Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-removable State Actions in Multi-district Litigation

Am. Exp. Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013); Comcast Corp. v. Behrend, 133 S.Ct. 1426 (2013); Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011); AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011); Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662 (2010); see also Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999); Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Myriam Gilles, Procedure in Eclipse: Group-Based Adjudication in a Post-Concepcion Era, 56 St. Louis U. L.J. 1203 (2012); Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 Mich. L. Rev. 373 (2005); Myriam Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion, 79 U. Chi. L. Rev. 623 (2011); Linda S. Mullenix, Aggregate Litigation and the Death of Democratic Dispute Resolution, 107 Nw. U. L. Rev. 511 (2013); Linda S. Mullenix, Federal Class Actions: A Near-Death Experience in Shady Grove, 79 Geo. Wash. L. Rev. 448 (2011); Maria Glover & Charles Silver, Zombie Class Actions, Scotusblog (Sept. 8, 2011, 10:16 AM), http://www.scotusblog.com/2011/09/zombie-class-actions/.

R.E.M., It’s the End of the World as We Know It (And I Feel Fine), (Sound Emporium 1987). Just to be clear, I do not feel particularly “fine” about the end of the class action world. The end of the class action world as we know it? Maybe.

See, e.g., Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 921, 124 Stat. 1376, 1841 (2010) (amending 15 U.S.C. § 78o to allow the SEC to prohibit predispute arbitration agreements of federal securities claims).

See Richard A. Nagareda, Mass Torts In A World Of Settlement 224 (2007) (describing the consolidation of cases in MDL as a “springboard for negotiations aimed at comprehensive peace”); Thomas E. Willging & Emery G. Lee III, From Class Actions to Multidistrict Consolidations: Aggregate Mass Tort Litigation After Ortiz, 58 U. Kan. L. Rev. 775, 801 (2010) (noting that the “MDL process has supplemented and perhaps displaced the class action device as a procedural mechanism for large settlements”).

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 820-23 (1985) (rejecting a putative class action that would apply Kansas law to claims subject to the laws of a variety of other states).

In re Celotex Corp. “Technifoam” Prod. Liab. Litig., 68 F.R.D. 502, 503 n. 2 (J.P.M.L. 1975); see also 28 U.S.C. § 1407(a).

See, e.g., Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing A Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame L. Rev. 1347 (2000); Martin H. Redish, Reassessing the Allocation of Judicial Business Between State and Federal Courts: Federal Jurisdiction and the “Martian Chronicles,” 78 Va. L. Rev. 1768 (1992); William W. Schwarzer, et al., Judicial Federalism: A Proposal to Amend the Multidistrict Litigation Statute to Permit Discovery Coordination of Large-Scale Litigation Pending in State and Federal Courts, 73 Tex. L. Rev. 1529 (1995) [hereinafter Judicial Federalism].

See, e.g., Conference of Chief Justices [CCJ], Directing the National Center for State Courts to Promote Communication and Best Practices for the Management of Like-Kind Litigation That Spans Multiple State Jurisdictions and Federal Districts, CCJ Midyear Meeting Res. 2 (Jan. 26, 2011), available athttp://ncsc.contentdm.oclc.org/cdm/ref/collection/federal/id/71; Catherine R. Borden & Emery G. Lee III, Beyond Transfer: Coordination of Complex Litigation in State and Federal Courts in the Twenty-First Century, 31 Rev. Litig. 997, 1007 n. 48 (2012); Francis E. McGovern, Toward a Cooperative Strategy for Federal and State Judges in Mass Tort Litigation, 148 U. Pa. L. Rev. 1867 (2000); Francis E. McGovern, Rethinking Cooperation Among Judges in Mass Tort Litigation, 44 UCLA L. Rev. 1851 (1997).

See infra Part II.B.

See, e.g., Richard Nagareda, Embedded Aggregation in Civil Litigation, 95 Cornell L. Rev. 1105, 1107–15 (2010).

Principles of the Law of Aggregate Litigation §1.03 (2010).

See 28 U.S.C. § 1407(a) (2006).

Id.

Id. § 1407(c).

Id. § 1407(a).

Id. § 1407(c).

See id. Furthermore, the Panel may designate any district court the transferee regardless of whether it would have had territorial jurisdiction over all the defendants individually. See, e.g., In re Aviation Prod. Liab. Litig., 347 F. Supp. 1401 (J.P.M.L. 1972) (“Transfer of civil actions pursuant to 28 U.S.C. § 1407 is for pretrial purposes only and the fact that all parties are not amenable to suit in a particular district does not prevent transfer to that district for pretrial proceedings where the prerequisites of Section 1407 are otherwise satisfied.” (citing In re Kauffman Mut. Fund Actions, 337 F. Supp. 1337, 1339 (J.P.M.L. 1972))). But see In re Motor Fuel Temperature Sales. Pracs. Litig., 711 F.3d 1050 (9th Cir. 2013).

28 U.S.C. § 1407(a); see also Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 40–41 (1998) (holding that the plain reading of 28 U.S.C. § 1407 prohibited transferee courts from using 28 U.S.C. 1404 to avoid transferring MDL cases back to their original courts).

Howard M. Erichson & Benjamin Zipursky, Consent versus Closure, 96 Cornell L. Rev. 265, 270 (2011) (MDL “creates the perfect conditions for an aggregate settlement”); Deborah Hensler, Has the Fat Lady Sung? The Future of Mass Toxic Torts, 26 Rev. Litig. 883, 893 (2007) (“[A]lthough formally intended only to streamline the pretrial process, multi-districting usually leads to some sort of aggregative disposition.”); Deborah R. Hensler, The Role of Multi-Districting in Mass Tort Litigation: An Empirical Investigation, 31 Seton Hall L. Rev. 883, 894 (2001).

Edward F. Sherman, Aggregate Disposition of Related Cases: The Policy Issues, 10 Rev. Litig. 231, 234 (1991) (The available mechanisms for aggregation are “frequently powerless to insure the efficient aggregation of cases because jurisdictional barriers and federalism constraints prevent a comprehensive disposition of related cases in the same form.”); Judicial Federalism, supra note 7, at 1531 n. 15 (noting that federal class actions and bankruptcy proceedings have the potential to override state court jurisdiction of particular claims, but generally do not achieve intersystem aggregation).

In re Celotex Corp. “Technifoam” Prod. Liab. Litig., 68 F.R.D. 502, 503 n. 2 (J.P.M.L. 1975); David F. Herr, Limitations on Panel’s Power—No Power Over State Court Cases, in Multidistrict Litigation Manual § 3:13 (2013 ed.) (“Perhaps the most serious limitation on the Panel’s power is its inability to facilitate coordinated or consolidated pretrial proceedings in actions that are pending in both state and federal courts. The Panel has no authority over actions pending in state court.”).

A recent Supreme Court case, Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), illustrates the implications of this limit on the JPML, and thus the federal transferee court. There, after a transferee court had denied class certification, it enjoined a state court from considering a different plaintiff’s request to approve a similar class action against the same defendant. The Supreme Court found that such an injunction was beyond the transferee court’s authority under the “relitigation exception” to the Anti-Injunction Act. See id. at 2373. A corollary of this finding is that plaintiffs may pursue their own overlapping claims for certification in state court even if similar classes were rejected in the MDL.

See Judicial Federalism, supra note 7, at 1531 n. 15 (noting that federal class actions are one of the few procedural mechanisms that has the potential to override state court jurisdiction of particular claims).

