CAFA, choice-of-law, and the problem of legal maturity in nationwide class actions

University of Cincinnati Law Review

Volumn 76, Issue 1, 2007, Pages 105-142

  Ahn, Sue Yun ^a  

^a NONE

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EID: 38949183273     PISSN: 00096881     EISSN: None     Source Type: Journal    
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References (365)

1. Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C).
2. S. REP. NO. 109-14 (2005),
3. reprinted in 2005 U.S.C.C.A.N. 3, 13-15;
4. see also Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1416 (2006) (discussing "captive jurisdictions"
5. (citing NU Roundtable: Class Action Fairness Act, NAT'L L.J., May 16, 2005, at 18 (statement of John Beisner) [hereinafter CAFA Panel]));
6. John C. Coffee, Jr., New World of Class Actions: CAFA, Exxon, and Open Issues, N.Y.L.J., July 21, 2005, at 5 [hereinafter Coffee, New World] ("The conventional wisdom about class actions is that [CAFA] will reduce their number, end the certification of nationwide class actions in notorious 'magnet' state courts, and largely preclude mass tort class actions.").
7. See, e.g., Francis E. McGovern, The Defensive Use of Federal Class Actions in Mass Torts, 39 ARIZ. L. REV. 595, 602 (1997);
8. Tobias Barrington Wolff, Preclusion in Class Action Litigation, 105 COLUM. L. REV. 717, 748 (2005).
9. See sources cited supra note 2.
10. 28 U.S.C. §1332(a) (2000);
11. see also RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1459-63 (5th ed. 2003) [hereinafter HART & WECHSLER]
12. (discussing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806), which establishes the requirement of complete diversity).
13. Class Action Fairness Act of 2005, Pub. L. No. 109-2, §4(a)(2)(d)(2), 119 Stat. 4.
14. "CAFA thus thrusts federal courts into the thick of state substantive law and obliges them to face up to the choice of law decisions that the Supreme Court has authorized them to make where state laws collide but in which the federal courts have often been reluctant to engage." Elizabeth J. Cabraser, The Class Action Counterreformation, 57 STAN. L. REV. 1475, 1516 (2005) (citations omitted).
15. See, e.g., Stephen R. Bough & Andrea G. Bough, Conflict of Laws and Multi-State Class Actions: How Variations in State Law Affect the Predominance Requirement of Rule 23(b)(3), 68 UMKC L. REV. 1 ( 1999);
16. Samuel Issacharoff, Settled Expectations in a World of Unsettled Law: Choice of Law After the Class Action Fairness Act, 106 COLUM. L. REV. 1839 (2006) [hereinafter Issacharoff, Settled Expectations];
17. Richard A. Nagareda, Bootstrapping in Choice of Law After the Class Action Fairness Act, 74 UMKC L. REV. 661 (2006) [hereinafter Nagareda, Bootstrapping];
18. Russell J. Weintraub, Choice of Law as an Impediment to Certifying a National Class Action, 46 S. TEX. L. REV. 893 (2005);
19. Patrick Woolley, Erie and Choice of Law After the Class Action Fairness Act, 80 TUL. L. REV. 1723 (2006);
20. Paul S. Bird, Note, Mass Tort Litigation: A Statutory Solution to the Choice of Law Impasse, 96 YALE L.J. 1077 (1986);
21. Jeremy T. Grabill, Comment, Multistate Class Actions Properly Frustrated by Choice-of-Law Complexities: The Role of Parallel Litigation in the Courts, 80 TUL. L. REV. 299 (2005);
22. Ryan Patrick Phair, Comment, Resolving the "Choice-of-Law Problem" in Rule 23(b)(3) Nationwide Class Actions, 67 U. CHI. L. REV. 835 (2000).
23. See, e.g., In re St. Jude Med., Inc., Silzone Heart Valve Prods. Liab. Litig., 425 F.3d 1116 (8th Cir. 2005);
24. In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012 (7th Cir. 2002);
25. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672 (7th Cir. 2001);
26. In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005);
27. In re Tri-State Crematory Litig., 215 F.R.D. 660 (N.D. Ga. 2003).
28. "The expectation is that defendants will remove class actions filed in state court to federal court, where federal judges will routinely deny class certification." Georgene M. Vairo, The Class Action Fairness Act of 2005: A Review and Preliminary Analysis 44 (2005) [hereinafter Vairo, CAFA];
29. see also Elizabeth J. Cabraser, The Manageable Nationwide Class: A Choice-of-Law Legacy of Phillips Petroleum Co. v. Shutts, 74 UMKC L. REV. 543, 548 (2006) [hereinafter Cabraser, Manageable].
30. See Coffee, New World, supra note 2 (discussing the conventional wisdom on CAFA);
31. see also James E. Pfander, Honoring David Shapiro: The Tidewater Problem: Article III and Constitutional Change, 79 NOTRE DAME L. REV. 1925, 1976 n.210 (2004) ("One might cynically suppose that the minimal diversity approach seeks to kill the nationwide class action by preserving conflicting state law and shifting litigation to federal courts known for their hostility toward the certification of such classes.").
32. But see Peter Geier, CAFA a Year Later? Not So Bad, NAT'L L.J., Feb. 28, 2006, available at http://www.law.com/jsp/ nlj/PubArticleNLJ.jsp?id=l 141121108669 ("[CAFA], which industry and tort reformers fought so hard to get passed, may turn out to be not as tough on class action plaintiffs and their lawyers as either side had envisioned.").
33. See Wolff, supra note 3, at 748 ("[S]ome states have standards for certification and notification that are more permissive than their federal counterparts.");
34. see also John H. Beisner & Jessica Davidson Miller, They're Making a Federal Case Out of It in State Court, 25 HARV. J.L. & PUB. POL'Y 143 (2001).
