it
is obvious that the case cannot, consistent with basic due process principles,
be tried to a jury as a class action. This problem is evidenced by the frequency
with which state courts are readily certifying cases as class actions, while
federal courts conclude that the very same cases cannot be litigated on a class
basis. For example, I am aware of a cases in which a state court judge certified
a nationwide class of persons who allegedly claimed that the house siding they
had purchased was defective. Later, however, a federal district court judge
presented with the same case rejected any prospect of certifying a class in that
matter, finding that affording class treatment in that case obviously would deny
the due process rights of the defendants and the purported class members.9
2. Consumers Are Being Used And Their Rights Are Being Trampled.
The
real purpose of the vast majority of class action lawsuits is to make money not
for consumers, but for the lawyers bringing the suit. As a result, consumers
often are exploited and rarely receive substantial awards, while class action
counsel frequently walk away with millions. For instance:
The Chicago
Tribune reported that in a class action against Arista Records seeking to
recover the prices paid for albums by the rock duo Milli Vanilli (that contained
the voices of other performers), class members obtained a settlement recovery of
$1 to $3 each. But the court awarded the lawyers $675,000. And for those
lawyers, that was not enough. They petitioned the court to increase their fee to
$1.9 million.
- Business Today reported that in a class action against a
cereal maker regarding the use of a food additive that had not injured any
consumer, the consumers received (in settlement) a coupon entitling them to free
cereal (if they bought more cereal). Meanwhile, the lawyers for the class were
paid nearly $2 million in fees - approximately $2,000 per hour.
- The Baton
Rouge (La.) Advocate reported that in a settlement of a state court class action
involving toxic pesticide fumes from a chemical plant, the residents of a New
Orleans neighborhood each received a few thousand dollars. But the class action
lawyers walked away with over $25 million in legal fees and expenses.
- An
article in the San Diego Union Tribune criticized the settlement of a state
court class action in which the author had received 93 cents and her class
counsel had received $140,000.
- The Chicago Tribune reported that one state
court class action settlement with a mortgage bank yielded an $8.5 million
payment to the class attorneys, but a $91.33 debit to the class members'
mortgage escrow accounts.
I am also very disturbed by the circumstances
(discussed in more detail below) in which class counsel waive the rights of the
class members (whose rights they are supposed to protect) in an effort to make a
case more amenable to class treatment. In short, in order to achieve the class
counsel's personal objective - to create a class action business venture counsel
frequently jettison purportedly viable claims and take other actions that are
adverse to the interests of class members.
These reports are particularly
disturbing because they reveal how grossly the class action device has been
distorted. The class action device was intended to protect consumers. It was not
created to enable lawyers to get rich.
Before going any further, let me say
that I am pleased that S. 353 addresses the issues of consumer exploitation and
attorney misconduct in a number of its provisions.10 For example, the class
notices that class member receive frequently are written in small print and
legalese. Since those notices typically are telling class members that they are
about to give up important legal rights (unless they take appropriate action),
it is imperative that they understand what they are doing and the ramifications
of their actions. The bill requires notice of proposed settlements in all class
actions, as well as all class notices, must be in clear, easily understood
English and must include all material settlement terms, including the amount of
attorneys' fees.
The bill also requires that state attorney generals be
notified of any proposed class settlement that would affect residents of their
states. The notice would give a state attorney generals the opportunity to
object if the settlement terms are unfair.
Senate Bill 353 requires that
attorneys' fees in class actions be based on a reasonable percentage of damages
actually paid to class members, the actual costs of complying with the terms of
the settlement agreement, as well as any future financial benefits. In the
alternative, the bill provides that, to the extent the law permits, fees may be
based on a reasonable hourly rate. This provision would discourage settlements
that give attorneys exorbitant fees based on hypothetical overvaluation of
coupon settlements, yet allows for reasonable fees in all kinds of cases.
II. Federal Courts Are The Appropriate Forum For Litigating Interstate Class
Actions.
State courts are simply not the appropriate tribunals for many
class action lawsuits, particularly those with interstate commerce dimensions.
In many (if not most) instances, state court class action cases involve putative
class members from multiple jurisdictions suing defendants from outside the
forum state. This engenders the bizarre situation in which a state court in one
state (e.g., Massachusetts) is interpreting the state law of another (e.g.,
South Carolina) and resolving the claims of South Carolina residents. What
business does a Massachusetts court have dictating to South Carolina what its
laws mean and in resolving the claims of its citizens? It is far more
appropriate for a federal court to interpret the laws of various states, which
is inherently what the constitutional concept of diversity jurisdiction is all
about. Other state courts have adopted a different, equally unsatisfactory
approach. They apply their own state's laws to all claims asserted in a
purported class action, even though the class is comprised primarily of
out-of-state residents and even though the laws of those class members'
respective home states may be radically different.