Andrew D. Bradt, The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation, 88 Notre Dame L. Rev. 759, 784 n. 140 (2012) (citing Emery G. Lee, et al., The Expanding Role of Multidistrict Litigation in Federal Civil Litigation: An Empirical Investigation 2 (2010) (manuscript on file with author)); see also Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. Rev. 1643, 1666–67 (2011) (noting same figures). Furthermore, the MDLs themselves are often incredibly expansive, encompassing “thousands of cases filed by legions of attorneys.” Charles Silver & Geoffrey C. Miller, The Quasi-Class Action Method of Managing Multidistrict Litigations: Problems and a Proposal, 63 Vand. L. Rev. 107, 115 (2010).

As of November 14, 2013, there were 248 MDL proceedings pending.

Of those 248 pending MDL proceedings, 75 involve products liability claims.

In re Chantix (Varenicline) Products Liability Litigation, 655 F. Supp.2d (J.P.M.L. 2009).

See Branden Samuels, Chantix Lawsuits Move Forward in New York, Chantix Lawsuit Center (July 18, 2011), http://chantixlawsuit-info.com/2011/07/chantix-lawsuits-move-forward-new-york/. Four underlying cases in New York’s mass action are active or scheduled for trial. As of October 2013, twenty-eight underlying cases are listed as active on the New York state docket, dating between December 2010 and February 2012.

See e.g., Hamrin v. Pfizer, Inc., No. 2009-L-005113 (Ill. Ct. Cl. filed Apr. 30, 2009).

See Ruckert v. Bercherer, No. 652196/2013 (N.Y. Sup. Ct. filed June 21, 2013); Salix Capital US Inc. v. Bank of America Securities LLC, No. 65182/2013 (N.Y. Sup. Ct. filed May, 21, 2013); Sealink Funding Ltd. v. Credit Suisse Holding, No. 652962/2012 (N.Y. Sup. Ct. filed August 23, 2012); Raul v. Bramble, No. 651677/2011 (N.Y. Sup. Ct. filed June 15, 2011); Zucker v. Rubin, No. 651580/2011 (N.Y. Sup. Ct. filed June 8, 2011). All claims arise from the LIBOR manipulation scheme also alleged in the federal MDL.

See Nanfuka v. Wells Fargo Bank, No. CL13001318 (Va. Cir. filed May 7, 2013); Banks v. Deutsche Bank National, No. 2013-011036 (Va. Cir. filed July 3, 2013); Feinberg v. JPMorgan Chase Bank, No. 2013-004342 (Va. Cir. filed Mar. 1, 2013). As here, the number of parallel actions increases significantly if one identifies state proceedings that run parallel to cases initiated by the Department of Justice. Antitrust cases are generally instructive. For example, alongside federal MDL No. 1952, In re: Packaged Ice Antitrust Litigation, were, at minimum, two independent federal cases and two state claims in Texas. Over fifteen parallel cases also proceeded against MDL No. 1952 defendants in New York, Maryland, Florida, Georgia, Nevada, Illinois, South Carolina, and Oklahoma. (That said, while these cases appear related based upon docket information, the lack of complaint-specific information may mitigate their informational utility). Likewise, in the products liability MDL No.1699, In re: Bextra and Celebrex Marketing Sales Practices and Product Liability Litigation, New York and New Jersey mass actions, each with over 1,000 claims, proceeded alongside the federal MDL.

Other states with well-developed, formal mechanisms for coordination of intra-state cases include California, Colorado, Connecticut, Maryland, Massachusetts, Oklahoma, Pennsylvania, Rhode Island, Texas, Virginia, West Virginia, and Wisconsin.

States with arrangements and limitations similar to that of Illinois include Arizona, Indiana, Kansas, Missouri, Minnesota, Nevada, New Hampshire, North Dakota, Oregon, South Carolina, and Tennessee.

The infrequency of intra-state consolidation, notwithstanding the existence of some coordination mechanism, is a result of (1) the statutory consolidation scheme’s failure to authorize cross-county consolidation by lower courts; and (2) the lack of a centralized e-filing system. Accordingly, large-scale consolidation generally occurs only at the behest of the Illinois Supreme Court.

Additional states with no meaningful mechanisms for coordination include Alabama, Alaska, Arkansas, Hawaii, Idaho, Iowa, Kentucky, Louisiana, Maine, Mississippi, Missouri, Montana, Nebraska, New Mexico, North Carolina, Ohio, South Dakota, Utah, Vermont, Washington, and Wyoming.

See Redish, Intersystemic Redundancy, supra note 7.

Id. at 1349.

Id. at 1355–61.

Id. at 1349.

Linda S. Mullenix, Mass Tort Litigation and the Dilemma of Federalization, 44 DePaul L. Rev. 775, 775 (1995) (discussing the possibility of substantive mass-tort legislation as a way to “solve” the array of mass-tort litigation problems).

Ralph I. Lancaster & Catherine R. Connors, Creation of a National Disaster Court: A Response to “Judicial Federalism in Action,” 78 Va. L. Rev. 1753 (1992) (suggesting that informal arrangements between federal and state judges have their costs, and that creation of a national disaster court may be a better way of approaching intersystem aggregation issues).

Judicial Federalism, supra note 7, at 1532. Schwarzer had previously authored an article discussing the benefits of informal ad hoc coordination between state and federal judges in overlapping litigation, promoting its continuation. See William W. Schwarzer, Nancy E. Weiss, & Alan Hirsch, Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts, 78 Va. L. Rev. 1689, 1700–30 (1992). As his later proposal makes clear, however, he has come to believe that such coordination may not do enough to reduce inefficiencies, especially when many judges are involved. Judicial Federalism, supra note 7, at 1532.

Judicial Federalism, supra note 7, at 1565–66.

See In re Silicone Gel Breast Implants Prods. Liab. Litig., 793 F. Supp. 1098, 1099–100 (J.P.M.L. 1992) (naming Judge Pointer as the transferee judge for the MDL).

Sam C. Pointer, Jr., Reflections by a Federal Judge: A Comment on Judicial Federalism: A Proposal to Amend the Multidistrict Litigation Statute, 73 Tex. L. Rev. 1569, 1570 (1995).

Id. at 1570.

Gregory Hansel, Extreme Litigation: An Interview with Judge Wm. Terrell Hodges, Chairman of the Judicial Panel on Multidistrict Litigation, 19 Me. B.J. 16, 20 (2004).

See Borden & Lee III, supra note 8, at 1015, 1020–21 (discussing coordination efforts and analyzing the results of an FJC study that found that of federal judges who were aware of parallel state proceedings, nearly 60% communicated either directly or indirectly with state counterparts); Jerome I. Braun, The Second Time’s a Charm: Taking a Fresh Look at Judge Schwarzer’s Proposal for Discovery Coordination in Large-Scale Multi-Forum Litigation, 226 F.R.D. 46, 51 (2005); McGovern, Toward a Cooperative Strategy, supra note 8, at 1882–96 (outlining cooperative case management strategies for federal and state judges in mass tort litigation); McGovern, Rethinking Cooperation, supra note 8, at 1853–70 (discussing cooperative procedures in various mass torts cases and suggesting normative guidelines for future coordination efforts); James E. Mies, A Comment on “Judicial Federalism In Action,” 78 Va. L. Rev. 1763, 1764–67 (1992) (highlighting certain issues discussed in Schwarzer’s article from the perspective of a state judge); Schwarzer et al., supra note 42, at 1700–30 (discussing various examples of judges’ efforts to coordinate the proceedings in mass tort cases); see also Pointer, Jr., supra note 45, at 1569–71 (discussing federal-state cooperation in MDL 962 and identifying possible limitations on strategies seeking to remove parallel state cases); Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. Rev. 469, 479 (1994) (discussing Judge Sam Pointer’s aggressive management of the breast implant litigation).

