My apologies for posting late this week; I’m suffering from a little jet lag. I spent yesterday in Virginia at the annual conference for the American College of Court Business Judges, where John Beisner and I were presenting a number of developments in class action litigation. Today I’m England, and by tonight, I will be in the Hague for the 5th Annual Conference on the Globalization of Class Actions and Mass Litigation, where Paul Karlsgodt (of ClassActionBlawg) and I will be eagerly taking notes.
Before John and I presented on Monday, we were treated to a panel discussing the ALI’s recently-finalized Principles of the Law of Aggregated Litigation. Victor Schwartz (long hailed as the "intellectual guru of the wrongdoers of America") moderated, and Professors Troy McKenzie and Charles Silver, and the Hon. William Highberger, discussed the development of the Principles. Among the highlights:
- The ALI Principles have featured in several prominent class-action opinions in the past year, including Smith v. Bayer Corp. in the Supreme Court, and Gates v. Rohm & Haas Co. in the Third Circuit.
- While Wal-Mart Stores, Inc. v. Dukes did not explicitly cite the Principles, it relied heavily on the late Richard Nagareda’s work on divisible and indivisible remedies and the nature of common questions, as did the Principles.
- The Principles have proven to be more stringent about cy pres relief than much of the case law, which may have influenced the Fifth and Ninth Circuits in their recent restrictions of when cy pres may be used.
- The evolution of the Principles through its draft forms reflect a desire to minimize gamesmanship, including the removal of a number of examples discussing medical monitoring (which often does not lend itself to class treatment), a de-emphasis of subclasses to prevent any gamesmanship in class proposals (by, say, proposing a massive class, but having a subclass as a fallback position), and the deletion of a discussion of using a company’s principal place of manufacture in conflict-of-law analysis (because conflicts of law involves substantive–rather than procedural–questions).
- Certain of the Principles endorse changes in the law, rather than just restating it. Most notably, §§ 2.10 (which recommends allowing opt-ins where possible, or "aggregation by consent), and 3.17 (which would allow plaintiffs to give informed "advance consent" to settlement agreements, facilitating mass tort settlements).
Overall, the Principles are still new enough that most lawyers don’t cite them very frequently when briefing mass or class actions. However, the judges in the audience seemed pretty enthusiastic about the analysis. Make of that what you will.
Given my travel and conference schedule this week, there’ll be no post tomorrow. But join me on Friday for the first set of highlights from the Globalization conference. Safe travels to those who’ll be there.