35. Class Action Fairness Act of 2005, Pub. L. 109-2, §4(a)(2)(d)(3)-(4) , 119 Stat. 4.
36. See CAFA Panel, supra note 2 (statement of Gregory P. Joseph);
37. see also Cabraser, Manageable, supra note 10, at 550-51.
38. See Clark v. TAP Pharm. Prods., Inc., 798 N.E.2d 123 (Ill. App. Ct. 2003);
39. Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 894 A.2d 1136 (N.J. Super. Ct. App. Div. 2006),
40. rev'd on other grounds, 929 A.2d 1076 (N.J. 2007);
41. Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618(Okla. 2003).
42. See, e.g., Issacharoff & Sharkey, supra note 2, at 1419-20;
43. Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. REV. 547 (1996);
44. Linda S. Mullenix, Federalizing Choice of Law for Mass-Tort Litigation, 70 TEX. L. REV. 1623 (1992);
45. Donald T. Trautman, Toward Federalizing Choice of Law, 70 TEX. L. REV. 1715 (1992);
46. Georgene M. Vairo, Multi-Tort Cases: Cause for More Darkness on the Subject, or a New Role for Federal Common Law?, 54 FORDHAM L. REV. 167 (1985).
47. See John C Coffee, Jr., Class Wars: The Dilemma of the Mass Torts Class Action, 95COLUM. L. REV. 1343, 1351 (1995) [hereinafter Coffee, Class Wars] (describing "small claimant" classes as those where "individual claimants lack legal claims that would be economically viable if asserted on an individual basis");
48. see also William B. Rubenstein, Why Enable Litigation?: A Positive Externalities Theory of the Small Claims Class Action, 74 UMKC L. REV. 709, 712 (2006) ("[B]ecause each plaintiffs claim was so insubstantial, no plaintiff had a stake that justified hiring an attorney for an hourly wage, nor would any attorney see a contingent fee sufficient to justify individual litigation.").
49. See, e.g., Rubenstein, supra note 17, at 710-12;
50. Stephen C. Yeazell, Collective Litigation as Collective Action, 1989 U. ILL. L. REV. 43, 45-46;
51. see also 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE §1751, at 10-12 (3d ed. 2005) (noting the class action device's historical efficiency offerings).
52. See generally John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 COLUM. L. REV. 370 (2000) [hereinafter Coffee, Exit].
53. FED. R. CIV. P. 23(b)(3) (requiring that "the court find[] that the questions of law or fact common to the members of the class predominate and that a class action is superior to other available methods").
54. See Ortiz v. Fibreboard, 527 U.S. 815 (1999);
55. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
56. Some states have more lenient certification requirements than federal courts, see Wolff, supra note 3, at 748, which can lead to less problematic choice-of-law considerations in state courts. However, state courts have sometimes denied class action certification based on choice-of-law problems as well.
57. See, e.g., State ex rel. Am. Family Mut. Ins. Co. v. Clark, 106 S.W.3d 483 (Mo. 2003);
58. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 697 (Tex. 2002).
59. See HART & WECHSLER, supra note 5, at 642-43.
60. See Ortiz, 527 U.S. at 856 (suggesting that subclasses may be appropriate for different groups of class members (citing Amchem, 521 U.S. at 627)).
61. See, e.g., In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283, 315 (3d Cir. 1998);
62. In re Pharm. Indus. Average Wholesale Price Litig., 230 F.R.D. 61, 83 (D. Mass. 2005).
63. See In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012, 1018 (7th Cir. 2002) ("Because these claims must be adjudicated under the law of so many jurisdictions, a single nationwide class is not manageable.");
64. cf. McNamara v. Bre-X Minerals Ltd., No. 5:97-CV-159, 2003 U.S. Dist. LEXIS 25641 (E.D. Tex. Mar. 31, 2003) (denying class certification because of difficulties of managing three non-choice-of-law-based subclasses).
65. See James M. Underwood, Rationality, Multiplicity & Legitimacy: Federalization of the Interstate Class Action, 46 S. TEX. L. REV. 391, 445 n.218 (2004) ("[S]ome states, like Illinois, do not even require a showing of superiority."
66. (citing Clark v. TAP Pharm. Prods., Inc., 798 N.E.2d 123, 134 (Ill. App. Ct. 2003))).
67. Issacharoff & Sharkey, supra note 2, at 1419;
68. see also, e.g., Trautman, supra note 16; Bird, supra note 8.
69. See JoEllen Lind, "Procedural Swift": Complex Litigation Reform, State Tort Law, and Democratic Values, 37 AKRON L. REV. 717, 761 (2004);
70. Jesse Tiko Smallwood, Note, Nationwide, State Law Class Actions and the Beauty of Federalism, 53 DUKE L.J. 1137, 1137 (2003).
71. See, e.g., In re Relafen Antitrust Litig., 221 F.R.D. 260, 276 (D. Mass. 2004) ("The Court begins by acknowledging that federal appellate courts have viewed class actions governed by the law of multiple states with serious skepticism."
72. (citing Bridgestone/Firestone, 288 F.3d at 1015;
73. In re Am. Med. Sys., Inc., 75 F.3d 1069, 1085 (6th Cir. 1996))).
74. 313 U.S. 487, 496-97 (1941).
75. 449 U.S. 302, 308 (1981).
76. HART & WECHSLER, supra note 5, at 637.
77. Id.
78. 472 U.S. 797, 814 (1985).
79. Id. at 821-22.
80. FED. R. CIV. P. 23(b)(3);
81. see also, e.g., In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005) (denying certification of nationwide class because choice-of-law involving over twenty states made class unmanageable);
82. In re Tri-State Crematory Litig., 215 F.R.D. 660 (N.D. Ga. 2003) (disallowing certification on issue of punitive damages because of choice-of-law problems).
83. See Bough & Bough, supra note 8, at 4.
84. A similar variation of the most significant relationship test is the "interest analysis" test, applied by New Jersey. Id. at 5.