In 2009, the FJC and the JPML jointly published a pamphlet advising transferee judges on best practices in case management; one step is to “Coordinate with Parallel State Court Cases.” See JPML & FCJ, “Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Judges,” 7 (2009), available athttp://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCkQFjAA&url=http%3A%2F%2Fmultijurisdictionlitigation.files.wordpress.com%2F2012%2F11%2F10stepsmdljudge.pdf&ei=EAYVU-e3Grx0wGftoGIBg&usg=AFQjCNHQbHAGRqN4DjIVUwRj8VHZELXogg&sig2=L0lNIRSmbTe0PLS1M6Z3KQ&bvm=bv.62286460,d.dmQ. Additionally, in a more recent jointly published pocket guide for case management of products liability cases, the FJC and the JPML included a lengthy section on inter-jurisdictional communication. See Barbara J. Rothstein & Catherine R. Borden, FJC & JPML, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges (2011), available athttp://www.fjc.gov/public/pdf.nsf/lookup/MDLGdePL.pdf/$file/MDLGdePL.pdf. Finally, in January 2011, the Conference of Chief Justices adopted a resolution “Directing the National Center for State Courts to Promote Communication and Best Practices for the Management of Like-Kind Litigation That Spans Multiple Jurisdictions and Federal Districts.” Conference of Chief Justices, Resolution 2, in “Policy Statements & Resolutions,” available athttp://ccj.ncsc.dui.us/MultiJurisResolution/resol2District.html/.

Borden & Lee III, supra note 8, at 1020–21.

In re Zyprexa Prods. Liab. Litig., 2004 WL 3520248 (E.D.N.Y. Aug. 18, 2004).

Judicial Federalism, supra note 7, at 532.

See, e.g., Linda S. Mullenix, Complex Litigation Reform and Article III Jurisdiction, 59 Fordham L. Rev. 169, 170–71 (1990) (“There can be little doubt that within the next decade Congress will enact legislation modifying, amending, or completely revamping the procedures governing multiparty, multiforum cases.”).

Pub. L. 107-273, Div. C, Title I, § 11020(b)(1)(A), 116 Stat. 1826 (codified at 28 U.S.C. § 1369).

See 28 U.S.C. § 1369(a). Those additional conditions require that either (1) a defendant resides in a state and a substantial part of the accident took place in another state or location, (2) any two defendants reside in different states, or (3) substantial parts of the accident took place in different states. 28 U.S.C. § 1369(a)(1)-(3). It is worth noting that the first condition will be met even if the defendant is also a resident of the state where a substantial part of the accident took place, and the second condition will be met even where the defendants are also residents of the same state or states. Id.

28 U.S.C. § 1369(b).

See 28 U.S.C. § 1441(e)(1)(B). Notably, section 1441(e)(1)(B) departs from the traditional removal rule, which is codified in section 1441(e)(1)(A) and allows removal of a state claim if it “could have been brought [in federal court] under section 1369.” See id. Under section 1441(e)(1)(B), a defendant can remove an action even if it could not have been brought in federal court as an original matter. See id.; see also Stephen Aslett, Wallace v. Louisiana Citizens Property Ins. Corp.: The Fifth Circuit Expands Federal Jurisdiction Over State Court Class Actions Arising Out of Hurricane Katrina, 81 Tul. L. Rev. 1331 (2007).

See Passa v. Derderian, 308 F. Supp. 2d 43, 52 (D.R.I. 2004) (stating that in drafting the MMTJA, Congress “concentrated ‘on the problem of dispersed complex litigation arising out of a single accident resulting in multiple deaths or injuries.’” (quoting H.R. Conf. Rep. No. 107-685 at 199 (2002))); see also Wallace v. Louisiana Citizens Property Ins. Corp., 444 F.3d 697, 702 (5th Cir. 2006) (“[T]he MMTJA was designed to ameliorate the restrictions on the exercise of federal jurisdiction that ultimately forced parties in multiple suits arising from the same disaster to litigate in several fora.” (citing H.R. Rep. No. 106-276 at 7 (1999))); Case v. ANPAC Louisiana Ins. Co., 466 F. Supp. 2d 781, 785 (E.D. La. 2006) (“Section 1369 … [is] meant to foster judicial economy in the resolution of actions involving certain mass disasters by circumventing conventional limitations on federal subject matter jurisdiction.”).

Because the statutory definition of the term “accident” distinguishes between a “sudden accident,” and a “natural event culminating in an accident,” see 28 U.S.C. § 1369(c)(4), district courts have reasoned that a natural event could not, by itself, constitute the requisite single accident. See, e.g., Racca v. Louisiana Farm Bureau Mut. Ins. Co., 2006 WL 3905004, *2 (E.D. La. Dec. 8, 2006) (“[A] natural event cannot constitute a ‘sudden accident’ because the MMTJA’s definition goes on to define ‘accident’ as also a ‘natural event culminating in an accident.’… Clearly a hurricane is a natural event.” (citing 28 U.S.C. § 1369(c)(4))). Courts also frequently contrasted natural disasters with examples of the type of sudden, isolated, disaster contemplated by Congress in the MMTJA’s legislative record such as “hotel fire[s],” “railroad, airplane or bus accident[s],” and “bridge collapse[s].” Case v. ANPAC Louisiana Ins. Co., 466 F. Supp. 2d 781, 792 (E.D. La. 2006); id. (“The multi-day development of the storm and ubiquitous warnings of its approach in the days before its landfall contrast sharply with the types of mass accidents contemplated by Congress when it enacted the MMTJA, namely plane crashes, train wrecks, hotel fires, and environmental spills.” (citing 147 Cong. Rec. H893-01 (2001); 137 Cong. Rec. E1923-02 (1991)). Indeed, even litigants that attempted to adapt to these holdings by claiming that the levee breaches were the requisite “accident[s]” in which the hurricane culminated were largely unsuccessful in obtaining removal under the statute. See Robin J. Effron, Disaster-Specific Mechanisms for Consolidation, 82 Tul. L. Rev. 2423, 2439–40 (2008) (“When the argument that the Hurricane would be the triggering event for the MMTJA failed to gain traction in the district courts, litigants attempted to narrow the scope by pointing to the levee breaches as the requisite accident.” Ultimately, this strategy “has also failed to form the basis of MMTJA jurisdiction.”). They often failed because they could not demonstrate that the plaintiffs’ actions arose out of a single levee breach, though some courts noted that removal might be proper if they could. See, e.g., Carroll v. Lafayette Ins. Co., 2006 WL 2663013, at *3 (E.D. La. Sept. 14, 2006) (holding that because there were multiple levee breaches at several locations the deaths did not occur at a discrete location); Case v. ANPAC La. Ins. Co., 466 F. Supp. 2d 781, 794 (E.D. La. 2006) (stating that “[i]nterpreting the term ‘single accident’ so broadly as providing for multiple levee breaches does not coincide with the purposes of the MMTJA”).

