Democratization of Mass Litigation: Empowering the Beneficiaries

By Feinberg, Kenneth R. | Columbia Journal of Law and Social Problems, Summer 2012 | Go to article overview

Democratization of Mass Litigation: Empowering the Beneficiaries


Feinberg, Kenneth R., Columbia Journal of Law and Social Problems


When it comes to mass complex litigation, all eyes are focused on the pending trials: observers want to know who the adversaries are, whether liability be found by judge and jury, what the scope of damages will be, and what the battlefield will look like after the litigation dust settles. But public interest quickly wanes after the battle is over and the trial is completed. Litigation warfare is news; peace is an afterthought.

All of this is changing thanks, in large measure, to the work of Federal District Judge Jack B. Weinstein over the past twentyfive years.1 There is growing interest in the post-litigation phase of complex disputes, when the issue is not whether the defendant is liable for the alleged harm but, rather, what should be done with the settlement proceeds once peace is achieved.2 To Judge Weinstein, achieving a proposed settlement of mass litigation triggers the next legal challenge - concentrating on the beneficiaries of the settlement, making sure they are aware of the proposed settlement and how the deal reached by the lawyers will impact each and every one of them. In a proposed settlement involving hundreds or even thousands of plaintiffs, Judge Weinstein sees this as a formidable legal challenge - but one that must be overcome in order to assure justice for each and every litigant.

Judge Weinstein focused on this issue for the first time in the Agent Orange products liability litigation.3 Prior to Agent Orange, the federal courts had demonstrated little interest in the subject of how settlement proceeds should be distributed, particularly in the context of mass tort litigation. The federal class action device had not been used effectively to aggregate individual tort claims; Rule 23 requirements of commonality, typicality, and predominance posed formidable barriers to class certification.4 Judge Weinstein's Agent Orange opinions changed all of this. He concluded that individual mass tort lawsuits could be consolidated in one judicial forum for purposes of securing a comprehensive settlement of all related mass tort claims.5 There were predominant issues in the litigation, common and typical to all class members, that permitted effective use of Rule 23. 6 And, once a global settlement was achieved involving all Vietnam veterans alleging injury due to Agent Orange exposure while serving in Vietnam, he turned his attention to the next legal challenge - making sure that thousands of Vietnam veterans comprising the class had a fair opportunity to comment on the terms and conditions of the proposed settlement and how it would impact each of them.7 Judge Weinstein was a trail blazer, therefore, in two respects: first, he recognized the value of Rule 23 in aggregating and resolving mass tort litigation and, second, he devised and implemented procedures to make sure that thousands of class members had a voice in commenting on the merits of the proposed settlement.

Now, over twenty-five years later, his work in Agent Orange remains provocative. His efforts to breathe new life into Rule 23 mass tort litigation have been challenged by appellate courts, including the Supreme Court.8 At the same time, however, Judge Weinstein continues to stress the importance of giving individual plaintiffs in mass litigation the opportunity to be heard and to make their views known regarding the merits of a comprehensive settlement and the distribution of settlement proceeds.9 Whether it be federal class actions,10 consolidation of claims in federal multidistrict litigation (what he refers to as a "quasi-class action"),11 regional consolidation of individual claims,12 or through extrajudicial devices accomplishing the same objective which build upon Judge Weinstein's earlier opinions,13 Judge Weinstein's efforts at "democratization" - making sure individual plaintiffs have an informed role to play in judicial proceedings - are both striking and innovative. Law school curriculums are now paying increased attention to Judge Weinstein's concerns. …

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