85. RESTATEMENT (SECOND) OF CONFLICT OF LAWS §6 (1971). The section provides that in order to decide which jurisdiction has the "most significant relationship" to the action, courts should consider: (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.
86. Id.
87. See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1003 (9th Cir. 1987) ("The Restatement (Second) of Conflict of Laws is a source of general choice-of-law principles and an appropriate starting point for applying federal common law in this area."). One of the limited areas in which a federal common law choice-of-law rule has developed is in the area of foreign relations, as was the situation in Harris.
88. See, e.g., In re Pharm. Indus. Average Wholesale Price Litig., 230 F.R.D. 61, 83 (D. Mass. 2005) ("[W]hile it is tempting to apply the consumer protection laws of the states where defendants have their principal places of business to promote uniform results and the ease of managing a class, under the Restatement, the laws of the home states of the consumers govern.").
89. For states that do not use the most significant relationship test, another common choice-of-law rule is simply the law of the place of injury, the "lex loci delicti" doctrine. See, e.g., In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012, 1016 (7th Cir. 2002) (Indiana);
90. Newby v. Enron Corp. (In re Enron Corps. Sees., Derivative & ERISA Litig.), No. H-01-3624, 2005 U.S. Dist. LEXIS 4494, at *137 (S.D. Tex. Feb. 6, 2005) (Connecticut).
91. See In re St. Jude Med., Inc., Silzone Heart Valve Prods. Liab. Litig., 425 F.3d 1116, 1120 (8th Cir. 2005) (reversing district court's certification of a nationwide class because of insufficient choice-of-law analysis, and noting that '"[s]tate consumer-protection laws vary considerably, and courts must respect these differences rather than apply one state's law'" (quoting Bridgestone/Firestone, 288 F.3dat 1018)).
92. Klay v. Humana, Inc., 382 F.3d 1241, 1261 (11th Cir. 2004) ("[C]lass certification is impossible where the fifty states truly establish a large number of different legal standards governing a particular claim.");
93. Bridgestone/Firestone, 288 F.3d at 1018 ("Because these claims must be adjudicated under the law of so many jurisdictions, a single nationwide class is not manageable.").
94. In re Relafen Antitrust Litig., 221 F.R.D. 260, 278 (D. Mass. 2004) (noting that application of multiple states' laws "does not necessarily defeat certification");
95. Lichoff v. CSX Transp., Inc., 218 F.R.D. 564, 574 (N.D. Ohio 2003) (stating that courts have sometimes "granted class certification on nation-wide cases involving the laws of all fifty states");
96. Mowbray v. Waste Mgmt. Holdings, Inc., 189 F.R.D. 194 (D. Mass. 1999) (certifying class despite application of multiple states' laws by grouping class members), aff'd, 208 F.3d 288 (1st Cir. 2000).
97. See, e.g., Bridgestone/Firestone, 288 F.3d 1012;
98. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 674 (7th Cir. 2001) ("A nationwide class in what is fundamentally a breach-of-warranty action, coupled with a claim of fraud, poses serious problems about choice of law, the manageability of the suit, and thus the propriety of class certification." (citing In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995)));
99. Lichoff, 218 F.R.D. at 574 (noting that application of six states' laws "would make it burdensome to instruct a jury on the legal standards for plaintiffs' claims");
100. see also James E. Pfander, The Substance and Procedure of Class Action Reform, 93 ILL. B.J. 144 (2005) (suggesting that differing state substantive laws "often persuades federal judges to reject nationwide class treatment as unwieldy").
101. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 529 (3d Cir. 2004) ("[W]hen dealing with variations in state laws, the same concerns with regards to case manageability that arise with litigation classes are not present with settlement classes, and thus those variations are irrelevant to certification of a settlement class.");
102. see also, e.g., In re Pharm. Indus. Average Wholesale Price Litig., 230 F.R.D. 61, 84 (D. Mass. 2005) (citing In re Warfarin Sodium, 391 F.3d at 529);
103. Denney v. Jenkens & Gilchrist, 230 F.R.D. 317, 335 & n.113 (S.D.N.Y. 2005) (citing In re Warfarin Sodium, 391 F.3d at 529), aff'd in part and vacated and remanded in part on other grounds, Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006).
104. 472 U.S. 797 (1985).
105. See sources cited supra note 12.
106. AM. TORT REFORM FOUND., JUDICIAL HELLHOLES 2005, at 9 (2005), available at http://www.atra.org/reports/hellholes/2005/hellholes2005.pdf (stating that one of the factors that makes a jurisdiction a "judicial hellhole" is "improper class certification").
107. Natale v. Pfizer Inc., 379 F. Supp. 2d 161, 166 n.6 (D. Mass. 2005) (citing S. Rep. No. 109-14, reprinted in 2005 U.S.C.C.A.N. 3, 14-15).
108. See supra note 27.
109. See, e.g., Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801 (Ill. 2005) (denying certification of a nationwide class that had sought to apply Illinois law to all claimants); Weintraub, supra note 8, at 895 ("[C]ertification of a national or a multi-state class action is all but impossible in courts applying Texas choice-of-law rules.");
110. see also supra note 22.
111. See Issacharoff & Sharkey, supra note 2, at 1416 n.254.
112. Edward F. Sherman, Introduction to the Symposium: Complex Litigation: Plagued By Concerns Over Federalism, Jurisdiction and Fairness, 37 AKRON L. REV. 589, 599 (2004): [U]nder the present regime class counsel can avoid federal courts in favor of certain "magnet" state courts that have reputations for unfairly applying class certification standards, for imposing their own laws (or their own views of the law) on other states' citizens, and for approving class settlements that primarily benefit class counsel, not class members.
113. Id.
114. (quoting INTERIM REPORT OF THE ABA TASK FORCE ON CLASS ACTION LEGISLATION 4-5 (2002)). On fairness issues in class actions generally,
115. see Coffee, Class Wars, supra note 17.
