Large-Scale Litigation Issues: Class Actions and Mass Tort Cases in 2012 and Beyond

Article excerpt

I. INTRODUCTION .......... 747

II. COMMON THEMES .......... 748

III. OVERVIEW OF THE PAPERS .......... 750

A. Professor Morris Ratner 's New Model of Plaintiffs ' Class Action Attorneys .......... 750

B. Professor Linda Mullenix Critiques Mass Tort Funds .... 751

C. Professor Rhonda Wasserman Explores Secret Class Action Settlements .......... 752

D. Professor Michelle Slack Argues for Limiting National Class Actions Against the Federal Government .......... 753

E. Catherine Borden and Emery Lee Examine Coordination of Complex Litigation in State and Federal Courts .......... 754

IV. CONCLUSION .......... 755

I. INTRODUCTION

In connection with the January 2012 Annual Meeting of the Association of American Law Schools (AALS) held in Washington, D.C., the AALS Section on Litigation (Litigation Section) sponsored a panel entitled "Large-Scale Litigation Issues: Class Actions and Mass Tort Cases in 2012 and Beyond." The program was cosponsored by the AALS Sections on Alternative Dispute Resolution and Civil Procedure. One of the presentations was selected from a call for papers.

Large-scale litigation, whether in the form of class actions, multi-district litigation, or mass tort cases, continues to raise important concerns within the legal community and society at large. Large-scale litigation affects large numbers of claimants, utilizes extensive institutional and private resources, and establishes legal and process norms applicable in all cases.

The papers submitted in connection with this Litigation Section panel explore five separate but significant issues, all of which raise serious process concerns and highlight a continuing and inherent tension between efficiency and fairness at the institutional level and among the various players engaged in large-scale dispute resolution.

II. COMMON THEMES

The five papers that follow each examine class actions and other complex litigation through a different lens - and a lens focused on a slightly different point on the horizon. Professor Morris Ratner1 focuses on the principal-agent problems identified in connection with plaintiffs' counsel in class actions.2 Professor Linda Mullenix3 examines and critiques mass tort funds set up to deal with the BP Gulf Oil claims and the World Trade Center claims after 9/11 and focuses on the pressures on claimants to make decisions waiving their right to litigate in court and instead receive compensation through a fund, arguably without adequate information and legal advice.4 Both Professor Ramer and Mullenix focus on information asymmetry and the inability or lack of incentives of claimants to make informed decisions about their own claims and options, whether the issue is monitoring their own attorneys in class actions or assessing whether to seek compensation from the fund option or the courts. Professor Ratner suggests an altered paradigm of the plaintiffs' class action firm that might shed light on class attorney incentives and how those incentives might be managed to avoid potential conflicts between class plaintiffs and counsel. While Professor Ratner examines the interplay and conflicting incentives among class members, class counsel, and the court, Professor Mullenix focuses on the interplay and conflicting incentives among claimants, the fund administrator, and the courts managing those claims not paid through the fund.

Professor Rhonda Wasserman5 focuses on the frequency and appropriateness of secret settlements in class actions.6 Although she touches on the impact on absent class members of such settlements, her focus moves from a particular case to the impact on the courts and absent parties. What are the interests and incentives favoring or disfavoring secret settlements in class actions, and how do they affect the judicial system and the development of law?

Professor Michelle Slack7 looks at class actions brought against the federal government and examines the impact of national class action certifications and collateral estoppel on the development of law and our constitutional structure of separation of powers. …

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