11
In addition to
these problems, many state courts have neither the complex litigation experience
nor the support staff necessary to address the complex, technical issues
normally presented by class actions. And perhaps most importantly, they lack any
mechanism for coordinating parallel litigation. Once a purported class action is
filed, counsel in other jurisdictions often file "copycat" cases - purported
class actions asserting basically the same claims on behalf of basically the
same class members. Because state courts have no mechanism to consolidate cases,
as do the federal courts, defendants are unfairly required to expend substantial
resources defending these duplicative lawsuits. In such circumstances, there is
no mechanism for achieving coordination and avoiding inconsistencies in results.
Indeed, in some instances, the two state courts are forced to compete, each
vying to control the litigation. This situation often works against the
interests of the class members, as class counsel in the various cases sacrifice
class members' rights in an effort to jockey for controlling position. The
situation is also unfair to defendants, potentially giving the same classes
several bites at the apple against a class action defendant.
If, however,
overlapping or similar class actions are filed in two different federal courts,
the multidistrict litigation process permits the transfer and consolidation of
those cases for pretrial purposes, particularly the coordination of discovery.
This is a much more efficient and effective system that does not needlessly
waste judicial or corporate resources. Federal courts are by far the more
appropriate forum in which to adjudicate class actions. Virtually all federal
judges have two or three law clerks on their staff'; state court judges
typically have none. Federal court judges are usually able to delegate some
aspects of their cases (e.g. discovery issues) to magistrate judges or special
masters; it is not the norm for such personnel to be available to state court
judges.
The current law has been manipulated by plaintiffs' lawyers making
removal of class actions to federal court virtually impossible. The state court
class action environment has led to a sad reality: as a practical matter, the
most important question determining the outcome of a class action lawsuit has
now become, not the merits of the claims or the propriety of class treatment,
but whether the case can successfully be removed to federal court. Because of
the lackadaisical way in which some state courts treat class actions, a class
action that stands practically no chance of succeeding in a federal court can
result in a multi-million (or billion) dollar judgment if it ends up in state
court. Thus, the fight over the existence of federal jurisdiction becomes, as a
practical matter, the entire game. The lawyers who file class action lawsuits
recognize this. Accordingly, they have become increasingly adept at manipulating
their pleadings to keep their putative class actions out of federal court.
Tactics include:
(1) Filing a complaint that, fairly read, gives rise to a
claim under some federal statute, thereby qualifying the case for the assertion
of federal question jurisdiction. To disguise this fact, the complaint will omit
any explicit reference to the federal claim, or may even expressly disclaim any
intent to pursue an available federal claim.
(2) On the diversity side,
lawyers who want to keep a high-stakes class action out of federal court often
manipulate the parties in an attempt to destroy complete diversity. Under
traditional principles of diversity jurisdiction as applied to class actions,
"complete diversity" exists only if the state of citizenship of all named
plaintiffs is completely different than the state of citizenship of all named
defendants. To destroy this, lawyers whose primary target is an out-of-state
deep-pocket corporation sometimes name a token defendant who resides in the same
state as one or more of the named plaintiffs. For example, a lawyer wanting to
sue a company Texas state court may name as a co-defendant a Texas-based
employee of that company.
The inherently fraudulent nature of this tactic is
obvious: although all putative class members may conceivably have a claim
against the defendant corporation, few (if any) of the putative class members
had any dealings with the token in-state defendants, meaning that a classwide
judgment against these defendants is impossible. As all parties recognize, the
corporation is the only real target of the lawsuit. The in-state defendants are
there only to facilitate the remand of the action to state court on the basis of
the "absence of complete diversity." Once the jurisdictional battle is over,
these defendants usually fall by the wayside.
(3) Alternatively, lawyers
sometimes include on the plaintiffs' side of the case a named plaintiff who
lives in the same state as the defendant. Thus, a defendant may, under the
present law be served with a complaint in Alabama state court which purports to
be brought by three Alabama residents and one resident of its home state. Again,
the manipulative intent here is clear. Why would a plaintiff who has a grievance
against a company within his or her home state travel all the way to some other
forum to file a lawsuit? Obviously, the reason is that her lawyers are trying to
prevent the corporation from defending against this inherently nationwide
controversy in a federal court.(4) The "amount-in-controversy" prong of the
federal diversity requirement also is the subject of frequent manipulation. The
U.S. Supreme Court's decision in Zahn v. International Paper 12 has been
interpreted as holding that, in a putative class action, the "jurisdictional
amount" requirement (now $75,000) is met only if each and every putative class
member's individual claim is worth that amount. Exploiting this general rule,
class action complaints often declare over and over again that all putative
class members seek less than the jurisdictional amount (sometimes $74,999).