116. Arthur R. Miller & David Crump, Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts, 96 YALE L.J. 1, 24 (1986) (noting problems with race to judgments stemming from parallel class actions).
117. See supra note 2.
118. Class Action Fairness Act of 2005, Pub. L. No. 109-2, §2(b)(2), 119 Stat. 4.
119. Id. §2(a)(4), 119 Stat. at 4-5.
120. Id. §3(a), 119 Stat. at 5-9.
121. Id. See generally Sheila B. Scheuerman, The Consumer Fraud Class Action: Reining in Abuse by Requiring Plaintiffs to Allege Reliance as an Essential Element, 43 HARV. J. ON LEGIS. 1 (2006).
122. Class Action Fairness Act of 2005, §4(a)(2), 119 Stat. at 9.
123. Id. §4(a)(3H4), 119 Stat. at 9-10.
124. See S. REP. No. 109-14,
125. reprinted in 2005 U.S.C.C.A.N. 3, 5.
126. See AM. TORT REFORM FOUND., supra note 49, at 10 (claiming credit for various "reform effort[s] by pinpointing specific jurisdictions, abuses and solutions").
127. See Geier, supra note 11 (citing Georgine Vairo and Elizabeth Cabraser to suggest that "Congress was five to 10 years too late to address forum-shopping issues that [CAFA] meant to target, because the allegedly plaintiff-friendly 'judicial hellholes,' particularly in Texas and the Gulf states, have reformed dramatically since they were so labeled").
128. 304 U.S. 64 (1938).
129. Miller & Crump, supra note 55, at 78 ("In cases controlled by state law, the proposed [federal jurisdiction] statute could direct the district court itself to determine which state's law should apply rather than relying upon the forum's choice of law principles as is required by current doctrine.").
130. See 151 CONG. REC. S1215-02 (daily ed. Feb. 9, 2005);
131. see also Woolley, supra note 8, at 1749 n.134 (describing the Bingaman-Feinstein compromise amendment, 151 CONG. REC S1157-02 (daily ed. Feb. 9, 2005), that failed to pass).
132. S. REP. NO. 109-14,
133. reprinted in 2005 U.S.C.C.A.N. 3, 49.
134. See supra notes 10-11.
135. See Op-Ed., A Dismal Class-Action Finale, N.Y. TIMES, Feb. 12, 2005, at A16;
136. Sheryl GayStolberg, Bill to Limit Some Suits Falls Victim to Politics, N.Y. TIMES, July 9, 2004, at A13 (describing the interests surrounding the similar Class Action Fairness Act of 2004, which failed to pass);
137. see also Vairo, CAFA, supra note 10, at 1 (suggesting that CAFA was part of "President Bush's tort reform efforts").
138. Of course, such attempts presuppose the desirability of nationwide class actions generally, and there does exist a wide spectrum of viewpoints on even the desirability of class actions at all. However, judicial economy from class actions was one of the primary motivations for codification of Rule 23 in the first place. See Greer Pagan, Comment, Renewed Resistance?: The Federal Circuit Courts and the Problem of Mass Tort Class Actions, 34 HOUS. L. REV. 807, 812 & n.3 (1997) ("The reporter to the Advisory Committee on Civil Rules in 1966 optimistically postulated that the new Rule 23 should bring 'economy of effort and uniformity of result without undue dilution of procedural safeguards.'"
139. (quoting Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 HARV. L. REV. 356, 390 (1967))).
140. Despite criticisms of various potential abuses of the class action device, its propriety in some circumstances, particularly in the "classic" negative-value suit, is hard to deny. See infra Part III.C.
141. Class Action Fairness Act of 2005, Pub. L. No. 109-2, §4(a)(3)-(4), 119 Stat. 4, 9-10.
142. See, e.g., Clark v. TAP Pharm. Prods., Inc., 798 N.E.2d 123 (Ill. App. Ct. 2003);
143. Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 894 A.2d 1136 (N.J. Super. Ct. App. Div. 2006), rev'd on other grounds, 929 A.2d 1076 (N.J. 2007);
144. Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003).
145. See supra Part I.A.
146. See sources cited supra note 16.
147. Issacharoff & Sharkey, supra note 2, at 1419-20.
148. Id.;
149. see also CAFA Panel, supra note 2 (statement of Samuel Issacharoff).
150. Class Action Fairness Act of 2005, Pub. L. No. 109-2, §4(a)(3)-(4), 119 Stat. 4, 9-10.
151. Id.
152. Vairo, CAFA, supra note 10, at 29 ("[T]he count will likely be a point of battle in case after case.");
153. see also, e.g., Schwartz v. Comcast Corp., No. Civ.A. 05-2340, 2006 WL 487915 (E.D. Pa. Feb. 28, 2006) (denying remand to state court because plaintiffs had not shown that at least one-third of class were "citizens" of Pennsylvania).
154. Nancy Morawetz, Underinclusive Class Actions, 71 N.Y.U. L. REV. 402, 414 n.44 ("[I]f the viability of a lawsuit depends on the size of the class, state-by-state litigation may leave residents of smaller states without redress."
155. (citing Miller & Crump, supra note 55, at 71)).
156. The financial incentives for attorneys and parties to bring statewide-only class actions may not be sufficient to justify bringing state-based class actions. See Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 678 (7th Cir. 2001) (acknowledging, in reversing a nationwide certification, that "buyers in a single state may be too few to justify class treatment");
157. see also Rubenstein, supra note 17, at 712;
158. Lindsay Traylor Braunig, Note: Statutory Interpretation in a Choice of Law Context, 80 N.Y.U.L. REV. 1050, 1071 n.87 (2005) ("The smaller the number of people in the class, the less economically attractive the class action is to plaintiffs' lawyers working on a contingent basis."
159. (citing ROBERT H. KLONOFF & EDWARD K.M. BILICH, CLASS ACTIONS AND OTHER MULTI-PARTY LITIGATION 421, 425-26, 676, 687 (2000))).
