No nationwide system exists for recording and counting class action lawsuits. Class actions can be brought in most state courts, 1 as well as in the federal courts. No state court reports the number of class action lawsuits filed annually. The Administrative Office of the U.S. Courts has reported the number of class actions filed yearly in federal courts, but a 1996 study conducted by the Federal Judicial Center (the research arm of the federal judiciary) found that those reports missed many class action lawsuits. 2 Since then, the Administrative Office has attempted to improve its record-keeping by alerting the district courts to the importance of recording class action activity. The effectiveness of this effort is uncertain.
For many years, courts did not separately report any civil lawsuits and, even today, court reports of civil litigation often lack detail. But courts face problems with class actions that would frustrate even the most dedicated record-keeper. Litigation obtains "class action" status when it is certified as such by a trial judge. Certification may occur soon after filing or sometime later in the litigation process, such as when a settlement is reached. As a result, plaintiff attorneys may enter into negotiations with defendants in which both sides understand that the suit at issue is a class action, but -- as a formal matter -- a class action does not yet exist. Parties and their attorneys describe these suits as putative class actions," and develop, defend, manage, and negotiate them within the class action framework of the jurisdiction in which the suit has been filed. But these lawsuits might be missed in a formal count of "class actions." During the litigation process certification may be granted conditionally and later revoked, which would also complicate formal counting of class action lawsuits. Hence, even if one had sufficient resources to review case files from courts all over the country, accurately identifying and quantifying class action litigation activity would still be nearly impossible.
In its study, the Federal Judicial Center reviewed records in four district courts in considerable detail to draw conclusions about class action activity in those