In recent years, some exceptions to the basic Zahn rule have developed. For
example, some federal courts of appeals have held that class actions that seek
punitive damages in excess of the jurisdictional amount may meet the
amount-in-controversy requirement.13 In response, class action complaints now
purport to "waive" any and all claims that might conceivably give rise to a
punitive damage award (or at least limit punitive damages to a lesser amount).
These kinds of "claims-shaving" tactics raise disturbing issues of
adequacy-of representation and due process. While a single plaintiff suing
solely in his own name surely is the "master of his complaint" and may limit the
claims he asserts or the relief he seeks in order to stay in state court, a
litigant (and his counsel) who seeks to represent large numbers of other people
in a class action is constrained by his fiduciary obligations to the absentee
members of the class. As several courts have recognized, it is inherently
improper for a class action lawyer to unilaterally "waive" otherwise available
claims that absentee claimants might wish to assert simply in the name of
forum-shopping.14 Nevertheless, it happens every day -- class counsel sacrifice
the claims of unnamed class members in order to keep their cases in state
courts.
Crafty lawyers can exploit still other tricks to deprive an out-of-
state class action defendant of its right to defend itself in a federal forum.
For example, under current law, all defendants must consent to the removal of a
case to federal court. If one defendant objects, the case cannot be removed.
Accordingly, plaintiffs' lawyers sometimes join a "plaintiff-friendly" person or
entity as a defendant, with the understanding the nominal defendant will use his
status to veto any removal attempt.
Another abuse stems from the requirement
that any lawsuit be removed to federal court within one year after its
"commencement." Lawyers sometimes quietly file putative class actions in state
courts that have no deadline for providing service, and then decline to serve
the defendant until the one year deadline has expired. Alternatively, they
include statements in their complaint designed to insulate the case from removal
(such as assertions that only a nominal perclaimant amount is sought), wait one
year, and then file an amended complaint that raises the amount-in-controversy
or eliminates other impediments to removal only after the one year deadline has
expired.
These pleading tactics (and others like them) invariably are
employed in purported class actions that, by virtue of the inherent diversity of
the real parties in interest and the amounts actually at stake, ought to be
litigated in federal court. They are complicated lawsuits that require the
substantial resources and expertise that the federal courts are uniquely
situated to devote to them (and that state courts, which spend most of their
time handling smaller matters, are not institutionally well-suited to handle).
They are also lawsuits that present exceedingly high-stakes for the defendant,
and therefore give rise to the risks of parochialism and prejudice that the
federal court system is designed to prevent (but that, regrettably, infect some
state court systems).
Such pleading tactics are intended to mask the
inherently federal character of these lawsuits. They elevate the deliberately
manipulated "form" of the lawsuit over its actual substance. They should be
outlawed.
The bulk of today's class actions -- large cases with
interstate commerce implications -- plainly belong in the federal courts.
Accordingly, I urge this Subcommittee to vote favorably on S. 353.
S. 353
addresses and resolves the problems associated with the adjudication of class
actions in state courts by allowing more class action lawsuits to be removed
from state court to federal court. The bill allows unnamed class members to
remove to federal court class actions in which their claims are being asserted
(within 30 days after they are formally notified about the class action). (This
is a critical change, because if a state court is not protecting the class
members' interests, this will be the only viable mechanism by which
unrepresented class members can get their day in court.) It also allows
defendants to remove to federal court.
With these removal possibilities in
mind, the bill would create a modest expansion of federal jurisdiction over
class actions. Under the bill, a class action would qualify for federal
jurisdiction if the total damages exceed $75,000 and parties include citizens
from multiple states. However, the bill provides that cases remain in state
court where the substantial majority of class and primary defendants are from
the mine state and that state's law would govern, or the primary defendants are
states and a federal court would be unable to order the relief requested.
Lastly, the bar on removing cases to federal court after one year would not
apply to class actions (although a defendant would still have to remove within
30 days after first becoming aware of federal jurisdiction).
Conclusion
The state court class action crisis has reached epidemic proportions. In
order to close the floodgates on the filing of meritless class actions and
re-craft a legal tool that has been manipulated beyond recognition to the
benefit of few and the greater detriment of millions of American consumers, the
legislative system must provide the federal courts with the ammunition to
enforce their right to hear interstate class actions cases. Under current law,
most interstate class actions cannot be heard in federal court. The current
statutes also allow plaintiffs' attorneys to game the system to keep class
actions out of federal court. And finally, under the existing law, there is no
mechanism by which class members can insist that their claims be heard in
federal court. S. 353 would made modest procedural changes, but it would not
alter substantive law.