160. 472 U.S. 797, 821-22 (1985) ("Kansas must have a 'significant contact or significant aggregation of contacts' to the claims asserted by each member of the plaintiff class, contacts 'creating state interests,' in order to ensure that the choice of Kansas law is not arbitrary or unfair."
161. (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981))).
162. Id. at 820-21.
163. Id. at 823 ("We make no effort to determine for ourselves which law must apply to the various transactions involved in this lawsuit, and we reaffirm our observation in Allstate that in many situations a state court may be free to apply one of several choices of law.").
164. Clark v. TAP Pharm. Prods., Inc., 798 N.E.2d 123 (Ill. App. Ct. 2003);
165. Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 894 A.2d 1136 (N.J. Super. Ct. App. Div. 2006), rev'd on other grounds, 929 A.2d 1076 (N.J. 2007);
166. Ysbrand v. DaimlerChrysler Corp., 81 P.3d 618 (Okla. 2003). Of course, another situation where a single state's law could apply is if there is no conflict between the laws of different states, thus obviating the need for a choice-of-law analysis. 19 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE & PROCEDURE §4506, at 8 n.43.1 (Supp. 2007). Where such a result can be attained, then obviously there is no choice-of-law problem in such a class action. However, class action practice in the past has shown that such circumstances without any conflict amongst the laws is often not attainable in class actions arising from state law claims.
167. 81 P.3d at 626;
168. see also Nagareda, Bootstrapping, supra note 8, at 672-73.
169. 798 N.E.2d at 129-31.
170. Id. at 129.
171. 894 A.2d at 1140;
172. see also Cabraser, Manageable, supra note 10, at 559-64 (describing the trial court's Merck decision in detail);
173. Nagareda, Bootstrapping, supra note 8, at 673-75. In reversing the decision in Merck, the New Jersey Supreme Court explicitly refused to rule on the correctness of the choice-of-law decision of the lower courts. Merck, 929 A.2d at 1086 n.3 ("Although defendant advances strong arguments in support of its appeal from the Appellate Division's choice of law analysis, we express no view on the Appellate Division's choice of law reasoning or the result it reached as to the applicability of our law to all members of a nationwide class.").
174. 894 A.2d at 1146; Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., No. ATL-L-3015-03, 2005 WL 2205341, at *23-38 (N.J. Super. Ct. Law Div. July 29, 2005).
175. TAP, 798 N.E.2d at 130 ("Although the plaintiffs are domiciled throughout the country, the defendants' principal places of business are in Illinois. The relationship of the parties, if any, is centered in Illinois, where the [fraud] originated.");
176. Merck, 894 A.2d at 1149 ("New Jersey's interests in this litigation, in our opinion, far outweigh the interests of all other states.");
177. Ysbrand, 81 P.3d at 625 (finding that while all the states represented had some interest in the litigation, Michigan had a greaterinterest than any of the other states).
178. See Nagareda, Bootstrapping, supra note 8, at 675-76;
179. Allison M. Gruenwald, Note, Rethinking Place of Business as Choice of Law in Class Action Lawsuits, 58 VAND. L. REV. 1925 (2005).
180. Moody v. Ford Motor Co., No. 03CV0784-CVE-PJC, 2006 WL 346433, at *3 (N.D. Okla. Feb. 13, 2006).
181. See Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 855 (Ill. 2005);
182. see also Edward H. Cooper, Rewriting Shutts FOR FUN, NOT TO PROFIT, 74 UMKC L. REV. 569, 574 (2006) (describing Avery as an example of "excess corrected").
183. Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 929 A.2d 1076, 1086 n.3 (N.J. 2007);
184. cf. Dal Ponte v. Am. Mortgage Express Corp., No. Civ.A. 04-2152 (JEI), 2006 WL 2403982, at *7 (D.N.J. Aug. 17, 2006) (discussing conflicts issue and citing the trial court decision in Merck approvingly to apply New Jersey law against a New Jersey defendant in class action involving non-New Jersey residents).
185. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995) (criticizing the "Esperanto" jury instruction).
186. In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012, 1020-21 (7th Cir. 2002).
187. Id. at 1015.
188. Id.
189. Id. at 1018
190. (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568-73 (1996)).
191. Id. at 1015, 1018.
192. Id. at 1016.
193. Nagareda, Bootstrapping, supra note 8, at 672-76.
194. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821 (1985).
195. Id.
196. Nagareda, Bootstrapping, supra note 8, at 672-76.
197. Int'l Union of Operating Eng'rs Local No. 68 Welfare Fund v. Merck & Co., 894 A.2d 1136, 148 (N.J. Super. Ct. App. Div. 2006).
198. Shutts, 472 U.S. at 823.
199. Samuel Issacharoff, Getting Beyond Kansas, 74 UMKC L. REV. 613, 621 (2006) [hereinafter Issacharoff, Kansas].
200. Issacharoff, Settled Expectations, supra note 8, at 1863-64 (citing Sun Oil v. Wortman, 486 U.S. 717 (1988)).
201. Shutts, 412 U.S. at 822.
202. See HART & WECHSLER, supra note 5, at 640 (gathering critical commentary on Klaxon);
203. Steven Michael Witzel, Note, Removing the Cloak of Personal Jurisdiction from Choice of Law Analysis: Pendent Jurisdiction and Nationwide Service of Process, 51 FORDHAM L. REV. 127, 164 nn. 199-200 (1982) (same).
204. See sources cited supra note 16.
205. As the Bridgestone/Firestone court emphasized, "No class action is proper unless all litigants are governed by the same legal rules."
206. In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012, 1015 (7th Cir. 2002). Of course, if the federal choice-of-law rule pointed to the defendant's principal place of business as the applicable substantive law, then there would be no problem.
207. See Issacharoff, Settled Expectations, supra note 8, at 1869. Any other federal choice-of-law rule, however, would maintain the same choice-of-law problem that currently exists in certifying nationwide class actions.