See, e.g., Ho v. Colony Ins. Co., 2008 WL 145023, *3 (E.D. La. Jan. 14, 2008) (“Courts in … [the Eastern District] … ‘have consistently found that Hurricane Katrina does not constitute an accident for purposes of § 1369 analysis’” (quoting Roby v. State Farm Fire & Cas. Co., 464 F. Supp. 2d 572, 576 (E.D. La. 2006))); Flint v. Louisiana Farm Bureau Mut. Ins. Co., 2006 WL 2375593, *3 (E.D. La. Oct. 25, 2006) (declining to “interpret the statutory definition of ‘accident’ so broadly” as to classify Hurricane Katrina as an accident); see also Karnezis, supra note 55, § 9 (collecting cases within the Fifth Circuit holding that a “hurricane is not an ‘accident’ within the meaning of the” MMTJA); Effron, supra note 59, at 2437–38 (“District court judges interpreting the [MMTJA] in the context of the Hurricane Katrina litigation have consistently held that Hurricane Katrina is not an accident within the meaning of the statute.”); Joshua A. Decuir, Note, A Federal Tete-a-Tete? The Multiparty, Multiforum Trial Jurisdiction Act and Hurricane Katrina: Past, Present, and Future Considerations, 68 La. L. Rev. 681, 696 (“[T]he judges of the Eastern District of Louisiana appear to have concluded that for purposes of MMTJA jurisdiction, Hurricane Katrina itself does not suffice as the required ‘single accident.’”).

See Case v. ANPAC Louisiana Ins. Co., supra note 58.

See Passa v. Derderian, supra note 58.

Pub. L. 101-650, 104 Stat. 5089, 136 Cong. Rec. H8263-66 (codified at 28 U.S.C. §§ 471–82).

See 28 U.S.C. § 473.

See 28 U.S.C. §§ 476, 479; see also Lauren Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 Stan. L. Rev. 1447 (1994); Jeffrey J. Peck, “Users United”: The Civil Justice Reform Act of 1990, 54 Law & Contemp. Probs. 105 (1991).

See 28 U.S.C. § 473.

See 28 U.S.C. § 1332(d), §1453.

See Edward A. Purcell, Jr., The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform, 156 U. Pa. L. Rev. 1823, 1851–88 (2008).

See id. at 1855.

Congress feared “state court provincialism against out-of-state-defendants” and “judicial failure to recognize the interests of other states” in nationwide class actions brought in state courts. S. Rep. 109-14, at 5–6; see also Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Perspective: A Preliminary View, 156 U. Pa. L. Rev. 1439, 1500 (2008) (discussing how plaintiffs’ lawyers turned increasingly to some state courts that were friendlier to class actions and willing to apply their choice-of-law rules in such a way as to facilitate the application of a single state’s law to every class member).

Purcell, Jr., supra note 68, at 1864. As an empirical matter, the federal courts have not so far proven as hostile to class certification as some members of Congress may have envisioned, though that may change as strict interpretations of Rule 23 continue to emanate from the Supreme Court. See Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1434–35 (2013) (holding that the Third Circuit improperly certified a class of customers alleging antitrust violations by a cable television provider when it did not first determine that the class’s proposed damages model could show damages on a classwide basis); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2550–52 (2011) (holding that commonality under Rule 23 requires more than the identification of a single common question of law or fact in a class and is only satisfied by claims that “depend upon a common contention … of such a nature that it is capable of classwide resolution”).

See 28 U.S.C. § 1332(d)(1)(B).

See, e.g., Linda S. Mullenix, Class Actions Shrugged, Rev. Litig. at 2 n. 5 (forthcoming 2013), available athttp://ssrn.com/abstractid=2211843 (collecting limited scholarship on CAFA’s mass action provisions).

In January 2014, the Supreme Court addressed the mass action provisions for the first time in when it decided Mississippi ex rel. Hood v. AU Optronics Corp. 134 S. Ct. 736 (2014). See infra n. 77.

28 U.S.C. §1332(d)(11)(B)(i).

See 28 U.S.C. § 1332(d)(11)(A).

Initially, courts have had trouble implementing CAFA’s requirement that a mass action involve 100 plaintiffs proposed to be tried jointly under 28 U.S.C. § 1332(d)(11)(B)(i). First, CAFA does not specify the point in litigation at which a court should evaluate the number of persons whose cases have been “proposed” to be tried jointly. The Seventh Circuit has advised, however, that the question “is not whether 100 or more plaintiffs answer a roll call in court” and that the determination of the 100 plaintiff requirement does not have to await, or even require, a trial plan for the claims of the 100 or more persons. See Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 772 (7th Cir. 2008) (Easterbrook, C.J.). Instead, that determination occurs at the time of removal. Id. Second, it is also not always clear what constitutes a “proposal” for joint trial, and the Seventh Circuit has even suggested that in absence of a specific request for a joint trial plan, a plaintiff’s complaint, request for transfer and consolidation, or other litigation actions may implicitly propose one, rendering a lawsuit a mass action. See In re Abbot Labs., Inc., 698 F.3d 568 (7th Cir. 2012). Other courts seem to have rejected the notion of an “implicit” joint trial plan. See, e.g., Romo v. Teva Pharmaceuticals, 731 F.3d 918 (9th Cir. 2013) (concluding that a joint trial plan was not proposed when plaintiffs had only moved for coordination and did not specifically mention an intent to coordinate through trial).

Furthermore, courts have also struggled with CAFA’s stipulation that in order to be removable, mass actions must satisfy the amount in controversy requirements of section 1332(a), as well as section 1332(d)(2)-(10). The interplay of these subsections has caused the Eleventh Circuit to refer to the mass action provisions as an “opaque, baroque maze of interlocking cross-references that defy easy interpretation.” Lowery v. Alabama Power Co., 483 F.3d 1184, 1198 (11th Cir. 2007). Here, the major difficulty concerns the presence within a mass action of individual claims below the $75,000 amount in controversy threshold. The definition of a mass action makes it clear that there is no jurisdiction over such individual claims, see 28 U.S.C. § 1332(d)(11)(B)(i), but the question is whether they should render jurisdiction over the entire mass action problematic. Finding that strictly requiring that each action within a mass action satisfied the individual amount in controversy threshold would render the $5 million aggregate amount in controversy requirement “mere surplusage,” the Eleventh Circuit was the first to state the leading interpretation of these provisions. See Lowery, 483 F.3d at 1205. It found that if a mass action met the aggregate $5 million threshold, it was eligible for removal, at which point the district court had to remand individual claims under $75,000 but could retain jurisdiction over the remaining cases even if they fell below 100 in number or $5 million in the aggregate. See id.; see also William B. Rubenstein, Mass actions under CAFA, in 2 Newberg on Class Actions § 6:24 (5th ed.) (discussing this developing rule).

Finally, the Supreme Court recently clarified the mass action provisions’ exception for suits in which “all of the claims … are asserted on behalf of the general public,” 28 U.S.C. § 1332(d)(11)(B)(ii)(III), and its applicability to parens patriae suits brought by state attorneys general. See Mississippi ex rel. Hood v. AU Optronics Corp., 134 S.Ct. 736 (2014). Specifically, the Court held that such suits are not remo-vable under CAFA’s mass action provision when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common law authority to assert all of the claims in the suit. Id.; 28 U.S.C. § 1332(d)(11)(C)(i).

