Academic journal article
By Seeney, Emilia L.; Englund, Rudy A.
Defense Counsel Journal , Vol. 72, No. 3
CLAIMING that it will prevent trial lawyers from shopping around for courts where they expect to win the most money, keep out-of-state businesses from being dragged before unfriendly local juries, and provide new safeguards for the consumer, President Bush signed into law the "Consumer Class Action Bill of Rights and Improved Procedures for Interstate Class Actions," commonly referred to as the "Class Action Fairness Act" ("CAFA") on February 18, 2005. (1) But will CAFA address the issues that gave rise to its enactment? To answer that question, this article synthesizes the likely impact CAFA will have on various state liability statutes designed to protect the consumer. Additionally, the article surveys business's perceptions states' ability to provide a fair litigation environment, to determine whether CAFA will prevent forum-shopping in consumer class actions.
1) Impetus for Change: Growing Perception of Unfairness in Our States' Civil Justice Systems
The majority of respondents in a recent survey concluded that the state court liability system was doing an increasingly poor job of creating a fair and reasonable litigation environment. While different state statutes across the United States produce varying outcomes, popular sentiment and informed opinion view the different outcomes that a litigant may obtain as not purely a result of the substantive law. Instead, there is a growing perception that unfairness in our state courts influences the outcome.
The Institute for Legal Reform (2) ("ILR") has surveyed the business and legal community to determine individuals' attitudes toward each states' legal systems since 2002. The aim of the surveys is to quantify how in-house general counsel and other senior litigators view the state court systems by asking respondents to grade several different areas of the states' civil justice systems. The last study surveyed nearly 1,500 litigators, all of whom graded their states on the following criteria: treatment of tort and contract litigation, class action suits, punitive damages, timeliness of summary judgment dismissal, discovery, scientific and technical evidence, judges' impartiality and competence, and juries' predictability and fairness. The ILR then combined these grades to arrive at an overall ranking of state liability systems.
The 2005 ILR/Harris Poll State Liability Systems Ranking Study was released March 8, 2005. Of those surveyed, sixty percent ranked the state court liability system in America fair or poor, a slight increase over the previous year. The five states rated as doing the poorest job of providing a fair and reasonable litigation environment were Mississippi, West Virginia, Alabama, Louisiana, and Illinois. Respondents perceived these states as having the least number of impartial and competent state court judges. These five states, with the exception of Illinois, were deemed to do the most dissatisfactory job with respect to the treatment of tort and contract litigation. Alabama, California, Illinois, Louisiana, and West Virginia were ranked the lowest with respect to class action suits. Alabama, California, Illinois, Mississippi, and West Virginia were deemed the most unsatisfactory in punitive damages treatment.
The survey also revealed that certain cities and counties had the capacity to impact a state's overall ranking. The local jurisdiction identified as having the worst reputation was Los Angeles, followed by various jurisdictions in Texas. Tied for third were local jurisdictions in the New York greater metropolitan area, San Francisco, California, and Cook County, Illinois. Madison County, Illinois, followed close behind. CAFA was enacted against this backdrop.
2) Class Action Fairness Act of 2005
In enacting CAFA, Congress found that state courts were sometimes acting in ways that demonstrated bias against out-of-state defendants and that abuses of the class action practice in state courts undermined the free flow of interstate commerce. …