208. See In re Copper Antitrust Litig., 436 F.3d 782, 801 (7th Cir. 2006) ("As a result of CAFA, federal courts will inevitably be called upon to interpret and apply state antitrust laws with increased frequency. The effect of the federal court's judgment will be a matter of federal common law." (citing Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001)));
209. cf. id. at 801-02 ("In general, the federal rule will be one borrowed from the state in which the federal court is sitting, unless that state law is 'incompatible with federal interests.'" (quoting Semtek, 531 U.S. at 509)).
210. Issacharoff & Sharkey, supra note 2, at 1420.
211. Id. at 1419.
212. See, e.g., Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 953 n.12 (E.D. Tex. 2000) (certifying a nationwide class-with the approval of expert witnesses including Professors Jack Coffee and Samuel Issacharoff and others, after whose impressive testimony the court could only compare its own opinion as falling "somewhere below a poorly choreographed sock-puppet play" because there was no choice-of-law issue when applying federal substantive law and identical UCC rules).
213. O'Melveny & Myers v. Fed. Deposit Ins. Co., 512 U.S. 79, 87 (1994) (quoting Wheeldin v. Wheeler, 373 U.S. 647, 651 (1963), and Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966)).
214. Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981) (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964)).
215. O'Melveny, 512 U.S. at 87, 89.
216. See Boyle v. United Tech. Corp., 487 U.S. 500, 504 (1988) ("We have held that obligations to and rights of the United States under its contracts are governed exclusively by federal law.");
217. Clearfield Trust Co. v. United States, 318 U.S. 363 (1943).
218. See, e.g., Banco Nacional de Cuba, 376 U.S. at 427 n.25;
219. see also HART & WECHSLER, supra note 5, at 750-55.
220. Class Action Fairness Act of 2005, Pub. L. No. 109-2, §2(a)(1), 119 Stat. 4, 4.
221. See, e.g., United States v. Kimbell Foods, Inc., 440 U.S. 715, 726 (1979) ("Undoubtedly, federal programs that 'by their nature are and must be uniform in character throughout the Nation' necessitate formulation of controlling federal rules."
222. (quoting United States v. Yazell, 382 U.S. 341, 354 (1966))).
223. See Class Action Fairness Act of 2005, §2(a)-(b), 119 Stat, at 4-5;
224. cf. S. REP. NO. 109-14,
225. reprinted in 2005 U.S.C.C.A.N. 3, 24 (criticizing nationwide class actions in state courts as "invitfing] one state court to dictate to 49 others what their laws should be on a particular issue, thereby undermining basic federalism principles").
226. Cf. O'Melveny & Myers v. Fed. Deposit Ins. Co., 512 U.S. 79, 89 (1994)
227. (rejecting "more money" arguments for federal common lawmaking, which attempted to justify federal rules of decision because of the financial advantage it provided for the United States government (citing Kimbell Foods, 440 U.S. at 737-38;
228. Yazell, 382 U.S. at 348)).
229. See Issacharoff & Sharkey, supra note 2, at 1380-82.
230. Henry J. Friendly, In Praise of Erie-and of the New Federal Common Law, 39 N.Y.U. L. REV. 383, 417-18 (1964).
231. See generally Issacharoff, Kansas, supra note 111, at 613.
232. S. REP. NO. 109-14,
233. reprinted in 2005 U.S.C.C.A.N. 3, 49.
234. I am indebted to Professor Thomas H. Lee for this phrase.
235. O'Melveny & Myers v. Fed. Deposit Ins. Co., 512 U.S. 79, 88 (1994) ("Uniformity of law might facilitate the FDICs nationwide litigation of these suits, eliminating state-by-state research and reducing uncertainty-but if the avoidance of those ordinary consequences qualified as an identifiable federal interest, we would be awash in 'federal common-law' rules."
236. (citing United States v. Yazell, 382 U.S. 341, 347 n.13 (1966))).
237. Indeed, since CAFA's passage, some federal courts have suggested, despite the lobbying forces surrounding its enactment, see supra note 71, that CAFA's purpose may actually have been "to protect consumers and society at large" through the class action device.
238. Geier, supra note 11.
239. See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1003-04 (9th Cir. 1987).
240. But see Wyatt v. Syrian Arab Republic, 398 F. Supp. 2d 131, 137 & n.4 (D.D.C 2005) (rejecting, in a similar Foreign Sovereign Immunities Act claim, application of federal common law choice-of-law principles under Harris and instead choosing the choice-of-law principles of the District of Columbia).
241. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (stating that in areas that have been "traditionally occupied" by the states, federal preemption will be found only when there is "clear and manifest purpose of Congress").
242. See In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995);
243. Castano v. Am. Tobacco Co., 84 F.3d 734, 740-41 (5th Cir. 1996).
244. See Richard A. Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 HARV. L. REV. 747, 751 & n.8 (2002) [hereinafter Nagareda, Autonomy] (discussing the concept of "global peace" in class action settlements).
245. See Coffee, Class Wars, supra note 17, at 1351-52;
246. see also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) ("The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights."
247. (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7thCir. 1997))).
248. See Peter H. Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 CORNELL L. REV. 941, 960-63 (1995) (describing the "global settlement" step in mass tort evolution).
249. See supra Part I.A.
250. See, e.g., Rhone-Poulenc, 51 F.3dat 1300;
251. Castano, 84 F.3dat 740-41.
252. See Kenneth S. Abraham, The Maze of Mega-Coverage Litigation, 97 COLUM. L. REV. 2102, 2110-11 (1997).
253. HART & WECHSLER, supra note 5, at 642-43
254. see also Castano, 84 F.3d at 747 (calling them "Erie guesses").
255. In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012, 1016 (7th Cir. 2002);
256. see also Nagareda, Bootstrapping, supra note 8.