28 U.S.C. § 1332(d)(11)(C)(i).

28 U.S.C. § 1332(d)(11)(B)(ii)(IV).

Indeed, recent scholarly proposals, like Redish’s and Schwarzer’s, as well as legislative reforms like Congress’s enactment of the MMTJA, can be situated among other proposals for reducing inefficiencies in the mass litigation universe. As far back as 1990, Linda Mullenix traced a number of attempts and proposals to ameliorate the inefficiencies associated with complex litigation—including those associated with overlapping state and federal claims. See Linda S. Mullenix, Complex Litigation Reform and Article III Jurisdiction, 59 Fordham L. Rev. 169 (1990). Perhaps unsurprisingly, many of the proposals for reforming complex litigation at that time involved expanding or modifying the scope of federal jurisdiction. In particular, Mullenix focused on proposals from the American Bar Association and the American Law Institute, as well as on a predecessor of the MMTJA, see Mullenix, supra note 80, at 222–23, and discussed the constitutionality of such proposals under U.S. Const. Art. III. Id.; see also ABA Commission on Mass Torts, Report Number 126 to the ABA House of Delegates (1989); Am. L. Inst., ALI Complex Litigation Project Council Draft No. 2 (1989); Multiparty, Multiforum Jurisdiction Act of 1990, H.R. 3406, 101st Cong., 2d Sess., 136 Cong. Rec. H3116-19. From Mullenix’s perspective, expansion of federal jurisdiction along these lines, and by extension along the lines that both Redish and Schwarzer suggested in more recent years, is constitutionally impermissible. Mullenix, supra note 80, at 222–23. Alternatively, such inefficiencies could (and perhaps must, according to Mullenix) be cured, if at all, through the passage of substantive federal law for mass litigation. Id. at 224 (“Federalizing the substantive law governing complex cases will assure valid federal jurisdiction over complex litigation. This will not occur, however, because it is politically unacceptable to enact a federal tort law or a federal products-liability law.”).

See, e.g., Hansel, supra note 47, at 20 (recounting some of the concerns of a former chairman of the JPML regarding the expansion of federal jurisdiction to include more overlapping state cases in MDL); see also DeLaventura v. Columbia Acorn Trust, 417 F. Supp. 2d 147, 149 (D. Mass. 2006) (“[A]s compared to the processing time of an average case, MDL practice is slow, very slow.”); Adrienne Bramlett Kvello, The Best of Times and the Worst of Times: How Borg-Warner and Bankruptcy Trusts are Changing Asbestos Settlements in Texas, 40 The Advoc. 80, 81 (2007) (discussing how many asbestos claims were “relegated” to the “purgatory of the MDL inactive docket” effectively “signal[ing] the demise of asbestos litigation”); Benjamin W. Larson, Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach: Respecting the Plaintiff’s Choice of Forum, 74 Notre Dame L. Rev. 1337, 1365 (1999) (The purported “efficiency gains of consolidated trial are not supported by reality.”); Mark Hermann, To MDL or Not to MDL? A Defense Perspective, 24 Litig. 43, 46 (1998) (discussing how MDL proceedings can serve as a delaying tactic used by defendants that consumes significant amounts of time and often results in depriving plaintiffs of control over the schedule of the litigation of their individual claims); Desmond T. Barry Jr., A Practical Guide to the Ins and Outs of Multidistrict Litigation, 64 Def. Couns. J. 58, 58 (1997) (noting that for MDL procedures to be effective, they require “strong and creative action from transferee judges” and concluding that “[u]ltimately, it is the resource-fulness of the court and counsel which will determine how efficiently, economically, and fairly mass tort litigation is brought to a conclusion”)

See Suzanna Sherry, Overruling Erie: Nationwide Class Actions and National Common Law, 156 U. Pa. L. Rev. 2135, 2139–42 (2008) (arguing that CAFA should be read as overruling Erie Railroad Co. v. Tompkins, at least for the national-market cases that it places within federal court jurisdiction); Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. Rev. 1353, 1414 (2006) (arguing that federalism concerns with the creation of national laws governing national disputes “appear secondary to the need to provide an effective forum for claims under national law”); see also Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 Stan. L. Rev. 115 (2010) (suggesting that the real limit regarding federal regulatory power should exist between matters that would entail collective action problems if left to the states and those that the states can properly regulate individually).

Suzanna Sherry has suggested as much. See Sherry, supra note 82.

See, e.g., id. at 2139–42; Issacharoff & Sharey, supra note 82, at 1414–31; see also Elizabeth J. Cabraser, Just Choose: The Jurisprudential Necessity to Select a Single Governing Law for Mass Claims Arising from Nationally Marketed Consumer Goods and Services, 14 Roger Williams U. L. Rev. 29, 30–32 (2009) (advocating the adoption of a single governing body of law across claims subject to different state laws in class actions and other aggregate litigation—particularly those which involve variations in law rather than true conflicts).

To be clear, I am not taking a position here on the possible need for federal tort law or for federal regulation of manufacturers whose products may lead to tort liability on a national scale. To do so would require, at the very least, descriptive exploration of, and concomitant normative judgments about, the extent to which a defendants’ obligations under varying state laws actually rise to a level of inconsistency that is damaging to the functioning of a particular interstate market, the related issue of the extent to which a given state’s heightened “protection” of its citizens results in heightened burdens to defendants while incentivizing out-of-state plaintiffs to free-ride the protections of the aberrant state, and the extent to which the removal of such protection, even if it incentivizes free-riding, would simply create an undesirable race to the bottom on issues like product safety. Along those lines, a condition precedent to the introduction of broad-sweeping national tort law might well be the development of a theory of mass litigation federalism, a project I leave for future work.

See, e.g., Richard A. Nagareda, Turning from Tort to Administration, 94 Mich. L. Rev. 899 (1995); Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 Colum. L. Rev. 2010 (1997); Nagareda, supra note 4, at viii (“The evolving response of the legal system to mass torts has been to shift from tort to administration.”).

Much of the work on mass tort settlements as resembling forms of public regulatory governance was done by Richard Nagareda, who evaluated most closely the sorts of settlement grids that emerged in response to class action litigation. It is worth noting that one important component of Nagareda’s theory about mass settlements as resembling public regulation is the notion that these settlements frequently purported to resolve the claims of people not even yet injured—future claimants—and from that perspective, litigation looked like more classic forms of prospective governance than backward-looking litigation. Nagareda, supra note 86, at 940 (arguing that “the shift [in emphasis] from retrospective enforcement to prospective specification of conduct [in administrative agencies] parallels the shift in the recent mass tort settlements from retrospective adjudication of individual tort claims to the development of prospective compensation regimes for future claimants”); see also Minow, supra note 86, at 2014 (“Especially in complex tort cases, Judge Weinstein has repeatedly structured suits as efforts to achieve ‘total peace,’ and therefore approved plans to include potential future claims.”); Nagareda, supra note 4, at 57 (“This prospective dimension—the power to set the legal rules that shall govern the future and to make those rules binding—is what sets apart private administration in the sense used here from aggregate settlements of ongoing litigation.”). While settlement grids devised in mass litigation outside of the confines of the class action may attempt to deal with future claims, depending on the particulars of the mass litigation, such a condition is not central to my point here. Whether future claims are involved or not, resolving scores of claims related to a single harm or set of harms by a single defendant or set of defendants, on a national scale, affecting plaintiffs across the country, less resembles the classic approach of one-on-one (or few-on-few) litigation of the non-mass variety, and frequently far more resembles more classic sorts of administrative-like governance whereby the interests of many in relationship to issues of frequently national concern must be balanced, considered, and ultimately resolved through a “grand compromise,” viz. a settlement grid. This is particularly true given that, to reach some sort of resolution of claims in mass litigation, it is not only impossible, as a matter of efficiency, judicial resources, and party resources to adjudicate each and every case in the mass litigation individually, but also is not ideal (for many of the same reasons) or likely necessary for determining the ultimate range of settlement values and eligibility for compensation available to all plaintiffs involved. To achieve global compromise, plaintiffs are necessarily treated as a group or as sub-groups within a larger set for purposes of determining, for instance, compensation eligibility and compensation amount.

See, e.g., Cooter & Siegel, supra note 82, at 135–56 (discussing many possible justifications for the federalist system of governance established by the U.S. Constitution).