This legislation will clearly improve the efficiency
of the judicial system because federal courts have special procedural tools for
dealing with the complex litigation and are better able to manage claims
involving parties from multiple states. Furthermore, the overall workload of our
judicial system because allowing more interstate class actions to be heard in
federal court will permit consolidation of duplicative, competing and
overlapping cases. America needs class action reform badly. S.
353 is a balanced, modest approach to correcting class action abuse.
The
title of this bill - the "Class Action Fairness Act" - is very appropriate. But
it is also points out a unique twist in the present class action environment. As
members of Congress, you hear the word "fair" all the time. Usually, however,
deciding what is fair involves choosing between two or more parties with vested
interests. If the Government needs to close one of two defense facilities, the
two cities in which those facilities are based will make arguments about why the
other city's facility is the one that should be closed. And it may be left to
Congress to decide what is "fair" - to decide which city's facility should be
closed. What is undeniable in that debate, however, is that both cities have a
vested interest in the outcome. They both have community investments and jobs at
stake.
What is strange about the current class action situation is that it
is not "fair" to any of the parties with proper, vested interests. For all the
reasons I have set forth above, it is not "fair" to the class members whose
claims are at stake. And it is not "fair" to the defendants against whom those
claims are being asserted. At present, the system is irrationally designed to
benefit primarily the parties involved who really do not have a proper, vested
interest - the attorneys who bring these lawsuits. I therefore applaud this
legislative initiative and urge its passage.
Again, I thank the Committee
for permitting me to present my views on this problem that is challenging our
legal system.
1 Working Papers of the Advisory Committee on Civil Rules on
Proposed Amendments to Civil Rule 23, Vol. 1, at ix-x ("Working Papers 1") (memo
to members of the Standing Committee on Rules and Procedure and the Advisory
Committee on Civil Rules from Judge Paul V. Niemeyer).
2 Deborah Hensler et
al., Preliminary Results of the RAND Study of Class Action Litigation 15 (May 1,
1997) ("RAND Report").
3 See, e.g. RAND Report, supra note 2, at 15.
4
At the same time, federal courts have laid down clearer, timer rules governing
when a matter may be afforded class treatment. The recent decisions of the U.S.
Supreme Court in Amchem Products v. Windsor, 117 S. Ct. 2231 (1997), the Fifth
Circuit in Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996), the
Sixth Circuit in In re American Medical Sys., Inc., 75 F.3d 1069 (6th Cir.
1996), the Seventh Circuit in In re RhonePoulenc Rorer, Inc., 51 F. 3d 1293 (7th
Cir.) (Posner, J.), cert. denied, 116 S.Ct. 184 (1995), the Ninth Circuit in
Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996), the Eleventh
Circuit in Andrews v. American Tel. & Tel. Co., 95 F.3d 1014 (11th Cir.
1996), have reminded federal district courts of the importance of taking the
requirements of Rule 23 seriously; that is, matters may be certified for class
treatment only if they clearly meet the certification prerequisites set forth in
Fed. R. Civ. P. 23.
5 RAND Report, supra note 2, at 22.
6 Sweet v. Ford
Motor Company, Civil Action No. L-10463 (Cir. Ct. for Blount County, Tenn.)
(filed Jul. 10, 1996).
7 See Order Granting Nationwide Class Certification,
Sweet v. Ford Motor Company, Civil Action No. L10463 (Cir. Ct. for Blount
County, Tenn.) (filed Jul. 10, 1996).
8 Robinson v. EMI Music Distribution,
Inc., Civil Action No. L-10462 (Cir. Ct. of Blount County, Tenn.) (filed July 8,
1996).
9 Compare Naef v. Masonite Corp., No. CV-94-4033 (Circuit Court,
Mobile County, Alabama), with In re Masonite Hardboard Siding Prods. Litig., 170
F.R.D. 417, 424 (E.D. La. 1997).
10 However, I would urge the Congress to
work with the courts through the role making process rather than legislatively
amending Rule 11 of the Federal Rules of Civil Procedure. Specifically, Congress
should be cautious in the area of"mandatory" judicial sanctions. I would urge
leaving discretion with the federal judges as to when and whether sanctions are
appropriate in each case.
11 See, e.g, Snider v. State Farm Mut. Auto. Ins.
Co., No. 97-C-114 (III. Cir., Williamson Co.) (order certifying nationwide class
of state-law based claims).
12 414 U.S. 291 (1973).
13 See Tapscott v.
MS Dealer Serv. Corp., 77 F.3d 1353, 1359 (11th Cir. 1996).
14 See, e.g.,
Epstein v. MCA, Inc., 126 F.3d 1235 (9th Cir. 1997); Ex parte Russell Corp.,
1997 WL 641325 (Ala. Oct. 17, 1997).
END
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