257. Castano, 84 F.3d at 747.
258. As one district court put it, in denying certification of a nationwide class, partly because of the difficulty of applying the varying substantive laws of multiple states: Contrary to plaintiffs' suggestion, a federal court faced with uncertain or undeveloped state substantive law may not throw up its hands and simply apply the forum's substantive law with the hope that the two would not conflict. Rather, just to determine whether a conflict (or "false conflict") exists, the court must undertake an analysis of the jurisdiction's substantive decisions - as well as the decisions of other federal and state courts and any other appropriate authority - to predict how the jurisdiction's highest court would rule. Miller v. Gen. Motors Corp., Nos. 98 C 7386, 98 C 2851, 2003 WL 168626, at *3 (N.D. Ill. Jan. 26, 2003).
259. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting);
260. cf. id. (adding that states serve as such laboratories of experimentation "without risk to the rest of the country");
261. Issacharoff & Sharkey, supra note 2, at 1355 ("The question that concerns us is what happens when claims of state sovereignty do pose risks to the rest of the country, when the experiments of democracy within one state's borders have spillover effects that adversely affect citizens of other states.").
262. Nagareda, Autonomy, supra note 140, at 751.
263. If true global peace is indeed accorded, then the only opportunity for state courts to consider the matter will be in subsequent adjudication of the claims of potential opt-outs, discussed infra Part HIB.
264. See Klay v. Humana, Inc., 382 F.3d 1241, 1272 (11th Cir. 2004) (rejecting maturity as "a legitimate consideration in making a 'superiority' determination").
265. Thomas E. Willging, Beyond Maturity: Mass Tort Case Management in the Manual for Complex Litigation, 148 U. PA. L. REV. 2225 (2000) (noting reference to Peter Schuck for the "maturity" concept in mass torts by the MANUAL FOR COMPLEX LITIGATION 3D).
266. Schuck, supra note 142, at 950.
267. Id. at 948-50.
268. Id. at 960-63.
269. See generally Young K. Lee, Note, Beyond Gatekeeping: Class Certification, Judicial Oversight, and the Promotion of Scientific Research in "Immature" Pharmaceutical Torts, 105 COLUM. L. REV. 1905, 1933 & n.170 (2005)
270. (citing Georgine v. Amchem Prods., Inc., 83 F.3d 610, 627 (3d Cir. 1996),
271. and In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1293 (7th Cir. 1995)).
272. This is not to suggest that state courts, in considering nationwide class actions, do not consider legal immaturity equally seriously, but only that the federalism concerns are heightened when the decisionmaking occurs in a federal court sitting in diversity.
273. See 28 U.S.C. § 1407 (2000).
274. HART & WECHSLER, supra note 5, at 642-43.
275. In re Bridgestone/Firestone, Inc., Tires Prids. Litig., 288 F .3d 1012, 1020 (7th Cir. 2002).
276. Id.
277. Id. re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995).
278. Id. at 1294.
279. Id. at 1296.
280. Id. at 1300.
281. Id.
282. Id.
283. See id. at 1300 (seeking "a consensus, or a, least a pooling of judgment, of many differenttribunals" rather than having "the district judge propose[] to substitute a single trial before a single jury instructed in accordance with no actual law of any jurisdiction").
284. 84 F.3d 734 (5th Cir. 1996)
285. Id. at 737.
286. Id. at 747 ("Our specific concern is that a mass tort cannot be properly certified without a prior track record of trials from which the district court can draw the information necessary.").
287. Id. at 748
288. (quoting Rhone-Poulenc, 51 F.3d at 1300).
289. Id. at 748-49
290. (quoting MANUAL FOR COMPLEX LITIGATION § 33.26).
291. Id. at 749.
292. See Id. at 750.
293. See id. at 747 n.25 ("The class is represented by a consortium of well-financed plaintiffs' lawyers who, over time, can develop the expertise and specialized knowledge sufficient to beat the tobacco companies at their own game."
294. (citing Francis E. McGovern, An Analysis of Mass Torts for Judges, 73 TEX. L. REV. 1821, 1834-35 (1995))).
295. See, e.g., In re St. Jude Med., Inc., Silzone Heart Valve Prods. Liab. Litig., 425 F.3d 1116 (8th Cir. 2005) (products liability regarding recalled prosthetic heart valves);
296. In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 288 F.3d 1012 (7th Cir. 2002) (consumer claims from owners of SUVs and tires with a high rate of failure that had not yet failed);
297. In re Prempro Prods. Liab. Litig., 230 F.R.D. 555 (E.D. Ark. 2005) (consumer fraud action involving prescription drugs);
298. Pastor v. State Farm Mut. Auto. Ins. Co., No. 05 C 1459, 2005 WL 2453900 (N.D. Ill. Sept. 30, 2005) (breach of insurance contracts);
299. In re Trans Union Corp. Privacy Litig., 211 F.R.D. 328, 344 (N.D. Ill. 2002) (invasion of privacy against consumer reporting agency).
300. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995);
301. Castano v. Am. Tobacco Co., 84 F.3d 734, 740-41 (5th Cir. 1996).
302. One exception, however, is found in the Agent Orange litigation, where an immature tort was certified despite uncertainty in choice-of-law, by assuming a "national consensus law" upon which all states would agree. See In re "Agent Orange" Prod. Liab. Litig., 580 F. Supp. 690, 696-97 (E.D.N.Y. 1984).
303. The special circumstance of military personnel and the uniqueness of the military contractor defense probably contributed to this exceptional result, however. See In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 145, 166 (2d Cir. 1987).
304. See Lee, supra note 158, at 1923-24.
305. Indeed, the large claim values of the underlying claims was one of the reasons that the Castano court found the class action mechanism to be not necessarily superior to individual adjudication. See Castano, 84 F.3d at 748;
306. see also infra Part III.C.