Nagareda, supra note 4, at 101.

See, e.g., id. at 101.

Id. at 101.

To be sure, removing inefficient, duplicative, and, often perhaps, primarily strategic litigation from the litigation landscape through consolidation or full-scale coordination could also constrain any resulting settlement insofar as it reduces the distortive impact of waste and gamesmanship on settlement values. However, any fortuitous disciplining effect would seem to be, at best, secondary.

I focus here on the non-removable state cases as a source of independent proceedings spread through different tribunals, given that they already exist as such. The notion of independent proceedings in various tribunals has been referred to as “jurisdictional redundancy.” More specifically, the concept of jurisdictional redundancy—the notion that our system of federalism creates the possibility of vertical (federal-state) and horizontal (state-state) concurrency of litigation—was introduced and explored by Robert Cover. See Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest Ideology, and Innovation, 22 Wm. & Mary L. Rev. 639 (1981).

For an essay exploring the possibilities statistical sampling of cases holds for mass litigation, see Edward K. Cheng, When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling, 160 U. Pa. L. Rev. 955 (2012).

The notion of real-world data as a mechanism for enabling claim maturation and for developing an ultimate plan for resolution in mass litigation derives from Judge Posner’s recognition of the importance of a “decentralized process of multiple trials” for developing a market for claims. See In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995) (Posner, J.).

For instance, one benefit of test cases in the early stages of a mass tort is to generate “maturation” of that tort. See, e.g., Nagareda, supra note 4, at 92.

In the class action context, the presence of such distinguishable groups of claimants, or differences between the claims of putative class members, often militates against class certification. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997) (finding that differences between the claims of exposure-only plaintiffs did not share enough in common with the presently injured plaintiffs to satisfy Fed. R. Civ. P. 23(b)(3)’s predominance requirement); Gen. Telephone Co. v. Falcon, 457 U.S. 147, 159–61 (1982) (de-certifying a class for failure to satisfy Fed. R. Civ. P. 23(a) as a result of differences between a group of claimants who had been hired and faced discrimination in terms of promotion and a group of claimants who had simply never been hired as a result of discrimination). These differences are most often a result of the extent and nature of the injuries suffered by various groups of claimants, as was the case in Amchem, 521 U.S. at 624, or differences in the state substantive laws that control various groups of claimants, see, e.g., Cole v. Gen. Motors Corp. 484 F.3d 717 (5th Cir. 2007) (differences in the claims of class members from various states rendered class certification inappropriate); In re Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig., 288 F.3d 1012 (7th Cir. 2002) (finding that because the law of the claimants various states of residence applied, a nationwide class was unmanageable).

Just to be clear, by real-world data, I am not arguing that the non-removable state cases would provide data about the “right” result in any given case (to the extent that could even be a realistic goal of any litigation) or the “better” result in any given case, as compared with the result that would be reached in federal court. That said, appropriately sampled cases might well be more likely to generate better accuracy about the value of the claims in mass litigation than any single proceeding, consolidated or otherwise. See, e.g., Cheng, supra note 94, at 957–65.

See J. Maria Glover, The Federal Rules of Civil Settlement, 87 N.Y.U. L. Rev. 1713, 1724–43 (2012) (discussing the various ways in which parties can obtain bargaining leverage, wholly irrespective of the merits of underlying claims).

See Erichson & Zipursky, supra note 19, at 270–74, 318–20; John C. Coffee Jr., Accountability and Competition in Securities Class Actions: Why “Exit” Works Better Than “Voice,” 30 Cardozo L. Rev. 407, 432–35, 441 (2008) (discussing agency problems in aggregate litigation); Richard A. Nagareda, Aggregation and Its Discontents: Class Settlement Pressure, Class-wide Arbitration, and CAFA, 106 Colum. L. Rev. 1872, 1879–82 (2006).

See, e.g., Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822 (1985) (finding that a Kansas state court had erred in deciding that Kansas law could govern all of the claims in a multistate class because the court did not determine that it had a “significant contact or aggregation of contacts” to the claims asserted by each member in order to ensure that the choice of Kansas law was not arbitrary or unfair).

Indeed, “there remain important ideological correlates to the political [and geographical] lines within America.” See generally Cover, supra note 93, at 658, 665–66 (“[M]ost state court trial judges are drawn from local, provincial elites…. Levels of education, bonds of loyalty, status, and even economic class may differ radically from one group to another [and between state judges and federal judges].”).

This is of course not to suggest that, ideally, all cases would be tried individually (ideally they would not). Rather, it is to argue that, in a world in which aggregate resolution of frequently large, nationwide problems is obtained through private litigation rather than some form of public legislation or regulation, the real-world outcome data about culpability on the part of defendants and entitlement to relief on the part of claimants is, by design, to emerge from the judicial process, and more specifically, from individual trials. The idea here is that selection of some appropriately sampled sub-set of the non-removable state proceedings (appropriate sampling is a topic beyond the scope of this Article) could provide us with the real-world data we would otherwise only get through trying all cases individually.

This Article leaves for another day work that would offer a method of sampling state cases for use in generating an ultimate settlement grid. At the very least, the process for selecting state cases to be harnessed as discipliners of the settlement grid should be aimed at selecting cases that will provide data about the overall distribution of claim strengths, weaknesses, and claim values. See generally Cheng, supra note 94, at 956–57, 965. Moreover, the state cases would arguably need to proceed as part of a coordinated plan for settlement design—a point that has numerous implications, not the least of which being that, as part of the plan, defendants would not be permitted to settle out all of the strong cases that represented the high end of the distribution in order to distort the claim valuations of any ultimate settlement of the entire mass dispute.

See generally Glover, supra note 99, at 1713 (describing as a “distorted” settlement value one that fails meaningfully to reflect the values of claims as dictated by the contours of relevant substantive law). See also Cover, supra note 93, at 665 (“If outcomes are confirmed by the courts of two or more different systems which vary with regard to supposed social determinants of knowledge and mind, this result would suggest some common epistemological ground with respect to the issue presented and with respect to its resolution. For a series of jurisdictional alternatives to present a plausible network of redundancy sufficient to ‘correct’ ideological bias requires that those alternative forums arise out of widely varied political bases with attendant variations in the constituencies to which they speak.”).

See 28 U.S.C. § 1407(a) (“Each action so transferred [to an MDL] shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated…”); see also Eldon E. Fallon, Jeremy T. Grabill, & Robert Pitard Wynne, Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323 (2008) (describing the increasingly common practice of bellwether trials in MDL).

See Barbara J. Rothstein, Francis E. McGovern, & Sarah Jael Dion, A Model Mass Tort: The PPA Experience, 54 Drake L. Rev. 621, 632–35 (discussing the joint Daubert hearing in the PPA litigation in which the federal MDL transferee judge invited multiple state court judges with jurisdiction over overlapping claims in a “joint proceeding of the federal courts and the attending state court judge” that “considered the application of expert testimony to claimants in various subpopulations”).

See generally Byron G. Stier, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temp. L. Rev. 1013, 1063 (2007) (“[T]he use of individual juries [is superior because it] … will track changes over time…”). Stier uses as an example the silicone breast implant mass litigation, in which he notes that a scientific consensus on the safety of silicone breast implants emerged only after Dow Corning, the major manufacturer of such implants, entered bankruptcy. See B. J. Feder, “Dow Corning in Bankruptcy over Lawsuits,” N.Y. Times, at A1 (May 16, 1995) (describing Dow Corning seeking protection of bankruptcy to deal with claims worth billions of dollars); Food & Drug Admin, FDA Breast Implant Consumer Handbook 68–69 (2004), available athttp://www.drfisher.com/cosmeticsurgery/Breast/breastaug/fdabreastprosthesis.pdf (noting that in 1999 Institute of Medicine concluded there was “insufficient evidence” of systemic health concerns from silicone and saline breast implants).

By way of extreme (and highly stylized) example, the weight of, say, Stephen Hawking’s expert testimony on particle physics—and therefore its influence on the value of a claim that depended in any meaningful way on that testimony—is statistically worth a great deal (say 1.0, or 100%). In contrast, my expert testimony on such matters assuredly must be somewhere around 0.0. Absent such clear (or nearly as clear) dichotomies, the effect of a single Daubert hearing in mass litigation is tantamount to ascribing either 100% or 0% weight to that expert’s opinion, and more importantly to affect significantly the value of the claims dependent on that testimony as reflected in an ultimate settlement grid.

See Cover, supra note 93, at 658, 665–66 (discussing how “to the extent that the jurisdictional alternatives differ with respect to the supposed salient social determinants of ideology,” presumably with the different judges or juries that will be involved with each jurisdiction, “complex concurrency constitutes a strategy for coping with ideological impasse”).

See, e.g., Nagareda, supra note 4, at 76–80 (comparing the sought-after settlements in class actions to things like workman’s compensation regulatory schemes).

It is worth noting a bit of irony here: To the extent courts have held that judges lack the authority to engineer grand compromises by way of settlement grids—grids based on very carefully thought-out sampling methods intended to ensure adequate representation of plaintiffs and adequate exploration of differences among them and their claims—it seems quite counter-intuitive, from a governance standpoint, to give private parties free reign to do so without at least as much attention given to the way in which the settlement is reached. See, e.g., Cimino v. Raymark Indus., 151 F.3d 297 (5th Cir. 1998) (rejecting a three step trial plan instituted by District Judge Parker to resolve asbestos litigation whereby (1) a jury would decide which, if any, of each of the defendants products were defective, (2) the same jury would determine both the extent and nature of injuries in the class and full liability determinations for the named class representatives, as well as up to 15 additional plaintiffs chosen from each side of the litigation, and (3) the court would distribute the awarded damages among the individual class members according to the jury’s findings regarding the sample claimants); see generally id. at 321 (“‘The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution.’ … The Judicial Branch can offer the trial of lawsuits. It has no power or competence to do more.” (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591. 621 (1997))). In any event, that irony currently seems lost on (or irrelevant to) the Supreme Court, whose jurisprudence in the area of contractual class action waivers suggests a reluctance to place any limits whatsoever on the ability of private parties to effectively contract around liability and, in so doing, to potentially effectuate something resembling reconfiguration of legislatively-enacted remedial schemes. See, e.g., Am. Exp. Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013) (finding that there was no congressional action sufficient to require the rejection of a class-arbitration waiver on the grounds that it altered the substantive rights of the claimants or prohibited the effective vindication of their rights); AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011) (finding that the Federal Arbitration Act preempts California’s judicial rule regarding the unconscionability of class action waivers in consumer contracts); Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 408 (2010) (declaring that the class action device did not bear on substantive rights as “[s]uch rules neither change plaintiffs’ separate entitlements to relief nor abridge defendants’ rights; they alter only how the claims are processed”); Stolt-Nielsen S.A. v. AnimalFeeds International Corp., 559 U.S. 662, 668–70 (2010) (finding that an arbitration agreement that made no specific mention of class proceedings could not be read to establish class-wide arbitration).

In-depth exploration of these first-order questions is beyond the scope of this article, though I have explored the topic somewhat in prior work. See, e.g., J. Maria Glover, The Structural Role of Private Enforcement Mechanisms in Public Law, 53 Wm. & Mary L. Rev. 1137 (2012); J. Maria Glover, Note, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 Vand. L. Rev. 1735 (2006).

See John Fabian Witt, Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of the Tort System, 56 DePaul L. Rev. 261 (2007) (“[T]he modern plaintiffs’ bar serves a crucial regulatory function in American public policy…”). Witt also described the plaintiffs’ bar as possessing an immense regulatory role in the tort system—as a “private bureaucracy” too frequently “decentralized … virtually invisible … and unconstrained.” Id. at 261–62.

See John C.P. Goldberg, Ten Half-Truths About Tort Law, 42 Val. U. L. Rev. 1221, 1265 (2008) (noting that tort law can (and should) be reflected in an ultimate settlement through test cases that reveal patterns as to the strengths and weaknesses on various substantive elements, such as “defect, causation, comparative fault,” and thus reveal patterns regarding the strengths and weaknesses of different claims); Glover, supra note 99 (calling upon the judiciary to perform more of its traditional adjudicative functions for the express purpose of facilitating settlements that more accurately reflect the dictates of underlying substantive law); see also generally Jonathan T. Molot, An Old Judicial Role for a New Judicial Era, 113 Yale L.J. 27 (2003) (describing the significant adjudicatory role that the judiciary could return to and play in aggregate dispute resolution).

See, e.g., Cimino v. Raymark Indus., 151 F.3d 297 (5th Cir. 19998) (rejecting a trial plan whereby test trials of individual claimants would be explicitly determinative of the recovery of individual claimants); see also Wal-Mart Stores, Inc. v. Dukes 131 S. Ct. 2541, 2555 (2011) (discussing how plaintiffs’ statistical evidence, proffered to demonstrate commonality between class members, fundamentally failed to demonstrate that commonality exists even if entirely credible).

Goldberg, supra note 115, at 1266.

Cover, supra note 93, at 661 (discussing how jurisdictional redundancy can act as a structural solution to corruption or the suspicion of corruption in a tribunal); see also id. at 669 (identifying, in many criminal prosecutions, mistrust of the original, state-based decision-maker as the basis for developing or invoking an alternative federal forum to the relevant state).

See id. at 680.

See id. at 658 (“The political subdivisions of America do indeed present a range of policy initiatives differing both in terms of conditions to be met and ways of meeting them.”).

See id. at 675 (noting that multiple consistent pronouncements of a legal norm “removes jurisdictional doubt,” and “reduces the likelihood that the conclusion was the product of local error or prejudice, ideology or interest”).

Nagareda, supra note 4, at 223.

As examples, absent competition, a plaintiffs’ steering committee in MDL may be incentivized to avoid risk and settle plaintiffs’ claims for less than could be obtained should those plaintiffs sue individually. See Coffee, supra note 100, at 409, 413–14. This problem may be ameliorated in large part by the introduction of competition, see id. at 415–16, at least insofar as competition is policed to avoid reverse auctions of plaintiffs’ claims. Conversely, defendants’ attorneys will rationally seek to settle any test cases that could drive up settlement values in an ultimate grid and try only the “easy-to-win” cases. This second problem is one that could arise with or without the use of non-removable state proceedings and calls for careful selection, development, and execution of test cases—no matter where they are sourced—to be addressed. This Article thus does not suggest that mere recognition of the potential for state cases to be used to, say, generate settlement data, would ameliorate this problem of defendant-attorney incentives. That problem goes more directly towards questions of case sampling, which are beyond the scope of this project.

To be sure, given any number of strategic maneuvers, individuals may be able to obtain access to the laws of a state that developed with no intent to protect that particular individual (perhaps a non-citizen) or to deter the conduct of the defendant at the behest of a suit brought by that individual. For purposes of this article, I set aside the persistent, largely undesirable, though likely inevitable reality of jurisdictional strategy and gamesmanship as a largely separate problem for another day. I leave that problem (for now) in the hands of the jurisdictional doctrines and rules that attempt to reign in some of that gamesmanship.