307. See supra Part II.A.
308. Maturity could even defeat statewide class actions, of course, see, e.g., Emig v. Am. Tobacco Co., 184 F.R.D. 379 (D. Kan. 1998), but due to the high dollar value of each claim, plaintiffs could still have an opportunity to bring their cases individually. Regardless, at the very least, it would give individual states an opportunity to develop their own law before being entirely displaced by federal courts.
309. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
310. In the mass tort context, such maturity has most likely been reached in cases involving asbestos and the Dalkon Shield. Currently, the ongoing individual litigation throughout the nation onVioxx may also potentially lead to sufficient maturation for an eventual, successful class action law suit. See Alex Berenson, Merck Loses Vioxx Suit in Texas, N.Y. TIMES, Apr. 22, 2006, at C1.
311. Recently, however, Merck has announced a settlement in the Vioxx litigation, suggesting that further maturation is unlikely. Alex Berenson, Merck Agrees to Settle Vioxx Suits for $4.85 Billion, N.Y. TIMES, Nov. 9. 2007, at A1.
312. See, e.g., In re Asbestos Prods. Liability Litig., 771 F. Supp. 415, 419 (J.P.M.L. 1991) (discussing problems in asbestos litigation such as "dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether"
313. (quoting REPORT OF THE JUDICIAL CONFERENCE AD HOC COMMITTEE ON ASBESTOS LITIGATION, 1-3 (1991)));
314. STEPHEN J. CARROLL ET AL., RAND INST, FOR CIVIL JUSTICE, ASBESTOS LITIGATION COSTS AND COMPENSATION: AN INTERIM REPORT 71 (2002).
315. FED. R. CIV. P. 23(c)(2)(B) (stating that class action notice must inform that "the court will exclude from the class any member who requests exclusion").
316. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 615 (1997).
317. See, e.g., Ins. Co. of N. Am. v. ABB Power Generation, Inc., 690 N.E.2d 1249, 1249 (N.Y. 1997) (declining to adopt the Second Circuit's interpretation of New York law);
318. see also Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 ARIZ. ST. L.J. 113, 240 n.444 (2002) ("[Federal] decisions on the meaning of state law do not bind the state courts and, indeed, rarely are cited by them.");
319. Nikiforos Mathews, Note, Circuit Court Erie Errors and the District Court's Dilemma: From Roto-Lith and the Mirror Image Rule to Octagon Gas and Asset Securitization, 17 CARDOZO L. REV. 739, 739 & n.4 (1996) ("[I]t is clear that a state court is not bound by a federal prediction . . . .").
320. Swift v. Tyson, 41 U.S. 1 (1842).
321. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
322. Id. at 74-75.
323. Once federal courts have developed a uniform national law which it applies in nationwide classes involving novel issues, the idea is that state courts will subsequently look to those federal decisions for guidance when later confronted with similar issues, thus leading to federal common law applicable in both federal and state courts. CAFA Panel, supra note 2 (statement of Samuel Issacharoff).
324. See supra note 190.
325. 41 U.S. 1.
326. See FED. R. CIV. P. 23(a)(4);
327. see also, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
328. See Coffee, Exit, supra note 19.
329. See supra Part III.A.
330. See Henry Paul Monaghan, Antisuit Injunctions and Preclusion Against Absent Nonresident Class Members, 98 COLUM. L. REV. 1148, 1182 (1998) (suggesting collateral attacks of judgments based on inadequate representation);
331. see also Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir. 2001), aff d in part and vacated in part on other grounds, 539 U.S. 111 (2003).
332. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995)
333. See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997);
334. Klay v. Humana, Inc., 382 F.3d 1241, 1270-72 (11th Cir. 2004).
335. See Coffee, Class Wars, supra note 17, at 1351-52;
336. Rubenstein, supra note 17, at 712.
337. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).
338. See generally Monaghan, supra note 200.
339. Amchem, 521 U.S. at 615.
340. 28 U.S.C. § 1332(a) (2000). There has been some suggestion that the Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005),
341. may have made obsolete CAFA's jurisdictional amount reform, since Exxon Mobil provides supplemental jurisdiction for other class members as long as one named plaintiff can satisfy the $75,000 jurisdictional amount.
342. See Coffee, New World, supra note 2. However, since even Exxon Mobil requires one plaintiff to satisfy $75,000, plaintiff classes would still need CAFA in the most classic scenario, where none of the claimants would individually meet the jurisdictional amount. Obviously, there is no jurisdictional amount requirement if the claim arises under a federal question.
343. See 28 U.S.C. § 1331 (2000).
344. Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 4(a)(2)(d)(2), 119 Stat. 4, 9.
345. 382 F.3d 1241, 1270 (11th Cir. 2004).
346. Id. at 1272.
347. Castano v. Am. Tobacco Co., 84 F.3d 734, 748 (5th Cir. 1996).
348. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995).
349. See, e.g., In re Seagate Tech. II Sec. Litig., 843 F. Supp. 1341 (N.D. Cal. 1994) (including the factor of "small claims" as a consideration in superiority analysis);
350. Edwards v. Long Beach Mortgage Co., Nos. CT 02-16446, CT 03-1282, 2003 WL 22176087 (Minn. Dist. Ct. Sept. 16, 2003) (same).
351. See supra Part II.A.
352. See supra Part II.B.
353. See supra Part III.B.
354. Issacharoff, Settled Expectations, supra note 8, at 1871 ("There is the risk that home state defendants will urge the passage of consumer unfriendly laws, turning every state into a variant of Delaware or South Dakota in terms of sheltering favored industries.").
355. See supra Part II.C.
356. Issacharoff, Settled Expectations, supra note 8, at 1870.
357. See supra Part III.A.
358. See Grier, supra note 11.
359. Issacharoff & Sharkey, supra note 2, at 1419.
360. S. REP. NO. 109-14,
361. reprinted in 2005 U.S.C.C.A.N. 3, 49.
362. See supra Part II.A.
363. See supra Part II.B.
364. See supra Part II.C.
365. See supra Part III.A.