See supra Part III.A. and accompanying text.

Nagareda, supra note 4, at 94.

This dynamic of aggregate resolution is a recurring theme in the class action context. In the Supreme Court’s decision in Amchem Products, Inc. v. Windsor, for instance, the court found that “[i]n significant respects, the interests of those within the class are not aligned,” as it purported to settle the claims of those currently injured, who needed immediate, generous payouts, and those who were only exposed to asbestos, but did not yet contract any related illnesses, and wished to preserve an “ample, inflation-protected fund for the future.” See 521 U.S. 591, 595 (1997). In Amchem, at least some of the attention given to protecting the interests of such future claimants was likely attributable to the desire of plaintiffs’ attorneys, not appointed class counsel, to preserve their inventory of clients, and, along with that inventory, their livelihood, rather than a decision to disadvantage the currently injured plaintiffs. Nevertheless, the fear that class settlements, or class counsel, will favor particular groups of claimants at the expense of others is often a significant consideration in deciding whether to certify a class, especially if the court can identify distinguishable subsets of claimants whose interests cannot be said to align with those of any particular named plaintiff. See, e.g., Safeco Ins. Co. v. Am. Intern. Group, Inc., 710 F.3d 754, 757 (7th Cir. 2013) (acknowledging that “conflicts of interest between representative plaintiffs and class members can lead the representatives to sell out for too little”); Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 337–38 (4th Cir. 1998) (discussing how “conflict[s] of interest between different groups of” claimants with respect to the appropriate relief can disadvantage particular claimants); In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 801 (3d Cir. 1995) (discussing how a court must carefully evaluate class settlements to determine whether “the decision to settle represents a good value for a relatively weak case or a sell-out of an otherwise strong case”); In re Ford Motor Co. Bronco II Prods. Liab. Litig., 1995 WL 222177, *4-*5 (E.D. La. Apr. 12, 1995) (rejecting a class settlement that gave plaintiffs alleging defects in the Ford Bronco II, rather than the many forms of compensation and damages sought in their complaint, a “utility vehicle video, a sun-visor warning sticker, a utility vehicle Owner’s Guide Supplement, and an inspection of their vehicles,” but did provide for considerable attorney’s fees for class counsel).

Indeed, the notion that class conflicts had the potential to advantage certain groups of claimants over other groups contributed to the Supreme Court’s reasoning in General Telephone Co. v. Falcon, when it de-certified an class of Mexican-American claimants alleging employment discrimination in both hiring and promotion decisions. 457 U.S. 147 (1982). There, the named plaintiffs’ claim did not depend in any way on “the failure of [the defendant] to hire more Mexican-Americans,” because he had been hired. Id. at 158. Accordingly, it was not safe to assume that he would pursue the interests of claimants alleging discrimination in hiring as aggressively as those of similarly situated claimants. As feared, in other cases, class settlements have explicitly attempted, usually unsuccessfully, to engage in this type of favoritism. See, e.g., Nat’l Super Spuds, Inc. v. NY Mercantile Exch., 660 F.2d 9 (2d Cir. 1981) (Friendly, J.) (rejecting a class settlement alleging wrongful conduct that had depressed the price of potato futures contracts because it provided a recovery only for persons who had liquidated their holdings in a given time but purported to release the claims of individuals who had or had not liquidated during the time period); In re Gen. Motors Corp. Engine Litig., 594 F.2d 1106, 1133–34 (7th Cir. 1979) (rejecting a class settlement that purported to release the federal claims of absent class members even if they refused to agree, effectively forcing absent members who disapproved of the settlement terms into an “accept-or-else” situation).

Unsurprisingly, such “protections” (or, perhaps, over-protections) have not gone without criticism. See, e.g., Elizabeth J. Cabraser, The Class Action Counterreformation, 57 Stan. L. Rev. 1475, 1476 (2005) (“In the case of Amchem, the perfect was the enemy of the good: the multibillion-dollar settlement, rejected by the Supreme Court, was lost forever, and thousands of claimants who would have gladly traded their pristine due process rights for substantial monetary compensation have been consigned to the endless waiting that characterizes asbestos bankruptcies.”); Amchem, 521 U.S. at 630–32, 635–36 (emphasizing the importance of compensation for victims of asbestos exposure in the protracted and often delayed litigation of asbestos claims and questioning the majority’s strict insistence that the conditions for class certification be satisfied prior to any consideration of the settlement’s fairness).

To be sure, many state claims that relate to ongoing MDL proceedings are brought by the same plaintiffs’ firms, raising the need for empirical inquiry into the extent to which, absent an inventory of multiple plaintiffs by a particular firm, any individual case would or would not be filed.

See Nagareda, supra note 4, at 236–68; Witt, supra note 114, at 282–90 (both stressing the importance of inter-attorney competition and/or more policing of attorney practices in the area of mass torts).

Coffee, supra note 100, at 411.

Id. at 412–13.

Silver & Miller, supra note 24, at 107, 109–10 (2010) (“Because MDL judges select lead attorneys and control their compensation, lead attorneys rarely challenge them. In practical effect, MDL judges are lead lawyers’ clients. Fee-related concerns also cause non-lead lawyers to fear MDL judges, who take from them the money lead lawyers receive. By challenging an MDL judge, a non-lead lawyer must be willing to risk retribution in the form of a heavy fee tax. Because judges leave the size of forced fee transfers open until litigation ends, obedience is the prudent course for non-lead lawyers until an MDL formally concludes—or even longer when non-lead lawyers have cases in other MDLs being handled the same judge.”); see also S. Todd Brown, Plaintiff Control and Domination in Multidistrict Mass Torts, 61 Clev. St. L. Rev. 391, 402 (2013) (discussing how, when lead counsel and the steering committee are being selected in an MDL, “[a] critical objective … is to ensure that the lawyers work together and advance the collective interests of the claim pool in a cohesive fashion” and describing the disincentives for open competition for such roles).

Coffee, supra note 100, at 409 & n. 7 (“That ‘exit’ may work better than ‘voice’ is evidenced by the striking disparity that has recently arisen between the modest payouts to class members who remain in the class versus the much higher returns to institutional investors who opt out and sue in individual actions.”).

See id. at 440–41 (“[I]ncreased opting out will place class counsel under increased competitive pressure to improve the class settlement. Faced with competition and a risk that a ‘cheap’ settlement will produce a high rate of opt outs, class counsel must seek to reach a superior settlement in order to avoid the fee reduction that follows from a smaller class size caused by increased opt outs.”)

See, e.g., Howard Erichson, The Problem with All-or-Nothing Settlements, 58 U. Kan. L. Rev. 979 (2010); Richard A. Nagareda, Closure in Damage Class Settlements: The Godfather Guide to Opt-out Rights, 2003 U. Chi. Legal F. 141, 143 (2003) (describing coercive settlements as “Godfather”-type deals because the double-edged meaning of “an offer he can’t refuse” stands as an apt description of an issue at the forefront of class settlement design).

See, e.g., Rhonda Wasserman, Dueling Class Actions, 80 B.U. L. Rev. 461, 498–505 (2000) (discussing how the competition between overlapping class actions filed in Delaware Chancery Court and the Central District of California by plaintiffs attorneys seeking to control the litigation frustrated the class’ preclusive effect in Epstein v. MCA, Inc. and related litigation); see also William T. Allen, Finality of Judgments in Class Actions: A Comment on Epstein v. MCA, Inc., 73 N.Y.U.L. Rev. 1149 (1998).

See supra note 32 and accompanying text.

See supra note 35 and accompanying text.